Orissa High Court
Sudhir Kumr Singh vs State Of Orissa And Anr. on 18 May, 1994
Equivalent citations: 1994(II)OLR308
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Petitioner seeks cancellation of bail granted to Anirudha Singh (opp. party No. 2) by learned Judicial Magistrate, First Class, Salipur (in short, "JMFC').
2. Case of the petitioner, in short, is as follows :
On 8-4-1993 the Class Teacher of Class IX of Lalitagiri High School found Bidulata Singh, daughter of the petitioner missing from school. Since her whereabouts could not be known, petitioner was informed. He searched for his daughter and it was revealed from Bidulata's classmate Mamata Maharana, that while Bidulata was sitting in the class, Anirudha called her and she was taken against her will in a scooter bearing registration No. OR-04-2747 at about 7 40 a. m. Petitioner searched the nearby areas, but having failed to find her lodged a report at Mahanga Police Station at about 10 p m. It was alleged that an offence punishable under Section 363 of the Indian Penal Code, 1860 (in short, 'IPC' ) has been committed. G R. Case No. 242 of 1993 was registered before learned JMFC. Bidulata was recovered by police on 2-5-1993, and was examined by a doctor of S. C. B. Medical College Hospital, Cuttack on 4-6-1993. At the instance of police, she was produced before learned JMFC, Salipur, who recorded her statement that she was thirteen years of age at the time of occurrence and she was taken forcibly by Anirudha (opp. party No. 2) and one Anirudha Bhuyan, who had kept her confined in the house of their friend Prafulla Sahoo. She stated that she was willing to accompany her father. Accused Anirudha Singh surrendered before learned JMFC on 14-5-1993, and moved for bail. He was released on bail of Rs. 5,000/- with one surety. Though objection was raised by the Asst. Public Prosecutor and the case-dairy was not available, yet the prayer for bail was accepted.
On 21.5-1993 Anirudha Singh (opp. party No. 2) came to the house of the petitioner, abused him and his brother Sushil in filthy language and threatened to assault them by deadly weapons. He was accompanied by two other persons. Subsequently again on 8-6-1993 six persons including Anirudha Singh, Anirudha Bhuyan and Pravakar Parida dragged the petitioner, and abused him in filthy language and threatened to take away his life in case he did not withdraw the case. Information on each occasion was given at Mahanga Police Station. No action was taken by the Police to get the bail granted to Anirudha Singh cancelled though he misused the liberty granted to him. Anirudha Singh (opp. party No. 2) has filed a counter affidavit denying the allegations.
3. Main plank of argument advanced by the learned counsel for petitioner is that action of learned JMFC in granting bail is improper as non-bailable offence was involved, and without referring to the case-diary and in spite of objection raised by the learned APP. bail should not have been granted. Additionally it is submitted that accused Anirudha Singh having misused the liberty granted to him while on bail, should be taken back to custody.
4. In the counter affidavit it is alleged that the alleged offence being under Section 363, IPC which is bailable in nature, learned JMFC was justified in accepting the prayer for bail. Additionally it is submitted that Anirudha Singh (opp party No. 2) had neither threatened nor abused the informant-petitioner and/or his brother and the present application has been filed with oblique motive. On instruction the learned counsel for State submitted that a station diary entry has been made in respect of allegations of the informant.
5. From the records I find that learned JMFC has proceeded on the basis that accused Anirudha Singh allegedly committed an offence punishable under Section 363, IPC. This is evident from the first- information-report as lodged. Undisputedly Sec, 363 is bailable. What is the nature of offence committed is a matter for trial. It is accepted that charge-sheet has been submitted charging Anirudha Singh for having committed an offence punishable under Section 363, IPC. Whether Anirudha has committed any offence, and if so what would be the appropriate provision is a matter for trial. I do not express any opinion in that regard.
6. The further question is whether bail granted is to be cancelled. It is trite law that where a person who is arrested is not accused of a non-bailable offence, no needless impediments should be placed in the way of his being admitted to bait. Section 436, Code of Criminal Procedure, 1973 (in short, 'Cr PC') is imperative in nature. Court granting bail or Court of Session has no power to cancel bail though such powers are vested under Sub-section (5) of Section 437 on such Courts in respect of non-bailable offences. Under Sub-section (2) of Section 439 also a Court of Session or High Court has power to direct an accused who has been released on bail under Chapter XXXIII to be arrested and also committed to custody. The only power somewhat akin to cancellation of bail is provided under Sub-section (2) of Section 436, where it has been prescribed that notwithstanding anything contained in Sub-section (1) of the said section relating to grant of bail, where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody, and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under Sections 446. Sub-section (2) has been enacted with a view that a person who has failed to comply with the conditions of the bail-bond when he was released on bail in a bailable case on a previous occasion, shall not be entitled to bail when brought on any subsequent date even though the offence may be bailable. The CrPC makes no expression provision for the cancellation of bail granted under Section 436. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction springs from the overriding inherent powers of the High Court and can be invoked in exceptional cases only, when it is satisfied that the ends of Justice will be defeated unless the accused is committed to custody. This inherent power of the High Court exists and is preserved by Section 482 of the CrPC. There is no inherent power available to be exercised by any subordinate Criminal Court for cancellation of bail granted under Section 436. CrPC. This power is available exclusively to the High Court. under Section 482, the High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case, such power can be exercised in the interest of justice. As a fair trial is the main objective of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured, and this can be done, if necessary, by the exercise of inherent power. The position has been succinctly indicated by the Supreme Court in Talab Haji Hussain v. Madhukar Purashottam Mondkar and Anr., AIR 1958 SC 376, The effect of the order passed under Section 482 would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a Crimininal Court of competent jurisdiction. Where a person is committed to custody under such an order, it would not be open to him to fall back upon his rights under Section 436, for the said section would in such circumstances be in applicable to his case. Inherent power conferred on High Courts under Sec 482 has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.
The principles in relation te exercise of inherent power of the High Court under Section 482, CrPC are :
(i) The power is to be exercised 'ex debito justiae' to do the real and substantial justice. Such powers do not confer any arbitrary jurisdiction on the High Court to act according to its whim or caprice ;
(ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(iii) That the power is not to be resorted to it there is a specific provision in the CrPC for redress of the grievance of the aggrieved party ;
(iv) That it should not be exercised as against the express bar of law engrafted in any other provisions of the CrPC.
7. It is obvious that under Section 482, CrPC inherent power can be exercised only for either of the three purposes specifically mentioned in the section. That is, where it is necessary (i) to give effect to an order under the CrPC ; (ii) to prevent abuse of the process of the Court; and (iii) to otherwise secure the ends of justice. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the CrPC. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the CrPC. It is only where the matter in question is not covered by any specific provisions of the CrPC, that Section 432 can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the section. Though the powers possessed by the High Court are very wide, but the very plcitude of the power requires from the Court great caution in the exercise of it.
8. In the case at hand threat appears to have been given to the informant, who is no other than the father of the victim girl, and his brother. Normally such persons are not likely to be gained over. But, when fear of life is put to a person, he may detract from the path of justice. The last allegation was made on 9-6-1993. At least a year has passed in the meantime. It is accepted by the learned counsel for the parties that charge-sheet has been submitted. Thereforef while prayer for cancellation is not accepted, Anirudha Singh (opp. party No. 2) is cautioned that if any further allegation of intimidation or misuse of liberty is made and substantiated, a serious view shall be taken. The application is accordingly disposed of. Trial be expedited.