Orissa High Court
A. Kokan Rao vs The State on 19 January, 1998
Equivalent citations: 1998(2)ALT(CRI)9, 1998CRILJ1898
Author: P.K. Mohanty
Bench: P.K. Mohanty
ORDER P.K. Mohanty, J.
1. Heard learned counsel for the petitioner and the learned Addl. Standing Counsel.
2. Petitioner being an accused in G. R. Case No. 10000 of 1997 of the Court of Sub-divisional Judicial Magistrate, Bcrhampur (in short, 'S.D.J.M.') for the offences under Sections 224/120B/34 of the Indian Penal Code (in short 'I.P.C.') was allowed to go on bail by the learned Sessions Judge, Berhampur as per order dated 22-11-1997 in Criminal Misc. Case No. 1095 of 1997 which is impugned in the application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code'). The Sessions Judge ordered that the offences being bailable and the petitioner being willing to go on bail, he may be released on furnishing bail bond for Rs. 10,000/- (rupees ten thousand) with two local solvent sureties for the like amount to the satisfaction of the S.D.J.M. Learned counsel for the petitioner argued that the amount fixed and number of sureties demanded is an higher side and it is as good as refusal of bail to the petitioner inasmuch as he is not in a position to satisfy the conditions. He further argued that keeping in view the nature and gravity of the offences the petitioner should have been allowed to be released on furnishing a P. R. bond or a surety amount which the petitioner can afford. In support of the contentions he has relied upon a decision of the Apex Court.
3. Learned Addl. Standing Counsel conceded to the aforesaid argument.
4. It is not disputed at the Bar that, to secure the ends of justice, in a case of this nature inherent power can be invoked under Section 482 of the Code. It is to be seen whether the facts stated requires exercising such power in favour of the petitioner.
5. In their wisdom and keeping in view the nature and gravity of the offences, the legislators have classified the offences as bailable and non-bailable and accordingly it is noted in the First Schedule of the Code under Column No. 5. In this case, admittedly the offences alleged are bailable. Chapter XXXIII of the Code prescribes 'Provision as to Bail and Bonds' Section 436 of the Code deal with the matter relating to bail other than non-bailable offence. In other words it deal with the matter relating to bail of bailable offences. Language used in Sub-section (1) of Section 436, makes it obligatory to release a person accused of bailable offence on his personal bond or bail furnished in terms of the order in the event he is willing to go on bail.
6. Section 440 of the Code provides that the amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive. Thus, it is desirable that the amount of bond should be fixed with due regard to means of the accused and the nature and gravity of the offence.
7. In the case of Kcshab Narayan Banerjee v. The State of Bihar AIR 1985 SC 1666: 1985 Cri LJ 1857 while considering correctness of the order in fixing the bail amount at cash security of rupees one lakh or in fixed deposit of rupees two lakhs in any Nationalised Bank in Bihar with two sureties residing in the State of Bihar each for a like amount, it was held by the Apex Court that "in the circumstances of this case, it virtually amounts to denial of Bail itself" and the amount was reduced to Rs. 25,000/- (rupees twenty five thousand) with two sureties each for the like amount to the satisfaction of the learned Special Judge.
8. Keeping in view the aforesaid facts and circumstance, the offences alleged, the position of law and the impugned order besides the contention of the learned counsel for the petitioner that the petitioner is an unemployed youth, it is found that the bail amount and number of sureties fixed by learned Sessions Judge is undoubtedly excessive and it amounts to as good as refusal of the prayer for bail. Thus, it is a fit case where the inherent power under Section 482 of the Code is invoked for the ends of justice and accordingly the bail amount is reduced to Rs. 5,000/- (rupees five thousand) with one solvent surety for the like amount to the satisfaction of the S.D.J.M. However, the S.D.J.M. is at liberty to impose any other suitable condition, if necessary.
9. The Criminal Misc. case is disposed of accordingly.