Orissa High Court
Mandakini Jema And Another vs State Of Orissa ............ Opp. Party on 14 December, 2010
Author: I.Mahanty
Bench: Indrajit Mahanty
THE HIGH COURT OF ORISSA : CUTTACK
CRLMC NO.3177 OF 2010
In the matter of an application under Section 482 of the Code of
Criminal Procedure, 1973.
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Mandakini Jema and another ........... Petitioners
-Versus-
State of Orissa ............ Opp. Party
For Petitioners : M/s. Yeeshan Mohanty (Sr.Adv.)
P.C.Biswal, S.N.Mishra,
S.K.Behera, B.P.Das,
B.C.Nayak & S.Mohapatra.
For Opp. Party : Mr.A.K.Mishra,
(Additional Government Advocate)
PRESENT:
THE HON'BLE MR. JUSTICE INDRAJIT MAHANTY.
Decided on: 14.12.2010
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I.Mahanty, J.In the present application under Section 482 of the Code of Criminal Procedure, a prayer has been made seeking to quash the order of cognizance dated 9.3.2010 passed by the learned J.M.F.C., Chandikhol in G.R. Case No.309 of 2009.
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2. Mr. Mohanty, learned Senior Counsel appearing for the petitioner fairly submits that the present application is filed essentially due to the apprehension in the mind of the petitioners that although they have been granted anticipatory bail by this Court in BLAPL Nos. 5870 of 2009 and 6113 of 2009 vide order dated 27.4.2009 and 13.5.2009 respectively and thereafter, have been released on bail by the police. As a consequence of the impugned order of cognizance and the charge-sheet have been submitted and summons have been issued by the learned J.M.F.C. for appearance of the petitioners, the petitioners apprehend arrest and/or being remanded to judicial custody especially, since the offences complained of are triable by the Court of Sessions.
3. In course of argument, reliance was placed by the learned Senior Counsel for the petitioner on a latest judgment of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others passed in Criminal Appeal No.2271 of 2010 vide order dated 2.12.2010 (copy of which has been downloaded by the NIC) and produced before this Court for perusal. The Hon'ble Supreme Court in a Bench presided by Hon'ble Mr. Justice Dalveer Bhandari, considering the scope and ambit of Section 438 Cr.P.C., 1973 placed reliance on an earlier Constitution Bench judgment rendered by the Hon'ble Supreme Court in the case of Gurbaksh Singh Sibbia and 3 others v. State of Punjab, (1980) 2 SCC 565 and came to hold as follows:
(Paragraph-101) " xxx xxx The bail granted by the court should ordinarily be continued till the trial of the case."
4. In Paragraphs-111 & 112 of the aforesaid judgment, the Hon'ble Supreme Court came to hold that the grant of bail for a limited period is contrary to the legislative intention and law which has been declared by a Constitution Bench as well as the direction issued in certain judgments of the Apex Court of lesser forum. An accused released on anticipatory bail must surrender himself to custody and only thereafter can apply for regular bail, was held to be contrary to the basic intention and spirit of Section 438 Cr.P.C. It is also contrary to Article 21 of the Constitution of India. Their Lordships further concluded that directing the accused to surrender to custody after the limited period amounts to deprivation of his personal liberty.
5. In Paragraph-117, Their Lordships after reviewing the earlier judgments of the Hon'ble Supreme Court considered the view that "once the anticipatory bail is granted then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or 4 circumstances or on the ground of abuse of the indulgence by the accused.
Apart from the above, the Hon'ble Supreme Court in the aforesaid case came to conclude in Paragraph-134 that declaration of law laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of Gurbaksh Singh Sibbia (supra), it would not be proper to limit the life of anticipatory bail and in view of the clear declaration of the law by the Constitutional Bench the life under section 438 Cr.P.C. granting bail cannot be curtailed.
6. In the present case, anticipatory bail granted to the petitioner in the aforementioned orders dated 27.4.2009 and 13.5.2009 does not contain any stipulation regarding any time limit for the period for which the said order has been passed, therefore, the same has to be considered to be one which continues without any limitation of time, subject to of course to the circumstances as taken note of by the Hon'ble Supreme Court in the aforesaid judgment.
7. In view of the aforesaid facts, I am of the considered view that the apprehension expressed by Sri Mohanty, learned Senior Counsel appearing for the petitioners that there is likelihood of being arrest after their appearance before the learned J.M.F.C. has no basis since the judgment of the Hon'ble Supreme Court referred hereinabove is clear in the aforesaid regards.
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8. Therefore, while I am not inclined to entertain the challenge made in the present application to the order of cognizance, the CRLMC is disposed of in terms of the observations made hereinabove. Misc. Case Nos.2239 & 2335 of 2010 are also disposed of accordingly.
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I.Mahanty, J.
ORISSA HIGH COURT; CUTTACK 14th December, 2010/ RKS.