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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.      750       OF     2012   (Arising out of S.L.P. (Criminal) No. 7281 of 2011

Rashmi Rekha Thatoi & Anr.        ... Appellants

Versus

State of Orissa & Ors.        ... Respondents

WITH

CRIMINAL     APPEAL     NO.      751       OF     2012   (Arising out of S.L.P. (Criminal) No. 7286 of 2011

J     U     D     G     M     E     N     T       

Dipak     Misra,     J.   

Leave granted in both the petitions.

2. “Liberty is to the collective body, what health is to every  

individual body. Without health no pleasure can be tasted by  

man; without Liberty, no happiness can be enjoyed by society.”

Thus spoke Bolingbroke.

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3. Liberty is the precious possession of the human soul. No  

one would barter it for all the tea in China.  Not for nothing  

Patrick Henry thundered:

"Is life so dear, or peace so sweet, as to be  purchased at the price of chains and slavery?  Forbid it, Almighty God ! I know not what course  others may take, but as for me, give me liberty,  or give me death !"

The thought of losing one's liberty immediately brings in a  

feeling of fear, a shiver in the spine, an anguish of terrible  

trauma, an uncontrollable agony, a penetrating nightmarish  

perplexity and above all a sense of vacuum withering the very  

essence of existence. It is because liberty is deep as eternity and  

deprivation of it, infernal. May be for this protectors of liberty  

ask, "How acquisition of entire wealth of the world would be of  

any consequence if one's soul is lost?" It has been quite often  

said that life without liberty is eyes without vision, ears without  

hearing power and mind without coherent thinking faculty.

4. Almost two centuries and a decade back thus spoke  

Edmund Burke: -

“Men are qualified for civil liberty, in exact  proportion to their disposition to put moral  chains upon their own appetites; in  proportion as their love to justice is above  their rapacity; in proportion as their  soundness and sobriety of understanding is

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above their vanity and presumption; in  proportion as they are more disposed to listen  to the counsel of the wise and good, in  preference to the flattery of knaves. Society  cannot exist unless a controlling power upon  will and appetite be placed somewhere and  the less of it there is within, the more there  must be without. It is ordained in the eternal  constitution of things that men of  intemperate minds cannot be free. Their  passions forge their fetters.”

5. Similar voice was echoed by E. Barrett Prettyman, a retired  

Chief Judge of U.S. Court of Appeals:-

“In an ordered society of mankind there is no  such thing as unrestricted liberty, either of  nations or of individuals. Liberty itself is the  product restraints; it is inherently a composite  of restraints; it dies when restraints are  withdrawn. Freedom, I say, is not an absence  of restraints; it is a composite of restraints.  There is no liberty without order. There is no  order without systematized restraint.  Restraints are the substance without which  liberty does not exist. They are the essence of  liberty. The great problem of the democratic  process is not to strip men of restraints  merely because 'they are restraints. The great  problem is to design a system of restraints  which will nurture the maximum development  of man's capabilities, not in a massive globe of  faceless animations but as a perfect  realization, of each separate human mind,  soul and body; not in mute, motionless  meditation but in flashing, thrashing activity.”

6. Keeping the cherished idea of liberty in mind, the fathers of  

our Constitution engrafted in its Preamble: "Liberty of thought,  

expression, belief, faith and worship." After a lot of debate in the

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Constituent Assembly, Article 21 of the Constitution came into  

existence in the present form laying down in categorical terms  

that no person shall be deprived of his life and personal liberty  

except according to the procedure established by law.  

7. We have begun with the aforesaid prologue, as the seminal  

question that falls for consideration in these appeals is whether  

the High Court, despite the value attached to the concept of  

liberty, could afford to vaporise the statutory mandate enshrined  

under Section 438 of the Code of Criminal Procedure (for short  

‘the Code’).  It is not to be forgotten that liberty is not an absolute  

abstract concept.  True it is, individual liberty is a very significant  

aspect of human existence but it has to be guided and governed  

by law.  Liberty is to be sustained and achieved when it sought to  

be taken away by permissible legal parameters.  A court of law is  

required to be guided by the defined jurisdiction and not deal  

with matters being in the realm of sympathy or fancy.

8. Presently to the narration.  In these two appeals arising out  

of SLP No. 7281 of 2011 and 7286 of 2011, the challenge is to the  

orders dated 22.07.2011 and 05.08.2011 in BLAPL No. 13036 of  

2011 and 12975 of 2011 respectively passed by the High Court of  

Judicature of Orissa at Cuttack in respect of five accused

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persons under Section 438 of the Code pertaining to offences  

punishable under Section 341/294/506 and 302 read with  

Section 34 of the Indian Penal Code (for short “the IPC”) in  

connection with Binjharpur PS Case No. 88/2011 corresponding  

to GR Case No. 343 of 2011 pending in the Court of learned  

SDJM, Jajpur.    

9. The present appeals have been preferred by the sister of the  

deceased and the complainant, an eye witness, seeking quashing  

of the orders on the foundation that the High Court has extended  

the benefit of Section 438 (1) of the Code in an illegal and  

impermissible manner.   

10. The facts that had formed the bedrock in setting the  

criminal law in motion need not be stated, for the nature of  

orders passed by High Court in both the cases have their own  

peculiarity.  If we allow ourselves to say they have the enormous  

potentiality to create colossal puzzlement as regards the exercise  

of power under Section 438 of the Code.    

11. While dealing with the case of accused Uttam Das and  

Ranjit Das, vide order dated 22.07.2011 the High Court, as  

stated, perused the case file and passed the following order.    

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“Considering the facts and circumstances of  the case and the materials available on record,  this Court is not inclined to grant anticipatory  bail to the petitioners.  This     court     directs     that    if     petitioner     No.     1     Uttam     Das     surrenders     before    the     learned     S.D.J.M.,     Jajpur     and     moves     an    application     for     bail     in     the     aforesaid     case,     in    such     event     the     learned     S.D.J.M.     shall     release    him     on     bail     on     such     terms     and     conditions     as    he     may     deem     fit     and     proper  .   

So far as petitioner No. 2 Ranjit Das is  concerned, this court directs him to surrender  before the learned S.D.J.M., Jajpur and move  an application for bail in connection with the  aforesaid case, in such event his application  shall be considered by the learned S.D.J.M.,  on its own merits.  

The Bail Application is accordingly  disposed of.”

[Underlining is ours]

12. In the case of the other accused persons, namely,  

Abhimanyu Das, Murlidhar Patra and Bhagu Das the High Court  

on 05.08.2011  passed the order on following terms.  

“Considering the facts and circumstances  of the case this Court is not inclined to grant  anticipatory bail to the petitioners.  Since there  are some materials against Bhagu Das @  Sanjit Kumar Das petitioner No. 3, this Court  directs that in case petitioner No. 3 surrenders  before the leaned S.D.J.M., Jajpur and moves  an application for bail, the learned S.D.J.M.  shall consider and dispose of the same on its  own merit in accordance with law.

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So     far     as     the     prayer     for     bail     of     petitioner    Nos.     1     and     2     is     concerned     since     one     of     the     co-   accused     namely,     Uttam     Das     has     been     released    on     bail     in     pursuance     of     order     dated    02.07.2011     passed     by     this     Court     in     BLAPL     No.    13036     of     2011     and     petitioner     Nos.     1     and     2    stands     on     similar     footing     with     co-accused    Uttam     Das,     this     Court     directs     that     in     case    petitioner     Nos.     1     and     2     surrender     before     the    learned     S.D.J.M.,     Jajpur     and     move     an    application     for     bail,     the     learned     S.D.J.M.,     shall    release     them     on     bail     on     such     terms     and    conditions     as     he     may     deem     fit     and     proper     with    further     condition     that     petitioner     Nos.     1     and     2    shall     give     an     undertaking     before     the     Court    below     that     they     will     not     commit     any     similar    type     of     offence  .  In case any complaint is  received against them that will amount to  cancellation of bail”

[Emphasis supplied]

13. On a perusal of both the orders it is perceivable that the  

commonality in both the orders is that while the High Court had  

expressed its opinion that though it is not inclined to grant  

anticipatory bail to the petitioners yet it has directed on their  

surrender  some of the accused petitioners would be enlarged on  

bail on such terms and conditions as may be deemed fit and  

proper by the concerned Sub Divisional Judicial Magistrate and  

cases of certain accused persons on surrender shall be dealt with  

on their own merits.  

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14. The learned counsel for the petitioner has contended that  

the High Court has gravely flawed in passing such kind of orders  

in exercise of power under Section 438 of the Code which the law  

does not countenance and, therefore, they deserved to be  

lancinated.   It is his further submission that when the accused  

persons are involved in such serious offences the High Court  

could not have dealt with them by taking recourse to an  

innovative method which has no sanction in law.   

15. The learned counsel for the respondent made a very feeble  

attempt to support the orders.   

16. The pivotal issue that emanates for consideration is whether  

the orders passed by the High Court are legitimately acceptable  

and legally sustainable within the ambit and sweep of Section  

438 of the Code.  To appreciate the defensibility of the order it is  

condign to refer to Section 438 of the Code which reads as  

follows.  

“438. Direction for grant of bail to person  apprehending arrest.--(1) Where any person has  reason to believe that he may be arrested on  accusation of having committed a non-bailable  offence, he may apply to the High Court or the  Court of Session for a direction under this section  that in the event of such arrest he shall be  released on bail; and that Court may, after taking

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into consideration, inter alia, the following  factors, namely:-   

(i) the nature and gravity of the accusation;   (ii) the antecedents of the applicant  including the fact as to whether he has  previously undergone imprisonment on  conviction by a Court in respect of any  cognizable offence;   (iii) the possibility of the applicant to flee  from justice; and   (iv) where the accusation has been made  with the object of injuring or humiliating the  applicant by having him so arrested,   

either reject the application forthwith or issue an  interim order for the grant of anticipatory bail:   Provided that, where the High Court or, as the  case may be, the Court of Session, has not  passed any interim order under this sub-section  or has rejected the application for grant of  anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without  warrant the applicant on the basis of the  accusation apprehended in such application.   (1A) Where the Court grants an interim order  under sub-section (1), it shall forthwith cause a  notice being not less than seven days notice,  together with a copy of such order to be served on  the Public Prosecutor and the Superintendent of  Police, with a view to give the Public Prosecutor a  reasonable opportunity of being heard when the  application shall be finally heard by the Court.   (1B) The presence of the applicant seeking  anticipatory bail shall be obligatory at the time of  final hearing of the application and passing of

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final order by the Court, if on an application  made to it by the Public Prosecutor, the Court  considers such presence necessary in the interest  of justice.   (2) When the High Court or the Court of Session  makes a direction under sub-section (1), it may  include such conditions in such directions in the  light of the facts of the particular case, as it may  thinks fit, including -   

(i) a condition that the person shall make  himself available for interrogation by a  police officer as and when required;   (ii) a condition that the person shall not,  directly or indirectly, make any inducement,  threat or promise to any person acquainted  with the facts of the case so as to dissuade  him from disclosing such facts to the court  or to any police officer;   (iii) a condition that the person shall not  leave India without the previous permission  of the court;   (iv) such other condition as may be imposed  under sub-section (3) of section 437, as if  the bail were granted -under that section.

 (3) If such person is thereafter arrested without  warrant by an officer in charge of a police station  on such accusation, and is prepared either at the  time of arrest or at any time while in the custody  of such officer to give bail, he shall be released on  bail, and if a Magistrate taking cognizance of  such offence decides that a warrant should issue  in the first instance against that person, he shall  issue a bailable warrant in conformity with the  direction of the court under sub-section (1).”  

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17. The aforesaid provision in its denotative compass and  

connotative expanse enables one to apply and submit an  

application for bail where one anticipates his arrest in a non-

bailable offence.   Though the provision does not use the  

expression anticipatory bail, yet the same has come in vogue by  

general usage and also has gained acceptation in the legal world.  

18. The Constitution Bench in Gurbaksh Singh Sibbia etc. v.  

The State of Punjab1, has drawn a distinction between an order  

of ordinary bail and order of anticipatory bail by stating that the  

former is granted when the accused is in custody and, therefore,  

means release from the custody of the Police, and the latter is  

granted in anticipation of arrest and hence, effective at the very  

moment of arrest.   It has been held therein, an order of  

anticipatory bail constitutes, so to say, an insurance against  

Police custody falling upon arrest for offences in respect of which  

the order is issued.  Their Lordships clarifying the distinction  

have observed that unlike a post-arrest order of bail, it is a pre-

arrest legal process which directs that if the person in whose  

favour it is issued is thereafter arrested on the accusation in  

1 AIR 1980 SC 1632

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respect of which the direction is issued, he shall be released on  

bail.   

19. The Constitution Bench partly accepted the verdict in  

Balchand Jain v State of Madhya Pradesh2 by stating as  

follows:-  

“We agree, with respect, that the power conferred  by S. 438 is of an extraordinary character in the  sense indicated above, namely, that it is not  ordinarily resorted to like the power conferred by  Ss. 437 and 439.  We also agree that the power to  grant anticipatory bail should be exercised with  due care and circumspection.”

20. Thereafter, the larger Bench referred to the concept of  

liberty engrafted in Article 21 of the Constitution, situational and  

circumstantial differences from case to case and observed that in  

regard to anticipatory bail, if the proposed accusation appears to  

stem not from motives of furthering the ends of justice but from  

some ulterior motive, the object being to injure and humiliate the  

applicant by having him arrested, a direction for the release of  

the applicant on bail in the event of his arrest would generally be  

made.  On the other hand, if it appears likely, considering the  

antecedents of the applicant, that taking advantage of the order  

of anticipatory bail he will flee from justice, such an order would  

2 AIR 1976 SC 366

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not be made.  However, it cannot be laid down as an inexorable  

rule that anticipatory bail cannot be granted unless the proposed  

accusation appears to be actuated by mala fides; and equally,  

that anticipatory bail must be granted if there is no fear that the  

applicant will abscond.  The Constitution Bench also opined the  

Court has to take into consideration the combined effect of  

several other considerations which are too numerous to  

enumerate and the legislature has endowed the responsibility on  

the High Court and the Court of Session because of their  

experience.

21. The Constitution Bench proceeded to state the essential  

concept of exercise of jurisdiction under Section 438 of the Code  

on following terms:-

“Exercise of jurisdiction under Section 438 of  Code of Criminal Procedure is extremely  important judicial function of a judge and  must be entrusted to judicial officers with  some experience and good track record. Both  individual and society have vital interest in  orders passed by the courts in anticipatory  bail applications.”

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22. In Savitri Agarwal v. State of Maharashtra and Anr.3,  

the Bench culled out the principles laid down in Gurbaksh  

Singh (supra).   Some principles which are necessary to be  

reproduced are as follows:-

“  (i) Before power under Sub-section (1) of  Section 438 of the Code is exercised, the Court  must be satisfied that the applicant invoking  the provision has reason to believe that he is  likely to be arrested for a non-bailable offence  and that belief must be founded on reasonable  grounds. Mere "fear" is not belief, for which  reason, it is not enough for the applicant to  show that he has some sort of vague  apprehension that some one is going to make  an accusation against him, in pursuance of  which he may be arrested. The grounds on  which the belief of the applicant is based that  he may be arrested for a non-bailable offence,  must be capable of being examined by the  Court objectively. Specific events and facts  must be disclosed by the applicant in order to  enable the Court to judge of the  reasonableness of his belief, the existence of  which is the sine qua non of the exercise of  power conferred by the Section.

ii) The provisions of Section 438 cannot be  invoked after the arrest of the accused. After  arrest, the accused must seek his remedy  under Section437 or Section 439 of the Code,  if he wants to be released on bail in respect of  the offence or offences for which he is arrested.

viii) An interim bail order can be passed under  Section 438 of the Code without notice to the  

3 (2009)8SCC325

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Public Prosecutor but notice should be issued  to the Public Prosecutor or to the Government  advocate forthwith and the question of bail  should be re-examined in the light of  respective contentions of the parties. The ad- interim order too must conform to the  requirements of the Section and suitable  conditions should be imposed on the applicant  even at that stage.”

23. At this juncture we may note with profit that there was  

some departure in certain decisions after the Constitution Bench  

decision.  In Salauddin Abdulsamad Shaikh v. State of  

Maharashta4, it was held that it was necessary that under  

certain circumstances anticipatory bail order should be of a  

limited duration only and ordinarily on the expiry of that  

duration or extended duration the Court granting anticipatory  

bail should leave it to the regular court to deal with the matter on  

appreciation of material placed before it.   

24. In K. L. Verma v. State and Anr.5,  it was ruled that  

limited duration must be determined having regard to the facts of  

the case and the need to give  the accused sufficient time to move  

the court for regular bail and to give the regular court sufficient  

time to determine the bail application.   It was further observed  

therein that till the bail application is disposed of one way or the  4 AIR 1996 SC 1042 5 (1998) 9 SCC 348

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other, the Court may allow the accused to remain on anticipatory  

bail.   

25. In Nirmal Jeet Kaur v. State of M. P. and Another6,  

the decision in K. L. Verma’s case (supra) was clarified by  

stating that the benefit of anticipatory bail may be extended few  

days thereafter to enable the accused persons to move the High  

Court if they so desire.  

26. In Adri Dharan Das v. State of West Bengal7, a two-

Judge Bench while accepting for grant of bail for limited duration  

has held that arrest is a part of the process of investigation  

intended to secure several purposes. The accused may have to be  

questioned in detail regarding various facets of motive,  

preparation, commission and aftermath of the crime and the  

connection of other persons, if any, in the crime. There may be  

circumstances in which the accused may provide information  

leading to discovery of material facts. It may be necessary to  

curtail his freedom in order to enable the investigation to proceed  

without hindrance and to protect witnesses and persons  

connected with the victim of the crime, to prevent his  

disappearance to maintain law and order in the locality. For  6 ( 2004) 7 SCC 558  7 (2005) 4 SCC 303

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these or other reasons, arrest may become inevitable part of the  

process of investigation. The legality of the proposed arrest  

cannot be gone into in an application under Section 438 of the  

Code. The role of the investigator is well-defined and the  

jurisdictional scope of interference by the Court in the process of  

investigation is limited. The Court ordinarily will not interfere  

with the investigation of a crime or with the arrest of accused in a  

cognizable offence. An interim order restraining arrest, if passed  

while dealing with an application under Section 438 of the Code  

will amount to interference in the investigation, which cannot, at  

any rate, be done under Section 438 of the Code.

27. After analysing the ratio in the cases of Salauddin  

Abdulsamad Shaikh (supra), K. L. Verma (supra), Nirmal Jeet  

Kaur (supra), Niranjan Singh and Anr. v. Prabhakar Rajaram  

Kharote and Ors.8 the Bench opined thus:-

“14. After analyzing the crucial question is  when a person is in custody, within the  meaning of Section 439  of the Code, it was  held in Nirmal     Jeet     Kaur's   case (supra)  and Sunita     Devi's   case (supra) that for making  an application under Section 439 the  fundamental requirement is that the accused  should be in custody. As observed in  Salauddin's case (supra) the protection in  

8 (1980) 2 SCC 559

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terms of Section 438 is for a limited duration  during which the regular Court has to be  moved for bail. Obviously, such bail is bail in  terms of Section 439 of the Code, mandating  the applicant to be in custody. Otherwise, the  distinction between orders under  Sections 438 and 439 shall be rendered  meaningless and redundant.

15. If the protective umbrella of Section 438 is  extended beyond what was laid down  in Salauddin's case (supra) the result would be  clear bypassing of what is mandated in  Section 439 regarding custody. In other words,  till the applicant avails remedies up to higher  Courts, the requirements of  Section 439 become dead letter. No part of a  statute can be rendered redundant in that  manner.”

28. In Union of India v. Padam Narain Agarwal9 this Court  

while dealing with an order wherein the High Court had  

directed that the respondent therein shall appear before the  

concerned customs authorities in response to the summons  

issued to them and in case the custom authorities found a non-

bailable against the accused persons they shall not arrest  

without ten days prior notice to them. The two-Judge Bench  

relied on the decisions in Gurbaksh Singh Sibbia (supra),  

Adri Dharan Das (supra), and State of Mahrashtra v. Mohd.  

Rashid and Anr.10 and eventually held thus:- 9  AIR 2009 SC 254 10 (2005) 7 SCC 56

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“In our judgment, on the facts and in the  circumstances of the present case, neither of  the above directions can be said to be legal,  valid or in consonance with law. Firstly, the  order passed by the High Court is a blanket  one as held by the Constitution Bench of this  Court in Gurbaksh Singh and seeks to grant  protection to respondents in respect of any  non-bailable offence. Secondly, it illegally  obstructs, interferes and curtails the authority  of Custom Officers from exercising statutory  power of arrest a person said to have  committed a non-bailable offence by imposing  a condition of giving ten days prior notice, a  condition not warranted by law. The order  passed by the High Court to the extent of  directions issued to the Custom Authorities is,  therefore, liable to be set aside and is hereby  set aside.”

29. Be it noted, the principle of grant of anticipatory bail for a  

limited duration in cases of Salauddin Abdulsamad Shaikh  

(supra), K. L. Verma (supra), Adri Dharan Das (supra), Sunita  

Devi v. State of Bihar & Anr.11 was held to be contrary to the  

Constitution decision in Gurbaksh Singh Sibbia’s case (supra)  

by a two-Judge Bench in Siddharam Satlingappa Mhetre v.  

State of Maharashtra and Ors.12  and accordingly the said  

decisions were treated as per incurium.  It is worth noting though  

the Bench treated Adri Dharan Das (supra) to be per incuriam,  

as far as it pertained to grant of anticipatory bail for limited  

duration, yet it has not held that the view expressed therein that  11 (2005) 1 SCC 608 12  (2011) 1 SCC 694

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the earlier decisions pertaining to the concept of deemed custody  

as laid down in Salauddin Abdulsamad Shaikh (supra) and  

similar line of cases was per incuriam.  It is so as the controversy  

involved in Siddharam Satlingappa Mhetre (supra) did not  

relate to the said arena.

30. We have referred to the aforesaid pronouncements to  

highlight how the Constitution Bench in the case of Gurbaksh  

Singh Sibbia (supra) had analysed and explained the intrinsic  

underlying concepts under Section 438 of the Code, the nature of  

orders to be passed while conferring the said privilege, the  

conditions that are imposable and the discretions to be used by  

the courts.  On a reading of the said authoritative  

pronouncement and the principles that have been culled out in  

Savitri Agarwal (supra) there is remotely no indication that the  

Court of Session or the High Court can pass an order that on  

surrendering of the accused before the Magistrate he shall be  

released on bail on such terms and conditions as the learned  

Magistrate may deem fit and proper or the superior court would  

impose conditions for grant of bail on such surrender.  When the  

High Court in categorical terms has expressed the view that it not  

inclined to grant anticipatory bail to the accused petitioners it

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could not have issued such a direction which would tantamount  

to conferment of benefit by which the accused would be in a  

position to avoid arrest.  It is in clear violation of the language  

employed in the statutory provision and in flagrant violation of  

the dictum laid down in the case of Gurbaksh Singh Sibbia  

(supra) and the principles culled out in the case of Savitri  

Agarwal (supra).  It is clear as crystal the court cannot issue a  

blanket order restraining arrest and it can only issue an interim  

order and the interim order must also conform to the  

requirement of the section and suitable conditions should be  

imposed.  In the case of Gurbaksh Singh Sibbia (supra) the  

Constitution Bench has clearly observed that exercise of  

jurisdiction under Section 438 of the Code is an extremely  

important judicial function of a judge and both individual and  

society have vital interest in the orders passed by the court in  

anticipatory bail applications.

31. In this context it is profitable to refer to a three-Judge  

Bench decision in Dr. Narendra K. Amin v. State of Gujarat  

and another13.  In the said case a learned Judge of the Gujarat  

High Court cancelled the bail granted to the appellant therein in  

13 2008 (6) SCALE 415

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exercise of power under Section 439(2) of the Code.  It was  

contended before this Court that the High Court had completely  

erred by not properly appreciating the distinction between the  

parameters for grant of bail and cancellation of bail.  The Bench  

referred to the decision in Puran v. Rambilas and another14  

wherein it has been noted that the concept of setting aside an  

unjustified, illegal or perverse order is totally different from the  

cancelling an order of bail  on the ground that the accused has  

misconducted himself or because of some supervening  

circumstances warranting such cancellation.  The three-Judge  

Bench further observed that when irrelevant materials have been  

taken into consideration the same makes the order granting bail  

vulnerable.  In essence, the three-Judge Bench has opined that if  

the order is perverse, the same can be set at naught by the  

superior court.  In the case at hand the direction to admit the  

accused persons to bail on their surrendering has no sanction in  

law and, in fact, creates a dent in the sacrosanctity of law.  It is  

contradictory in terms and law does not countenance paradoxes.  

It gains respectability and acceptability when its solemnity is  

maintained.  Passing such kind of orders the interest of the  

collective at large and that of the individual victims is  14 (2001) 6 SCC 338

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jeopardised.  That apart, it curtails the power of the regular court  

dealing with the bail applications.

32. In this regard it is to be borne in mind that a court of law  

has to act within the statutory command and not deviate from it.  

It is a well settled proposition of law what cannot be done  

directly, cannot be done indirectly.  While exercising a statutory  

power a court is bound to act within the four corners thereof.  

The statutory exercise of power stands on a different footing than  

exercise of power of judicial review.  This has been so stated in  

Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and Ors.15  

and U.P. State Brassware Corporation Ltd. and Anr. v. Uday  

Narain Pandey16.   

33. Judging on the foundation of aforesaid well settled  

principles, the irresistible conclusion is that the impugned orders  

directing enlargement of bail of the accused persons, namely,  

Uttam Das, Abhimanyu Das and Murlidhar Patra by the  

Magistrate on their surrendering are wholly unsustainable and  

bound to founder and accordingly the said directions are set  

aside.  Consequently the bail bonds of the aforenamed accused  

persons are cancelled and they shall be taken into custody  15 (2006) 13 SCC 737 16 (2006) 1 SCC 479

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forthwith.  It needs no special emphasis to state that they are  

entitled to move applications for grant of bail under Section 439  

of the Code which shall be considered on their own merits.   

34. The appeals are accordingly disposed of.

……………………………….J. [K. S. Radhakrishnan]

……………………………….J. [Dipak Misra]

New Delhi; May 04, 2012.