SUDAM CHARAN DASH Vs STATE OF ORISSA
Bench: RANJANA PRAKASH DESAI,MADAN B. LOKUR
Case number: Crl.A. No.-001862-001862 / 2013
Diary number: 27034 / 2013
Advocates: AMARJIT SINGH BEDI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1862 OF 2013 [Arising out of Special Leave Petition (Crl.)No.8291 of 2013]
Sudam Charan Dash …. Appellant
Vs. State of Orissa & Anr. … Respondents
J U D G M E N T
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The appellant’s son – Rajib Das was murdered on 5/1/2009
in a hotel. FIR was lodged in respect thereof on 6/1/2009.
PS Case No. 4 of 2009 was registered. It is the appellant’s
case that the police did not investigate the case properly.
The appellant ultimately filed a writ petition in the Orissa
High Court. Thereafter, the investigation gained
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momentum. On 3/1/2013, non-bailable warrant was
issued against Mr. Sweekar Nayak, who is respondent 2,
by the SDJM, Rayagada. Respondent 2 preferred an
application for anticipatory bail in the Orissa High Court.
The High Court disposed of the said application by the
impugned order. We notice that in the impugned order,
the High Court has made a categorical observation that
considering the nature of the allegations made against
respondent 2, it did not think it to be a fit case for grant of
anticipatory bail. Surprisingly, however, the High Court
gave a direction that in the event respondent 2 surrenders
before the learned SDJM, Rayagada within four weeks and
moves an application for bail, he shall be released on bail
on such terms and conditions as the learned Magistrate
deems fit and proper. Pursuant to this direction,
respondent 2 surrendered before the learned Magistrate
and was released on bail on 11/06/2013.
3. We are surprised at the direction issued by the High Court
to the trial court to release respondent 2 on bail. When
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the High Court rejected the application for anticipatory
bail, it was sufficient indication that the High Court
thought it fit not to put a fetter on the investigating
agency’s power to arrest respondent 2. In such a
situation, the investigating agency, if it so desired and if it
thought that the custodial interrogation of respondent 2
was necessary, could have arrested him. Therefore, after
rejecting the prayer for anticipatory bail, the High Court
should not have negated its own order by directing that
respondent 2 should be released on bail. This is
contradiction in terms. It dilutes the order rejecting
anticipatory bail. Such order is not legally sound. It
overlooks the scope and purport of Sections 438 and 439
of the Code of Criminal Procedure, 1973.
4. In a similar situation in Rashmi Rekha Thatoi & Anr.
v. State of Orissa & Ors . 1, this Court took a strong view
of the matter and observed that such orders have no
1 (2012) 5 SCC 690
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sanctity in law. Relevant observations of this Court could
be quoted:
“33. We have referred to the aforesaid pronouncements to highlight how the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab,2 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 v. State of Maharashtra 3 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 is not inclined to grant anticipatory bail to the petitioner-accused it 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
2 (1980) 2 SCC 565 3 (2009) 8 SCC 325
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language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal”.
The operative portion of the order passed in that case
reads as follows:
“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 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.”
5. We respectfully agree with these observations. We also
feel that such orders put restriction on the power of the trial
court to consider the bail application on merits and grant or
reject prayer for bail. We are of the opinion that such orders
should never be passed.
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6. In the circumstances, we set aside the impugned order.
7. We have perused the order passed by the SDJM,
Rayagada granting bail to respondent 2 pursuant to the
impugned order. Obviously, the SDJM released respondent 2
on bail solely on the ground that the High Court had issued
the above mentioned direction. The SDJM had no alternative
but to do so. Thus, there is no consideration of the
application for bail filed by respondent 2 on merits. We,
therefore, quash the consequential order dated 11/6/2013
passed by the SDJM, Rayagada. Ordinarily, we would have
directed respondent 2 to surrender today. But, we refrain
from giving any such direction. In the circumstances, if
respondent 2 appears and surrenders before the SDJM,
Rayagada on 29/10/2013 and prefers an application for bail,
we direct the SDJM, Rayagada to decide respondent 2’s
application on merits and in accordance with law. The
appellant may remain present in the court and oppose the
bail application if he so desires.
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8. We direct the Registry of this Court to forward a copy of
this judgment to the Chief Justice of the Orissa High Court.
We request the Chief Justice of Orissa High Court to circulate
a copy of this order to the learned Judges of the Orissa High
Court.
9. The appeal is disposed of in the aforestated terms.
……………….……………………..J ( RANJANA PRAKASH DESAI)
……..…………………………………J ( MADAN B. LOKUR )
NEW DELHI, OCTOBER 25, 2013
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