The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK AFR (An application under Section 438 of the Criminal Procedure Code) ABLAPL No. 1101 of 2024 --------------- Sarat Chandra Majhi .… Petitioner -Versus- State of Odisha .... Opposite Party Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
06.07.2023 passed by this Court in ABLAPL No. 5769 of 2023. Subsequently, charge sheet was submitted after investigation and the offences under Sections 307 and 406 of IPC were added. The Magistrate after taking cognizance of the matter, has issued process in the case. The petitioner apprehends that on his appearance he may be remanded to custody by the Court and therefore, seeks protection in the form of an order under Section 438 of Cr.P.C. 2. Learned counsel for the petitioner submits that in view of the ratio laid down in Sushila Aggarwal Vs. State (NCT of Delhi)1 bail once granted is deemed to continue till the end of trial and therefore, necessary order in this regard may be passed to protect the petitioner. 1 AIR 2020 SC 831 Page 2 of 6 3. Mr. S.K.Mishra, learned State counsel on the other hand, submits that the petitioner, being on regular bail has to surrender before the Court below and move for regular bail in respect of the newly added offences of Sections 307 and 407 of IPC. He cites the decision of the Supreme Court in the case of Pradeep Ram Vs. State of Jharkhand 2 in this regard. 4. In the case of Sushila Aggarwal (supra), the Supreme Court observed as follows: “70. The question here is whether there is anything in the law which per se requires that upon filing of the charge-sheet, or the summoning of the accused, by the court – (or even the addition of an offence in the charge- sheet, of which an applicant on bail is accused of freshly), his liberty ought to be forfeited and that he should be asked to surrender and apply for regular bail. The observations about the width and amplitude of the power under Section 438, made in answer to the first question, are equally relevant here too. In the present context, further, the judgment and observations of this Court in its interpretation of Section 167(2) are telling. It was held in Gursharan Singh (supra), the release by grant of bail of an accused under Section 167(2) amounts to “deemed bail”. This is borne out by Section 167(2) which states that anyone released on bail under its provision “shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter.” The judgment in Aslam Babalal Desai (supra) has clarified that when an accused is released by operation of Section 167(2) and subsequently, a charge-sheet is filed, there is no question of the cancellation of his bail. In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to ‘deemed bail’ under Section 167(2) with anticipatory bail leads this court to conclude that the mere subsequent event of the filing of a charge-sheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if 2 AIR 2019 SC 3193 Page 3 of 6 indeed, if a charge-sheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody, because there would have been nothing in his behavior requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the charge sheet is filed, the natural implication is that there is no occasion for a direction by the Court that he be arrested and further that he had cooperated with the investigation. At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Section 437(3) read with Section 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2).” This order was however passed in respect of a person who had been granted anticipatory bail. In so far as the present case is concerned, the petitioner admittedly was granted regular bail by the Court below as per order of this Court. In the case of Pradeep Ram (Supra) the Supreme Court held as follows: “29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an accused, further cognizable and non-bailable offences are added:- (i) The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the accused can certainly be arrested. (ii) The investigating agency can seek order from the court under Section 437(5) or 439(2) of Cr.P.C. for arrest of the accused and his custody. (iii) The Court, in exercise of power under Section 437(5) or 439(2) of Cr.P.C., can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of power under Section 437(5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non- cognizable offences which may not be necessary always with order of cancelling of earlier bail. (iv) In a case where an accused has already been granted bail, the investigating authority on addition Page 4 of 6 of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it need to obtain an order to arrest the accused from the Court which had granted the bail.” From a reading of the decision cited above, it is clear that option has been given to the accused, who is on bail, to surrender before the Court below and to move for bail afresh in respect of the newly added offences. In the instant case, there is nothing on record to show that the prosecution has sought for cancellation of the bail granted to the petitioner consequent upon addition of the offences. The Court below has also neither issued any order for arrest of the petitioner nor has the prosecution moved the Court in seisin for cancellation of bail but has issued a summons for his appearance. 5. Having regard to the nature of accusations and the materials on record, I am not inclined to grant anticipatory bail to the petitioner. The ABLAPL is however, disposed of granting liberty to the petitioner to appear before the Court
Arguments
:Mr.D.K.Sahoo, Advocate. For Opp. Party : Mr. S.K. Mishra, ASC CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 16th April, 2024 SASHIKANTA MISHRA, J. The petitioner has filed this application under Section 438 of Cr.P.C. seeking protection from arrest which he apprehends as graver offence has been added to the case. The petitioner was originally implicated in Aul P.S. Case No. 343 of Page 1 of 6 2023 corresponding to G.R. Case No. 550 of 2023 pending in the Court of J.M.F.C., Aul, Kendrapara for the alleged commission of the offences under Sections 498- A/323/294/427/506/34 of IPC as per the FIR. He was directed to surrender and be released on bail, vide order dated
Decision
below and to move for bail which shall be disposed of on the same day in the first hour. In case of rejection, it shall be open to the petitioner to move the higher forum on the same Page 5 of 6 day, for which the records including the case diary shall be transmitted at his cost. The higher forum shall also dispose of the bail application on the same day. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 16th April, 2024/ Deepak Signature Not Verified Digitally Signed Signed by: DEEPAK PARIDA Reason: Authentication Location: OHC,Cuttack Date: 18-Apr-2024 09:16:28 Page 6 of 6