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. 1154 of 2024 --------------- Tapas Ranjan Nayak @ Tapas Nayak ..… Petitioner -Versus- State of Odisha and another .... Opposite Parties Advocate(s) appeared in this case:- For Petitioner
Legal Reasoning
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 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 is on regular bail granted by the Court of Session. 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 Page 4 of 6 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 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 not issued any order for arrest of the petitioner but issued a summons for his appearance. 5. In view of what has been stated hereinbefore, this Court holds that the anticipatory bail application is not maintainable. However, a summons having been issued by the Court below, the ABLAPL is disposed of granting liberty to the petitioner to appear before the Court below and move Page 5 of 6 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 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
Arguments
: Mr. R.N.Rout, 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 summons has been issued by the Court below for his appearance upon addition of graver offence. The petitioner was originally implicated in Mangalpur P.S. Case Page 1 of 6 No. 88 of 2013 corresponding to G.R. Case No. 522 of 2013 to the Court of learned SDJM, Jajpur for the alleged commission of the offences under Sections 457/ 509/ 354/324/ 392/ 506/34 of IPC as per the FIR. He was granted bail as per order dated 08.10.2013 passed by the learned Sessions Judge, Jajpur in BLAPL No. 455 of 2023. Chargesheet was also submitted for the aforementioned offences and the learned SDJM took cognizance of the said offences. However, a protest petition, being 1C.C. Case No. 487 of 2023 was filed by the informant with prayer to add the offence under Section 307 of IPC. Learned SDJM rejected the petition by order dated 24.03.2014. The informant carried the matter in revision being Criminal Revision No. 21 of 2014 to the Court of learned Sessions Judge, Jajpur. As per judgment passed on 21.11.2014, learned Sessions Judge allowed the revision by directing learned SDJM to take cognizance of the offence under Section 307 of IPC. As such, learned SDJM, by order dated 21.11.2014 took cognizance afresh of the newly added offence under Section 307 of IPC and issued summons for appearance of the petitioner. The petitioner apprehends that on his appearance he may be remanded to custody by the Page 2 of 6 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. 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 offence of Section 307 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 1 AIR 2020 SC 831 2 AIR 2019 SC 3193 Page 3 of 6