The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMA No.230 of 2019 An application under Section 439 (2) of the Code of Criminal Procedure, 1973. Nilesh Kumar Sanklecha …. Petitioner -versus- 1.State of Odisha 2.Mukesh Agrawal 3.Jitendra Agrawal …. Opp. Parties For Petitioner : Sk.Zafarulla, Advocate For Opp. Parties : Mr.S.S.Pradhan, AGA (for O.P. No.1) Mr.Tanmay Mishra, Advocate (for O.P. Nos. 2 & 3) CORAM: JUSTICE SAVITRI RATHO ……….………………………………………………………………….. Date of Judgment : 19.04.2024 …………………………………………………………………………… Savitri Ratho, J. This application under section 439 (2) of the Code of Criminal Procedure has been filed for cancellation of bail granted to the opposite party nos.2 and 3 vide order dated 20.03.2019 passed by the CRLMA No.230 of 2019 Page 1 of 10 learned District and Sessions Judge, Nuapada in-charge in BLAPL No.45 of 2019. 2. The prosecution case in brief is that on 30.12.2018 at about 12.30 noon, the informant, the present petitioner and his brother, Ajay saw that the accused-Bikash Agrawal (opp. party No.4) alongwith other accused persons forcibly entered into the land of the petitioner adjacent to Ganapati Palace and trying to damage the boundary wall to which the petitioner and his family raised objection. It is alleged that all on a sudden accused, Bikash Agrawal came to the spot with iron pipe and started assaulting the brother of the petitioner namely, Ajay Sanklecha, as a result of which he sustained injury on his head and other parts of the body. It is further alleged that when the petitioner tried to save his brother, the accused, Bikash and others assaulted the petitioner and other family members and also outraged the modesty of the wife of the petitioner and also assaulted her as a result of which she sustained fracture injury. 3. During course of investigation the opposite party nos. 2 and 3 along with other co-accused persons approached this Court in ABLAPL
Decision
No.1128 of 2019 and this Court vide order dated 22.02.2019 disposed of the matter directing that the petitioner nos.2 to 6 therein to surrender and before the learned Court below within four weeks hence and make a motion for bail and in that event, the learned Court below shall consider CRLMA No.230 of 2019 Page 2 of 10 and dispose of the same in accordance with law during the first hour. In case of rejection of the bail application, the petitioner nos.2 to 6 therein may move for bail before the next higher forum in the second hour and in that event, the bail application of the petitioner nos. 2 to 6 shall be considered and disposed of by the higher forum in accordance with law on the same day, if there is no other impediment. 4. Pursuant to the order of this Hon’ble Court, some of the accused persons surrendered before the court below and were released on bail. But so far the opp. party nos.2 & 3 are concerned, they did not surrender in the first instance. Opp. party nos.2 & 3 surrendered before the learned Senior Civil Judge, Nuapada in-charge of S.D.J.M, Nuapada on 20.3.2019 at 1.40 p.m. in the second hour in C.T. Case No.542/2018. On the same day the bail application filed u/s 437 Cr.P.C was rejected as the alleged offence is u/s 307 IPC is triable by court of sessions. Thereafter the opp. party nos.2 & 3 filed a bail application i.e. BLAPL No.45/2019 u/s 439 Cr.P.C. before the learned Sessions Judge, Nuapada on the same day i.e. on 20.3.2019 and since the learned Sessions Judge, Nuapada was on leave, the same Senior Civil Judge, Nuapada who was in-charge of Sessions Judge, Nuapada allowed the prayer for bail of the opposite parties no.2 and 3 on the same day. CRLMA No.230 of 2019 Page 3 of 10 5. Mr. Sk. Zafarulla, learned counsel for the petitioner submits that the learned Senior Civil Judge, Nuapada who was in-charge as S.D.J.M., Nuapada rejected the prayer for bail of the opposite party nos. 2 and 3, in the first hour. The same officer allowed the prayer for bail in the second hour assuming jurisdiction of the Sessions Judge (in-charge), Nuapada which is illegal and without jurisdiction. The bail order has been passed without hearing the Public Prosecutor even though the alleged offence is one u/s 307 of IPC and prescribed punishment is up to life imprisonment. The bail granted to the opp. party nos.2 & 3 is totally illegal for which the order granting bail is liable to be cancelled. 6. Mr. T. Mishra, learned counsel for the opposite parties no. 2 and 3 has submitted that they have complied with the order of this Court passed in ABLAPL No.1128 of 2019 and surrendered in the court below within the time fixed. As the learned Sessions Judge was on leave, the learned Senior Civil Judge who was in charge of the court of the Session has considered and allowed the application. The order may be irregular but it is not illegal. The opposite parties no.2 and 3 should not be penalized for any bona fide mistake of the officer who passed the order as the order has been passed in compliance of the order of this Court in ABLAPL No.1128 of 2019 that the application should be disposed of on CRLMA No.230 of 2019 Page 4 of 10 the same day. He further submits that as the opposite party nos. 2 and 3 are continuing on bail since 20.03.2019 and almost five years have elapsed in the meanwhile and the case has been committed. There is no allegation of violation of the liberty granted to them. So they will suffer irreparable hardship and prejudice if the said order is interfered with by this Court now. 7. On 10.01.2024, a report had been called for from the learned S.D.J.M., Nuapada and learned Sessions Judge, Nuapada regarding the circumstances in which the learned Sessions Court Judge, Nuapada passed the impougned bona fide order. A detailed report vide letter No. 455 dated 27.01.2024 has been received from the learned District and Sessions Judge, Nuapada. It is reproduced below:- “(1) The report submitted by the learned S.D.J.M., Nuapada (report enclosed) reveals that Smt. Somalina Mishra, the then S.D.J.M., Nuapada was on leave on the relevant day i.e. on 20.03.2019 and the learned Senior Civil Judge, Nuapada was in charge of the S.D.J.M. Further, he has reported that the case record in C.T. 542 of 2018 has already been committed to the Court of Sessions vide letter No.2402 dated 29.11.2021. (2) The relevant day i.e. 20.03.2019 when the accused persons / O.P. No. 02 & 03 surrendered before the Court of the S.D.J.M., Nuapada and subsequently moved the CRLMA No.230 of 2019 Page 5 of 10 higher forum i.e. before the Court of Sessions Judge, Nuapada, Smt. Somalina Mishra was working as the S.D.J.M., Nuapada and Sri Asim Kumar Dalbehera was the District & Sessions Judge, Nuapada. On vindication of the relevant files, it is found that Smt. Mishra was allowed to go on leave on 11.01.2019 and thereafter frequently extended leave till 15.07.2019. During her absence, Smt. Sarojini Pati, the then Senior Civil Judge, Nuapada was kept in charge of her routine duties. (3) So far as the arrangement of-Judicial Officers in absence of District & Sessions Judge, Nuapada is concerned, it is submitted that Sri Asim Kumar Dalbehera was the then District & Sessions Judge, Nuapada who was availing casual leave from 18.03.2019 to 20.03.2019 & public holidays from 21.03.2019 to 23.03.2019 and out of Headquarters from the evening of 17.03.2019 till the morning of 24.03.2019. In the meantime, Sri Madanlal Khedia, the then Additional District & Sessions Judge, Nuapada was nominated for the State Seminar on the subject of “Enhancing Judicial Skill for Expeditious Disposal of Cases, Appreciation of Evidence & Improving Art of Writing Judgments” held on 16th & 17th March, 2019 at Odisha Judicial Academy, Cuttack availing transit from 14.03.2019 who was to join on duty on 20.03.2019. Accordingly, the Chief Judicial Magistrate -cum- Assistant Sessions Judge, Nuapada was suggested to remain in charge of the routine duties of the CRLMA No.230 of 2019 Page 6 of 10 District & Sessions Judge. Nuapada and the fact of said arrangement was approved and communicated by Hon'ble Court vide letter No. 3404 dated 12.03.2019. In the midst of such arrangement, Md. Irshadun Nabi, the then Chief Judicial Magistrate, Nuapada who was in charge of the District & Sessions Judge, Nuapada applied for casual leave for two days i.e. on 19.03.2019 & 20.03.2019 due to medical exigencies suggesting the Senior Judicial Officers, the Senior Civil Judge. Nuapada to be kept in charge of his routine duties and accordingly the Senior Civil Judge, Nuapada who was conferred with the power of Assistant Sessions Judge vide Hon’ble Court’s Notification No. 416/A dated 02.03.2017 remained in charge of the Chief Judicial Magistrate-cum- Assistant Sessions Judge, Nuapada who was already in charge of the District & Sessions Judge, Nuapada. (4) On 20.03.2019 when the accused persons/ O.P. No. 02 & 03 surrendered before the Court of S.D.J.M., Nuapada in the 1st hour and moved for bail, the same was disposed of by the then Senior Civil Judge-cum-Assistant Sessions Judge, Nuapada, Smt. Sarojini Pati in the capacity of in-charge S.D.J.M. by rejecting the same on the ground that the alleged offence under Section 307/34 of the IPC being exclusively triable by Court of Sessions. On the same day, during the 2nd hour while the counsel for the accused persons/ O.P. No. 02 & 03 approached the higher forum against the rejection order, the then CRLMA No.230 of 2019 Page 7 of 10 Senior Civil Judge-cum-Assistant Sessions Judge, Nuapada Smt. Sarojini Pati in the capacity of in-charge Sessions Judge entertained their bail application filed under Section 439 of the Cr.P.C. giving regard to the deadline of the Hon’ble Court. (5) The Order dated 20.03.2019 passed by the then Senior Civil Judge, Nuapada reveals that in case of rejection of the bail the same will be entertained by herself in the higher forum in the 2nd hour as she is in charge of the District & Sessions Judge, Nuapada. In order to avoid the in-convenience, she sent the bail application to the Court of Additional District & Sessions Judge, Nuapada who had already resumed his duties after completion of training. Further, the order in BLAPL No. 45 of 2019 discloses that the said Bail application was returned by the Additional District & Sessions Judge, Nuapada with the logic that the Additional District and Sessions Judge, Nuapada has not been kept in charge of the District & Sessions Judge, Nuapada. (6) From the above facts, it is found that on the relevant day due to sudden illness of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Nuapada, the Senior Civil Judge-cum-Assistant Sessions Judge, Nuapada was kept in charge of the routine duties of the Chief Judicial Magistrate-cum- Assistant Sessions Judge, Nuapada who was already in charge of the District & Sessions Judge, Nuapada. By then, the Senior Civil CRLMA No.230 of 2019 Page 8 of 10 Judge-cum-Assistant Sessions Judge, Nuapada was already in charge of the S.D.J.M., Nuapada. In the above circumstances, the Senior Civil Judge-cum-Assistant Sessions Judge, Nuapada has passed the orders on different capacity. The above report regarding the circumstances in which the then learned Senior Civil Judge-cum-Assistant Sessions Judge, Nuapada passed both the Orders may kindly be placed before the Hon’ble Court for favour of kind perusal.” 8. The learned Sessions Judge In-charge has passed a detailed order, mentioning the circumstances in which the prayer for bail of opposite party no.2 was rejected by her in the first hour in her capacity as S.D.J.M. In-charge. She has observed that the Public Prosecutor has received copy of the application at 6.15 p.m. but did not appear in the Court at 6.30 p.m. In view of the decision of this Court, she was duty bound to hear and dispose of the petition on the same day. She observed that none of the injuries were on vital parts though same were grievous from which it can be gathered that they had no intention to hit the deceased. 9. After hearing the learned counsel and perusing the impugned order and the report of the learned Sessions Judge and keeping in mind the principles governing cancellation of bail, I am of the view that it was CRLMA No.230 of 2019 Page 9 of 10 irregular for the same officer to pass an order in the capacity of in-charge SDJM and on the same day pass an order in the capacity of in-charge Sessions Judge. But when the surrounding facts are examined, I find that the concerned officer had to take up the bail application both in the capacity of the SDJM as well as Sessions Judge as she was in-charge of both in view of the absence of the S.D.J.M., Nuapada, Sessions Judge, Nuapada and CJM-cum-Assistant Sessions Judge, Nuapada who were on leave. As the copy of the bail application had been served on the Public Prosecution and as learned Senior Civil Judge, Nuapada has been conferred with the power of Assistant Sessions Judge, I find nothing untoward or illegal in her order, so as to justify interference with it after five years since the impugned order was passed. As there is no allegation on record that the opposite parties no.2 and 3 have violated the conditions of bail or the liberty granted to them, I am of the opinion that it would not be in the interest of justice to cancel the bail granted to the opposite parties. 9. The CRLMA is therefore dismissed. …………….……. (Savitri Ratho) Judge Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 04-Jun-2024 20:17:31 Orissa High Court, Cuttack Dated 19th April, 2024/Bichi CRLMA No.230 of 2019 Page 10 of 10