The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No. 7649 of 2019 Jagannath Maity 1. State of Orissa 2. Kajal @ Kajalrani Jena CORAM: ….. Vs. ….. Petitioner None Opposite Parties Mr. Priyabrata Tripathy, A.S.C. JUSTICE SAVITRI RATHO
Decision
ORDER 14.05.2024 (Through hybrid mode) Order No. 03. 1. 2. None appears for the petitioner when the matter is called. This is the fourth application under Section 438 of Cr.P.C filed by the petitioner in this Court in connection with Talchua Marine P.S. Case No. 26 of 2017 corresponding to G.R. Case No. 93 of 2017 pending in the court of the learned Additional Sessions Judge, Kendrapara under Sections 366, 376 (2) (i), 506 and 34 of IPC read with Section 6 of the POCSO Act. 3. In the certificate in the cause title of the anticipatory bail application, it has been stated as follows: “The matter out of which this ABLAPL arises was never before this Hon’ble Court in any form whatsoever except Page 1 of 5 ABLAPL No. 520/18 disposed of on 08.02.18 and CRLMC No. 1857/18 disposed of on 04.02.19 as per the instruction received from the petitioner.” 4. This certificate is incorrect as the F.I.R. details or lower court match cases provided by the Registry indicates that the petitioner has filed the following cases which arise out of Talchua Marine P.S. Case No. 26 of 2017: (i) ABLAPL No. 4324 of 2018 disposed of on 19.06.2019 (ii) ABLAPL No. 8214 of 2017 disposed of on 12.07.2019 (iii) ABLAPL No. 520 of 2018 disposed of on 08.02.2019 (iv) CRLMC No. 1857 of 2018 and the present case ABLAPL No. 7649 of 2019 5. On 04.06.2019, ABLAPL was listed the Hon’ble Vacation Judge who had directed that ABLAPL No. 520 of 2018, ABLAPL No. 4324 of 2018, ABLAPL No. 8214 of 2017 had been disposed of for which the case should be put up before the appropriate Bench with the permission of Hon’ble Chief Justice. The Hon’ble Chief Justice had directed that the matter should be listed before the assigned Single Bench. Thereafter the matter has been listed today. 6. The order passed in ABLAPL No. 8214 of 2017, ABLAPL No. 520 of 2018 and ABLAPL No. 4324 of 2018 have been tagged Page 2 of 5 to this anticipatory bail application. ABLAPL No. 4324 of 2018 has been disposed of as withdrawn on 19.06.2019, ABLAPL No. 520 of 2018 has been disposed of on 08.02.2018 as not maintainable and ABLAPL No. 8214 of 2017 has been rejected on 12.07.2019. 7. On perusal of the orders passed in the previous anticipatory bail application, it appears that the petitioner has not approached this Court with clean hand as he has not given the details of all the earlier cases filed under Section 438 of Cr.P.C. before this Court. 8. The Supreme Court in the case of Md. Shamim Khan vs. State of Jharkhand in SLP (Crl.) No. 9449 of 2021 decided on 16.12.2021, has deprecated the practice of filing successive applications under Section 438 Cr.P.C. without any change in circumstance. In the case of Shrikant Upadhyaya and others vs. State of Bihar :2024 SCC OnLine SC 282, the Supreme Court has held as follows : “25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very Page 3 of 5 cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant. 26. The factual narration made hereinbefore would reveal the consistent disobedience of the appellants to comply with the orders of the trial Court. They failed to appear before the Trial Court after the receipt of the summons, and then after the issuance of bailable warrants even when their co-accused, after the issuance of bailable warrants, applied and obtained regular bail. Though the appellants filed an application, which they themselves described as "bail-cum-surrender application" on 23.08.2022, they got it withdrawn on the fear of being arrested. Even after the issuance of non-bailable warrants on 03.11.2022 they did not care to appear before the Trial Court and did not apply for regular bail after its recalling. It is a fact that even after coming to know about the proclamation under Section 82 Cr.PC., they did not take any steps to challenge the same or to Page 4 of 5 enter appearance before the Trial Court to avert the consequences. Such conduct of the appellants in the light of the aforesaid circumstances, leaves us with no hesitation to hold that they are not entitled to seek the benefit of pre-arrest bail. 27. The upshot of the discussion is that there is no ground for interfering with the order of the High Court rejecting the application for anticipatory bail rather not considering application on merits. Since their action is nothing short of defying the lawful orders of the Court and attempting to delay the proceedings, this appeal must fail. Consequently, it is dismissed. 9. I am not inclined to entertain this anticipatory bail application as it appears that the petitioner has abused the process of Court by filing multiple anticipatory bail applications and submitted an incorrect certificate. 10. The ABLAPL is accordingly dismissed. 11. Urgent certified copy of this order be granted on proper application. (Savitri Ratho) Judge puspa Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 14-May-2024 19:56:04 Page 5 of 5