The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 4199 of 2022 Application under Section 482 of Criminal Procedure Code, 1973. --------------- Sarbajay Pati …. Petitioner -versus- State of Odisha and others …. Opp. Parties Advocate(s) appeared in these cases:- For Petitioner For Opp. Party : Mr. A.K. Panigrahi & A. Panigrahi Advocates Vs. : Mr. S.K. Mishra, [Additional Standing Counsel] Mr. R. Panda, B. Mohapatra S. Tripathy, D.M. Kar, S. Rout & D. Panda Advocates (For O.P.Nos. 2 & 3) __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 4th May, 2023 SASHIKANTA MISHRA, J. The petitioner in the present application, filed under Section 482 of Cr.P.C. questions the legality and Page 1 of 10 propriety of order dated 03.12.2022 passed by learned Sessions Judge, Balasore in dismissing his application filed under Section 439 (2) of Cr.P.C. for cancellation of bail granted to the opposite party Nos. 2 and 3.
Legal Reasoning
2. Bereft of unnecessary details, the facts of the case are that the petitioner and the private opposite party have a long standing civil dispute relating to land owned and possessed by the petitioner and his brother. On the night of 18th/19th June, 2016 while the petitioner and his brother were sleeping in their house, the accused persons set fire to it resulting in gutting of a portion of the house, a scooty and a wooden cot. The petitioner lodged FIR but the same was not registered for which he approached this Court in CRLMP No. 795 of 2016 and basing on the order passed by this Court, the FIR was registered and the accused persons were taken into custody on 25.08.2018. On a petition for bail filed by the accused persons, the learned Sessions Judge, Balasore vide order dated 04.12.2018 granted bail, inter alia on the following conditions:- “(i) they shall not involve in any offence while on bail, Page 2 of 10 (ii) they shall not threaten or terrorise the prosecution witnesses in any manner or to any other person acquainted with the facts and circumstances of the case and (iii) they shall appear before the court on each date of posting without fail.” 3. Upon completion of investigation charge sheet was submitted under Sections 427/436/307/34 of IPC in C.T. No. 1376(A) of 2016 which has since been committed and registered as S.T Case No. 49/184 of 2018 pending in the court of learned Assistant Sessions Judge, Balasore. 4. It is alleged that while the trial of the case is in progress, the accused persons with the intention of wreaking vengeance threatened the petitioner and his brother of dire consequences as a result of which, another FIR was lodged against them in Industrial Area police station leading to registration of P.S. Case No.200 of 2021 corresponding to C.T. Case No.1048 of 2021 under Sections 447/294/506/34 of IPC. It is further alleged that the accused persons have misused the liberty granted by the Court and have attempted to terrify the petitioner and tamper with the prosecution witnesses which attempts to violation of the conditions of the bail granted to them. Page 3 of 10 Under such compelling circumstances, the petitioner filed an application under Section 439(2) of Cr.P.C being Criminal Misc. Case No.52 of 2022 with prayer to cancel the bail granted to the accused persons (opposite party Nos.2 and 3). The said application came to be rejected by the learned Sessions Judge by the impugned order.
Legal Reasoning
5. Heard Mr. A.K. Panigrahi, learned counsel for the petitioner, Mr. S.K. Mishra, learned Additional Standing Counsel for the State and Mr. Ramakanta Panda, learned counsel for the opposite party Nos. 2 and 3. 6. Mr. Panigrahi has vehemently argued that once an accused is found to have violated the conditions of the bail granted by the Court, the same needs to be cancelled. He further argues that one of the conditions of the order granting bail was that the accused persons shall not threaten or terrorize the prosecution witnesses in any manner or to any other persons acquainted with the facts and circumstances of the case. However, on 08.02.2021 at about 9.00 A.M., the accused persons abused the brother of the petitioner, threatened him and removed a tin board Page 4 of 10 affixed by him on his boundary. They also threatened to kill him by engaging other persons. Again on the same day, at about 12 noon, they threatened to set fire to his house and to kill him and his brother before conclusion of the trial in the case instituted by him against them. Mr. Panigrahi has filed a copy of the FIR in Industrial Area P.S. Case No. 200 of 2021. It appears that in the said case, charge sheet has already been submitted against several accused persons including the present opposite party Nos. 2 and 3. Mr. Panigrahi therefore, contends that the Court below ought to have taken note of such blatant violation of the conditions by cancelling the bail granted to them. 7. Mr. S.K. Mishra, learned Additional Standing Counsel for the State contends that unless the Court is satisfied that the conditions imposed by it have actually been violated, it would always be slow to cancel the bail already granted. In the instant case, the court below after considering the facts of the case did not think it a fit case to exercise power under Section 439(2) of Cr P.C. and to such extent therefore, no interference by this Court with
Decision
the impugned order is warranted. Page 5 of 10 8. Mr. Ramakanta Panda argues that liberty is a valuable right guaranteed under Article 21 of the Constitution and cannot be curtailed lightly or as a matter of course. The petitioner has made false and baseless allegations against the opposite party Nos. 2 and 3 only because they were released on bail. Mr. Panda further submits that because of the previous enmity, the petitioner wants to somehow curb the liberty of the opposite party Nos. 2 and 3 granted by the Court. 9. The facts of the case being as narrated hereinbefore, the issue that falls for consideration by this Court is, whether a case for cancellation of bail is made out. It is not disputed that by order dated 04.04.2018 passed by learned Sessions Judge, Balasore, the opposite party Nos. 2 and 3 were directed to be released on bail on conditions already referred to hereinbefore. It has been alleged that the accused persons threatened the brother of the informant, which led to registration of Industrial Area P.S. Case No.200 of 2021. It is further alleged that on 22.11.2021, the accused persons terrorized the prosecution witnesses for which Sahadev Khunta P.S. Case No. 125 of 2022 was Page 6 of 10 registered against them under Sections 294/506/34 of IPC. A reading of the FIR in Industrial Area P.S. Case No. 200 of 2021 would reveal that there was an altercation between the brother of the informant (petitioner) and the opposite party Nos. 2 and 3. It is alleged that he was threatened with dire consequences. But then the dispute which led to the altercation was in relation to affixing of a tin board by the brother of the petitioner on his boundary. In the FIR in Sahadev Khunta P.S Case No. 125 of 2022, reference has been made to the civil proceedings pending before different courts between the parties and that the opposite party Nos. 2 and 3 allegedly threatened to lodge some false cases against the informant and to do away with his life. If the above allegations are accepted on their face value, it can hardly be treated as violation of the conditions of bail. On the other hand, what becomes apparent from a reading of the FIR is, there is long pending dispute between the parties over landed property which has resulted in animosity and sense of mutual mistrust between them. Liberty of a person is considered the most cherished object under the Constitution of India as guaranteed under Article Page 7 of 10 21. True, liberty as in the case of the present opposite party Nos.2 and 3 has been granted subject to fulfillment of certain conditions, yet unless there is blatant violation of the condition which would partake the nature of willful misuse of the liberty so granted, the courts would be slow to step into curtail the same. In fact this is also the settled position of law as would be evident from a reference to the decision of the Apex Court in the case of Ms. P. v. State of Madhya Pradesh and another, reported laid down that in (2022) 87 OCR (SC) 224. The following principle was emphatically laid down: “24. As can be discerned from the above decisions, for cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial [Refer 1995 (1) SCC 349 (Daulat Ram and Others vs. State of Haryana). To put it differently, in ordinary circumstances, this Court would be loath to interfere with an order passed by the Court below granting bail but if such an order is found to be illegal or perverse or premised on material that is susceptible to scrutiny and interference by the Appellate Court. Some of the circumstances where bail granted to the accused under Section irrelevant, then such an order is Page 8 of 10 439 (1) of the Cr.P.C. can be cancelled are enumerated below: - a) b) c) d) e) f) g) h) i) j) If he misuses his liberty by indulging in similar/other criminal activity; If he interferes with the course of investigation; If he attempts to tamper with the evidence; If he attempts to influence/threaten the witnesses; If he evades or attempts to evade going indulges in activities which court proceedings; If he would hamper smooth investigation; If he is likely to flee from the country; If he attempts to make himself scarce and/or by becoming the investigating agency; If he attempts to place himself beyond the reach of his surety. If any facts may emerge after the grant of considered are bail which unconducive to a fair trial. underground unavailable to We may clarify that the aforesaid list is only illustrative in nature and not exhaustive.” As already seen, none of the conditions referred to by the Apex Court above can be said to exist so as to persuade this Court to exercise power under Section 439(2) of Cr.P.C. to cancel the bail already granted. 10. In view of the discussion made hereinbefore in relation to the allegations made in the subsequent FIRs Page 9 of 10 lodged by the petitioner (and his brother), this Court does not find it a fit case for directing cancellation of bail. 11. Reading of the impugned order revels that learned Sessions Judge has meticulously considered not only the facts but also the settled position of law in this regard to be convinced that there is no reason for the complainant to harbour apprehension that the trial in S.T. No.49/184 of 2018 would not be free and fair. In view of what has been discussed hereinbefore, this Court finds no illegality or impropriety in the impugned order so as to be persuaded to interfere therewith. 12. In the result, the CRLMC being devoid of merit is therefore, dismissed. ..……..………………….. Sashikanta Mishra, Judge BHIGAL CHANDRA TUDU Digitally signed by BHIGAL CHANDRA TUDU Date: 2023.05.09 17:00:41 +05'30' Orissa High Court, Cuttack, The 4th May , 2023/ B.C. Tudu, Sr.Steno Page 10 of 10