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TMI Blog2012 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... and above all a sense of vacuum withering the very essence of existence. It is because liberty is deep as eternity and deprivation of it, infernal. May be for this protectors of liberty ask, "How acquisition of entire wealth of the world would be of any consequence if one's soul is lost?" It has been quite often said that life without liberty is eyes without vision, ears without hearing power and mind without coherent thinking faculty. 4. Almost two centuries and a decade back thus spoke Edmund Burke: - "Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011, the challenge is to the orders dated 22.07.2011 and 05.08.2011 in BLAPL No. 13036 of 2011 and 12975 of 2011 respectively passed by the High Court of Judicature of Orissa at Cuttack in respect of five accused persons under Section 438 of the Code pertaining to offences punishable under Section 341/294/506 and 302 read with Section 34 of the Indian Penal Code (for short "the IPC") in connection with Binjharpur PS Case No. 88/2011 corresponding to GR Case No. 343 of 2011 pending in the Court of learned SDJM, Jajpur. 9. The present appeals have been preferred by the sister of the deceased and the complainant, an eye witness, seeking quashing of the orders on the foundation that the High Court has extended the benefit of Section 438 (1) of the Code in an illegal and impermissible manner. 10. The facts that had formed the bedrock in setting the criminal law in motion need not be stated, for the nature of orders passed by High Court in both the cases have their own peculiarity. If we allow ourselves to say they have the enormous potentiality to create colossal puzzlement as regards the exercise of power under Section 438 of the Code. 11. While dealing with the case of accused Ut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied] 13. On a perusal of both the orders it is perceivable that the commonality in both the orders is that while the High Court had expressed its opinion that though it is not inclined to grant anticipatory bail to the petitioners yet it has directed on their surrender some of the accused petitioners would be enlarged on bail on such terms and conditions as may be deemed fit and proper by the concerned Sub Divisional Judicial Magistrate and cases of certain accused persons on surrender shall be dealt with on their own merits. 14. The learned counsel for the petitioner has contended that the High Court has gravely flawed in passing such kind of orders in exercise of power under Section 438 of the Code which the law does not countenance and, therefore, they deserved to be lancinated. It is his further submission that when the accused persons are involved in such serious offences the High Court could not have dealt with them by taking recourse to an innovative method which has no sanction in law. 15. The learned counsel for the respondent made a very feeble attempt to support the orders. 16. The pivotal issue that emanates for consideration is whether the orders passed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions in the light of the facts of the particular case, as it may thinks fit, including - (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the court; (iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted -under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the court under sub-section (1)." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of anticipatory bail he will flee from justice, such an order would not be made. However, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. The Constitution Bench also opined the Court has to take into consideration the combined effect of several other considerations which are too numerous to enumerate and the legislature has endowed the responsibility on the High Court and the Court of Session because of their experience. 21. The Constitution Bench proceeded to state the essential concept of exercise of jurisdiction under Section 438 of the Code on following terms:- "Exercise of jurisdiction under Section 438 of Code of Criminal Procedure is extremely important judicial function of a judge and must be entrusted to judicial officers with some experience and good track record. Both individual and society have vital interest in orders passed by the courts in anticipatory bail applications." 22. In Savitri Agarwal v. State of Maharashtra and Anr. (2009)8SCC325), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 348), it was ruled that limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the court for regular bail and to give the regular court sufficient time to determine the bail application. It was further observed therein that till the bail application is disposed of one way or the other, the Court may allow the accused to remain on anticipatory bail. 25. In Nirmal Jeet Kaur v. State of M. P. and Another( 2004) 7 SCC 558), the decision in K. L. Verma's case (supra) was clarified by stating that the benefit of anticipatory bail may be extended few days thereafter to enable the accused persons to move the High Court if they so desire. 26. In Adri Dharan Das v. State of West Bengal(2005) 4 SCC 303), a two- Judge Bench while accepting for grant of bail for limited duration has held that arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adam Narain Agarwal (AIR 2009 SC 254) this Court while dealing with an order wherein the High Court had directed that the respondent therein shall appear before the concerned customs authorities in response to the summons issued to them and in case the custom authorities found a nonbailable against the accused persons they shall not arrest without ten days prior notice to them. The two-Judge Bench relied on the decisions in Gurbaksh Singh Sibbia (supra), Adri Dharan Das (supra), and State of Mahrashtra v. Mohd. Rashid and Anr. (2005) 7 SCC 56) and eventually held thus:- "In our judgment, on the facts and in the circumstances of the present case, neither of the above directions can be said to be legal, valid or in consonance with law. Firstly, the order passed by the High Court is a blanket one as held by the Constitution Bench of this Court in Gurbaksh Singh and seeks to grant protection to respondents in respect of any non-bailable offence. Secondly, it illegally obstructs, interferes and curtails the authority of Custom Officers from exercising statutory power of arrest a person said to have committed a non-bailable offence by imposing a condition of giving ten days prior notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and in flagrant violation of the dictum laid down in the case of Gurbaksh Singh Sibbia (supra) and the principles culled out in the case of Savitri Agarwal (supra). It is clear as crystal the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed. In the case of Gurbaksh Singh Sibbia (supra) the Constitution Bench has clearly observed that exercise of jurisdiction under Section 438 of the Code is an extremely important judicial function of a judge and both individual and society have vital interest in the orders passed by the court in anticipatory bail applications. 31. In this context it is profitable to refer to a three-Judge Bench decision in Dr. Narendra K. Amin v. State of Gujarat and another(2008 (6) SCALE 415). In the said case a learned Judge of the Gujarat High Court cancelled the bail granted to the appellant therein in exercise of power under Section 439(2) of the Code. It was contended before this Court that the High Court had completely erred by not properly appreciating the distinction between the parameters for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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