TMI Blog2012 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ss can be enjoyed by society. Thus spoke Bolingbroke. 3. Liberty is the precious possession of the human soul. No one would barter it for all the tea in China. Not for nothing Patrick Henry thundered: Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death ! The thought of losing one's liberty immediately brings in a feeling of fear, a shiver in the spine, an anguish of terrible trauma, an uncontrollable agony, a penetrating nightmarish perplexity 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate enshrined under Section 438 of the Code of Criminal Procedure (for short the Code ). It is not to be forgotten that liberty is not an absolute abstract concept. True it is, individual liberty is a very significant aspect of human existence but it has to be guided and governed by law. Liberty is to be sustained and achieved when it sought to be taken away by permissible legal parameters. A court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy. 8. Presently to the narration. In these two appeals arising out of SLP No. 7281 of 2011 and 7286 of 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 prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 passed by this Court in BLAPL No . 13036 o f 2011 and petitioner Nos . 1 and 2 stands on similar footing with co-accused Uttam Das , this Court directs that in case petitioner Nos . 1 and 2 surrender before the learned S.D.J.M. , Jajpur and move an application for bail , the learned S.D.J.M. , shal l release them on bai l on such terms and conditions as he may deem fit and proper with further condition that petitioner Nos . 1 and 2 shal l give an undertaking before the Court below that they wil l not commit any similar type o f offence . In case any complaint is received against them that will amount to cancellation of bail [Emphasis 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due care and circumspection. 20. Thereafter, the larger Bench referred to the concept of liberty engrafted in Article 21 of the Constitution, situational and circumstantial differences from case to case and observed that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the 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 enumerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section and suitable conditions should be imposed on the applicant even at that stage. 23. At this juncture we may note with profit that there was some departure in certain decisions after the Constitution Bench decision. In Salauddin Abdulsamad Shaikh v. State of Maharashta (AIR 1996 SC 1042), it was held that it was necessary that under certain circumstances anticipatory bail order should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular court to deal with the matter on appreciation of material placed before it. 24. In K. L. Verma v. State and Anr. (1998) 9 SCC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. 15. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin's case (supra) the result would be clear bypassing of what is mandated in Section 439 regarding custody. In other words, till the applicant avails remedies up to higher Courts, the requirements of Section 439 become dead letter. No part of a statute can be rendered redundant in that manner. 28. In Union of India v. Padam 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 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it not inclined to grant anticipatory bail to the accused petitioners it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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