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2012 (5) TMI 767

the Magistrate on their surrendering are wholly unsustainable and bound to founder and accordingly the said directions are set aside. Consequently the bail bonds of the aforenamed accused persons are cancelled and they shall be taken into custody forthwith. It needs no special emphasis to state that they are entitled to move applications for grant of bail under Section 439 of the Code which shall be considered on their own merits. - CRL.A. 750 Of 2012(Arising out of S.L.P. (Criminal) No. 7281 of 2011 - Dated:- 4-5-2012 - Radhakrishnan K.S. And Misra Dipak, JJ JUDGMENT Dipak Misra ,. Leave granted in both the petitions. 2. Liberty is to the collective body, what health is to every individual body. Without health no pleasure can be tasted by man; without Liberty, no happiness 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 !&quo .....

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and body; not in mute, motionless meditation but in flashing, thrashing activity. 6. Keeping the cherished idea of liberty in mind, the fathers of our Constitution engrafted in its Preamble: "Liberty of thought, expression, belief, faith and worship." After a lot of debate in the Constituent Assembly, Article 21 of the Constitution came into existence in the present form laying down in categorical terms that no person shall be deprived of his life and personal liberty except according to the procedure established by law. 7. We have begun with the aforesaid prologue, as the seminal question that falls for consideration in these appeals is whether the High Court, despite the value attached to the concept of liberty, could afford to vaporise the statutory mandate 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 .....

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, Abhimanyu Das, Murlidhar Patra and Bhagu Das the High Court on 05.08.2011 passed the order on following terms. Considering the facts and circumstances of the case this Court is not inclined to grant anticipatory bail to the petitioners. Since there are some materials against Bhagu Das @ Sanjit Kumar Das petitioner No. 3, this Court directs that in case petitioner No. 3 surrenders before the leaned S.D.J.M., Jajpur and moves an application for bail, the learned S.D.J.M. shall consider and dispose of the same on its own merit in accordance with law. So far as the prayer for bai l o f petitioner Nos . 1 and 2 is concerned since one o f the co accused namely , Uttam Das has been released on bai l in pursuance o f order dated 02.07.2011 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 under .....

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of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer incharge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy 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 .....

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rrest order of bail, it is a prearrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. 19. The Constitution Bench partly accepted the verdict in Balchand Jain v State of Madhya Pradesh (AIR 1976 SC 366) by stating as follows:- We agree, with respect, that the power conferred by S. 438 is of an extraordinary character in the sense indicated above, namely, that it is not ordinarily resorted to like the power conferred by Ss. 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with 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 arres .....

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n. ii) The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. viii) An interim bail order can be passed under Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The adinterim order too must conform to the requirements of the 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 .....

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f Salauddin Abdulsamad Shaikh (supra), K. L. Verma (supra), Nirmal Jeet Kaur (supra), Niranjan Singh and Anr. v. Prabhakar Rajaram Kharote and Ors. (1980) 2 SCC 559) the Bench opined thus:- 14. After analyzing the crucial question is when a person is in custody, within the meaning of Section 439 of the Code, it was held in Nirma l Jeet Kaur's case (supra) and Sunita Devi's case (supra) that for making an application under Section 439 the fundamental requirement is that the accused should be in custody. As observed in Salauddin's case (supra) the protection in terms of Section 438 is for a limited duration during 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 o .....

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is so as the controversy involved in Siddharam Satlingappa Mhetre (supra) did not relate to the said arena. 30. We have referred to the aforesaid pronouncements to highlight how the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) had analysed and explained the intrinsic underlying concepts under Section 438 of the Code, the nature of orders to be passed while conferring the said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwal (supra) 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 .....

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at large and that of the individual victims is jeopardised. That apart, it curtails the power of the regular court dealing with the bail applications. 32. In this regard it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd. and Anr. v. Shobha and Ors. (2006) 13 SCC 737) and U.P. State Brassware Corporation Ltd. and Anr. v. Uday Narain Pandey(2006) 1 SCC 479). 33. Judging on the foundation of aforesaid well settled principles, the irresistible conclusion is that the impugned orders directing enlargement of bail of the accused persons, namely, Uttam Das, Abhimanyu Das and Murlidhar Patra by the Magistrate on their surrendering are wholly unsustainable and bound to founder and accordingly the said directions are set aside. Consequently the bail bonds of the aforenamed accused persons .....

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