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Rashmi Rekha Thatoi & Anr. Versus State Of Orissa & Ors.

2012 (5) TMI 767 - SUPREME COURT OF INDIA

Grant of bail - Held that:- 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 are cancelled and they shall be taken into custody forthwith. It needs no special emphasis to state that they .....

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iety. 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, .....

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wer 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 pre .....

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ed liberty, either of nations or of individuals. Liberty itself is the product restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematized restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip .....

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f 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 .....

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ided 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 .....

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0. 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 Uttam Das and Ranjit Das, vide order dated 22.07.2011 the High Court, as stated, perused the case file and .....

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r No. 2 Ranjit Das is concerned, this court directs him to surrender before the learned S.D.J.M., Jajpur and move an application for bail in connection with the aforesaid case, in such event his application shall be considered by the learned S.D.J.M., on its own merits. The Bail Application is accordingly disposed of. [Underlining is ours] 12. In the case of the other accused persons, namely, Abhimanyu Das, Murlidhar Patra and Bhagu Das the High Court on 05.08.2011 passed the order on following .....

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. 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 .....

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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 .....

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tely acceptable and legally sustainable within the ambit and sweep of Section 438 of the Code. To appreciate the defensibility of the order it is condign to refer to Section 438 of the Code which reads as follows. 438. Direction for grant of bail to person apprehending arrest.-(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in .....

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juring 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 a .....

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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 availa .....

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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 dir .....

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2), has drawn a distinction between an order of ordinary bail and order of anticipatory bail by stating that the former is granted when the accused is in custody and, therefore, means release from the custody of the Police, and the latter is granted in anticipation of arrest and hence, effective at the very moment of arrest. It has been held therein, an order of anticipatory bail constitutes, so to say, an insurance against Police custody falling upon arrest for offences in respect of which the .....

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wer 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 anticip .....

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rder 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 respons .....

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sed by the courts in anticipatory bail applications. 22. In Savitri Agarwal v. State of Maharashtra and Anr. (2009)8SCC325), the Bench culled out the principles laid down in Gurbaksh Singh (supra). Some principles which are necessary to be reproduced are as follows:- (i) Before power under Sub-section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non-bailable offence .....

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disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. 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 .....

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rture 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. .....

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nd 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 h .....

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nce to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in .....

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ing 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 .....

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ion 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. Th .....

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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, a condition not warranted by law. The order passed by the High Court to the extent of directions issued to the Custom Authorities is, therefore, liable to be set aside and is hereby s .....

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incurium. It is worth noting though the Bench treated Adri Dharan Das (supra) to be per incuriam, as far as it pertained to grant of anticipatory bail for limited duration, yet it has not held that the view expressed therein that the earlier decisions pertaining to the concept of deemed custody as laid down in Salauddin Abdulsamad Shaikh (supra) and similar line of cases was per incuriam. It is so as the controversy involved in Siddharam Satlingappa Mhetre (supra) did not relate to the said aren .....

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(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 .....

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der 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 thr .....

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. Rambilas and another(2001) 6 SCC 338) wherein it has been noted that the concept of setting aside an unjustified, illegal or perverse order is totally different from the cancelling an order of bail on the ground that the accused has misconducted himself or because of some supervening circumstances warranting such cancellation. The three-Judge Bench further observed that when irrelevant materials have been taken into consideration the same makes the order granting bail vulnerable. In essence, t .....

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