BIJAYAKETAN MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under section 439 of the Code of Criminal Procedure of 1973 (hereinafter referred to as the Code) is for enlargement of the petitioner on bail.

(2.) On the basis or a First Information Report lodged on 6.6.1981, by a police constable alleging that one Kunia alias Pradeep Kumar Mohanty had been murdered, a case was registered under section 302, Indian Penal Code and investigation was undertaken by the Capital Police Station, Bhubaneswar. Four persons appeared to have been implicated in the occurrence, namely Babu alias Bijayaketan Mohanty, Jitu alias Binod Behari Mohapatra, Bubu Jayanata Kumar Rath and Bubu alias Suresh Mohapatra. Suresh remained untraced but the other three accused persons were apprehended. Bijayaketan, the present petitioner, made an application to the Sub-Divisional Judicial Magistrate of Bhubaneswar for being enlarge on bail and his application was rejected on 25.6.1981. On 23.9.81, bail on his behalf was again moved on the ground that the petitioner had remained in custody for ninety days and yet no charge-sheet was submitted. Keeping the proviso to section 167(2) of the Code in view, the learned Sub-Divisional Judicial Magistrate passed the following orders: Bail moved for accused Bijayaketan Mohanty who is in custody since 25.6. 1981 forwarded in a case under section 302 I.P.C. The said accused has undergone detention for over 90 days and yet no F.F. is submitted. No report is received from the 1.0. either By lapse of time and prolonged detention, the accused has, therefore, become entitled to bail under section 167, Cr.P.C. The accused is released on bail of Rs. 10,000.00 with two sureties for the like amount subject to the conditions that he shall not leave the jurisdiction of the Bhubaneswar Municipality and shall report at the police station as and when required until submission of final form.T

(3.) Order No. 23 of the Sub-Divisional Judicial Magistrate indicates that bail bonds along with affidavits had been filed for giving effect to the aforesaid order. At that stage, the Assistant Public Prosecutor filed an application for cancellation of the order on the ground that charge-sheet had in the meantime been submitted. On the basis of such an application, the following order was made on the same day: TTBail bonds along with affidavits are filed on behalf of accused Bijayaketan Mohanty who has released today on bail under section 167, Cr.P.C. for the delay in submission of the chargesheet, as the said accused had undergone 90 days of detention. In the meantime, charge fil sheet in the case has been received before bail bonds are furnished and the bail order given effect to. The A.P.P. files a petition with copy served on the defence advocate for cancellation of bail in the changed circumstances. Heard with the submission of the charge- sheet by the prosecution, the provisions of section 167, Cr.P.C. which had entitled the accused to an order of bail have become inapplicable. The accused is, therefore, not entitled to be released on bail. Perused the evidence on record. I find a prima facie case under section 302/34, I.P.C. against the accused in respect of which cognizance is already taken which is triable exclusively by the court of Session. In the changed circumstances, I am not inclined to give effect to the order and cancel the order of bail under section 437(5), Cr.P.C. As the accused is still in custody, there is no order regarding his arrest and commitment to custody. Bail bonds are rejected.