BINOD AMAT Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under Section 482, Cr.P.C. stands disposed of at the stage of admission on consent of both the parties

(2.) Factual aspect involved in the case is that petitioners are two of the accused persons in G.R. Case No. 123 of 2002 of the Court of S.D.J.M., Birmaharajpur arising out of Birmaharajpur P.S. Case No. 88 of 2002. F.I.R. was lodged by the informant relating to an incident which took place around 1 a.m. in the night between 14/15- 12-2002. According to the F.I.R.; petitioner No. 1 with another named offender and about 5 unnamed offenders tresspassed into the shed of the informant where he was camping for undertaking construction work of a bridge. Accused persons demanded Rs. 20,000/- from the informant for celebration on the eve of the incoming new year. When the informant declined to pay not only he was man-handled and assaulted but also a sum of Rs. 5,000/- was forcibly taken away from him. On the basis of that F.I.R. both the petitioners were arrested and produced before the S.D.J.M., Birmaharajpur on 17- 2-2002 with a forwarding report in which involvement of the offence under Sections 457/385/323/379/506/34, IPC was quoted. Investigating Officer also produced the F.I.R. and statements of witnesses sofar recorded besides the seizure-list along with the forwarding report. Learned S.D.J.M., Birmaharajpur ascertained from both the accused persons i.e., the petitioners that there was no ill-treatment on them by the Police. None the less learned S.D.J.M. found stiched wound on the chin of accused Debaraj Bagh. That accused stated that he sustained that injury due to assault by the informant. He also brought to the notice of learned S.D.J.M. that P.S. Case No. 87 dated 15-12-2002 is a Counter case which has been lodged against the said informant at the instance of the accused party. Thus, considering all facts and circumstances, learned S.D.J.M. allowed the two petitioners to go on bail by imposing conditions as indicated in the order passed on 17-12- 2002. At that stage, therefore, learned S.D.J.M. was of the opinion that the offences alleged were in the manner noted in the forwarding report and accordingly, he allowed the prayer for bail. On a later date i.e., on 2- 1-2003, some of the co-accused persons surrendered and applied for bail. Learned S.D.J.M. called for the up-to-date case diary. The Investigating Officer submitted the ease diary up to 17-12-2002 along with the statements of the witnesses recorded by him on 15-12-2002. On perusal of such records, learned S.D.J.M. found that the accused group extorted the informant by demanding "dadabati" and in that process they committed the offence of dacoity punishable under Section 395, I.P.C. Therefore, while rejecting the contention of the said accused persons to grant them parity with the two accused persons because of the involvement of the offence under S. 395, I.P.C., on 8-1- 2003, learned S.D.J.M. passed order under sub-sectiori (5) of Section 437, Cr.P.C. directing the petitioner to surrender in his Court by 16-1-2003. That order is under challenge in this application under Section 482, Cr.P.C.

(3.) Mr. D. P. Dhal, learned counsel for the petitioner states that in view of the settled position of law by this Court in the case of Prafulla Kumar Nayak v. State of Orissa, (1994) 7 OLR 818, the aforesaid order of learned S.D.J.M. amounts to cancellation of bail only because at a later stage of the proceeding learned S.D.J.M. has formed an opinion of involvement of an offence exclusively triable by the Court of Session and therefore that order is not only illegal but also against the interest of justice. Accordingly, be prays to quash that direction issued against the petitioners. On the other hand, Mr. Aswini Kumar Mishra, learned Standing Counsel referring to the case of State v. Surendranath Mohanty, (1990) 2 OLR 213, states that the impugned order under sub-section (5) of Section 437, Cr.P.C. is legal and sustainable and therefore, inherent power should not be invoked to quash it.