NILU Vs. STATE

JUDGEMENT

(1.) THE petitioners, accused of offences punishable under Sections 120 -B, 147, 148 and 302 read with Section 149 of the Indian Penal Code, besides other offences, in the court of the Subdivisional Judicial Magistrate, Chatrapur, in the district of Ganjam, for having formed an unlawful assembly being armed with dangerous weapons and committed the murder of Pratap Swain in furtherance of their common intention after a criminal conspiracy, assail the order under Section 439(2) of the Cr. P.C. (for short, the 'Code') passed by the learned Sessions Judge, Ganjam -Boudh, Berhampur, cancelling the bail granted to them by the learned Subdivisional Judicial Magistrate under the proviso to Section 167(2) of the Code, as the investigation was not completed within a period of ninety days. Each of the petitioners had been released on a bail of Rs. 5,000/ -with two sureties each for the like amount subject to the conditions that (i) the petitioners would not leave the jurisdiction of the court without obtaining prior permission from his court; (ii) they would not commit any offence or any act of violence leading to breach of the peace; (iii) they would not do any act leading to tampering with the prosecution evidence, and (iv) they would report themselves at the Chatrapur Police Station once in a week, i.e. on each Sunday before 4 p.m. till the submission of the final form by the investigating agency. Later on the same day a charge -sheet was placed against the petitioners and a number of other accused persons and the prosecution moved an application before the learned Subdivisional Judicial Magistrate for recalling his previous order admitting the petitioners to bail and for cancelling the bail on the ground that the charge -sheet had been made ready in time but could not be filed as it had been misplaced. The learned Magistrate, on the basis of the principles laid down by this Court in Ramesh Chandra Sahuv. State (1982) 53 Cut LT 345 : 1982 Cri LJ NOC 117, refused to recall his order and cancel the bail and held that no case had been made out for cancellation of bail under Section 437(5) of the Code. It has been submitted at the Bar that the State unsuccessfully moved an application in revision before the learned Sessions Judge against that order.

(2.) ON July 3, 1982, the learned Public Prosecutor made an application in the court of the learned Sessions Judge under Section 438(2) of the Code for cancellation of bail granted to the petitioners on the grounds that they had, by taking law into their own hands, flouted the conditions imposed on them by the learned Subdivisional Judicial Magistrate while admitting them to bail and on June 22, 1982, at 6 p.m. the respondents (petitioners herein) attacked Sudhakar Sahu of Berhampur and threatened him by saying that he would be killed if he would depose against them as a witness in the case of murder. Sudhakar Sahu lodged a report at the Berhampur Town Police Station and Police Station Case No. 308 of 1982 under Sections 143, 341, 294 and 506 of the Penal Code was registered and investigated into. The investigation was in progress when the application for cancellation of bail was made. The petitioners, it was alleged, in violation of the conditions imposed on them, had been staying at Berhampur and while so staying, had been committing offences outside the jurisdiction of the Court of the Subdivisional Judicial Magistrate, Chatrapur. The learned Sessions Judge, after perusing the papers placed before him and hearing both the sides, allowed the application. It is thus that the matter has come to this Court in revision.

(3.) AS provided in Section 397(2) of the Code, the powers of revision conferred by Sub -section (1) shall not be exercised in -relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The expression 'interlocutory order' has not been defined in the Code and has been the subject -matter; of judicial interpretation in a large -number of reported cases. In the case of Khirod v. State of Orissa (1983) 1 Crimes 357 : 1982 East LR 5S3 : 1983 Cri LJ NOC 51, this Court, referring: to and relying on a number of reported cases of the Supreme Court, has indicated as to which orders are interlocutory ones and which are not. In that case, the question arose as to whether an order framing a charge would be are interlocutory order and it was held that it was not. In (1983) 55 Cut LT 129 1983 Cri LJ NOC150 Durga Prasad Sao v. State of Orissa, this Court was called upon to decide the question as to whether an order granting bail would be an interlocutory one within the meaning of Section 397(2) of the Code and: it was answered in the affirmative placing reliance on the observation made by the Supreme Court in Amar Nath v. State of Haryana : 1977CriLJ1891 to the effect that passing orders for bail, calling for records, summoning witnesses, adjourning cases and such other steps in aid of pending proceedings would amount to interlocutory orders against which no revision would lie under Section 397(2) of the Code and the decision of the Supreme Court in the following matters arising out of an order passed by this. Court rejecting bail. Petition for Leave to Appeal (Criminal) Nos. 2120 -21 off 1982 had been made in the Supreme Court against an order passed by tins Court on August 10, 1982, refusing bail in Criminal Miscellaneous Case Not 509 of 1982 of this Court. These matters were heard with applications for tail and Criminal Miscellaneous 'Petitions Nos. 3705 and 3708 of 1982. Their Lordships of the Supreme Court dismissed the petitions by making the following observation: Special Leave Petitions are dismissed as these are directed againstinterlocutory order of the High Court refusing bail. There will be liberty to thepetitioners to renew applications for bail before the High Court.' Thus the view of the Supreme Court is that the order refusing bail is an interlocutory one.