HATANATH BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) Hatanath Behera who is the informant in G. R. Case No. 501 of 1932 pending on the file of the Subdivisions! Judicial Magistrate, Khurda filed this application Under Section 432 read with Section 439(2), Criminal Procedure Code seeking cancellation of bail granted to opp. party No, 2 Sarat Chandra Sarnantray.

(2.) THE opp. party No. 2 who is one of the accused persons in the said G.R. Case filed an application Under Section 438, CrPC for anticipatory bail in this Court which was registered as Criminal Misc. Case No. 2297/92. In that case by the order dated 24 -12 -1992 this Court granted the prayer for anticipatory bail and ordered that in the event of arrest of the accused he shall be released on bail of Rs,' 10,000/ - with two sureties each for the like amount to the satisfaction of the police officer causing arrest subject to the further conditions specified in the order. The bail order is assailed by the petitioner on the grounds, inter alia that the accused opp. party No. 2 obtained the said order by suppression of material facts and that after being released on bail he has threatened prosecution witnesses including the informant with dire consequences if they depose against him in the criminal case and that he being the ring leader and having committed the offences along with other accused persons should not have been released on bail. It is the case of the petitioner that the opp. party No. 2 did not disclose in the bail petition that the learned Magistrate had already taken cognizance of the olfences and had issued non -bailable warrant of arrest against him before the bail petition was filed. In such circumstances, it is the contention of the petitioner that this Court had no jurisdiction to consider the application for anticipatory bail.

(3.) IN view of the rival contentions raised by the parties, the case record was called for from the learned Magistrate. On perusing the same I find that by order dated 26 -10 -1992 the learned Magistrate on consideration of the charge -sheet filed by the police took cognizance of the offences Under Section 147/143/341/351/324/326/149 I.P.C. and directed issue of N. B W,/summons to the accused persons. The application for anticipatory bail was filed in this Court on 21 -12 -1S92. Therefore, the tactual position as slated by the petitioner that prior to the filing of the bail petition warrant of arrest had been issued against the opp. party No. 2 is borne out from the record. The question that arises for consideration is whether in such situation an application for anticipatory bail cannot be entertained or in other words, whether that takes away the jurisdiction of the Court for grant of anticipatory bail. This question was answered in the affirmative by this Court in the case of Mohan Behera and two others v. State, reported in 59(1985) CLT 110 in which it was held that if a Magistrate has already taken cognizance of an offence and has issued a non -bailable warrant, the stage for invoking the jurisdiction of the High Court or the Court of Session for en order for anticipatory bail is already over, interpreting the provisions of Section 438, Cr PC this Court observed that the section' envisages three stages : Sub -section (1) enables a person for making an application for anticipatory bail when he reasonably apprehends his arrest in respect of accusation of commission of a non -bailable offence; Sub -section (2) enumerates the conditions which may be imposed by the Court while making an order under Sec 438(1) ; Sub -section (3) pertains to the execution or implementation of the order passed under Sub -section (1) This Court further observed that the first part of Sub -section (3) mandates the police officer to release the person on bail pursuant to an order .made under Sub -section (1) and the second part of the said Sub -section obligates the Magistrate taking cognizance of an offence to issue bailable warrant only instead of non -bailable warrant against the person in whose favour' an order under Sub -section (1) has been passed, and that Sub -section (3) would come into play only after an order under Sub -section (1) has been passed, Shri Choudhury placed strong reliance on the Full Bench decision of the Andhra Pradesh High Court in case of Smt. Sheik Khasim Bi v. The State, reported in 1986 Cri LJ 1303 in which it was held, inter alia, that the filing of a charge -sheet by the police and issuing of a warrant by the Magistrate do not put an end to the power to grant bail Under Section 438(1) ; on the other hand the High Court or the Court of Session has power to grant anticipatory bail Under Section 438(1) to a person after the Criminal Court has taken cognizance of the case and has issued process, viz., the warrant of arrest of that accused person. innterpreting Section 438(3), Cr PC the Court observed in paragraph 9 of the judgment; 'It can, therefore, be seen that Sub -section (3) of Section 438, Cr PC does not in any manner restrict the power of the Court to grant anticipatory bail, but on the other hand it only contains the procedural aspect that is necessary to give effect to the order of anticipatory bail passed under Sub -section (1) of Section 438 and the manner in which it would be given effect to. May be the High Court or the Court of Session (would) not (be) inclined to grant bail keeping in view the fact that the Magistrate has taken cugnizance and issued process, but the mere non -exercise of such power does not mean lack of jurisdiction.' The Court placed reliance on the decision of the Apex Court in the case of Gurbaksh Sing v. State of Punjab, reported in AIR 1980 SC 1632, the Division Bench decision of the Madhya Pradesh High Court in the case of Ramsewak v. State of Madhya Pradesh, reported in 1979 Crl LJ 1485 and the Division Bench decision of the Punjab and Haryana High Court in the case of Purna Singh v. Ajit Singh, reported in 1985 Crl LJ 897 in support of its view. In Gurbaksh Singh's case the Apex Court ruled out that the applicant must show that he has 'reason to believe' that he may be arrested for a non -bailable offence : the use of the expression 'reason to believe' shows that the belief that the applicant may be so arrested must be founded on reasonable grounds; mere 'fear' is not 'belief for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that someone is going to make an accusation against him, in pursuance of which he may by arrested; the grounds on which the belief of the applicant is based that he may be arrested for a non -bailable offence must be capable of being examined by the Court objectively, because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested; Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to bar oneself in perpetuity against a possible arrest. Referring to the above observation of the Apex Court the Full Bench held that filing of a charge -sheet and issuance of warrant are certainly the grounds which make the person not only to believe that he would be arrested but also to move the Courts, under Section 438(1).