CHARIDRAMANI SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) Though this application has been moo under section 439 Cr. P.C. for releasing the petitioner Chandramani Swain on bail, in course of hearing the application Mr. Mishra for the petitioner challenges the legality of the order of the learned 1st. Additional Sessions Judge, Pori dated 24/1/1993 inter alia on the ground that the petitioner having been released on bail by the learned 1st. Addl. Sessions Judge, Pori in exercise of his power under section 439 Cr. P.C. by order dated 6/8/1992, it was not open for the 1st. Addl. Sessions Judge to hold that the said order was not maintainable and to recall the same by the impugned order. The short facts necessary for deciding the legality of the aforesaid contention are that the petitioner was arrested on the allegation of having committed an offence under section 302/149 I.P.C. along with several other offences and in course of investigation his prayer for being released on bail having been rejected by the learned Sessions Judge, .he had moved this Court in Cri. Misc. Case No. 282192 along with three other co-accused persons. This Court considered the application for bail on 11/3/1992 and in view of the materials available against the petitioner Chandramani rejected his prayer for bail but so far as two other accused persons, Nabaghana and Karunakar, are concerned, they were released on bail of 5,000.00 (five thousand) each with two sureties each for the like amount Subsequent to the filing of charge sheet Chandramani and Pravakar, the two accused persons whose application for bail has been rejected earlier by this Court in Cri. Misc. Case No. 282/92, moved the learned Sessions, Judge invoking his jurisdicti9n under section 439 Cr. P.C. That application stood transferred to be disposed of by the Additional Sessions Judge. The learned Additional Sessions Judge by order dated 6/8/1992 considered all the relevant materials available on record and came to the conclusion that since there was not allegation either in the F.I.R. or in the statements of the material witnesses that the petitioner Chandramani assaulted the deceased by means of a lathi on his head he is entitled to be released on bail. Accordingly the petitioner Chandramani was enlarged on bail on furnishing bail bond to the tune of Rs. 10,000.00 with two solvent Sureties for the like amount. The accused persons on being committed to the Court of Session, the learned Sessions Judge also accepted the jail bonds furnished by order dated 27/11/1992. When the case was thereafter transferred to the Court of the 1st. AddI. Sessions Judge, the said 1st. AddI. Sessions Judge passed the impugned order on 24/1/1993. Suo motu he recalled the earlier order passed by him on 6/8/1992 in Cri. Misc. Case No. 488/92 on the ground that the High Court having rejected the prayer for bail of the petitioner in Cri. Misc. Case No. 282/92 by order dated 11/2/1992,lhe Sessions Judge had no further jurisdiction to release the petitioner Chandramani on bail and the subsequent application was not maintainable. The petitioner having been remanded to custody pursuant to the aforesaid order of the learned AddI. Sessions Judge, he has moved this Court.

(2.) Mr. Mishra appearing for the petitioner contends that the AddI. Sessions Judge was totally in error in recording a finding that the subsequent application for bail before the learned Sessions judge was not maintainable in as much as, successive applications for grant of bail by envoking jurisdiction of the learned Sessions Judge under section 439 Cr. P.C. can be maintained, but whether on merit the Sessions Judge would pass an Order releasing the accused on bail is a different matter. Mr. Mishra further contends that the. AddI. Sessions Judge having exercised his power under section 439 Cr. P.C. and after applying his mind to the materials on record on being satisfied that there exists not prima facie material against the petiti9ner Chandramani and having released him on bail by order dated 6/8/1992, the only way by which an accused can be again brought under custody is by canceling the bail and for such cancellation power can be exercised only if the conditions precedent provided in section 437 (5) Cr. P.C. are satisfied. That not having been done, the impugned order is wholly unsustainable in law.

(3.) The learned AddI. Advocate appearing for the State and Mr. Panda appearing for the in formant did not dispute the contention of Mr. Mishra appearing for the petitioner that the conclusion of the Additional Session Judge that subsequent application for bail was not maintainable is erroneous but they contend that in view of the gravity of charges against the petitioner, the High Court having considered the same and having rejected his prayer for being released on bail, it was not appropriate for the learned Sessions Judge to release him on bail by order dated 6/8/1992 and in that view of the matter when the accused obtained an order of bail by suppressing the order of this Court rejecting his prayer for bail, the Additional Sessions Judge was entitled to being the accused again toto custody and, therefore, there is no legal infirmity in the same.