BIJAY KUMAR BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE sole question of law to be adjudicated in this case relates to the , period of currency of an order of bail. Under a misapprehension the petitioners had earlier rushed to this Court for protection, and that is how they have landed themselves in the soup.

(2.) IN a nutshell background facts are as follows : On the basis of an information lodged by one Kanakalata Behera, Jagatsinghpur P.S. Case No. 277 of 1991 was registered against the petitioners for commission of offences punishable undar Sections 498A and 306 read with Sec, 34 of the Indian Penal Code, 1860 (in short, 'IPC') and Section 4 of the Dowry Prohibition Act, 1961 (in short, the 'Dowry Act'). Corresponding G.R. Case No. 666 of 1991 was registered in the Court of the Subdivisional Judicial Magistrate, jagatsinghpur (in short, 'SDJM'). Petitioners moved for' bail before learned SDJM which was rejected. However, such prayer was accepted by learned Sessions Judge, Cuttack. After completion of investigation, the Investigating Officer submitted charge -sheet indicating commission of offences punishable Under Sections 498A and 304B read with Section 34, IPC. On receipt of charge -sheet, learned SDJM took cognizance of the said offences. He fixed 12 -4 -1994 as date of commitment of the case to the Court of Session. Petitioners being apprehensive that in case they appear before learned SDJM, they may be remanded to custody, filed an application styled Under Section 482 of the Code of Criminal Procedure, 1973 (in short, the 'Code') seeking direction from this Court that they need not be remanded to custody without cancellation of bail. This Court disposed of the application with observation that if such contingency arises principles relating to cancellation of bail as indicated by the apex Court in Aslam Babulal Desai v. State of Moharashtra : AIR 1993 SC 1 should be kept in view. Subsequently the matter was taken up on 21 -7 -1994 by the learned SDJM when an application was filed for adjournment and for permission to be represented through counsel in terms of Section 317 of the Code on the ground that petitioners were not in a position to appear due to devastating flood. Prayer to be represented through counsel was accepted However, learned SDJM further directed that since offence punishable Under Section 304B is more grievous and weighty in nature in comparison to offence punishable Under Section 306, IPC the petitioners ware to obtain bail for the offence punishable under Sec 304 -B, IPC from a competent Court within fifteen days. This Part of direction is subject -matter of challenge.

(3.) AN order of bail either Under Section 437 or 438 or 439 of Code in character remains the same and continues to remain operative unless it is cancelled under the appropriate provisions. Only because the case is committed to the Court of Session, an earlier order of bail does not lapse. Two decisions of the apex Court throw beckon light on the subject. In Aslam's case (supra) apex court observed that once an accused in released on bail Under Section 167(2) he cannot be taken back in custody merely on the filing of a charge -sheet. There must exist special reasons for so doing besides the fact that the charge -sheet reveals the commission of a non bailable crime. In Free Legal Aid Committee, Jamshedpur v. State of Bihar : AIR 1982 SC 1463, took note of practice followed by the Magistrate in cases triable by the Court of Session, proceeding on the footing that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Session, he is re -arrested and brought before the Court of Session where he has to apply once again for fresh bail. The apex Court noted that this causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. Such impasse can be avoided because there is a provision under Sub sec. (3) of Section 441 of the Code, under which bail can be granted to the accused so as to bind him to appear before the Court of Session, in which event, on committal, he would not have to be re -arrested and brought before the Court of Session. Under Section 209(b) of the Code, the Magistrate has discretion to release the accused on bail during and until completion of trial even in cases where offence is triable by Court of Session. Even a person released on bail under the proviso to Section 167(2) must be treated as a person released on bail Under Section 437(1) or Section 437(2) and tharefore the accused cannot be taken into custody at the time of commitment under Sac. 209 (6). As observed by the apex Court in Bashir and Ors. v. Stats of Haryana : AIR 1978 SC 55. the Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so Under Section 437(5). Since the earlier order of bail passed by learned Sessions Judge is operating in the case at hand, the course adopted by learned SDJM is indefensible.