NILAMANI SATPATHY Vs. JAYASHANKAR BHOI AND FIVE ORS.

JUDGEMENT

(1.) THIS miscellaneous case arises out of a petition filed by Nilamani Satapathy, the brother of the informant Parsuram Satpathy in G.R. Case No. 401/72 instituted against the opposite parties in respect of an alleged offence under Section 395, Indian Penal Code. The said informant has allegedly been murdered in 1974 and on his murder G.R. Case Woo 437/74 has been instituted. By this miscellaneous petition the Petitioner prays for the cancellation of the bail granted to opposite parties 1 to 5. It is alleged in this petition and submitted by the learned Counsel for the Petitioner that though the facts, alleged against the opposite parties in the F.I.R. filed on 12 -12 -1972, constitute an offence under Section 395, Indian Penal Code amongst other offences and the police has charge -sheeted them for offences under Sections 147, 148, 149, 426 and 323, Indian Penal Code and they have been committed to the Court of Sessions for an offence under Section 395, Indian Penal Code on 15.5.1974 all the opposite parties are still on bail, and several petitions for cancellation of their bail have all proved futile. It is also alleged that after the institution of the case the informant Parasuram Satpathy was threatened by the accused persons to be murdered soon, and that fact was brought to the notice of the police. The occurrence took place on 12 -12 -1972 and within a short time of the occurrence on the same day the F.I.R. of the case was lodged at the police station and the accused persons were arrested very soon after the lodging of the F.I.R., but the police released them on bail. So the informant filed a petition before the local Judicial Magistrate for cancellation of bail and that Magistrate on 5.1.1973 cancelled the bail of the accused persons and directed that they be kept in custody.. On the same day an Additional District Magistrate Executive} stayed the operation of the said order of the Judicial Magistrate. Since that time the accused persons have remained on bail though they have, since 15 -5 -1974, been committed to sessions to stand their trial for an offence under Section 395, Indian Penal Code. It is stated that when the case was pending in the committing Court the case had to be adjourned on 14 dates on account of the absence of the accused persons.

(2.) IN the Sessions Court charges under Sections 395, 426 and 147, Indian Penal Code have been framed against the accused persons and the Sessions Case against them (No. 19 -B of 197 -1) is now pending before the Assistant Sessions Judge, Bolangir. After the aforesaid charges were framed against the accused persons in the Sessions Court, the informant was murdered in the town of Bolangir on 29 -11 -1974. Soon thereafter the informant's brother, Nilamani Satpathy, the Petitioner in this case, filed a petition in the Court of the Assistant Sessions Judge, Bolangir to cancel the bail of the accused persons alleging therein that the accused persons were terrorising the prosecution witnesses and/or their relations with dire consequences and because of the threatening attitude of the accused persons some of the prosecution witnesses were apprehending risk to their lives as actually the informant was murdered as per the threats held out to him by the accused persons. On 15 -1 -1975 the said Nilamani Satapathy again filed another petition in the trial Court renewing his prayer for cancellation of the bail bonds, and in that petition it was stated that the Assistant Public Prosecutor who was engaged to conduct the prosecution case was not taking interest in the matter and was not supporting the cause of the prosecution. By another petition, dated 3 -3 -1975, filed on behalf of the said Nilamani Satapathy it was said that the said Assistant Public Prosecutor was not competent under the law to appear in the Court of Sessions and as such he should be disengaged from this case. Petitions on behalf of the accused persons and the Assistant Public Prosecutor counteracting the above -mentioned applications filed on behalf of the informant were filed in the Court and the learned Judge on a consideration of the factual and legal aspects of the matter held on 12 -3 -1975 that the said Assistant Public Prosecutor was not competent to conduct the case in the Court of Sessions. By the same order the Court refused the Petitioner's prayer to cancel the bail bonds of any of the accused persons.

(3.) IT is submitted by Mr. Palit, the learned Counsel for the accused persons (Opposite parties in this case), that in view of the order dated 12 -3 -1975 of the trial Court this miscellaneous petition has become infructuous and the Petitioner should come up with a fresh petition asking for a revision of the said order of the trial Court. Mr. Swain, the learned Counsel for the Petitioner counteracts the above submission of Mr. Palit by saying that this petition is one under Section 439(2) of the Criminal Procedure Code, 1973, praying for a direction of this Court to cancel the bail bonds of the accused persons and to commit them to custody, and this prayer in this petition can be considered by this Court on its own merits on the facts and circumstances existing at the time of passing the order and accordingly this miscellaneous case has not become infrucutuous because of the order dated 12 -3 -1975 of the trial Court. The above submission of Mr. Swain i:; perfectly correct, and Mr. Palit's submission on this score has no merit.