DUREI BEHERA Vs. SURATHA BEHERA

JUDGEMENT

(1.) Does an earlier illegal detention render a later valid detention invalid and entitle the accused for grant of bail? This question came to the fore in course of hearing of these two petitions filed under S.439(2) of the Code of Criminal Procedure (for short, 'the Code') for cancellation of bail granted by the learned Sessions Judge, Puri, to Suratha Behera on the authority of D. Bhaskar Rao v. State of Orissa, (1985) 60 Cut LT 228. Mr. S.C. Mohapatra, J. who doubted the correctness of the aforesaid decision, referred the matter for hearing by a larger Bench. This is how the matter has came before us.

(2.) On an F.I.R. lodged on 11-10-1985 at the Tangi Police Station in the district of Cuttack containing allegation of commission of offences under Ss.302, 323, 325, 337, 147, 148, 149, 379 of the Indian Penal Code, Suratha Behera (Opp. Party in Crl. Misc. Case No. 309/86) and others were arrested and produced in Court on 15-10-1985 and were remanded to custody till 28-10-1985. Neither were the accused produced in court on 28-10-1985 nor was there any direction remanding them to custody. Suratha Behera was produced in court on 4-11-1985 and was remanded to custody till 18-11-1985. He was produced in court on 18-11-1985 and thereafter on 2-12-1985 and 18-12-1985. On 8-1-1986, charge-sheet was filed and cognizance was taken. On 10-1-1986. Suratha Behera was produced in Court and was remanded till 24-1-1986. His prayer for bail was rejected both by the court of Session and by this Court.

(3.) On 25-4-1986, an application was filed by Suratha Behera before the learned Session Judge for grant of bail. It was contended that the detention of the petitioner-Suratha Behera beyond the period of 15 days from 15-10-1985 and from 18-11-1985 without any order of remand had rendered his detention invalid and unauthorised. The subsequent orders of remand could not cure the invalidity and he was entitled to be released on bail. Reliance was placed on a decision of this Court in D. Bhaskar Rao v. State of Orissa (1985) 60 Cut LT 228) (supra) and it was contended that the earlier rejection of it prayer for bail both by the Court of Session and by this court could not operate as impediment. His detention being invalid, he was entitled to be released on bail. The learned Sessions Judge accepted contention. following D. Bhaskar Rao's case and released him on bail.