STATE OF ORISSA Vs. BIPIN BEHERA

JUDGEMENT

(1.) In this petition under Sec. 439(2), Cr.P.C. the State has sought for cancellation of bail granted to the opposite party by the learned Sessions Judge, Sundargarh in S.T. No. 242/3 of 1995-96 arising out of G.R. Case No. 973 of 1995, of the Court of Sub Divisional Judicial Magistrate, Pan posh. The facts which give rise to the filing of the aforesaid petition are as follows. Engineer Subrata Das, an employee of Rourkela Steel Plant was residing in Qrs. No. E/90, S/4 alongwith his wife Manasi Das and their daughter Ankita Das. The opposite party who is a native of the locality of the parents of Manasi was also residing with them as a domestic servant since 1990. On 11-71995 Subrata Das left Rourkela for Bhubaneswar in connection with certain work. It is alleged that taking advantage of his absence from his house the opposite party on 12-7-1995 in between 7.15 p.m. and 7.30 p.m. strangulated Manasi Das to death by means of a cable and when Ankita came to that room and seeing her mother started crying she was also strangulated to death. Thereafter, collecting the valuables like ornaments, V.C.R., camera etc. the opposite party left Rourkela in that night for his native place. But on his way he got down from the bus at village Haladibasanta and kept the stolen articles in the house of one Biswanath Naik giving him an impression that he had purchased these articles for his sisters marriage. Then he went to the house of ManasiTs parents and informed them that Manasi and Ankita were killed by some unknown persons in the previous night for which he had left Rourkela out of fear. Sub rata who had been to Bhubaneswar came to his in-laws house for a visit and coming to know about the incident asked the opposite party to accompany him to Rourkela. On arrival at Rourkela police arrested the opposite party as by that, time police had already registered a case and had taken up investigation being informed by the parents of some of the classmates of Ankita who came to the house of the deceased and suspected foul play when they did not get any response from the inmates of the house when called. The opposite party while under arrest made a statement before the police leading to discovery and gave, recovery of the stolen articles and the cable used in strangulating the deceased. In course of investigation police also examined some witnesses including Mrs. Kamala Mohanty, a neighbour who stated to have seen tile opposite party scaling over the gate at about 8.30 p.m. and going but and again coming back to the house at about 9.00 p.m. with a rickshaw. Police also examined one Amarnath Chobe, a milkman who was supplying milk to the family of the deceased who stated to have come to the house in the evening to supply milk and when he knocked at the door the opposite party opened the same and told that the owner of the house with his family members had gone to Bhubaneswar and there was no need for any milk. After investigation police submitted charge-sheet against the opposite party and two others under sections 302, 379, 397, 414 and 411, I.P.C.

(2.) After the case was committed to the Court of Session the opposite party on 10-1-1996 moved the Sessions Judge, Sundargarh for bail. The learned Sessions Judge after hearing the counsel of the parties granted bail to the opposite party on 11-1-1996 the cancellation of which is sought for by the State in this Misc. Case on the grounds that the learned Sessions Judge with out applying his judicial mind to the material available on record against the opposite party has come to a conclusion that there is no material against the opposite party excepting the confessional statement said to have been made before the Investigating Officer though there are materials; such as the statement leading to recovery of the stolen articles and the cable used in strangulating the deceased and other incriminating circumstances. It is also submitted that after getting the bail the opposite party has mis-utilised the same by giving threats to the witnesses and as such the same is liable to be cancelled. The learned counsel appearing for the opposite party, on the other hand, submitted that grant of bail and cancellation of bail stand on two different footings. According to him, while bail can be refused and after consideration of materials once it is granted special reasons must be indicated to warrant cancellation. It is also submitted that the opposite party has enjoyed liberty of bail for a substantial period without any allegation of misuse of liberty by him and as such the bail granted should not be cancelled. It is further submitted that the allegations brought against the opposite party about the alleged threat to the witnesses are all false and have been created at a belated stage with the view to deprive the petitioner from the liberty granted to him. In connection with the above rival contentions, it may be stated that the power to take into custody and accused who has been enlarged on bail is of extraordinary nature and is meant to be exercised in appropriate cases with care and circumspection. Bail can be cancelled when it is shown by preponderance of probabilities that the accused has misused the liberty granted to him or grant of bail was illegal or was by improper, arbitrary exercise of discretion. There may also be cancellation of bail when it would no longer be conducive to fair trial to allow the accused to retain his freedom. In the above content a reference maybe made to Chhaila Pradhan v. Bansidhar Pradhan wherein a Division Bench of this Court after considering several decisions on the point observed that unrestricted power is conferred on the High Court and the Court of Session in the matter of cancellation of bail which, no doubt, is to be exercised with due care and circumspection. Bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under Sec. 439(2) of the Code, even if there is no additional circumstance against an accused appearing in record after grant of bail. In the instant case, cancellation of bail has been sought for on the ground of improper exercise of jurisdiction. It is also noticed from the record that the learned Sessions Judge has failed to take into consideration other materials; such as statement of the accused leading to discovery, recovery of the stolen articles and the material used as weapon of offence, materials available relating to circumstances pointing to the guilt of the accused as well as the gruesome nature of the offence while considering the bail petition of the opposite party. Thus, the conclusion drawn by the learned Sessions Judge that there is no other incriminating material against the opposite party barring his confessional statement, before the police is on the face of it contrary to the materials on record and it amounts to non-application of mind. Grant of bail by such non- application of mind would amount to improper and arbitrary exercise of judicial discretion. Thus, it is clear that the learned Sessions Judge was not justified in granting bail. Therefore, the same is liable to be cancelled.

(3.) Here the application for cancellation of bail was filed on 13-2-1996. The allegations about misuse of liberty were made subsequent to the filing of this petition. The opposite party has filed an affidavit challenging the allegations made against him relating to misuse of liberty. From the report submitted by the father of the deceased Manasi at Nimapara Police Station, it appears that the opposite party threatened him and his other family members. Similarly, the father-in-law of deceased Manasi filed another report at Rourkela Sector 3 P.S. alleging that this petitioner and some of his associates threatened him over phone. The learned counsel appearing for the petitioner submitted that in absence of any enquiry about the truth of the allegations the same cannot be utilised against the petitioner. But it is a well known principle that in such matter the prosecution is not required to prove by mathematical certainty or even beyond a reasonable doubt the allegations about misuse of liberty. The report submitted by the father of the deceased Manasi and her father-in-law shows that the accused is attempting to tamper with the prosecution witnesses and thus has abused his liberty. The submission that in the meantime 10 months have already passed since he was granted bail per se cannot be a ground to allow him to continue on bail when the bail has been granted by improper and arbitrary exercise of judicial discretion and there are allegations about misuse of liberty granted to the petitioner.