GANDU MALLIA Vs. KANHU ALIAS MAHENDRA MALLIA

JUDGEMENT

(1.) This is informant's petition under Section 439(2) Cr PC seeking to cancel the bail granted to the opp. party No. 1 by the learned Second Additional Sessions Judge, Bhubaneswar.

(2.) OPP . party No. 1 and four others stand charged under Sections 148, 302 and 506 read with Section 149, IPC. The prosecution -case, shortly stated is that, on 8/9 -10 -1992 night at about 12.30 a.m. Tulu Mallia (hereinafter referred to as 'the deceased'), elder brother of the informant had come out of his house to make urine. In the meanwhile opp. party No. 1 and his associates suddenly emerged being armed with revolver, sword and bhujali and of them opp. party No. 1 fired from his revolver as a result the deceased received injury on his chest and dropped down there. He was immediately removed to Capital hospital where the doctor on emergency duty recorded his dying declaration. An FIR was lodged in the Capita! Police Station whereupon a case under Section 307, IPC was initially registered and subsequently upon the death of the deceased the case was converted to one under Section 302, IPC. After usual investigation charge -sheet was laid against all the persons involved in the incident showing opp. party No. 1 as absconder since he could not be apprehended v. the police. Steps were taken by the learned SDJM for his arrest and finally the case was split up against him. Latter on as the order of the learned Additional Sessions Judge reveals, he surrendered before the Court below whereupon the split up case was committed to the Court of Session. An application for bail was moved before the learned Second Additional Sessions Judge who on consideration of the materials rejected the prayer, but four days thereafter the very same prayer was renewed on the ground that he being an asthma patient immediate medical treatment was necessary. Additional Public Prosecutor seriously opposed the prayer contending that the opp. party No. 1, a man of rowdy nature has no respect for law and if he is admitted to bail, the witnesses may not dare to give evidence against him. Upon hearing the learned Additional Sessions Judge allowed the prayer mainly on the ground of illness. The relevant observation in that context is reproduced hereunder : '......As submitted by the learned counsel for the defence, it is true that now a days because of overcrowding of U. T. Ps. in the jail, the jail authorities are not in a position to provide adequate facilities and amenities to all the U. T. Ps. to fully protect them from cold in winter season. A patient of bronchial asthma undoubtedly requires special care and facility to fully protect him from cold, otherwise he is very likely to be affected by that disease.........'

(3.) I am remainded of certain latin maxims, 'Consienctia Legalise Lega Fundature' which connotes that legal conscience must be founded upon law. The next is concientia Legi Nunquen contravenit which connotes that legal conscience never contravenes law; and the third maxim is Consientisus Legis Legi Pendent which connotes that conscience of a Judge in Law Court depends upon law.' It is, therefore, to be seen whether the learned additional Sessions Judge, Bhubaneswar while admitting opp. party No. 1, accused of gruesome murder to bail, acted according to legal conscience founded upon law. it admits of no doubt that Court arrogates to itself enormous discretionary power on the question of grant or refusal of bail, but then while deciding the said question, it should take into consideration the gravity of the offence, nature of evidence and other attending circumstances. It cannot arbitrarily and whimsically exercise discretion in favour of the accused and admit him to bail and if it does so, in that case. High Court or Sessions Judge, as the case may be, will be well within its jurisdiction to cancel the same in exercise of power under Section 439(2) Cr PC. In this context it would be useful to refer to a decision of the apex Court in the case of State (Through Deputy Commissioner of Police, Special Branch, Delhi) v. Jaspal Singh Gill : AIR 1984 SC 1503. In that case their Lordships while cancelling bail granted by the High Court observed thus: '......the Court before granting bail in cases involving non -bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other considerations.' In another case, Shahzad Hassan Khan v. Ishtiaq Hassan Khan and Anr. : AIR 1987 SC 1613, their Lordships took note of the gravity of the offence, nature of evidence and the likelihood of the accused tampering with the evidence and consequently cancelled the bail. The relevant observation of their Lordships in that regard is extracted hereunder: '......No doubt liberty of a citizen must be zealously safeguarded by Court, nonetheless when a person is accused of a serious offence like murder and his successive bail applications are rejected on merit there, being prima facie material, the prosecution is entitled to place correct facts before the Court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution. Learned Judge was unduly influenced by the concept of liberty, disregarding the facts of the case.'