VIJOYANANDA SWAIN Vs. STATE

JUDGEMENT

(1.) Liberty is a priceless treasure. It is a pearl of great price. No one would barter his liberty for all the tea in China. The significance and importance of it is better realised when it is curtailed. Impairment and abridgment of liberty is not permissible without due process of law. In retrogression of liberty there is corrosion of soul - the very essence of life. Man who was lost his freedom questions in despair, "what is the meaning of this life if my liberty is lost ?" This being the quintessence of liberty and freedom, the question that falls for determination in the present case is whether the learned Judicial Magistrate, Banpur is justified, while granting bail to the present petitioners in imposing a condition, restraining them not to go upon the land which is the subject matter of a civil suit. The grievance of the petitioner is with regard to imposition of this condition and the prayer is for quashing of the same in exercise of inherent powers of this Court under Section 482 of the Code of Criminal Procedure.

(2.) The admitted factual scenario sans unnecessary details is that on the basis of an First Information Report lodged by one Pramila Swain wife of Prafulla Kumar Swain, of village Mangalpur, a case was registered at Banpur P.S. which ultimately gave rise to G. R. Case No. 110/96, under Sections 452, 323, 294, 380, 506 and 354 I.P.C. in the Court of Judicial Magistrate, First Class, Banpur. The case of the prosecution as stated in the F.I.R. is that on 13-5-1996, the petitioners along with other forcibly entered into the house of the informant, assaulted her and forcibly drove the informant and her children out of the premises and took away cash and other articles. Informant was medically examined and medical report indicated that she had sustained three injuries on her body. The petitioners were forwarded by the Investigating Officer on 27th of May, 1996 and on that day, an application for bail was moved. In the application for bail, as the order reveals, it was mentioned that the present petitioners had purchased the homestead land from Prafulla Kumar Swain, husband of the informant, whereby Prafulla had transferred his interest and had delivered possession. He had also purchased by registered sale deed dated 14-2-1996 from one Jayakrushna Mohapatra who had also transferred his interest in favour of the petitioner No. 1. Record-of-rights and rent receipts for three years were produced to satisfy the factum of possession. These documents were produced by the accused persons to highlight their plea that they being the owners in possession the question of trespass did not arise. In addition to this they produced a copy of the plaint in T.S. No. 28 of 1996 and a copy of the Misc. Case No. 12/96, filed in the Court of Civil Judge (Senior Division), Khurda to indicate that the learned Civil Judge in the aforesaid misc. case by order dated 6-4-1996 had directed for maintenance of status quo in respect of the suit land situated on plot No. 345 measuring Ac. O. 052 decimals. The plaintiff in the civil suit is the minor son of the informant who has challenged the validity of the sale deed. It was also brought to the notice of the Court below that a proceeding under Section 144 Cr. P.C. was also instituted in the Court of the Executive Magistrate, Khurda. As the order reveals, the learned Magistrate after discussing the allegations in the F.I.R. the forwarding report came to hold that a dispute between the parties had the genesis in the suit land. The Magistrate opined that the allegations against the petitioners were grave and conditions were to be imposed to prevent the commission of similar types of offences. He relied on 437(3) of the Code and was of the view that the accused persons should be restrained from entering upon the disputed land for prevention of similar types of offences, and the same was also necessary for protection of the informant. On the basis of such conclusion, he released the petitioners on bail of Rs. 5,000/- with one surety each for the like amount with the following conditions :-

(3.) Sri R. K. Naik, learned counsel appearing for the petitioners contends that the learned Magistrate has misconstrued the provision enumerated under Section 437(3) of the Code and has imposed injustifiable conditions. He has strenuously urged that the Court below was aware of the civil litigation, and once the Civil Court has passed an order of status quo, the Magistrate should not have imposed a condition which in effect amounted to passing an order of injunction. Reliance by the Magistrate on the undertaking of the petitioners that they would abide by any condition, the learned counsel for the petitioner submits, is absolutely a misconception inasmuch as the Court is required to impose conditions which are reasonable, justifiable, as well as permissible in law. To substantiate his submission, he has placed reliance on the decisions reported in the cases of the State v. Parag Ram Chawla, reported in 1984 Cri LJ 1712 (Delhi); Shaik Layak v. The State, reported in 1981 Cri LJ 954 (Andh Pra) Kamala Pandey v. The King repoted in AIR 1949 Cal 582 : (1949 (SC) Cri LJ 1009) and Ram Rath Sharma v. Khalil Khan, reported in (1987) 3 Crimes 706 : (1988 All LJ 105).