MADAN MOHAN BEHERA Vs. STATE

JUDGEMENT

(1.) This is an application for anticipatory bail under S. 438, Criminal P.C. On opportunity being given, Mr. R.K. Patra, the learned Addl. Govt. Advocate appearing as Public Prosecutor in this case brought the Police records and placed before me.

(2.) One of the pre-conditions for granting anticipatory bail is the apprehension of being arrested in a non-bailable offence. Petitioners moved the learned Sessions Judge under S. 438, Cr. P.C. and by order dated 21-8-1987 the application has been rejected on the finding that there are materials on record against the petitioners. Petitioners moved this Court in Criminal Misc. Case No. 713 of 1987 which has been dismissed. It is explained that the name of Mr. R. Mohanty, who was engaged in the said case did not appear in the list and prayer being made for adjournment on behalf of Mr. Mohanty, the same was refused and the application was rejected. It is not the case of the petitioners that names of other counsel did not appear in the list. When several counsel appear, there cannot be any valid ground to adjourn an application merely because the name of one lawyer was not published in the list. On getting the list, the other counsel could have informed Mr. Mohanty about the same. Besides, the other counsel appearing have also equal responsibility unless they report to the court that they withdraw their appearance. If that would have been the only ground for this fresh application, I would have dismissed the same without any reservation.

(3.) A first-information-report was drawn up in Patakura Police Station on 31-7-1987 on the information that a dead body was found. The same was identified to be of Alekh Naik. When the local Police agency investigated it was stated that as a result of assault on him by petitioner No. 1, Madan Mohan Behera, Alekh has died. Investigation proceeded on that basis. Subsequently the investigation has been transferred to the Crime Branch from the General Police Agency. At this stage, the two petitioners have come in this application for anticipatory bail claiming that Alekh Naik who is stated to be dead on account of assault is actually alive and they apprehend arrest on account of political rivalry. It is found from the first-information-report that initially the Police Officer was not satisfied that it is a case of murder and is one of unnatural death only. In course of investigation, however, some materials were available relating to the dead body being of Alekh Naik and there were some materials also that the petitioner No. 1 assaulted Alekh Naik. Except the bald allegations of political rivalry and utilisation of the Police to humiliate the petitioners no acceptable material is available to even suspect the same. In case such allegations are accepted on mere assertion, there would be no scope for refusing an anticipatory bail to a person without other corroborative materials and the general investigation is bound to suffer. This is an allegation coming within the term 'mala fide' which is easy to attribute, but very difficult to prove. The same is, therefore, not acceptable as a ground for accepting the prayer.