STATE OF ORISSA Vs. RANJIT PANDA

JUDGEMENT

(1.) - This is a petition under section 439(2) of the Code (If Criminal Procedure (TCode for short) for cancellation of bail granted by the learned Additional Sessions Judge, Bhubaneswar, to the opposite party alleged to have committed an offence under sec. 376, I.P.C.

(2.) Mr. D.P. Sahoo, learned Standing Counsel, urged that the petition of the opposite party for anticipatory bail under section 438 of the Code was on the first occasion rejected by the learned Additional Sessions Judge on 7.5.1987. A second such petition was filed on 22.5.1987, which was rejected on 23.5.1987. On tile same day the opposite party surrendered before tile learned Additional Sessions Judge and again applied for bail under section 439 of the Code, and the very same court by committing illegality granted the bail Without imposing suitable conditions. Mr. S.C. Ghose, learned counsel appearing for the opposite party, on the under hand urged that the opposite party has been detained under the National Security Act and so the petition for cacellation of bail has become infructuous.

(3.) The learned Additional Sessions Judge acted peculiarly in refusing anticipatory bail under section 438 and on the same day granting bail to the opposite party under section 439 of the Code. Had the order of bail been not supported by some acceptable reasons, the impugned order of bail could be said to have been passed Illegally and without jurisdiction liable for cancellation according to the principle laid down in Chhalia Pradhan v. Bansidhar Pradhan and 2 ors.1 as follows: Keeping in view the comparative scope of sections 437(5) and 439(2) of the Code and the unrestricted power 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 and keeping in mind the principles laid down by the Supreme Court, this Court and other High Courts, it must be held that bail granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion can be cancelled by the High Court under section 439(2) of the Code, even if there be no additional circumstances against an accused appearing in the record after the grant of bail. The acceptable reasons are that the medical reports of examination of the person of the alleged victim and her wearing apparels did not suggest recent rape. That apart, the opposite party was detained under the National Security Act by order of the District Magistrate dated 7.4.1988. For these reasons, I do not consider it necessary at this stage to cancel the bail. I would, however, make it clear that this order will not preclude the State to apply for cancellation of bail according to law in future, if circumstances would so demand.