GOPAL KRISHNA RAUTA Vs. STATE OF ORISSA

JUDGEMENT

(1.) BAIL is a form of security to enforce attendance of a person accused of an offence by releasing him on ad hoc from custody. It is the midpoint between liberty and security. It not only involves the individuals liberty but also concerns the societal interest and the public at large. Despite all attempts of legislature, it continues as a hazardous task invariably with an unpalatable side. It is a traditional enterprise known from the early primitive orderly society. The bisecting only is of the values involved in bail system has been an important and unusual institution in criminal justice system. It emanated from the Courts concern towards the King's peace. Judiciary has not been able to evolve any fixed norm for exercising the discretionary power except the little guideline stipulated in the Criminal Procedure Code 1973 (hereinafter the Code). System of arrest is also provided in several other special statutes to be governed under the system prescribed under the Code. The few decisions of the Supreme Court to be followed as precedents mostly do not deal with the concept of the mechanism of the system. The traditional approach to anticipatory bail is now subrogated to the enacted language. The principles, practices and application of the system of anticipatory bail is the object of the study being obscure.

(2.) THE Institution of bail arose when the accusation alleged against an accused could not be finally determined. In ancient India, it was a legal obligation for the functionaries administering justice to dispose off the case immediately. To avoid undue personal strain by detaining the person pending indictment, this system releases the person from unnecessary confinement due to delay in hearing. Such concept and the Institution is also available in the continental jurisprudence. The Code of 1898 contained the law and procedure of bail in Ch. XXXIX, besides section 86 dealt with the system of bail when an accused is arrested out side the territorial jurisdiction of a Court. The law and procedure of bail now contained in Ch. XXXIII of the Code of 1973. Release 9f an accused in boilable offenses cannot be denied if the accused furnishes surety for his appearance.

(3.) IT proposed for insertion of a new provision section 497 -A in the Code to deal with such cases. It left the matter as a discretion of the Superior Courts. While considering the draft by the Parliament, it inserted the conditions that may be imposed by the Court while granting anticipatory bail in section 438, Cr. P.C. 1973. "Section 438. Direction of grant of bail to person apprehending arrest: When any person has reason to believe that he may be arrested on an accusation of having committed a non bailable offence, he may apply to the High Court or the Court of Sessions for a direction under the section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. When the High Court or the Court of Sessions makes a direction under subsection (1), it may include such contains in such directions in the light of the facts of the particular case, as it may think fit, including: (i) a condition that the person shall make himself available for interrogation by a Police Officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer; (iii) a condition that the person shall not leave India without the previous submission of the Court; (iv) Such other condition as may be imposed under sub -section (3) of section 437, as if the bail were granted under that section. If such person is thereafter arrested without warrant by an Officer -in -charge of a Police Station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that a warrant should be issued in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub -section (1)". It is altogether a new concept alien to the institution of bail