NARAYAN SAHOO Vs. JABDU NANDA

JUDGEMENT

(1.) Taking serious view of the conduct displayed by the opposite parties and doubting correctness of the orders passed by some learned Judges permitting surrender before the learned Sessions Judge directly without first surrendering before learned Magistrate notwithstanding decision of this Court in Smt. Basant Sahu v. Padma Charan Sahu and Ors. 1991 (I) OLR 133, reference has been made to the Division Bench by a learned Judge of this Court while dealing with prayer for cancellation of bail granted to opposite parties. A detailed reference to the factual aspects is necessary, in view of the fact that the conduct of opposite parties has been characterised to be obnoxious and an abuse of process of law. Criminal Misc. Case No. 3703 of 1995 under Section 438 of the Code of Criminal Procedure, 1973 (in short, the 'Code') was filed by opposite party No. 3 Chittaranjan Mishra (hereinafter referred to as the 'accused Chitta'). The matter was taken up on 28.12.1995, and was adjourned to 8.1.1996. Thereafter it was adjourned to 12.1.1996 when adjournment for two weeks was granted as prayed for. Finally the matter was taken up on 6.2.1996. Thought he matter was not in the list on that date, on being mentioned it was taken up. On the statement of the learned counsel for petitioner that the petitioner did not want to press the application, same was accordingly disposed of. Subsequently another application under Section 438 of the Code was filed by accused Chitta on 22.2.1996. Said application was numbered as Crl. Misc. Case No. 545 of 1996. It was indicated in the application that the matter was before this Court in Crl. Misc. Case Nos. 228 of 1996 and 3703 of 1995. The matter was heard in part by Hon'ble Justice R. K. Dash on 23.2.1996 and was adjourned to 26.2.1996. On the said date the application was rejected by a detailed reasoned order. While dismissing the bail application, on the submission of the learned counsel for applicant, it was ordered as follows : 'It is submitted by Shri Nayak that the learned Judicial Magistrate, first class, Rampur, may be directed to dispose of the bail application, if the accused petitioner moves before him, on the same day. If such a move is made, the learned Magistrate would do well to hear the bail application and pass appropriate order in accordance with law in the first hour. Any observation made in this order will not influence either the Magistrate or Sessions Court at any stage of the proceeding, i.e. while considering the application for bail or hearing the case.' Thereafter on 16.7.1996 another bail application under Section 438 of the Code, numbered as Crl. Misc. Case No. 2377 of 1996 was filed by three accused persons including accused Chitta. In the said application it was mentioned on first page as follows : 'No such application has been filed in any earlier occasion as per the instruction of the petitioners.' That application was disposed of by Hon'ble Mr. Justice C.R. Pal on 19.7.1996 inter alia with the following order : 'xxxxx. Let the petitioners surrender before the Sessions Judge, Bolangir in G.R.Case No. 124 of 1995 of the Court of the JMFC, Rampur arising out of Dunguripali P.S. Case No. 88 of 1995 on 29.7.1996 and on surrendering if they move for bail, the learned Sessions Judge shall dispose of the same on merit of the same day.' Subsequently on the basis of a petition for modification, following order was passed on 31.7.1996 : 'Heard learned counsel for the petitioners. Considering the submission, the order No. 2 dated 19.7.1996 passed in criminal misc. case No. 2377 of 1996 is modified to the extent that the petitioner shall surrender before the learned Sessions Judge, Bolangir in G.R.Case No. 124 of 1995.of the Court of the J.M.F.C, Rampur arising out of Dunguripali P.S. Case No. 88 of 1995 on 12.7.1996 and on surrendering if they move for bail the learned Sessions Judge shall dispose of the same on merit of the same day. The case diary be made available to the learned Sessions Judge by the aforesaid date.' Subsequently opposite party Nos. 2 and 3 surrendered before the learned Sessions Judge and were directed to be released on bail by the learned Sessions Judge by order dated 12.8.1996. 3. In the present application for cancellation of bail, it has been urged that by suppressing material facts, accused Chitta has managed to get released on bail. It has been highlighted that had the earlier orders been brought to the notice of the learned Judge hearing Crl. Misc. Case No. 545 of 1996, order permitting the accused persons to surrender before the learned Sessions Judge directly would not have been passed. Further it has been submitted that surrender before the Learned Sessions Judge directly is impermissible in view of the decision of this Court in Smt. Basant Sahu's case (supra) and Gurcharan Singh and Ors. v. State (Delhi Administration) AIR 1978 SC 179. Hon'ble Mr. Justice P. K. Misra, who heard the petition for cancellation of bail was of the view that this is not the first instance where petitions have been filed in this Court suppressing about filing of similar petition and orders passed thereon. 4. Though several learned counsel have entered appearance for the opposite parties, they were not present when the matter was called for hearing. A show -cause reply has been submitted by accused Chitta taking the stand that he did not intend to suppress the fact of filing of earlier applications. It has been accepted that he had moved applications under Section 438 of the Code numbered as Crl. Misc. Case Nos. 3703 of 1995 and 545 of 1996. Though direction was given in the latter case to surrender before the learned J.M.F.C., Rampur, he could not surrender due to unavoidable circumstances, When he came to know that two other co -accused persons intended to file applications under Section 438 of the Code, he requested them to file an application for himself as he was unable to come to Cuttack because of personal difficulty. Accordingly he had given his signature in the vakalatnama and in a slip of paper he had mentioned the earlier case nos. which he had moved Under Section 438 of the Code and had instructed Jabdu Nanda to hand over that paper to the lawyer. After he came to know of the order passed in Crl. Misc. Case No. 2377 of 1996, as per the direction he surrendered before the learned Sessions Judge, Balangir and moved an application for bail, and was granted bail. Jabdu was an illiterate person and after receiving notice from this Court regarding the prayer for cancellation, accused Chitta asked him as to why he had not informed his lawyer about the instruction. Jabdu stated that he had lost the paper during the journey, and therefore could not instruct the lawyer. Opposite party Nos. 1 and 2 (accused Jabdu and Dullav) have also taken similar stand. They have stated that after arriving at Cuttack they came to High Court and met an young advocate named 'Mishra Babu'. After having a discussion with him, they handed over the brief to him. Unfortunately the paper which accused Chitta had given to them, was not there and it was lost at the time of journey, As accused Jabdu Nanda is an illiterate person, no adverse inference should be drawn. 5. As has been rightly observed by Hon'ble Justice P. K. Misra, this is not the first occasion when false statement regarding filing of earlier bail applications and orders passed thereon have been suppressed. Stand taken by accused Chitta that he had not come to Cuttack and had sent the vakalatnama only is absolutely untenable. The endorsement made by the learned counsel Shri S. N. Mishra on 12.7.1996 in the vakalatnama is to the following effect : 'Received from the executant (s). Satisfied and accepted as I hold no brief for the other side.' The endorsement clearly shows that the vakalatnama had been received personally from all the three executants including accused Chitta. It is significant to note here that name of Shri A. K. Acharya, as learned counsel for petitioners in the said case was mentioned in the vakalatnama, and the same has been scored through. Obviously Shri Misra is an associate of Shri Acharya, who is an advocate for opp. party Nos. 1 and 2 (the other two accused persons) in this case. It has not been explained as to why the name of Shri A. K. Acharya, which was originally mentioned in the vakalatnama, has been scored through subsequently. If the stand of opp. party Nos. 1 and 2 to the effect that they came to the High Court and met one junior lawyer 'Misra Babu' is correct, the name of Shri Acharya could not have been mentioned in the vakalatnama. There is more than that meets the eyes. Had the earlier order passed by Hon'ble Justice R. K. Dash, who passed a detailed order in Crl. Misc. Case No. 545 of 1996 been brought to the notice of the Hon'ble Judge hearing the subsequent bail application, surrender before the learned Sessions Judge directly would not have been permitted. There has been clearly suppression of truth and opposite party No. 3 is guilty of suppressing material facts which amounts to abuse of the process of law to warrant exemplary punishment. He is sentenced to undergo sentence of one month's simple imprisonment and to pay a fine of Rs. 2,000/ - (two thousand) to be deposited in the Court of learned J.M.F.C., Rampur within two weeks from today. In case of failure to make the deposit, opposite party No. 3 Chittaranjan shall undergo simple imprisonment for two weeks more. 6. Coming to the question whether there can be any direction to surrender before the learned Sessions Judge directly, the matter was examined by a Division Bench of this Court in Smt. Basant Sahu's case (supra). It was observed that in the normal course the accused persons have to surrender before the Magistrate and not before the learned Sessions Judge directly. It is necessary to take note of the view expressed by the Apex Court in Salauddin Abdulsamad Shaikh v. State of Maharashtra : AIR 1996 SC 1042 as follows : '..... Anticipatory bail is granted in anticipation of arrest in non -bailable cases, but that does not mean that the regular Court, which is to try the offender is sought to be by -passed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular Court for bail. That is the correct procedure to follow because it must be realised that when the Court of Session or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of avoidance against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge -sheet is submitted.......' The position was further elaborated in K.L.Verma v. State and Anr. : 1996 (7) SCALE (SP) 20. It was observed as follows : '.......... This Court further observed that anticipatory bail is granted in anticipation of arrest in non -bailable cases, but that does not mean that the Court, which is to try the offender, is sought to be by -passed. It was, therefore, pointed out that it was necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. By this, what the Court desired to convey was that an order of anticipatory bail does not enure till the end of trial but it must be of limited duration as the regular Court cannot be by -passed. The limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to determine the bail application. In other words, till the bail application is disposed of one way or the other the Court may allow the accused to remain on anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher Court, if they so desire........' It is, therefore, clear that the surrender has to be before the Magistrate. Otherwise, the question of granting time to move higher Court if desired would not arise. The decisions of this Court and the Apex Court in Salauddin and K.L. Verma cases (supra) have settled the position in law. Direct surrender before the learned Sessions Judge is impermissible and if the accused wants to surrender he has to do so before the Magistrate. The Criminal Misc. Case is disposed of accordingly.