TUTU MALLIA Vs. STATE OF ORISSA

JUDGEMENT

(1.) PERSONAL liberty of a person, accused of a crime, is of paramount consideration and he cannot be thrown into the puzzle of Section 437 and/or Section 439 of the Code of Criminal Procedure, 1973 (in short, 'the Code') when his appearance before the Investigating Officer and the concerned Criminal Courts can be ensured by imposing suitable condition was the main thrust of argument advanced by Mr. G.S. Rath, learned Counsel appearing for the petitioner while moving the petition under Section 438 of the Code.

(2.) PETITIONER is an accused in G.R. Case No. 2563 of 1997 pending in the Court of S.D.J.M., Bhubaneshwar. The alleged offences are under Sections 307/34, IPC. It reveals from the case diary that at about 7.00 p.m. on 6.7.1997, the accused's group in a Maruti van driven by petitioner arrived near the shop of the injured Bikram Kishore Swain situated in the crowded market area of Bapujinagar in the capital city of the State and because of previous quarrel, said Bikram and one Manoranjan were assaulted by Bhujali with a view to kill the injureds. The assailant group decamped in that Maruti van driven by the petitioner. That vehicle belongs to the accused Subrat Patra @ Babuni.

(3.) DURING the course of the argument it was pointed out that co -accused Akhaya Kumar Mallia and Babuni @ Subrat Patra applied for anticipatory bail in this Court in Criminal Misc. Case Nos. 4664 of 1997 and 4001 of 1997, but their petitions for anticipatory bail were disposed of with a direction to surrender before the Courts below and to apply for bail under Sections 437 and 439. It is further stated that the said accused persons besides accused Ajit Kumar Mahanna @ Sana Bapi, applied for and got bail order under Section 439. Learned Counsel for the petitioner further stated that OJC Nos. 15764 of 1997 and 16934 of 1997 are pending in this Court. It was also argued by Mr. Rath that when the occurrence is an outcome of business rivalry and the petitioner has not dealt any below to either of the injured and when he has not participated in the overt act save and except driving the vehicle, it is a fit case where prayer for anticipatory bail should be allowed by imposing suitable terms and conditions. In support of the contentions, he has relied upon the decisions reported in the cases of Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632; Kasinath Jena and Others v. State, II (1992) CCR 1965; Simantini Samantaray v. State of Orissa, 1998(1) OLR 50; Indrajit Ray v. State of Orissa and Another, (1997) 13 OCR 440 and 480; Salanki Ravibhai Dipubhai and Ors. v. State of Gujarat, II (1992) CCR 1820; and Director of Enforcement and Anr. v. Prabhakar Rao : 1997 (3) Crimes.125 (SC).