MANSA MURMU AND ANR. Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE Petitioners have filed this application for anticipatory bail under Section 438, Code of Criminal Procedure. As borne out in the petition filed by them they are students prosecuting their studies in Jamshedpur and while coming to Rairangpur in a car had some altercation with the driver of a State Transport bus, who did not allow them to take over and obstructed the road by driving the vehicle in the middle of the road. This small instance resulted in chaos and the public intervened and ultimately Police came. The Petitioners were arrested by the police and later on released on bail. After investigation charge sheet has been filed against these two Petitioners under Sections 341, 332, 333 read with Section 34, I.P.C. in the Court of the learned Sub -Divisional Judicial Magistrate, Rairangpur, who has taken cognizance of the case and has issued summons to procure the attendance of the Petitioner in his Court.

(2.) THE Petitioners apprehended that they being the residents of Bihar may be harassed in case of their surrender to the jurisdiction of the learned Sub -Divisional Judicial Magistrate and filed an application under Section 438, Code of Criminal Procedure for anticipatory bail before the learned Sessions Judge, Mayurbhanj. The Sessions Judge; Mayurbhaj rejected the application on the ground that since the charge sheet has been filed by the police in the Court after the investigation and the Court has taken cognizance of the case and summons were issued for their attendance in Court, there was no scope for the Petitioners to move petition for bail under, Section 438, Code of Criminal Procedure In so doing he relied on an overruled decision of the Andhra Pradesh High Court.

(3.) IN a recent Bench decision of this High Court their Lordships expressed their respectful disagreement with the aforesaid view of the Andhra Pradesh High Court and following the decision of a Single Bench of this High Court reported in : 59 (1985) C.L.T. 110 (Mohan Behera and two Ors. v. State) and also in : 51 (1981) C.L.T. 391 (Bhramar @ Bhramarbar Mohapatra and Anr. v. State of Orissa) have held that the prayer for application for anticipatory bail applies at a stage prior to arrest, when the person apprehends his arrest on being accused of committing a non -bailable offence. Once the person concerned is arrested or appears before the Court and the Court is in seisin over the matter and is then released on bail, the subsequent apprehension of his further arrest in the event of the matter being committed to the Court of Session, will not attract the operation of Section 438, Code of Criminal Procedure. The case which was before the Division Bench reported in : 1986 (II) O.L.R. 457 (Padma Charan Panda v. S. Ram Mohan Rao and Ors.) held that a complaint petition having been filed, after the 202, Code of Criminal Procedure enquiry the Magistrate took cognizance under Sections 149/324/337 and 296, I.P.C. as well as under Sections 3 and 4 of the Explosive Substance Act and issued summons against the accused persons. The accused person appeared before the Magistrate and on their prayer, released on bail. While the matter was thus proceeding before the Magistrate, the opposite parties who are the accused persons apprehending that the case may be committed to the Court of Session and they might be again taken into custody filed an application before the learned Sessions Judge under Section 488, Code of Criminal Procedure praying for an anticipatory bail. The Sessions Judge allowed the prayer of the accused persons and ordered that in the event of committal, the accused persons would be released on bail. Against that order the complainant had preferred the criminal revision in this Court for quashing the order of the Sessions Judge granting anticipatory bail. The High Court held that an order under Section 438 of the Code of Criminal Procedure can be passed before the arrest of the applicant. It is the imminent likelihood of arrest, founded on a reasonable belief on being accused of commission of a non bailable offence which gives the jurisdiction to the Court of Session and High Court to grant anticipatory bail under Section 438 of the Code of Criminal Procedure and an accused can, invoke the jurisdiction of the Court under Section 438 so long he has not been arrested.