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Rajanikanta Mehta Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1975CriLJ850
AppellantRajanikanta Mehta
RespondentState
Cases Referred(The State v. Jaaiit Singh
Excerpt:
.....justified in granting bail to the petitioner for the aforesaid limited period without, at that stage, considering, deciding and/or expressing any opinion for or against that matter. on the above considerations, the order as passed by the learned sessions judge is perfectly correct. 3. that the order of the learned sessions judge granting bail for a limited period is bad in law and liable to be revised. after the conclusion of the hearing of the original detition, and in view of mv above finding and conclusion that the impugned order is perfectly legal and correct i do not deem it necessary and/or proper to allow the amendments prayed for bv the petitioner at this stage......paragraph mav be incorporated into that petition.3. that the order of the learned sessions judge granting bail for a limited period is bad in law and liable to be revised. non-consideration of the contention raised in the bail application and at the argument and non-considerati'on of test laid down in : [1962]3scr622 initiates the order of the learned sessions judge. in the facts and circumstances of the case, the applicant should have been released on bail.against the said petition for amendment. the learned standing counsel for the state filed a memo opposing the petitioner's aforesaid prayer for amendment.6. if the amendments praved for are allowed the misc. petition has to be converted into and registered as a criminal revision and consequentially the scope and ambit of the.....
Judgment:
ORDER

S. Acharya, J.

1. The petitioner along with other accused persons has been committed for trial to the Court of the Sessions Judge Cuttack. and that case has been registered in that Court as S. T. No. 65-C of 1974 On beinp moved bv the petitioner the learned Sessions Judge bv his order dated 12-9-1974 has released the petitioner on bail 'awaiting further orders in the matter from the Supreme Court and till the disposal of Special Leave petition (Criminal) No. 861 of 1974'. and has also imposed some conditions therein to be observed by the petitioner during the period he continues on bail bv the said order. After the aforesaid order of the Sessions Judge this petition under Section 439, Criminal P. C. 1973 has been filed in this Court. Mr. B. M. Patnaik. the learned counsel for the petitioner, has submitted that the Sessions Judge while granting bail to the petitioner was not iustified, in the facts and circumstances of this case, to limit the scope and' duration of the said order onlv till the disposal of S. L. P. (Criminal) No. 861 of 1974 in the Supreme Court. According to Mr. Patnaik. the learned Sessions Judge should have dealt with the petition for bail on its own merits- and in accordance with the tests laid down for that purpose in the Supreme Court decision reported in : [1962]3SCR622 . (The State v. Jaaiit Singh), and he should not have been influenced in any matter bv the fact of the pendency of the abovementioned S. L. P. case in the Supreme Court or the order so far passed therein bv that Court. Mr. Patnaik has also submitted that the interim bail, granted bv the Supreme Court to the petitioner in the said Special Leave Petition was at a time when the charge sheet in the case had not been filed, and now that the charge sheet has been filed and the petitioner has been committed to the Court of Session, the Sessions Court was legally competent to consider and dispose . of the said petition for bail on its own merits. In short, and in effect Mr. Patnaik submits that the Court below while granting bail to the petitioner should have allowed him to stav on bail till the disposal of the case in the trial Court, and not till the disposal of the S. L. P. (Criminal) No. 861 of 1974 in the Supreme Court.

2. Mr. Patra. the learned Standing Counsel for the State, apart from opposing the said petition on other grounds, ^t first urged bv wav of a preliminary objection, that this petition under Section 439. Criminal P. C. 1973. was not maintainable in law jn view of the fact that the-petitioner had already been released on bail bv the trial Court. Mr. Patra's contention in short in this respect is that as the petitioner has alreadv been released on bail, this application under Section 439 is not maintainable in this Court. This preliminary objection opposing the maintainability of this petition, in mv view, is not sustainable. Section 439, apart from providing the power to this Court to release an accused in cus-todv on bail under subjection (l)(a) thereof, also provides under Sub-section (I)(b) thereof that this Court mav direct that any condition imposed bv a Magistrate when releasing any person on bail be set aside or modified. Therefore, a petition under Section 439. Criminal p. C. 1973, can be filed praying either for releasing an accused in custody on bail or for modifying the conditions imposed bv the Court below while granting bail to an accused. So if the accused has already been granted bail then this Court for the Sessions Court) has the jurisdiction to set aside or modify anv term, condition or any other item in the said bail order which might' illegally, unfairly or unnecessarily have been laid down in that order. The said order can also be set aside or modified if it appears to the Court exercising iurisdiction under Section 439, Criminal P, C. that there is anything therein which should not be there in the interest of jusiice or which hampers the investigation of the case, or in anv way affects the due process of law. To limit the scope and application of the provision of Sub-section (1)(b) of Section 439, Criminal P. C. only to the conditions laid down in the said order for the observance bv the accused during the period he is allowed to remain on bail, as suggested bv the learned Standing Counsel, is to fetter or circumscribe the power of this Court and of the Sessions Court to a great extent, disabling these Courts to mend and/or to eradicate errors or mistakes appearing in the other parts of the said order or arising otherwise from the same. As the Courts granting bail have powers to set forth anv condition which they consider necessary in the interest of -justice, as provided under Section 437(3)(c). the higher Courts exercising power under Section 439, Criminal P. C. should have the power to examine the correctness of Ithat order in all its aspects, and to modify or set aside anv portion of the same if it is considered necessary. Section 439 gives the power to the higher Courts to examine'or scrutinise the exercise at the power vested in the lower Courts in matters relating to bail, and I do not see anything in Section 439 or anywheres in the Criminal Procedure Code to fetter, circumscribe or limit the said power of the higher Courts. On the above considerations, this petition under Section 439, Criminal P. C.. 1973. is maintainable, as bv this petition it is in effect prayed that the portion of the Sessions Judge's order by which the petitioner bag been released on bail only till the disposal of the aforesaid Special Leave Petition in the Supreme Court may be set aside. In the above view of the matter this petition is maintainable in law.

3. With regard to the merit of the prayer of the petitioner to the effect stated above, the learned Standing Counsel submits that the Court while granting bail was legally competent and iusti-fied to lav down anv suitable' condition for the same, and on good grounds he was also legally competent to release the petitioner only for a limited period, and so his order granting bail to the petitioner till the disposal of the abovementioned Special Leave Petition in the Supreme Court, being in accordance with the order passed bv the Supreme Court in the said S, L. P. Case, is perfectly legal and correct. He further submits that in granting bail the Court has to take into consideration various facts, circumstances and materials before him. and so the learned Sessions Judge was legally competent and was perfectly iustified in taking into consideration the pendencv of the said Special Leave Petition in the Supreme Court and the interim order for bail passed bv that Court in favour of the petitioner.

4. After the arrest of the petitioner in connection with this case and after the refusal of his prayer for bail in the Courts below and bv this Court, the petitioner has filed the abovementioned Special Leave Petition in the Supreme Court and that Court bv order dated T9-8-1974 in the matter has directed the release of .the.petitioner_on.bail pending hearing and final disposal by, .that Court of_the said Special Leave petition. As the petitioner has been released on bail by the Supreme Court, he, in connection with the same matter, will remain on bail on the terms, conditions and, for the period mentioned in the aforesaid order, and no other Court can anv wav annul or modify that order whatever mav be the other considerations for or against the same, so long that order of the Supreme Court remains in force. It is not correct to say that now that the charge sheet has been filed in the case the Sessions Judge is competent to deal with the petitioner's case for bail on its own merits, without at all considering or being influenced by the aforesaid order of the Supreme Court. In assessing the merits of the petitioner's case the trial Court fthe Sessions Court in this case) can decide the matter for or against the petitioner, but as the Supreme Court has granted bail to the petitioner in the terms aforesaid (till the disposal of the Special Leave Petition) the Sessions Judge cannot remand the accused to custody even if he finds that there are good grounds for the same. Therefore, in the context of the facts stated above the Sessions Judge was perfectly justified in granting bail to the petitioner for the aforesaid limited period without, at that stage, considering, deciding and/or expressing any opinion for or against that matter. The consideration of the bail matter on its own merits and in all its aspects can only be taken up after the disposal of the said Special Leave Petition in the Supreme Court. Even at that stage also the Court has- to take into consideration any observation and/or finding of the Supreme Court to that effect. On the above considerations, the order as passed by the learned Sessions Judge is perfectly correct. The said order not being without -jurisdiction, and being a perfectly legal and correct order I am not going to interfere with the same in any manner.

5. After the hearing of this petition on 24-9-l;974 a petition for amendment of the original petition under Section 439, Criminal P. C, 1973. was filed in this case on behalf of the petitioner. By this amendment petition it is prayed that Sections 401 and 482. Criminal P. C., 1973. be added to the cause list of the original petition and the following paragraph mav be incorporated into that petition.

3. That the order of the learned Sessions Judge granting bail for a limited period is bad in law and liable to be revised. Non-consideration of the contention raised in the bail application and at the argument and non-considerati'on of test laid down in : [1962]3SCR622 initiates the order of the learned Sessions Judge. In the facts and circumstances of the case, the applicant should have been released on bail.

Against the said petition for amendment. the learned Standing Counsel for the State filed a memo opposing the petitioner's aforesaid prayer for amendment.

6. If the amendments praved for are allowed the Misc. Petition has to be converted into and registered as a Criminal Revision and consequentially the scope and ambit of the case would be changed and so both the parties have to be heard afresh. After the conclusion of the hearing of the original Detition, and in view of mv above finding and conclusion that the impugned order is perfectly legal and correct I do not deem it necessary and/or proper to allow the amendments prayed for bv the petitioner at this stage.

7. Moreover, the aforesaid amendments were mostlv sought for in order to meet the preliminary objection of the learned Standing Counsel that the ori-Sinal petition under Section 439. for reasons stated by him. was not maintainable in law and that the contentions raised on behalf of the petitioner were not worthy of consideration in a matter under Section 439, Criminal P. C. as no revision had been filed bv the petitioner. As I have held that the original petition is maintainable, and this Court has the jurisdiction to examine the legality and propriety of the impugned order in. all its aspects on the original petition' filed under Section 439, Criminal P. C, the amendments sought for would not be of any avail or consequence for the petitioner.

On the above considerations the amendment petition is dismissed.

8. In the result, therefore, the original petition under Section 439. Criminal P. C, 1973 and the aforesaid amendment petition are both dismissed.


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