IMPORTANT POINT
Rejecting application for anticipatory bail, but directing the accused to be released on bail by SDJM - Illegal.

JUDGMENT

(Smt.) Ranjana Prakash Desai, J.:-

Leave granted.

2. The appellant’s son – Rajib Das was murdered on 5/1/2009 in a hotel. FIR was lodged in respect thereof on 6/1/2009. PS Case No. 4 of 2009 was registered. It is the appellant’s case that the police did not investigate the case properly. The appellant ultimately filed a writ petition in the Orissa High Court. Thereafter, the investigation gained momentum. On 3/1/2013, non-bailable warrant was issued against Mr. Sweekar Nayak, who is respondent 2, by the SDJM, Rayagada. Respondent 2 preferred an application for anticipatory bail in the Orissa High Court. The High Court disposed of the said application by the impugned order. We notice that in the impugned order, the High Court has made a categorical observation that considering the nature of the allegations made against respondent 2, it did not think it to be a fit case for grant of anticipatory bail. Surprisingly, however, the High Court gave a direction that in the event respondent 2 surrenders before the learned SDJM, Rayagada within four weeks and moves an application for bail, he shall be released on bail on such terms and conditions as the learned Magistrate deems fit and proper. Pursuant to this direction, respondent 2 surrendered before the learned Magistrate and was released on bail on 11/06/2013.

3. We are surprised at the direction issued by the High Court to the trial court to release respondent 2 on bail. When the High Court rejected the application for anticipatory bail, it was sufficient indication that the High Court thought it fit not to put a fetter on the investigating agency’s power to arrest respondent 2. In such a situation, the investigating agency, if it so desired and if it thought that the custodial interrogation of respondent 2 was necessary, could have arrested him. Therefore, after rejecting the prayer for anticipatory bail, the High Court should not have negated its own order by directing that respondent 2 should be released on bail. This is contradiction in terms. It dilutes the order rejecting anticipatory bail. Such order is not legally sound. It overlooks the scope and purport of Sections 438 and 439 of the Code of Criminal Procedure, 1973.

4. In a similar situation in Rashmi Rekha Thatoi & Anr. v. State of Orissa & Ors.[ (2012) 5 SCC 690], this Court took a strong view of the matter and observed that such orders have no sanctity in law. Relevant observations of this Court could be quoted:

“33. We have referred to the aforesaid pronouncements to highlight how the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab,[ (1980) 2 SCC 565] had analysed and explained the intrinsic underlying concepts under Section 438 of the Code, the nature of orders to be passed while conferring the said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwal v. State of Maharashtra[(2009) 8 SCC 325] there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the petitioner-accused it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in Gurbaksh Singh Sibbia and the principles culled out in Savitri Agarwal”.

The operative portion of the order passed in that case reads as follows:

“Judging on the foundation of aforesaid well-settled pri