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High Court Of Orissa
K. P. MOHAPATRA
SURATH BEHERA - Appellant
Versus
STATE OF ORISSA - Respondent
CRI. MISC. APPLN. 758 Of 1986
Decided On : 12/10/1986
BAIL - S. 439 (1) OF THE CRIMINAL P. C. - S. 209 (B) OF THE CODE - S. 302/304 I. P. C. - SUCCESIVE BAIL APPLICATIONS - PRINCIPLES - HELD, (1) ILLEGAL DETENTION, BY ITSELF AND TAKEN ALONE, IS NO GROUND FOR RELEASING THE ACCUSED ON BAIL AND HAS NOT BEEN RECOGNISED AS SUCH BY THE CODE. BAIL IS NO REMEDY AND HAS NEVER BEEN CONCEIVED OR INTENDED IN LAW TO BE A REMEDY FOR ILLEGAL DETENTION. (2) SUCCESIVE BAIL APPLICATIONS BY AN ACCUSED ARE NOT BARRED, AS THERE IS NOTHING LIKE A PRINCIPLE OF RES JUDICATA OPERATING IN THE FIELD. (3) WHILE CONSIDERING A BAIL PETITION, THE COURT SHOULD NOT EMBARK UPON AN ELABORATE DISCUSSION OF THE MATERIALS ON RECORD SO AS TO ARRIVE AT A CONCLUSION AS TO WHETHER THE CASE WILL FALL WITHIN THE AMBIT OF S. 302 OR S. 304 I. P. C. (4) THE NATURE AND THE GRAVITY OF THE CIRCUMSTANCES IN WHICH THE OFFENCE IS COMMITTED, THE LIKELIHOOD OF THE ACCUSED FLEEING FROM JUSTICE AND TAMPERING WITH THE PROSECUTION EVIDENCE ARE SOME OF THE FACTORS TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR BAIL.
Fact of the Case:
PETITIONER, ONE OF THE ACCUSED IN A CASE UNDER SS. 147, 148, 337, 323, 379 AND 302 READ WITH S. 149 I. P. C., MOVED FOR BAIL UNDER S. 439 (1) OF THE CRIMINAL P. C. THE ACCUSED WAS ARMED WITH A TENTA (SPEAR) AND ASSAULTED THE DECEASED, RESULTING IN HIS DEATH. THE ACCUSED WAS DENIED BAIL BY THE LEARNED SUB-DIVISIONAL JUDICIAL MAGISTRATE AND THE LEARNED SESSIONS JUDGE. HOWEVER, THE LEARNED SESSIONS JUDGE LATER RELEASED HIM ON BAIL ON THE GROUND THAT HIS DETENTION WAS ILLEGAL DUE TO THE ABSENCE OF VALID ORDERS OF REMAND. THE STATE AND THE INFORMANT CHALLENGED THIS ORDER BY FILING CRIMINAL MISC. CASES FOR CANCELLATION OF BAIL UNDER S. 439 (2) OF THE CRIMINAL P. C. A DIVISION BENCH OF THIS COURT SET ASIDE THE ORDER OF THE LEARNED SESSIONS JUDGE AND DIRECTED CANCELLATION OF BAIL OF THE PETITIONER.
Finding of the Court:
THE COURT HELD THAT ILLEGAL DETENTION, BY ITSELF AND TAKEN ALONE, IS NO GROUND FOR RELEASING THE ACCUSED ON BAIL AND HAS NOT BEEN RECOGNISED AS SUCH BY THE CODE. BAIL IS NO REMEDY AND HAS NEVER BEEN CONCEIVED OR INTENDED IN LAW TO BE A REMEDY FOR ILLEGAL DETENTION. THE COURT FURTHER HELD THAT SUCCESIVE BAIL APPLICATIONS BY AN ACCUSED ARE NOT BARRED, AS THERE IS NOTHING LIKE A PRINCIPLE OF RES JUDICATA OPERATING IN THE FIELD. THE COURT ALSO HELD THAT WHILE CONSIDERING A BAIL PETITION, THE COURT SHOULD NOT EMBARK UPON AN ELABORATE DISCUSSION OF THE MATERIALS ON RECORD SO AS TO ARRIVE AT A CONCLUSION AS TO WHETHER THE CASE WILL FALL WITHIN THE AMBIT OF S. 302 OR S. 304 I. P. C. THE COURT FURTHER HELD THAT THE NATURE AND THE GRAVITY OF THE CIRCUMSTANCES IN WHICH THE OFFENCE IS COMMITTED, THE LIKELIHOOD OF THE ACCUSED FLEEING FROM JUSTICE AND TAMPERING WITH THE PROSECUTION EVIDENCE ARE SOME OF THE FACTORS TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR BAIL.
Issues: 1. WHETHER ILLEGAL DETENTION IS A GROUND FOR RELEASING THE ACCUSED ON BAIL? 2. WHETHER SUCCESIVE BAIL APPLICATIONS BY AN ACCUSED ARE BARRED? 3. WHETHER THE COURT SHOULD EMBARK UPON AN ELABORATE DISCUSSION OF THE MATERIALS ON RECORD WHILE CONSIDERING A BAIL PETITION? 4. WHAT ARE THE FACTORS TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR BAIL?
Ratio Decidendi: 1. ILLEGAL DETENTION, BY ITSELF AND TAKEN ALONE, IS NO GROUND FOR RELEASING THE ACCUSED ON BAIL AND HAS NOT BEEN RECOGNISED AS SUCH BY THE CODE. BAIL IS NO REMEDY AND HAS NEVER BEEN CONCEIVED OR INTENDED IN LAW TO BE A REMEDY FOR ILLEGAL DETENTION. 2. SUCCESIVE BAIL APPLICATIONS BY AN ACCUSED ARE NOT BARRED, AS THERE IS NOTHING LIKE A PRINCIPLE OF RES JUDICATA OPERATING IN THE FIELD. 3. WHILE CONSIDERING A BAIL PETITION, THE COURT SHOULD NOT EMBARK UPON AN ELABORATE DISCUSSION OF THE MATERIALS ON RECORD SO AS TO ARRIVE AT A CONCLUSION AS TO WHETHER THE CASE WILL FALL WITHIN THE AMBIT OF S. 302 OR S. 304 I. P. C. 4. THE NATURE AND THE GRAVITY OF THE CIRCUMSTANCES IN WHICH THE OFFENCE IS COMMITTED, THE LIKELIHOOD OF THE ACCUSED FLEEING FROM JUSTICE AND TAMPERING WITH THE PROSECUTION EVIDENCE ARE SOME OF THE FACTORS TO BE KEPT IN MIND WHILE CONSIDERING AN APPLICATION FOR BAIL.
Final Decision: THE COURT ALLOWED THE CRIMINAL MISCELLANEOUS CASE AND RELEASED THE PETITIONER ON BAIL OF RS. 5000/- (RUPEES FIVE THOUSAND) WITH TWO LOCAL SURETIES FOR EQUAL AMOUNTS EACH TO THE SATISFACTION OF THE LEARNED SESSIONS JUDGE, PURI, WITH THE FURTHER CONDITIONS TO BE EMBODIED IN THE BAIL BOND THAT HE SHALL NOT ABSCOND, SHALL NOT ATTEMPT TO TAMPER WITH THE PROSECUTION EVIDENCE AND SHALL NOT LEAVE THE JURISDICTION OF THE LEARNED SESSIONS JUDGE WITHOUT OBTAINING PREVIOUS PERMISSION.
K. P. MOHAPATRA, J.
( 1 ) THIS is a petition for bail under S. 439 (1) of the Criminal P. C. by one of the accused in S. T. No. 168 of 1986 under Ss. 147, 148, 337, 323, 379 and 302 read with S. 149 I. P. C. in the court of the learned Sessions Judge, Puri.
( 2 ) THE prosecution case against the petitioner in brief is that on 11-10-1985 at about 10 a. m, all the accused persons being armed with deadly weapons such as Lathis and Tentas surrounded deceased Nakula when the petitioner, who was armed with a Tenta (Tenta is a spear with more than one sharp blade meant for stabbing) assaulted the deceased by means of it, as a result, one of the blades pierced into the left side of the chest which resulted in his death.
( 3 ) THE accused persons (eleven in number) moved for bail before the learned Sub-Divisional Judicial Magistrate, Khurda, who refused to release them on bail. The accused persons moved for bail before the learned Sessions Judge, Puri, who by separate orders released all the accused persons except the petitioner on bail. Later, the petitioner again moved the learned Sessions Judge for bail on the ground that in the absence of valid orders of remand his detention was illegal. The learned Sessions Judge placed reliance on a decision of this Court reported in (1985) 60 Cut LT 228, D. Bhaskar Rao v. State of Orissa and having found that the detention of the petitioner was illegal because of absence of valid orders of remand, directed his release on bail by order dt. 25-4-1986.
( 4 ) ON 22-8-1986 the learned Sub-Divisional Judicial Magistrate committed the accused persons for trial to the court of session. On the same day she passed an order releasing them on bail presumably because all of them had earlier been released on bail by the court of session.
( 5 ) INFORMANT Durai Behera, as well as, the State challenged the order of the learned Sessions Judge dt. 25-4-1986 by which the petitioner had been released on bail by filing two separate Criminal Misc. Cases for cancellation of bail under S. 439 (2) of the Criminal P. C. These cases came up for hearing before a single Judge of this Court who doubted the correctness of the principle enunciated in the case of D. Bhaskar Rao (supra) and referred them for decision to a larger Bench. The cases thereafter came up for hearing before a Division Bench of this Court. The Division Bench held in (1986) 2 OLR 536 Durei Behera v. Suratha Behera that illegal detention, by itself and taken alone, is no ground for releasing the accused on bail and has not been recognised as such by the Code. Bail is no remedy and has never been conceived or intended in law to be a remedy for illegal detention. To hold otherwise would introduce a stage of compulsory bail not intended by the Code. If detention is illegal by reason of infringement of S. 309 (2), the remedy is not an application for bail, but an application for a writ of habeas corpus. Having held as much, the Division Bench not only differed from the view earlier taken in the case of D. Bhaskar Rao (supra), but also set aside the order of the learned Sessions Judge and directed cancellation of bail of the petitioner. While doing so merits of the case relating to bail were not taken into consideration.
( 6 ) THE decision of the Division Bench in (1986) 2 OLR 536 (supra) was challenged in the Supreme Court by filing S. L. P. (Criminal) No. 2805 of 1986 which was allowed to be withdrawn to enable the petitioner to apply afresh in this Court for bail on the basis that the order of bail was made in favour of the petitioner by the committing magistrate.
( 7 ) MR. A. P. Mohanty, learned counsel for the petitioner, made reference to the order of commitment dt: 22-8-1986 and contended that in exercise of powers under S. 209 (b) of the Code, the learned Magistrate released the petitioner on bail until conclusion of trial of the case and so without making an application for cancellation of bail, re-arrest of the petitioner and taking him to custod
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