2015 Supreme(Ori) 87

IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Preeti Bhatia - Petitioner
Versus
Republic of India - Opp. Party
BLAPL NO. 24046 OF 2014
Decided On : 16.03.2015

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 439 - Bail application - Maintainability after submission of charge-sheet - Merely because during pendency of the bail application, charge sheet has been submitted, the petitioner cannot be asked to withdraw the bail application from High Court and to move again for bail in the Court of Special C.J.M., CBI, Bhubaneswar and then in the event of rejection, to approach the Sessions Judge, Khurda at Bhubaneswar and• then after rejection of bail by the said Court, to approach High Court under Section 439 Cr.P.C. - Bail application maintainable.

       I am net inclined to accept the contentions raised by the learned counsel for CBI that this bail application is net maintainable as charge sheet has been filed. In a case where bail application under Section 439 Cr.P.C. is rejected by the Court of Sessions during course of investigation and the applicant applies for bail to the High Court and by the time of consideration of the bail application, charge sheet is filed, the applicant if he/she so likes has an option to withdraw the bail application from the High Court to move the Court of Sessions again but if he/she chooses not to do the same and to pursue the bail application pending before the High Court, it is to be decided on its own merits and during the hearing of the bail application, High Court can take note of the factum of submission of charge sheet and the materials which has come against the applicant in the chargesheet. It is a question of somebody’s liberty which also touches the fundamental rights guaranteed under Article 21 of the Constitution of India. If a person in custody approaching the High Court for bail against the rejection order of the Court of Session during course of investigation is denied of his valuable right of adjudication of the bail on merit only on the ground of submission of charge sheet at the time of consideration of the bail application and is asked to approach the Court of Session again then certainly it would be a travesty of justice. There cannot be any rationale to show the door of Court of Session again to the applicant. Therefore, I am of the view that this bail application is maintainable. (Para - 5)

       2. BAIL - Parity - Parity cannot be the sole ground for grant of bail - It is one of the grounds for consideration of the question of bail - Detail stated.

       There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience. (Para 7)

       3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 437(1) and 439(1) - Overriding considerations in granting bail under the Sections are the nature and gravity of the offence, position and status of the accused with reference to the victim and the witnesses and likelihood of the accused fleeing from justice and tampering with witnesses etc. - Bail is a matter of procedural privilege and not an accrued right until it is granted. (Para - 11)