2014 Supreme(Ori) 637

IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Pramod Kumar Panda - Petitioner
Versus
Republic of India - Opp. Party
BLAPL No. 19817 of 2014
Decided on : 15.12.2014

Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438(1) - It empowers the High Court or the Court of Session while considering an application for anticipatory bail to issue an interim order for grant of anticipatory bail - At the time of passing the interim order, the Court has to consider the factors which are enumerated under (i), (ii), (iii) and (iv) of Section 438(1) Cr.P.C. - At the stage of passing the interim order, the Public Prosecutor can also be heard -If the Public Prosecutor seeks for time to produce the case records, criminal antecedents of the accused etc., the Court can grant appropriate time but at the same time, if the Court feels just and proper, it can pass interim order for grant of anticipatory bail - Detail stated.

       Obviously where the Court after hearing the learned counsel for the petitioner feels that in view of the factors as enumerated under (i), (ii), (iii) and (iv) of Section 438 Cr.P.C., the anticipatory bail application is to be rejected forthwith, there may not be any necessity of hearing the Public Prosecutor. Thus the Public Prosecutor has a right to get reasonable opportunity of hearing before the final order in an anticipatory bail application is passed. Even though at the first instance while hearing an anticipatory bail application from the learned counsel for the petitioner, the Court does not issue any interim order but directs the Public Prosecutor to obtain the case records as well as necessary instruction, in such cases also the Public Prosecutor has to be given an opportunity of hearing when the application is finally heard. After hearing the Public Prosecutor, the Court has discretion either to grant anticipatory bail finally or to reject such bail application. (Para - 8)

       2. WORDS AND PHRASES - "Aggrieved person" - Aggrieved person has not been defined in Cr.P.C. - An aggrieved person as per the Law Lexicon is a person who has suffered a legal grievance - Detail stated.

       The term includes any, person who has a genuine grievance because an order has been made prejudicially affecting his interests, who is wrongfully deprived of his entitlement which he is legally entitled to receive. Aggrieved is somewhat wider term than injured. A person is aggrieved if a decision has been pronounced which has wrongfully refused him something which he had a right to demand. An aggrieved person is one who is adversely affected, cheated, damaged, defrauded, harassed, injured, offended, oppressed or wronged.

       3. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438 - Bail application - Application for intervention - ’Aggrieved party’ - Whether in an application for anticipatory bail, an ’aggrieved party’ can be given an opportunity of hearing? - In the absence of any provisions in Cr.P.C. in debarring an informant or de facto complainant or victim or an aggrieved party an opportunity of hearing in an application for anticipatory bail but keeping in view the criminal justice delivery system and public policy, it can be held as stated.

       i. There is no, mandate in law to issue notice to the informant/victim/ aggrieved party by the Court before passing any interim order or final order in an application for anticipatory bail.

       ii. While adjudicating an anticipatory bail application, if the Court feels that the informant/de facto complainant/victim/aggrieved party is required to be heard for an effective adjudication, then the Court can issue notice to such person for giving him a reasonable opportunity of hearing.

       iii. If the informant/de facto complainant/victim/aggrieved party suo motu appears in Court in an application for anticipatory bail either to support or oppose such application and prays before the Court to give him an opportunity of hearing, the Court may accept such prayer if it feels the necessity of hearing such person in the interest of justice and for the just decision of the case.

       iv. The counsel for the informant/de facto complainant/victim/aggrieved party can always appear during hearing of the anticipatory bail application and assist the State counsel even if he is not awarded a right of audience in the matter by the Court. He can also assist the Court if any query is put forth to him.

       v. Where it appears that there are lot of aggrieved persons and all of them pray before the Court to give them an opportunity of hearing in an application of anticipatory bail, the Court may be reluctant to give them such opportunity if it feels that it would be at time consuming affair or in view of the .time constraints, it would not be feasible to give each of them an opportunity of hearing or it would delay the disposal of such application. However, if the Court feels in such cases to hear one of the aggrieved parties who can highlight the common grievences of all which is not properly addressed by the State Counsel, the Court can give an opportunity of hearing to such party.

       vi. No particular category of cases can be enumerated as to where the informant/de facto complainant/victim/aggrieved party can be given an opportunity of hearing in an application for anticipatory bail in as much as it would depend upon the nature and gravity of, the offences as well as’ the discretion of the Court which is to be exercised judiciously with reasonable care and caution.

       vii. If a person is neither an informant nor victim but claim himself to be an aggrieved party and prays for an opportunity of hearing, the Court has to decide whether such person is an aggrieved party in the context of the case or not and if so, whether a right of hearing is to be given to him or not to take a right decision in the matter. (Para - 9)

       4. CRIMINAL PROCEDURE CODE, 1973 – Sec. 438(1) - It lays down a condition which has to be satisfied before grant of anticipatory bail and such condition is that the applicant has "reason to believe" that he may be arrested on accusation of having committed a non-bailable offence - Such belief must be founded on reasonable grounds and not mere "fear", or "vague apprehension". (Para -14)

       5. BAIL - Economic offence - While dealing with an application for grant of anticipatory bail in an economic offence, apart from the nature and gravity of the accusation, the role played by the accused, the character of the accused, the antecedent of the accused, the possibility of the accused tampering with the witnesses or fleeing away from justice, likelihood of repetition of similar offences in future, reasonable possibility of securing the attendance of the accused at the time of trial are all to be seen with utmost care and caution and exceptional case has to be made out for grant of anticipatory bail particularly in economic offences. (Para - 15)

       6. WORDS AND PHRASES - "Custodial, interrogation" - Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called "custodial interrogation". (Para - 17)