JUDGMENT :

D.P. Choudhury, J.

Lord Bolingbroke observed :

“Liberty is to the collective body, what health is to every individual body. Without health, no pleasure can be tasted by man; without liberty, no happiness can be enjoyed by society”. [Quoted from the decision reported in (2012) 5 SCC page-690 (Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others)]

2. Thus, the liberty has also taken proper place in preamble of our Constitution -“Liberty of thought, expression, belief, faith and worship”. It is, therefore, well enshrined in Article 21 of the Constitution that no person shall be deprived of his life and personal liberty except according to the procedure established by law. Such provision has also been engrafted in the mandate of the Code of Criminal Procedure in order to sustain the liberty. But, a Court of law is required to be guided by the defined jurisdiction and not deal with matters being in the realm of sympathy or fancy. So, the Court while considering the anticipatory bail or regular bail must adhere to the parameters to find out whether liberty of a person has been curtailed or is required to be curtailed by following the established principles of law.

FACTS OF THE CASE :

3. Adverting to the facts of the present case, it is the prosecution allegation that on 20.03.2012 at about 11.30 P.M., the petitioner and others came near the scrap shop of the informant and abused him in filthy language demanding some amount. In the event of protest, the petitioner and others assaulted the informant by means of kicks and fist blows and snatched away a mobile phone from his possession. As F.I.R. was lodged, investigation went ahead. The police after investigation, submitted charge-sheet against the petitioner and others under sections 294/385/323/307/379/506/34 of the I.P.C. and the learned Magistrate has already taken cognizance of the said offences. Since the police showed the petitioner as absconder in the charge-sheet, Non-bailable Warrant of Arrest (NBWA) was issued against him. After NBWA was issued, the present petitioner moved this petition under section 438 of the Cr. P.C. praying to grant anticipatory bail.

SUBMISSIONS :

4. Learned counsel appearing for the petitioner relied upon the decision in the case of Gurubaksh Singh Sibbia Vs. State of Punjab reported in (1980) 2 SCC 565, wherein the Constitution Bench of the Hon'ble Apex Court has been pleased to observe that even after submission of charge-sheet and taking cognizance of offence by the learned Magistrate, the petition under section 438 of the Cr. P.C. is maintainable. He also relied upon the decision reported in AIR 2003 SC 4662 (Bharat Chaudhary and another Vs. State of Bihar and another), wherein Their Lordships of the Hon'ble Apex Court have been pleased to observe that the Court of Session, High Court or the Supreme Court have the necessary power vested in them to grant anticipatory bail in non-bailable offences under section 438 of the Cr. P.C. even when cognizance is taken or charge-sheet is filed provided the facts of the case require the Court to do so. So, according to learned counsel for the petitioner, such petition is maintainable. Reliance was also placed by him in the case of Hatanath Behera Vs. State of Orissa and another reported in 1994 (I) OLR 51, wherein this Court has followed the decision in the case of Gurubaksh Singh Sibbia (supra) about maintainability of the petition under section 438 of the Cr. P.C. He further relied upon the decision in the case of Basudev Samantaray Vs. State of Odisha in BLAPL No.23121 of 2013 decided on 20.11.2013, wherein this Court also followed the aforesaid authoritative pronouncements and allowed the anticipatory bail and since charge-sheet has already been submitted, directed the petitioner to surrender before the learned Magistrate and in the event of his surrender, direction was given to the learned Magistrate to enlarge him on bail on such terms and conditions as deemed just and proper. Thus, he subm