SUDAM CHARAN DASHversusSTATE OF ORISSA & ANR.

                        (2013] 10 S.C.R. 284


A                     SUDAM CHARAN DASH
                                  V.
                    STATE OF ORISSA & ANR.
                (Criminal Appeal No. 1862 of 2013)
                        OCTOBER 25, 2013
B
               [RANJANA PRAKASH DESAI AND
                   MADAN B. LOKUR, J~.]

        Code of Criminal Procedure, 1973 - ss. 438 and 439 -
C Scope and purport of - Application for anticipatory bail -
  Rejected by High Court but further direction issued by it to
  trial court to release respondent 2-accused on bail - Propriety
  - Held: After rejecting the prayer for anticipatory bail, the High
  Court should not have negated its own· order by directing that
o 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 and·
  overlooks the scope and purport of ss.438 & 439 CrPC - The
  Magistrate re.leased respondent 2 on bail solely on the
E ground that the High Court had issued such direction - The
  Magistrate had no alternative but to do so - Thus, there was
  no consideration ofthe application for bail filed by respondent
  2 on merits - Order passed by Magistrate therefore .quashed
  - Direction issued that if respondent 2 appears and
F surrenders before the Magistrate and prefers application for
  bail, the Magistrate shall decide his application on merits and
  in accordance with law.

       The appellant's son was murdered In a hotel. It is the
  appellant's case that the police did not investigate the
G case properly. The appellant ultimately filed writ petition
  in the High Court. Subsequently, non-bailable warrant
  was issued against accused-respondent 2, by the
  Magistrate. Respondent 2 preferred application for
  anticipatory bail.
H                                284
   SUDAM CHARAN DASH v. STATE OF ORISSA                 285


      The High Court disposed of the application by the A
impugned order. The Court observed that considering
the nature of the allegations mac;le against respondent 2,
it was not a fit case for grant of anticipatory bail, however,
it gave direction that in the event respondent 2
surrenders before the Magistrate within four weeks and B
moves an application for bail, he shall be released on bail
on such terms and conditions as the Magistrate deems
fit and proper. Pursuant to this direction, respondent 2
surrendered before the Magistrate and was released on
bail.                                                          c
    Disposing of the appeal, the Court

     HELD: 1.1. 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 D
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 E
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 F
Sections 438 and 439 of the Code of Criminal Procedure,
1973~ Such orders put restriction on the power of the trial
court to consider the bail application on merits and grant
or reject prayer for bail. Such orders should never be
passed. [Paras 3, 5) [287-E-G; 289-D]
                                                              G
     1.2. The Magistrate released respondent 2 on bail
solely on the ground that the High Court had issued the
above mentioned direction. The Magistrate had no
alternative but to do so. Thus, there was 110 consideration
                                                              H
               .   -   ,~    .




    286       SUPREME COURT REPORTS · [2013] 10 S.C.R.


A of the application for bail filed by respondent2 on merits.
  The consequential order passed by the Magistrate is
  therefore quashed. In the circumstances, if respondent·
  2,appears and surrenders before the Magistrate and
  prefers an application for bail, the Magistrate shall decide
B respondent 2's application on merits and in accordance
  with law. [Para 7] [289-E·H]                   ·

      Rashrrii Rekha Thatoi & Anr. v. .State of Orissa & Ors.
  (2012) 5 sec 690:.2012 (5) SCR 674; Gurbaksh Singh
  Sibbla v. State ·of Punjab (1980) 2 sec 565: 1980 (3) SCR.
C 383 and Savitri Agarwal v. State of Maharashtra (2009) 8 SCC
  325! 2009 (10) SCR 978 - relied on.·. · ·              .

     ..                          Case Law Reference: ·
          2012 (5) SCR _674            . relied" cin ..       ·para 4
D                                                              .   . ' . . ,·''.
     · • 1980:(3) SCR 383            · ·.·relied on           ·.Para 4 •. ·
      .. 2009 (10) SCR 978             .·relied on             Para 4_

    ·. CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
E No. 1862 of 2013. '   ·· •             ·
                                        ..                         - . •,
        From the Judgment & Order dated 17.05.2013 of the High
    Court of Orissa in BLAPL No; 8671 of 2013.

F    . Aditya C.B,, Amarjit Singh Bedi, Avijit Patnaik for the
    Appellant..    ·. . · ·                        ··

          · R. Venkat Raman; Shiva]i M. Jadhav for the Respondents.
          .       .     •'           -- .. - -  .  ·' -   -


           The .Judgment of the Court was delivered by · ·
               .             -          - ...
                                          -


G     - (SMT.) RANJANA PRAKASH DESAI, j_ 1. leav~
    granted .

       . 2. The ~ppellant's son - Rajib Da"s wa~ murdered on 5/1/ ..
    2009 in a hotel. FIR was lodged fn respect thereof on 6/1/2009.
H
     . SUDAM CHARAN DASH v. STATE OF ORISSA                        287
            [RANJANA PRAKASH DESAI, J.]
    PS Case No. 4 of 2009 was registered. It is the appellant's .A
· · case that the police did 'not investigate the case properly. The
    appellant ultimately filed a writ petition in the Oriss~ 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 .. Respoiident, 2 8
    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 C ·
    think it to be a fit case for grant of anticipatory bail. Surprisingly, ·
    however, the High Court gave a. direction that in the event
    respondenf2 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 · D
    direction, respondent 2 surrendered before the !_earned
     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 E
- 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 F
    respondent 2 was necessary, could have arrested him.
   Therefore, after rejecting the prayer for anticipatorY bail, the             )
   High Court sho.uld 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 anticipato.ry . G
 . bail. Such order is not legally sound. It overlooks t.he 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.
                                                                          H
    288       SUPREME COURT REPORTS               (2013] 10 S.C.R.


A State of Orissa & Ors., 1 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
B
            Singh Sibbia v. State of Punjab, 2 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.
c           On a reading of the said authoritative pronouncement
            and the principles that have been culled out in Savitri .
            Agarwal v. State of Maharashtra 3 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
D           the Magistrate he shall be released on bail on such terms
            and conditions as the teamed 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 vie_w that it is not
E           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 affest. It is in
            clear violation of the language employed in the statutory
F         · 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
G reads·as follows:

          "Judging on the foundation of aforesaid well-settled

    1.   c2012) 5 sec 690.
    2.   (1980) 2 sec 565.
H 3. c2oos> s sec 325.
               1
   SUDAM CHARAN DASH v. STATE OF ORISSA                         289
        [RANJANA PRAKASH DESAI, J.]
     principles, the irresistible conclusion is that the                A
     impugned orders directing enlargement of bail of· the
     accused persons, namely, Uttam Das, Abhimanyu Das
     and Murlidhar Patra by the Magistrate on their
     surrendering are wholly unsustainable and bound to
     founder and accordingly the said directions are set aside.         B
     Consequently, the bail bonds of the aforenamed
     accused persons are cancelled and they shall be taken
     into custody forthwith. It needs no special emphasis to
    ·state that they are entitled to move applications for grant
     of bail under Section 439 of the Code which shall be               c
     considered on their own merits."

      5. We respectfully agree with these observations. We also
feel that such orders put restriction on the power of the trial court
to consider the bail application on merits and grant or reject
prayer for bail. We are of the opinion that such orders should          D
never be passed.

     6. In the circumstances, we set aside the impugned order.

      7. We have perused the order passed by the SDJM,
                                                                        E
Rayagada granting bail to respondent 2 pursuant to the
impugned order. Obviously, the SDJM released respondent 2
on bail solely on the ground that the High Court had issued the
above mentioned direction. The SDJM had no alternative but
to do so. Thus, there is no consideration o.f the application for
bail filed by respondent 2 on merits. We, therefore, quash the          F
consequential order dated 11/6/2013 passed by the SDJM,
Rayagada. Ordinarily, we would have directed responderit 2 to
surrender today. But, we refrain from giving any such direction.
In the circumstances, if respondent 2 appears and surrend~rs
before the SDJM, Rayagada on 29/10/2013 and prefers an                  G
application for bail, we direct the SDJM, Rayagada to decide
respondent 2's application on merits and in accordance with
law. The appellant may remain present in the court and oppose
the bail application if he so desires.
                                                                        H
    290      ·SUPREME COURT REPORTS              [2013] 10 S.C.R.
                                      ,
A         8. We direct the Registry of/this Court to forward a copy
    of this judgment to the Chief Justice of the Orissa High Court.
    We request the Chief Justice of Orissa High Court to circulate
    a copy of this order to the learned Judges of the Orissa High
    Court.
B
          9. The appeal is disposed of in the aforestated terms.

    8.8.B.                                   Appeal disposed of.




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