The decisions with regard to public accountability cited by the petitioner are found to be not relevant to the facts of the present case, which relate to public accountability in case of administrative or executive function and not to an order of bail passed by a judicial functionary, even if assumed to have been granted by misreading the documents produced by the Investigating Agency. In the case of Salim Khan (supra), the Hon’ble Supreme Court was dealing with an appeal under Article 136 of the Constitution against grant of bail, where the Hon’ble Supreme Court decried inaction on the part of the State and its officers in not moving an application for cancellation of bail by deprecating such action. The said decisions do not relate to the question of public accountability in any manner.
Even if, a judicial officer while exercising his judicial discretion passes a wrong order, such order can be only questioned in accordance with the provisions of law and not on the ground of public accountability”
ORISSA HIGH COURT
ORISSA HIGH COURT
SRI ISWAR CHANDRA DASH Vs. FIRST ADDITIONAL DISTRICT & SESSIONS JUDGE, CUTTACK
Decided On : Mar-25-2013
Citation; 2014 ALL M R (CRI)JOURNAL 98
PRESENT : SHRI JUSTICE M.M. DAS AND SHRI JUSTICE B.N.MAHAPATRA. M. M. DAS, J.
In this writ petition, the petitioner, who is a member of this Bar and appears in person, has made the following prayer:“It is therefore prayed that this Hon’ble Court be pleased to issue notice of show cause to the opp. parties and after hearing the parties be pleased to(i) Pass appropriate order setting aside the impugned order under Annexure-1; AND (ii) Pass appropriate order fixing public accountability on the Opp. party No.2, who has committed serious error of facts which are not borne out on record and is negligently/superfluously acted in dereliction 2 of duty empowered on him by the statute and he is liable to pay compensation, which is assessed at Rs.1/- (rupees one only). AND (iii) Pass appropriate order invoking suo motu power for cancellation of bail or to pass any other directions directing the State to do well in preferring appeal against the order impugned ”..
In this writ petition, the petitioner, who is a member of this Bar and appears in person, has made the following prayer:“It is therefore prayed that this Hon’ble Court be pleased to issue notice of show cause to the opp. parties and after hearing the parties be pleased to(i) Pass appropriate order setting aside the impugned order under Annexure-1; AND (ii) Pass appropriate order fixing public accountability on the Opp. party No.2, who has committed serious error of facts which are not borne out on record and is negligently/superfluously acted in dereliction 2 of duty empowered on him by the statute and he is liable to pay compensation, which is assessed at Rs.1/- (rupees one only). AND (iii) Pass appropriate order invoking suo motu power for cancellation of bail or to pass any other directions directing the State to do well in preferring appeal against the order impugned ”..
2. As stated in the writ petition, the grounds on which the petitioner challenges the order granting bail to the opp. parties 4 to 7 are : (a) The act of granting bail with a perverse finding which is non-existent in the record, amounts to judicial indiscretion. Thus, the granting of bail is for extraneous consideration. (b) (c) 3. No greater damage can be cause to the administration of justice and to confidence of people in judicial institution, when Judges of Higher Courts publicly express perverse finding. Respect for judiciary is not in hand by using extraneous, non-existent fact. The interest of justice would be served if the opp. party No.2, who has mis-utilized the seal of the Court to be held attributable and fixing public accountability for commission of illegality, irregularity actuated with bias and influenced otherwise. As per the prosecution case, as disclosed in the F.I.R., in the fateful night, two unknown persons came in a motor cycle to the residential house of the petitioner-informant while he was taking rest after dinner and abused him in filthy language. The petitioner-informant came down from his upstairs of the residential house and found that the culprits have already left the place in their motor cycle. Then the petitioner- 3 informant and his son followed the culprits to one end of the village and challenged them as to why they abused him in filthy language. Soon-after four other unknown culprits joined with the earlier two and started assaulting the petitioner-informant and his son by means of sharp cutting weapons resulting in injuries on their body including eyes. Basing on the above F.I.R., a case was registered under sections 307/326/324/294/34 IPC at Bidanasi Police Station and investigation commenced. In course of investigation, the police arrested the private opp. parties and took them to custody.
4. informant It is an admitted case that since the petitioneris a practicing Advocate and a member of the High Court Bar Association, due to the assault caused by the accused persons on the petitioner, the members of the Bar expressed their solidarity by abstaining from Court work for a good number of days. Even at the behest of the Bar Association, WPCRL No.1215 of 2013 has been registered. The accused persons were identified by the petitioner and his son in a T.I. Parade. The accused persons filed BLAPL No.11 of 2013 and BLAPL No.12 of 2013. The said applications were transferred to the learned First Additional Sessions Judge, Cuttack. On 16.1.2013 by a common order, the learned First Additional Sessions Judge, Cuttack enlarged the accused persons on bail by arriving at a finding that the injuries inflicted on the 4 informant are simple in nature. The relevant extract of the order of the learned First Additional Sessions Judge, Cuttack is quoted below:“Perused the injury reports placed on record in respect of informant, Iswar Chandra Das and his son Maheswar Das wherein it is mentioned that informant Iswar Chandra Das sustained lacerated injuries on his forehead and below right eye apart from a hematoma, simple in nature and his son Maheswar Das sustained one swelling, two abrasions and a laceration, simple in nature. So from the nature of injuries, it is difficult to presume if any sharp cutting weapon was used by the assailants. It is admitted on behalf of the prosecution that the petitioners have no criminal antecedents”..5. The petitioner submits that though one of the injuries mentioned in the medical report was grievous in nature, the learned First Additional Sessions Judge has committed an error in holding that the injuries were simple in nature, which were not borne out from the record. He, therefore, submits that a presumption of bias and/or otherwise being influenced, motivated in granting bail to the accused persons, can be raised from the above finding which is attributable to the learned First Additional Sessions Judge, Cuttack.
6. When asked by the Court as to how the writ petition is maintainable and why the petitioner instead of filing application for cancellation of bail, if there is instance of the accused persons mis-using their liberty granted to them, has filed the present writ petition, the petitioner submits that this 5 Court under Article 226 of the Constitution can decide the question of public accountability on the part of the learned First Additional Sessions Judge. The petitioner first of all relies upon the decision in the case of R.Rathinam v. The State and another, AIR 200.SC 185.in support of his submission that the writ petition is maintainable before this Court. Secondly, with regard to the public accountability, he relies upon the decisions in the case of Salim Khan v. Sanjai Singh and another, (2002)9 SCC 670.Pollution Control Board v. Mahabir Coke Industry, (2000)9 SCC 34.and N. Nagendra Rao & Co. v. State of A.P., 1994 SCC (Cri.) 1609.
7. In the case of R. Rathinam (supra), the Hon’ble Supreme Court was considering the judgment of a Division Bench of the Madras High Court. The facts of the said case reveal that 75 advocates practicing in various courts situated in Tamil Nadu presented two petitions addressed to the Hon’ble Chief Justice of the Madras High Court for cancellation of the bail granted to certain persons. It was prayed in the said petitions that the Hon’ble Chief Justice might place the matter before a Division Bench of the High Court for its consideration. The Hon’ble Chief Justice on 4.5.1998 directed that the petitions be placed before the Division Bench. The learned Judges of the Division Bench held that the petitions presented 6 before the Hon’ble Chief Justice are not maintainable and hence, no proceedings can be initiated thereon. Accordingly, the said Bench closed the suo motu proceedings by an order passed on 24.9.1998. The matter was brought before the Hon’ble Supreme Court. The said applications were filed before the Madras High Court with regard to a Carnage which took place on 30.6.1997 at a village in Madurai district. In the Gory episode, six persons belonging to Scheduled Caste community were done to death. One of the deceased was described as President of the Local Panchayat Committee. The police arrested 34 persons in connection with the said massacre. Though initially, they were not released on bail, subsequently, by orders passed by the Madras High Court in the months of March and April, 1998, many of them were released on bail. The Hon’ble Chief Minister of Tamil Nadu was moved by a brother of one of the deceased in association with some others pressing him to move the High Court to cancel the bail granted to those accused persons for the reasons which were stated in the representation. But the Government did not favaourably respond to the same. It was in such a situation that the Advocates from the Bar filed a petition before the Hon’ble Chief Justice. The Division Bench which heard the petition categorically came to the conclusion that when there is a statutory remedy to the aggrieved party by filing 7 applications/petitions for cancellation of bail granted by the learned Judges of that court, the representations/petitions made by some Advocates, who have nothing to do with the said case could not be entertained when remedy in a proper forum was available. The High Court was of the clear view that the Division Bench cannot by-pass the statutory provision. The Hon’ble Supreme Court while agreeing with the said view and while examining the question as to whether the same High Court can cancel the bail for other reasons, referred to section 439 (2) Cr.P.C. and held that the frame of the sub-section (2) of section 439 indicates that it is a power conferred on High Court or Sessions Court to cancel bail. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact, the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or Investigating Agency or even a Public Prosecutor moves for it by a petition. Thus holding, the Hon’ble Supreme Court further held in the case of R. Rathinam (supra) as follows: “It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. not is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no 8 barrier either in Section 439 the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations, it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law”..
8. Applying the above principle to the facts of the present case, it is seen that in the present case, bail was granted by the learned First Additional Sessions Judge, Cuttack and not by this Court. Section 439 (2) of the Cr.P.C. provides that a High Court or a Court of Session may direct that any person, who has been released on bail under this Chapter be arrested and commit him to custody.9. It is well settled in law that once a bail is granted to an accused, if the Court granting the bail on being moved by an application under section 439 (2) Cr.P.C. finds that the accused while on bail has misused his liberty and has acted in such manner which is prejudicial to the case of the prosecution, e.g. has attempted to gain over witnesses, has committed further criminal acts on the informant or any other person belonging to the prosecution party or has attempted to threaten the witnesses, the bail granted earlier to him can be cancelled by the court granting such bail”
10. No doubt, the High Court being a superior court can also invoke this power under section 439 (2) Cr.P.C. by initiating suo motu proceeding for cancellation of bail if such grounds are prima facie made out. This Court, however, on examining the materials produced and the averments made in the writ petition does not find any prim facie case to have been made out for initiating a suo motu proceeding for cancellation of bail granted to the accused persons by the learned First Additional Sessions Judge, Cuttack.
11. The petitioner has further alleged that the learned First Additional Sessions Judge, Cuttack having held that the injuries were simple in nature, basing upon which, he has granted bail, has committed an illegality as one of the injuries was grievous in nature and a presumption of bias/mala fide can be raised therefrom and on that score even a Judicial Officer is accountable to the public and the order granting bail ipso facto shows that there is negligence and misfeasance on the part of the learned First Additional Sessions Judge, the said bail order should be quashed.
12. With regard to the above, this Court is of the view that the power to grant bail by a Sessions Judge is a discretionary power. No doubt, such power should not be arbitrarily used. But, however, if the learned Sessions Judge, on perusal of the materials comes to the conclusion that it is a 10 fit case where bail should be granted, the said bail order cannot be interfered with on the ground that it suffers from error of record, in a proceeding under Article 226 of the Constitution, as such a proceeding cannot be considered to be an appeal against the order of bail. A bail order once granted can only be cancelled under the provisions of section 439 (2) Cr.P.C. and not otherwise.13. The decisions with regard to public accountability cited by the petitioner are found to be not relevant to the facts of the present case, which relate to public accountability in case of administrative or executive function and not to an order of bail passed by a judicial functionary, even if assumed to have been granted by misreading the documents produced by the Investigating Agency. In the case of Salim Khan (supra), the Hon’ble Supreme Court was dealing with an appeal under Article 136 of the Constitution against grant of bail, where the Hon’ble Supreme Court decried inaction on the part of the State and its officers in not moving an application for cancellation of bail by deprecating such action. The said decisions do not relate to the question of public accountability in any manner.
14. Even if, a judicial officer while exercising his judicial discretion passes a wrong order, such order can be only questioned in accordance with the provisions of law and not on the ground of public accountability”
15. We, therefore, while dismissing the writ petition, observe that in accordance with the decision in the case of R. Rathinam (supra), the petitioner may move appropriate application under section 439 (2) Cr.P.C., if such causes/grounds exist, for cancellation of the bail granted to the accused persons, but, however, not on the ground that the learned First Additional Sessions Judge, Cuttack has misread the medical report.
16. The writ petition is accordingly dismissed. …………………… M.M. Das, J.B.N.Mahapatra, J.I agree. ……………………….. B.N.Mahapatra,J.Orissa High Court, Cuttack. March 25th ,2013/Biswal.
No comments:
Post a Comment