offense in Rajastan, Bail from Orissa; Orissa HC says PART of offence committed in Orissa !! VERY good idea husbands can use because always the FALSE allegations say that part of the married life was at the Husband's state, so one could rope in the husband's state jurisdiction !!!!
Learning
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* Orissa (Cuttak) Director-General of Police Bidya Bhusan Mohanty's son is arrested for Rape in Rajastan
* Bidya Bhusan Mohanty (petitioner in this case) gets son out on Parole saying his wife (son's mother) is ill
* son jumps Parole
* Rajastan ppl / police allege that Bidya Bhusan Mohanty got his son out to let him escape
* Bidya Bhusan Mohanty runs for bail to Orissa HC
* Opposite parties allege that Orissa HC does NOT have jurisdiction
* Orissa HC looks at various other HC judgments including the dissenting Patna HC decision and brings in a beautiful point
* HC says that part of the offence has happened in Orissa !! so anyhow Orissa HC HAS juriisdiction !!
* AND GRANTS BAIL !!
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
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CASE FROM INDIAN KANOON SITE
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Orissa High Court
Bidya Bhusan Mohanty vs State Of Orissa And Anr. on 1 March, 2007
Equivalent citations: 2007 CriLJ 2187
Author: L Mohapatra
Bench: L Mohapatra
ORDER
L. Mohapatra, J.
1. The petitioner who is presently working as Director-General of Police, Home-guard and Fire Services, Cuttack has filed this application under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail in relation to Lalkothi (Rajasthan) Jaipur City P.S. Case No. 12 dated 10-1-2007 in the file of learned C.J.M., Jaipur City (Rajasthan) registered for commission of offences under Sections 120, 130, 216 and 225 of the Indian Penal Code.
2. Allegation in the F. I. R. is that the son of the petitioner namely Bitihotra Mohanty after being convicted for commission of offence under Section 376 of the Indian Penal Code was undergoing rigorous imprisonment in the Central Jail, Jaipur pursuant to the judgment dated 12-4-2006 passed by the learned Addl. Sessions Judge, Fast Track Court No. 1, Alwar in S. C. No. 34 of 2006. On 12-9-2006 the petitioner submitted an application to the Director-General and Inspector-General of Police (Prisons), Rajasthan to release his son on parole for a period of 15 days on the ground of serious illness of his wife. Second application was filed on 9-10-2006 on the very same ground for grant of parole. On the basis of such petitions, an enquiry was made and recommendation was also made for release of the son of the petitioner on parole. On 20-11-2006 the petitioner was personally present before the Director-General of Prisons, Rajasthan Jaipur and submitted an application to the effect that during the period of parole, his son would reside in the house of Jagdish Prasad Mohanty, IAS, Divisional Commissioner, Kota at Jaipur. The Director-General of Prisons, Jaipur on examination of the records granted 15 days urgent parole on 20-11-2006 with a direction that the son of the petitioner would execute a bail and surety bond for a sum of Rs. 50,000/- before the District Magistrate, Jaipur and during the period of parole apart from the abiding the general conditions of parole he would reside within territorial limit of Jaipur City in the house of Jagdish Prasad Mohanty. A further direction was also issued to the son of the petitioner to report to the police station at Vaishali Nagar, Jaipur on every alternate day. Thereafter the son of the petitioner was released on parole for 15 days. Though the date of surrendering in the prison was on 4-12-2006, the son of the petitioner did not appear before the Jail authorities to undergo the remaining sentence and intimation in this regard was given by the Superintendent, Central Jail, Jaipur on 5-12-2006. Immediately thereafter steps were taken for arresting son of the petitioner but he was not found in the address where he was supposed to stay. While the matter stood thus, on 7-12-2006 the petitioner submitted another application before the Director-General of Prisons requesting for extension of the parole period by another 15 days. The said request was turned down on 8-12-2006. In spite of the above, the son of the petitioner did not surrender to custody and it is alleged in the F. I. R. that the petitioner was aware of the fact that after being released on parole his son would never surrender again to undergo the remaining sentence and with this motive he took his son on parole and as such committed the offences as alleged.
3. The learned Additional Advocate-General of the State of Rajasthan appearing for the opposite party No. 2 raised preliminary objection with regard to maintainability of the application before this Court on ground of lack of territorial jurisdiction. The Additional Advocate-General appearing for the State of Rajasthan (opposite party No. 2) drew attention of the Court to the allegations made in the F.I.R. and submitted that the anticipatory bail application has been filed solely on the ground that the petitioner is a resident of the State of Orissa and apprehends arrest within the State of Orissa. Learned Additional Advocate-General of Rajasthan State submitted that on these grounds an application for anticipatory bail cannot be maintained in this Court and the Court must have territorial jurisdiction over the place where the offences were committed in order to exercise its jurisdiction under Section 438, Cr.P.C. It was further contended that none of the offences alleged in the F.I.R. had been committed within the State of Orissa and merely because the petitioner is a resident of Orissa or apprehends arrest within the State of Orissa will not be enough to confer jurisdiction on this Court to entertain the application. Llearned Counsel cited several decisions of the different High Courts in support of his contention which shall be dealt with later on.
Shri Jagannath Patnaik, learned Senior counsel appearing for the petitioner submitted that the application is maintainable before this Court since the petitioner apprehends arrest within the State of Orissa. Apart from the above, learned Senior Counsel also submitted that the offences are alleged to have been committed in the State of Orissa and therefore this application is maintainable and can be entertained by this Court. Reliance was placed by the learned Counsel on several decisions of different High Courts in support of his contention.
4. Learned Additional Advocate-General of the State of Rajasthan placed reliance of a Full Bench decision of the Patna High 'Court in the case of Syed Zafrul Hassan and Anr. v. State .
The Full Bench of the Patna High Court in the aforesaid decision held as follows:
Coming now to the judgments of this Court, reference may first be made to the very wide-ranging observations of the learned Single Judge in Bhola Lal v. State of Bihar 1984 Pat LJR 450. Therein it has been said in categorical terms that an application for anticipatory bail can be entertained irrespective of the place where the case is registered or the offence is committed, provided that the Court is satisfied that the petitioner has got a reasonable apprehension and he lives somewhere or even Intends to live somewhere within its territorial jurisdiction. With the deepest respect, I find myself wholly unable to concur with this line of reasoning for considerations exhaustively delineated earlier. Basic reliance for the view taken again was on the Delhi High Court's judgment in Pritam Singh v. State of Punjab 1980 Cri LJ 1174 and line of decision of the Calcutta High Court in B.R. Sinha v. The State 1982 Cri LJ 61 which have already been considered and dissented from. The learned Judge otherwise viewed the power of arrest by the police having jurisdiction as the first cry of invasion of the right of liberty. With the deepest respect, the lawfully vested power of arrest with the police for cognizable and non-bailable offences is not a hostile invasion of liberty but a legal and mandatory investigational process in accord with the due process of law spelt out in the exhaustive Code of Criminal Procedure. A perusal of the judgment would indicate that the learned Counsel for the parties were remiss in not canvassing the issue in all its ramifications before the Bench. With the deepest deference, the judgment does not lay down the law correctly and is hereby overruled.
To finally conclude on this aspect the answer to the question posed at the outset is rendered in the negative and it is held that Section 438 of the Code does not permit the grant of anticipatory bail by any High Court or any Court of Session within the country where the accused may choose to apprehend arrest. Such a power vests only in the Court of Session or the High Court having jurisdiction over the locale of the commission of the offence of which the person is accused.
The decision of the Patna High Court was followed by this Court in the case of Madan Mohan Sahoo and Anr. v. State of Orissa, reported in 1996 Cri LJ 1169. This Court with reference to the aforesaid Full Bench decision of the Patna High Court held as follows:
It is submitted that there can be no difficulty as power can be exercised for an interim period and after notice to the Public Prosecutor or the investigating agency of the concerned State, the matter can be taken up for final disposal. That is not certainly a workable arrangement, and would defeat the very purpose of seeking prayer under Section 438 of the Code. At this juncture it is to be noticed that the proviso to Sub-section (1) of Section 439 dealing with serious crimes expressly provides for giving notice to the Public Prosecutor before dealing with the prayer for bail, unless for reasons to be recorded in writing. It is found that it is not possible to give such notice. The Public Prosecutor as referred to obviously has to be with regard to the jurisdiction within which the offence has been committed. It is necessary to notice the castigation of the apex Court to courts attempting the assume jurisdiction extra-territorially over areas beyond the geographical limits of the State for which the High Court is constituted.
I am, therefore, in agreement with the view expressed by the Full Bench of Patna High Court in Syed Zafrul Hassan's case 1986 Cri LJ 605 (supra). But with deepest respect I record my inability to subscribe to' the contrary view expressed by the Calcutta High Court in B.R. Sinha's case 1982 Cri LJ 61 (supra).
The laid Full Bench decision of the Patna High Court was also taken note by the Full Bench of the Calcutta High Court in the case of Mahesh Kumar Sharda alias Maheswari v. Union of India, reported in 2000 Cri LJ 2951 (FB), Reliance was also placed on a decision of the Punjab and Haryana High Court in the case of Ravindra Mohan Bakshi v. State of Punjab, reported in 1984 Cri LJ 714, where it was held that the jurisdiction of the Court arises with reference to an offence and not with reference to the offender. A Court can take cognizance of the offence notwithstanding the fact that the offender lives outside the jurisdiction of that Court. Therefore, it is immaterial whether the offender is residing within the jurisdiction of the High Court or the Court of Session where he intends to apply for anticipatory bail. The question whether the offence has been committed within the jurisdiction of that High Court or the Court of Session is relevant, Reliance was also placed on a decision of the Gujarat High Court in the case of Neela J. Shah v. State of Gujarat, reported in 1998 Cri LJ 2228. The Gujarat High Court in the said decision held that the Court within whose jurisdiction the offence is alleged to have been committed is relevant in order to entertain an application under Section 438, Cr. P.C. As is evident from reading of all the aforesaid decisions, different High Courts have observed that an application for anticipatory bail can only be entertained in a High Court or Court of Sessions within those local limits the offence is alleged to have been committed.
5. Shri Jagannath Patnaik, learned Senior counsel appearing for the petitioner relied on a decision of the Delhi High Court in the case of Capt. Satish Kumar Sharma v. Delhi Administration and Ors., reported in 1991 Cri LJ 950. The Division Bench of the Delhi High Court in the aforesaid case dissented from the view taken by the Full Bench of the Patna High Court and observed as follows:
In the light of what is discussed above, the consensus view of various High Courts that emerges is that the High Court or Court of Sessions within whose territorial Jurisdiction the person has a reasonable apprehension that he would be arrested shall have, concurrent jurisdiction to grant anticipatory bail. We agree and endorse this consensus view and more particularly the view expressed by our High Court in Pritam Singh's case 1981 Cri LJ (NOC) 159 (Delhi) (supra), With respect, we find ourselves unable to agree with the view expressed by the Patna High Court.
A bare perusal of the Section reveals that no restriction for grant of anticipatory ball have been imposed in Section 438(1) for exercise of jurisdiction by that High Court or Court of Sessions within whose territorial jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence. On the other hand, such High Court of Session has been conferred jurisdiction to exercise such power. It is no doubt true that the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and within whose jurisdiction the offence ordinarily be enquired into and tried by a Court shall also have the jurisdiction to grant anticipatory bail. But this does not take away the jurisdiction of the High Court or Court of Session to grant anticipatory bail where a person has reason to believe that he would be arrested in connection with non-bailable offence. Section 438(1) is wide enough to confer jurisdiction not only to the High Court or the Court of Session within whose territorial jurisdiction the offence has been committed and is to be enquired into and tried but also the High Court or the Court of Session where a person has reason to believe that he may be arrested in connection with the commission of non-bailable offence by taking away the jurisdiction from the High Court or Court of Session for the grant of anticipatory bail within its territorial jurisdiction in respect of a person who may be arrested in connection with non-bailable offence would be reading certain words in the section which are not to be found therein. At the cost of repetition no restriction whatsoever has been placed for exercise of power by the High Court or the Court of Session for the grant of anticipatory bail within whose territorial jurisdiction if a person has reason to believe that he may be arrested in connection with non-bailable offence. The purpose for which this beneficial provision of anticipatory bail was introduced in the Code of Criminal Procedure, 1973 has been referred to by the Supreme Court in para 8 of Gurbaksh Singh Sibbia v. State of Punjab of that Judgment is reproduced below:
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in policy custody. But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sang-froid, insofar as the ordinary rule of criminal investigation is concerned. It is the normal day-to-day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminals to needless harassment. But the crimes, the criminals and even the complainants can occasionally possess extraordinary features. When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism. The powerful processes of criminal law can then be perverted for achieving extraneous ends. Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation. That can even take the form of the parading of a respectable person in handcuffs, apparently on way to a Court of Justice.
Further, in para 26 of that Judgment the Supreme Court has further held that since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restriction have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constrains and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to defend on compliance with unreasonable restrictions. The beneficent provisions contained in Section 438 must be saved, not jettisoned. These observations have been made in the context that earlier the view taken was that the power of granting anticipatory bail was somewhat extraordinary in character and in exceptional cases it should be granted. Having regard to the object and purpose for which this beneficent provision was enacted by way of amendment in 1973 in the Code of Criminal Procedure and more particularly no restriction whatsoever has been imposed by the legislature in Section 438 which takes away the Jurisdiction of the High Court or Court of Session within whose Jurisdiction a person has reason to believe that he may be arrested in connection with non-bailable offence in the light of the observations of the Supreme Court in this context, we have no hesitation to hold that Section 438(1) confers concurrent jurisdiction in the High Court of Session enlarge a person on anticipatory bail within whose Jurisdiction a person has reason to believe that he may be arrested on an accusation of having committed non-bailable offence.
Reliance was placed on a decision of this Court in the case of Dinesh Kumar Naik v. State of Orissa, reported in Vol. 91 (2001) CLT 309 where this Court held that the High Court within those local jurisdiction the accused apprehends arrest can move the High Courts for grant of anticipatory bail. Reliance was also placed on a decision of the Rajasthan High Court in the case of Jodha Ram v. The State of Rajasthan, reported in 1994 Cri LJ 1962 in which the Court held that the Courts at place where the offender apprehends his arrest has jurisdiction to grant anticipatory bail. The fact that the offence was committed beyond the territorial jurisdiction of such Court is immaterial. This Court in the case of Manoj Kumar Binayak Prasad Mohapatra and three others v. State of Orissa, reported in 2001 (II) OLR 541 though referred to the Full Bench decision of the Patna High Court did not accept the same and held that anticipatory bail application was maintainable in the State of Orissa since the petitioners therein were apprehended arrest within the State of Orissa.
Learned Senior Counsel Sri Patnaik relied upon a Division Bench decision of the Kerala High Court in the case of T. Madhusoodan v. The Superintendent of Police and Anr., reported in 1992 Cri LJ 3442 where the Court with reference to territorial jurisdiction held that the Court at place where a person apprehends his arrest has jurisdiction to grant anticipatory ball.
6. As is evident from the decisions referred to by the learned Counsel appearing for both sides, divergent views have been expressed by different High Court with regard to territorial Jurisdiction. The decisions cited by the learned Counsel appearing for the petitioner clearly lay down that the Court within those local jurisdiction a person apprehends arrest has jurisdiction to grant anticipatory bail, whereas the decisions relied upon by the learned Additional Advocate-General of the State of Rajasthan lay down that the place of offence is material for the purpose of deciding the territorial jurisdiction of a Court in entertaining an application under Section 438, Cr.P.C. It is true that Section 438, Cr.P.C. nowhere puts any restriction in entertaining an application by a High Court or a Court of Session even though an offence is alleged have been committed beyond the local jurisdiction of the said Courts. Most of the decisions relied upon by the learned Counsel for the petitioner have given emphasis on the above aspect, whereas the Full Bench of Patna High Court has given reasons as to why such an application should not be entertained unless the offence is committed within the jurisdiction of the Court. It may not be necessary to enter into the conflict and decide the issue in view of the facts involved in the present case. The case of the prosecution is that the petitioner is the father of the convict Bitihotra Mohanty who was serving sentence in Central Jail, Jaipur for commission of offence under Section 376 of the Indian Penal Code, it is also the case of the prosecution that the petitioner had applied twice for grant of parole to his son on ground of illness of his wife and on his application parole was granted to his son for a period of 15 days which expired on 4-12-2006, but the son of the petitioner has not appeared before the jail authority of Central Jail, Jaipur thereafter. Allegation of the prosecution is that the petitioner has committed offence under Sections 120, 130, 216 and 225 of the Indian Penal Code. It is stated in the counter-affidavit filed by the opposite party No. 2 that presently investigation is being done with regard to the offence under Sections 120, 216 and 225 of the Indian Penal Code. The aforesaid three provisions are quoted below:
Section 120 -- Concealing design to commit offence punishable with imprisonment,-- Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment,
voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design,
if offence be committed, if offence be not committed -- shall, if the offence be committed, be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth, and, if the offence, be not committed, to one-eighth, of the longest term of such imprisonment, or with such fine as is provided for the offence, or with both.
Section 216 -- Harboring offender who has escaped from custody or whose apprehension has been ordered-- Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody.
Or whenever a public servant, in the exercise of the lawful power of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbors of conceals that person with the intention of preventing him from being apprehended, shall be punished in the manner following, that is to say--
If a capital offence -- If the offence for which the person was in custody or is ordered to be apprehended is punishable with death, he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
If punishable with imprisonment for life, or with imprisonment -- If the offence is punishable with imprisonment for life, or imprisonment for ten years, shall be punished with imprisonment of either description for a term which may extend to three years, with or without fine;
And if the offence is punishable with imprisonment which may extend to one year and not to ten years, he shall be punished with imprisonment of the description provided for the offence for a terra which may extend to one-fourth part of the longest term of the imprisonment provided for such offence, or with fine, or with both.
"Offence" in this section includes also any act or omission of which a person is alleged to have been guilty out of India, which, if he had been guilty of it in India would have been punishable as an offence, and for which he is under any law relating extradition, or otherwise, liable to be apprehended or detained in custody in India; and every such act or omission shall, for the purpose of this section, be deemed to be punishable as if the accused person had been guilty of it in India.
Section 225 -- Resistance or obstruction to lawful apprehension of another person -- Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of any other person for an offence, or rescues or attempts to rescue any other person from any custody in which that person is lawfully detained for an offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
Or, if the person to be apprehended, or the person rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with imprisonment for life or imprisonment for a term which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;
Or, if the person to be apprehended, or rescued or attempted to be rescued, is charged with or liable to be apprehended for an offence punishable with death, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;
Or, if the person to be apprehended, or rescued or attempted to be rescued, is liable under the sentence of a Court of Justice, or by virtue of a commutation of such a sentence, to imprisonment for life or imprisonment, for a term of ten years or upwards, shall be punished with imprisoment of either description for a term which may extend to seven years, and shall also be liable to fine;
Or, if the person to be apprehended or rescued, of attempted to be rescued, is under sentence of death, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine.
As is evident from the aforesaid three provisions, such offences could have been only committed after expiry of the period of parole. Though the learned Additional Advocate-General appearing for the Rajasthan State produced records in support of his contention that the petitioner had gone to Jaipur and had got his son on parole for a period of 15 days, there is absolutely nothing on record to show that the petitioner continued to stay in Jaipur or in the State of Rajasthan after expiry of the period of parole. On the other hand, the specific plea in the bail application is that the petitioner had never gone to the State of Rajasthan to get his son on parole and has all along remained in the State of Orissa. In absence of any material to show that after expiry of the period of parole the petitioner had left Orissa, it is obvious that the offences alleged must have been committed within the State of Orissa, if at all such offences are committed. Therefore, even relying on the decision of the Full Bench of the Patna High Court, it can safely be said that the offences alleged are committed in the State of Orissa and therefore this Court has jurisdiction to entertain the bail application.
7. So far as grant of anticipatory bail to the petitioner is concerned, I am purposefully not expressing any views on merits of the case though it was argued that on materials available on record, none of the offence is made out, since any observation made by this Court may influence the mind of the trial Court i.e. learned C J.M., Jaipur City. The Full Bench of Calcutta High Court and the Apex Court apart from other High Courts have observed that anticipatory bail should not be granted for unlimited period of time. Though a contention was raised by the learned Counsel for the petitioner that anticipatory bail need not be granted for a specified period of time and reliance was placed on a decision of Delhi High Court in the case of Capt. Satish Kumar Sharma v. Delhi Administration (supra), the Apex Court in a recent decision in the case of Sunita Devi v. State of Bihar and Anr. observed as follows:
For making an application under Section 439 the fundamental requirement is that the accused should be in custody. The protection in terms of Section 438 is for a limited duration during which the regular Court has to be moved for bail. Obviously, such bail is bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be rendered meaningless and redundant. If the protective umbrella of Section 438 is extended for unlimited period the result would be clear bypassing of what is mandated in Section 439 regarding custody. Therefore, the order of the High Court granting unconditional protection is clearly untenable and is set aside. However the petitioner is granted a month's time to apply for regular bail after surrendering to custody before the concerned Court which shall deal with the application in accordance with law. The view regarding extension of time to 'move' the higher Courts as culled out from decision in , treated to have been
rendered per incuriam, as no reference was made to prescription in Section 439, Cr.P.C. requiring accused to be in custody.
8. In view of last decision of the Apex Court cited by the learned Counsel appearing for the parties, I dispose of this application directing that the petitioner may surrender before the learned C.J.M., Jaipur City in connection with the aforesaid case within a period of six weeks from today and move for bail. During this transit period if the petitioner is arrested, he shall be released on bail by the arresting officer on furnishing bond of Rs. 10,000/- (Rupees ten thousand) with one surety for the like amount to the satisfaction of the arresting officer.
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