RASHMI REKHA THATOI & ANR. versus STATE OF ORISSA & ORS.

Citation: [2012] 5 S.C.R. 674 · Decided: 04-05-2012 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Disposed off

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Judgment (excerpt)

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[2012] 5 S.C.R. 674 
RASHMI REKHA THATOI & ANR. 
v. 
STATE OF ORISSA & ORS. 
(Criminal Appeal No. 750 of 2012) 
MAY 04, 2012 
[K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] 
Code of Criminal Procedure, 1973: s.438 - Bail 
application - High Court whHe entertaining applications u/s. 438 
C expressing its opinion that it was not inclined to grant 
anticipatory bail to the accused, yet directing that on their 
surrender some of the accused would be enlarged on bail on 
such terms and conditions as may be deemed fit and proper 
by Magistrate concerned - Propriety of such order - Held: The 
o Court of Session or the High Court cannot pass an order that 
on surrendering of the accused before the Magistrate he shall 
be reloased on bail on such terms and conditions as the 
Magistrate may deem fit and proper - When the High Court 
in categorical terms expressed the view that it was not inclined 
E to grant anticipatory bail to the accused, it could not have 
issued such direction which would tantamount to conferment 
of benefit by which the accused would be in a position to avoid 
arrest - Court cannot issue a blanket order restraining arrest 
and it can only issue an interim order and the interim order 
F must also conform to the requirement of the section and 
suitable conditions should be imposed - Direction to admit 
the accused persons to bail on their surrendering has no 
sanction in law and, in fact, creates a dent in the sacrosanctity 
of law - By passing such kind of orders, the interest of the 
G collective at large and that of the individual victim is 
jeopardised - That apart, it curtails the power of the regular 
court dealing with the bail applications - A court of law has to 
act within the statutory command and not deviate from it - It 
is a well settled proposition of law what cannot be done 
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674 
RASHMI REKHA THATOI & ANR. v. STATE OF 
675 
ORISSA & ORS. 
directly, cannot be done indirectly - The statutory exercise of A 
power stands on a different footing than exercise of power of 
judicial review - Judging on the foundation of said well settled 
principles, the irresistible conclusion is that the impugned 
orders directing enlargement of bail of the accused persons 
by the Magistrate on their surrendering are wholly 
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unsustainable and bound to founder and accordingly the said 
directions are set aside - Accused persons, however, entitled 
to move applications for grant of bail uls.439 which shall be 
considered on their own merits. 
By impugned orders, the High Court while c 
entertaining applications filed under Section 438, Cr.P.C. 
had expressed its opinion that it was not inclined to grant 
anticipatory bail to the petitioners, yet it directed that on 
their surrender some of the accused petitioners would be 
enlarged on bail on such terms and conditions as may 
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be deemed fit and proper by concerned SDJM and cases 
of certain other accused persons on surrender would be 
dealt with on their own merits. 
The question which arose for consideration in the 
instant appeal was whether the orders passed by the 
High Court were legally sustainable within the ambit and 
sweep of Section 438, Cr.P.C. 
Disposing of the appeals, the Court 
HELD: 1. Individual liberty is a very significant aspect 
of human existence but it has to be guided and governed 
by law. Liberty is to be sustained and achieved when it 
E 
F 
is sought to be taken away by permissible legal 
parameters. A court of law is required to be guided by the 
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defined jurisdiction and not deal with matters being in the 
realm of sympathy or fancy. [Para 7] [681-D-E] 
2. The Court of Session or the High Court cannot 
pass an order that on surrendering of the accused before 
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676 
SUPREME COURT REPORTS 
[2012] 5 S.C.R. 
A the Magistrate he shalli be released on bail on such terms 
and conditions as the 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 expressed the view that it did not 
B incline to grant anticipatory bail to the accused 
petitioners 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 arrest. 
It is in clear violation of the language employed in the 
c statutory provision and in flagrant violation of the dictum 
laid down in the case of *Gurbaksh Singh Sibbia and the 
principles culled out i1n the case of **Savitri Agarwal. 

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