LexSUDAM CHARAN DASH versus STATE OF ORISSA & ANR.
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A B (2013] 10 S.C.R. 284 SUDAM CHARAN DASH V. STATE OF ORISSA & ANR. (Criminal Appeal No. 1862 of 2013) OCTOBER 25, 2013 [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 of the 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. Disposing of the appeal, the Court c 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] 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 G 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 D 325! 2009 (10) SCR 978 - relied on.·. · · . .. Case Law Reference: · 2012 (5) SCR _674 . relied" cin .. · • 1980:(3) SCR 383 · ·.·relied on .. 2009 (10) SCR 978 .·relied on ·para 4 . . ' .. ,·''. ·.Para 4 •. · Para 4_ ·. CRIMINALAPPELLA TE JURISDICTION : Criminal
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