JUDGMENT
P.K. Tripathy, J.
1. The informant in G.R. Case No. 705 of 1995 of the Court of SDJM, Bhadrak has filed this application under Sub-section (2) of Section 439 of the Code of Criminal Procedure, 1973 (in short, ‘the Code’) praying for cancellation of bail granted in favour of the opposite parties vide order in Criminal Misc. Case Nos. 391 and 493 of 1995 passed by the Additional Sessions Judge, Bhadrak.
2. Opposite parties are eight of the accused persons in G.R. Case No. 705 of 1995 relating to an occurrence of assault and murder. They have been charge-sheeted, inter alia, for the offence Under Section 302/34, IPC and now the case is pending in the Court of the Additional Sessions Judge for trial vide S.T. No. 40/213 of 1997.
3. Petitioner argued that notwithstanding rejection of the prayer for bail of opposite parties 7 and 8, namely, Kamalakanta Mallik and Akshya Bindhani vide order dated 1.12.1995 in Criminal Misc. Case No. 391 of 1995 on the ground of existence of a prima facie case as being assailants of the deceased, learned Additional Sessions Judge, Bhadrak vide his order dated 20.12.1995 in Criminal Misc. Case No. 493 of 1995 allowed those two persons to go on bail in the absence of any changed circumstances and having no good reasons to reconsider their prayer for bail. It is further stated that so far as opposite parties 1 to 6 are concerned, in addition to existence of prima facie case against them their subsequent conducts (after being released on bail) in terrorising the witnesses and indulging in criminal activities is sufficient to cancel the bail granted to them.
4. Opposite party members have denied to the allegation of overt acts and stated that on proper consideration of the materials in the case diary bail was properly granted and there is no overt act by any of the opposite party members though such allegation has been falsely made by the petitioner and his associates. Alternatively, it was argued that if the order of bail passed in favour of opposite parties 7 and 8 be regarded as not properly passed because of the earlier rejection order in Criminal Misc. Case No. 391 of 1995, then also since those two opposite party members are on bail since 1995 and no allegation of overt acts has been proved against them, their bail should not be cancelled at this stage when the trial of the case is at its fag-end. They also argued that when the prosecution and the investigating agency have not come forward to make any allegation against the opposite party members regarding violation of any of the conditions imposed at the time of granting of the bail and when a similar application filed by the petitioner in the Court of Additional Sessions Judge vide Criminal Misc. Case No. 99 of 1996 was rejected on 19.8.1996 the prayer for cancellation of bail be rejected being devoid of merit.
5. So far as the question of cancellation of bail is concerned, law is well settled that liberty of a person who has been granted bail should not be interfered with on mere asking for it by the adverse party and unless it is necessary in the interest of justice, law and administration. Law is also equally well settled that if a person after remaining on bail abuses or misuses the same in any manner or an order of bail has been granted in his favour illegally, in such type of cases the order of bail can be cancelled and the liberty can be curtailed. Keeping in view the above noted settled position of law, the facts and circumstances as alleged by the petitioner and refuted by opposite party members is taken into consideration.
6. It appears from Annexure-1, i.e., order dated 1.12.1995 in Criminal Misc. Case No. 391 of 1995 of the learned Additional Sessions Judge, Bhadrak that present opposite parties 1, 2, 4, 5, 7 and 8 were the applicants along with nine others. Keeping in view the statement of eye-witness Jitendra regarding complicity of opposite parties 7 and 8 as the assailants of the deceased Bidyadhar, the learned counsel for the petitioner not only pressed the bail application for the said two opposite party members but also while considering the bail application learned Additional Sessions Judge made the observation regarding their complicity in the crime. However, the other applicants in that bail petition were allowed to go on bail. In Criminal Misc. Case No. 493 of 1995 eight persons applied for bail which included the opposite parties 7 and 8. Learned Additional Sessions Judge perused the post mortem report and found that the head injury was fatal which resulted in the death of the deceased and therefore, allowed the applicants to go on bail on the ground that none of them caused that head injury.
7. Learned counsel for the petitioner argued that two inconsistent orders have been passed by the learned Additional Sessions Judge for granting bail to the opposite parties 7 and 8 in the later case i.e., Criminal Misc. Case No. 493 of 1995. This criticism levelled against the Additional Sessions Judge is found not sustainable inasmuch as both the bail applications were considered at a time when charge-sheet had not been filed as against all the accused persons. As it appears from the aforesaid two orders in Criminal Misc. Case Nos. 391 and 493 of 1995, while considering the earlier bail application the post mortem report was not available before the Addl. Sessions Judge whereas when he considered the later bail application the post mortem report was available to him. Therefore, learned Addl. Sessions Judge though had taken view regarding participation of opposite parties 7 and 8 in dealing blows to the deceased but in the later case when the post mortem report was available to him he found the head injury to be fatal which resulted in the death of the deceased and according to learned Addl. Sessions Judge, opposite parties 7 and 8 did not deal that fatal blow and therefore he allowed them to go on bail. What the learned Additional Sessions Judge should not have done is not a point to be discussed here but what he has done is whether illegal is the factum for consideration. The above fact situation goes to show that learned Additional Sessions Judge exercised the discretion in favour of the opposite parties 7 and 8 on the ground that they did not deal fatal blows to the head of the deceased. That finding cannot be rendered as illegal though it may be commented upon that such a liberal approach may not always be good in a given circumstance. Apart from that, an observation made while disposing of a bail application, the findings thereof are never conclusive so as to extend the principle of constructive res judicata. The first ground advanced for cancellation of bail is found not sustainable.
8. It appears from the bail order passed by the learned Additional Sessions Judge that while allowing the opposite party members to go on bail conditions were imposed. One of the conditions is not to induce or terrorise or gain over the prosecution witnesses. Referring to Annexures, 3, 4 two FIRs, an additional affidavit of the petitioner along with the FIR Annexures A and B learned counsel for the petitioner argued that several overt acts have been made by the opposite party members to attack, assault and terrorise the prosecution witnesses. The aforesaid allegations do not inspire confidence inasmuch as though the said FIRs dates back to 1996 and 1997, no document has been filed by the petitioner to show or suggest that on the basis of such FIR investigations were conducted and charge-sheets were filed. Similarly, there is nothing in the record to indicate that petitioners had at any point of time approached the trial Court for protection on the ground of accused persons terrorising the prosecution witnesses. Thus, on the basis of mere allegations made by the informant and the prosecution witnesses and in the absence of any corroborative evidence such allegations cannot be acted upon so as to curtail the liberty granted in favour of the opposite party members.
9. At this juncture, it is worthwhile to comment upon the callousness of the investigating agency as well as the prosecution for showing complete apathy to a matter of this nature though maintenance of law and order is the bounden duty of the State and those are the two foremost agencies to safeguard the interest of the State in maintenance of law and order. When a person accused of offence Under Section 302, IPC is allowed to go on bail by taking into consideration the nature of the allegation and the materials available in the case record, thereafter the Police agency and the prosecution should not remain detached or unconcerned with the affairs of the State because when a charge-sheet is filed it is the responsibility of the aforesaid two agencies, till the completion of the trial, to see that the case proceeds in the right direction and there is no misuse or abuse of the liberty granted to the accused persons. As the watching of ‘law and order’ situation they are to be constantly vigilant, alert and dutiful instead of showing apathy and callousness to such situations. When reports were lodged with the police agency for overt acts made by the opposite party members not only the allegations were to be investigated but also truth or otherwise of such allegations should have been brought to the notice of the Court by the investigating agency through the prosecution. In addition to that if the FIRs would have been found to be on the basis of false allegation, proper action should have been taken as provided in law, for lodging false reports. In this case notwithstanding the FIR being lodged in 1996 and 1997 and the fact that the present application is pending in this Court since 1996 no effort has been made by the aforesaid two agencies to put forth the State’s concern in this matter in any manner whatsoever. If the opposite party members have not committed the overtacts it is the duty of the investigating agency to intimate the same fact to the Court through the prosecuting agency and if the investigating agency is not supplying the required information, it is as well the duty of the prosecuting agency to bring it to the notice of the concerned authorities about the inaction of the investigating agency. At the cost of no pleasure in making such comment this Court is constrained to observe that in this case both the aforesaid agencies have failed in their duty. This observation is made with a view that the apex authority in the State dealing with such subjects shall look to the conduct of the aforesaid two agencies and assess the failure and to eradicate the same by providing remedial steps/proper instructions.
10. As has been found in this case since the informant/petitioner has not substantiated the grounds advanced by him in alleging overt acts by the opposite party members and since the order of bail in favour of opposite parties 7 and 8 was not found to be granted illegally by learned Additional Sessions Judge, this Court does not find any reason to cancel the order of bail. Accordingly, the Criminal Misc. Case is dismissed.
A copy of this order, forthwith, be sent to the Chief Secretary to Government of Orissa, Advocate General, Orissa, Secretaries to Government of Orissa, Home and Law Departments and Director General of Police, Cuttack, for information and to take appropriate actions regarding providing instructions/remedial measures in such matters.