ORDER
K.P. Mohapatra, J.
1. This is a petition under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) for cancellation of bail granted to opposite party Nos. 1 and 2 by the learned Additional Sessions Judge, Jajpur. The first petitioner is the widow of the deceased and the second is the informant.
2. Stated in brief as revealed from the FIR and the charge-sheet the facts of the prosecution case are that deceased Sagar Mahapatra (hereinafter referred to as ‘the deceased’), ex-Sarpanch of village Bada Beruan was returning to his village on 11-8-1988 on a Luna-Moped by the Grama Panchayat Road. At about 5.00 p.m. he was near village Taluri. The opposite party Nos. 1 and 2 armed with lathis waylaid him. One of them dealt a blow on the head, as a result of which, the deceased fell down on the ground. Thereafter, both the opposite parties repeatedly assaulted him by means of the lathis on different parts of his body. Some persons working in the nearby fields saw the assault and raising hue and cry ran towards the place. Seeing them running, one of the said opposite parties sat down near the deceased and by means of a barber’s knife cut his throat. Thereafter, both of them rode a cycle and started to flee from the place by threatening the persons who were about to surround them. Some of the persons arrived at the place where the deceased was lying and saw that he had sustained several injuries and his throat was cut. There was profuse bleeding from his head and neck. He was dead. The persons then gave a hot chase to the fleeing opposite party Nos. 1 and 2 who entered inside village Janha, abandoned the cycle and the lathis and started to run. They were, however, caught by some villagers. When questioned, they identified themselves and gave out their names and made extra-judicial confession that they had murdered the deceased. Information reached the Korai Police Station and the Officer-in-Charge rushed to village Janha where the F.I.R. was lodged at about 5.30 p.m. Investigation commenced and as a result thereof, opposite party Nos. 1 and 2 as the real assailants of the deceased and four others as the conspirators were charge-sheeted under Sections 302A and 120B read with Sections 34 and 109 I.P.C. on 8-11-1988.
3. Opposite party Nos. 1 and 2 moved for bail in January 1980 before the learned Additional Sessions Judge after the charge-sheet was submitted along with the record of the investigation. The entire record of the case was with him. After hearing, he passed an order dt. 20-1-1989 refusing bail to opposite party Nos. 1 and 2 on the ground that the offence was serious in nature. Opposite party Nos. 1 and 2 did not lose heart and again moved the learned Additional Sessions Judge for bail in the month of Feb. 1989. After hearing the learned counsel appearing for both parties and relying upon two decisions reported in 1984 Cri LJ 160 : AIR 1984 SC 372, Bhagirath Singh Judeja v. State of Gujarat, and 1987 Cri LJ 645 (All) Sita Ram v. State of U.P. he admitted opposite party Nos. 1 and 2 to bail on the ground quoted below:–
“In the present case it appears from the case record that the petitioners were forwarded to court in second week of August 1988 and till yet the case is not committed to the court of session for trial, though many adjournments are made and the proceeding is being delayed. Hence, accepting the principles as indicated by the Hon’ble Supreme Court reported in 1984 Cri LJ 160 I am inclined to release the petitioners on bail with conditions.”
4. Mr. R. Mohapatra, learned counsel appearing for the petitioners, contended as follows:–
(i) Having refused bail on 20-1-1989 on merits and without there being any additional facts and supervening circumstances, grant of bail was not only illegal but also an act of arbitrary exercise of jurisdiction;
(ii) The case was of a grievous nature of intentional murder in broad daylight. Opposite party Nos. 1 and 2 were caught red handed. There were several eye-witnesses to the incident over and above the extra-judicial confession of opposite party Nos. 1 and 2; and
(iii) Release of opposite party Nos. 1 and 2 is a threat to the life and safety of the petitioners for which three petitions have been sent to the Police Station.
Mr. S. K. Mund, learned counsel appearing for opposite party Nos. 1 and 2, on the other hand, urged as follows :–
(1) The order dt. 20-1-1989 refusing bail to opposite party Nos. 1 and 2 was not on merits but only on account of seriousness of the offence;
(2) After opposite party Nos. 1 and 2 were caught by some villagers, none identified that they were the persons who committed the murder;
(3) There was divergence in the statements of witnesses recorded under Sections 161 and 164 of the Code; and
(4) The petitions complaining of threat were not supported by affidavit and were meant to make out a case for cancellation of bail.
The contentions raised by the learned counsel require careful examination with reference to the materials available on record.
5. When opposite party Nos. 1 and 2 moved for bail in the month of Jan. 1989 the charge-sheet had been submitted and along with it the police case diary and other investigation papers. For disposal of the bail application the learned Judge called for the lower court records containing the charge-sheet, police case diary and other investigation papers, and, after hearing the learned counsel appearing for both parties, refused bail on the ground of seriousness of the offence. When the learned Judge observed that the offence was of serious nature, it does not admit of any doubt that he considered the investigation papers including the statements of the witnesses recorded under Sections 161 and 164 of the Code for arriving at the aforesaid conclusion. Further, there is no other material to show that the learned Judge did not peruse the above documents and refused bail for the simple reason that it was a case of murder. In view of the above fact, I am inclined to agree with Mr. Mohapatra and hold that the order dt. 20-1-1989 refusing bail to opposite party Nos. 1 and 2 was passed on merits of the case.
6. After 20-1-1989 and before the impugned order was passed on 17-2-1989 nothing new happened. No additional facts or circumstances relating to the incident were brought to light. Nothing supervened in between the two orders. Yet, on afresh bail petition being filed by opposite party Nos. 1 and 2 the learned Judge anticipated delay in trial of the case and for that reason alone admitted them to bail. Delay in commitment and trial alone cannot be said to be additional facts and circumstances or supervening material. That apart, the offence was committed on 11-8-1988 and the impugned order was passed on 17-2-1989. It cannot, therefore, be said that delay in trial was such that there was warrant for releasing opposite party Nos. 1 and 2 on bail. If this was so, persons accused of heinous offences would demand to be released on bail because of delay creating chaos in the social order. There may, however, be cases of such inordinate delay in trial of cases where interest of justice should demand release of the accused on bail. A Bench of this Court in (1986) 62 Cut LT 699, Chhaila Pradhan v. Bansidhar Pradhan, after review of a large number of decisions of the Supreme Court and different High Courts laid down that if bail has been rejected earlier on merit, the grant of bail subsequently in the absence of new or additional circumstances to justify the order can be said to have been passed improperly and arbitrarily warranting cancellation. In this connection, with regard to the point of bail, it is necessary to notice a Full Bench decision reported in AIR 1986 Patna 38 : (1985 Cri. LJ 1782), the State v. Maksudan Singh. The majority view in that case was that under Article 21 of the Constitution of India an accused has the right of speedy and public trial. If there is delay occasioned entirely by the prosecutions’ default, it is per se prejudicial to the accused. No exception can be taken to the legal proposition propounded above, but it flowed from a case of appeal against acquittal and can be factually distinguished from the facts of the present case. The above principle is, therefore, inapplicable and does not act contra to the principle referred to in the case of Chhaila Pradhan etc. v. Bansidhar Pradhan and two others (supra). In my judgment, therefore, the impugned order of bail was passed illegally by wrong and arbitrary exercise of judicial discretion and according to the accepted principle of this Court is liable to be cancelled. (See (1986) 62 Cut LT 699 (supra), (1988) 66 Cut LT 820, Sri Pitambar Swain v. Ainthu alias Ashok Kumar Sahu and (1988) 1 Orissa Cri R 90, Moti Sahu v. Pradipta Kumar Mohanty).
7. The police case diary will reveal that there were several statements of eye-witnesses including the informant under Sections 161 and 164 of the Code. It further contains the postmortem report. I have carefully read and considered all the statements and find that the deceased had as many as seven injuries, the most vital being the injury on the head and the cut injury on the neck. The eye-witnesses to the occurrence have stated that they saw two persons assaulting the deceased. When they ran towards the place of incident by raising hue and cry, one of the assailants sat down for a few minutes near the deceased who had fallen on the ground. When the witnesses came to the spot, the assailants fled on a cycle towards village Janha. The witnesses saw that the deceased was profusely bleeding on account of injuries on the head, throat and other parts of the body, and was dead. They ran after the assailants and found that inside the village Janha they had been caught by some villagers. On being questioned, the assailants revealed their names and admitted before the villagers that they had committed the murder of the deceased. For the purpose of refusal of bail to the assailants of a murdered person, the materials available on record were more than sufficient. Over and above, charge-sheet was submitted against them. Therefore, it was hardly a case in which the learned Judge, without considering the materials and without application of mind to the facts of the case, could grant bail. The contention of Mr. Mohapatra in this respect is, therefore, correct.
8. Three petitions were filed before the Officer-In-Charge of the Korai Police Station by Basanta Kumar Mohapatra, son of the deceased, apprehending threats to the lives of the family members and to his own life in case of release of opposite party Nos. 1 and 2 on bail, because the accused persons in the case number six. Some instances have also been given. The police received the petitions but obviously took no action. It is not unlikely that opposite party Nos. 1 and 2 and the other accused persons being emboldened and taking advantage of their liberty shall misuse the same and hold out threats so as to do away with the life of Basanta Kumar Mohapatra. It cannot be foretold what desperate persons would do. In consideration of these complaints, I take the view that there are additional materials in support of the petition for cancellation of bail.
9. Mr. Mund pointed out that after opposite party Nos. 1 and 2 were caught in village Janha they might have revealed their names. But none of the witnesses examined during investigation identified these two persons as the assailants of the deceased. This submission is unworthy of consideration in view of the clear statements of the eye witnesses to the occurrence to the effect that they chased the assailants and found them caught by villagers of Janha when on enquiry they revealed their names and made the extra-judicial confession. These statements leave no room for doubt that the assailants, who were chased, were actually caught and revealed their names which tally with the names of opposite party Nos. 1 and 2. The contention of Mr. Mund is, therefore, untenable.
10. The learned Judge relied upon 1984 Cri LJ 160 : AIR 1984 SC 372 (supra). The principle laid down in the decision was referred to in the case of Chhaila Pradhan v. Bansidhar Pradhan, (1986 (62) Cut LT 699) (supra) and the learned Judges in paras 19 and 20 distinguished the facts of the case after assigning adequate reasons in which I am in respectful agreement. In the case of Bhagirath Sinh Judeja v. State of Gujarat (supra) the Supreme Court laid down the principle while dealing with the cancellation of bail in a Case under Section 307 I.P.C. and not in a grave and heinous offence of murder in broad daylight. If in effect the said principle is universally applicable to all cases, then all the accused even in serious and heinous cases of murder, rape and dacoity shall have to be enlarged on bail creating chaos in the society and the provisions of bail and cancellation of bail in the Code shall be rendered ineffective and nugatory. So, in a case of murder like the one under consideration, the learned Judge should not have applied the above principle. On the other hand, in AIR 1984 SC 1503 : (1984 Cri LJ 1211). The State (Through Deputy Commr. of Police, Special Branch, Delhi), v. Jaspal Singh Gill, bail was cancelled not for any supervening or additional circumstances but by taking into consideration the gravity of the offences committed by the accused relating to the security of the State. ‘The facts of the other decision reported in 1987 Cri LJ 645 (All) (supra) referred to by the learned Judge were also different. It was a case under Section 302 I.P.C. and the Magistrate did not commit the accused to the court of session for a period of nine months. The learned single Judge of the Allahabad High Court mainly relied upon Article 21 of the Constitution of India and referred to a few cases including the cases of Bhagirathsinh Judeja v. State of Gujarat (1984 Cri LJ 160) (SC) (supra) and the State v. Maksudan Singh (1985 Cri LJ 1782) (SC) (supra) and took the view that accused was entitled to bail. In view of the decisions of our own High Court on the subject, with respect I am unable to agree with the learned Judge that for delay of only nine months an accused in a case of murder should be released on bail. Other cases reported in AIR 1978 SC 179: (1978 Cri LJ 129), Gurcharan Singh v. State (Delhi Administration) and AIR 1978 SC 961: (1978 Cri LJ 952), the State through the Delhi Administration v. Sanjay Gandhi, cited by Mr. Mund, were noticed by this Court in the case of Chhaila Pradhan v. Bansidhar Pradhan, 1986 (62) Cut LT 699 (supra). Two other cases reported in (1982) 54 Cut LT 229: (1982 Cri LJ 1954) (FB), Bijayaketan Mohanty v. State of Orissa, and AIR 1987 SC 149 : (1987 Cri LJ 157), Raghubir Singh v. State of Bihar, relied upon by Mr. Mund, lay down different principles and are not related to question of cancellation of bail.
11. In the ultimate analysis, in my judgment, the learned Additional Sessions Judge committed a serious error of law by granting bail to opposite party Nos. 1 and 2. He exercised his jurisdiction arbitrarily and improperly. Therefore, the impugned order 17-2-1989 is liable to be set aside and the bail granted to opposite party Nos. 1 and 2 cancelled.
12. In the result, the Criminal Misc. Case is allowed and the impugned order is set aside. Bail granted to opposite party Nos. 1 and 2 is hereby cancelled. Unless they surrender to custody forthwith, the learned Magistrate, before whom the case is pending, should issue warrant of arrest and on apprehension they should be kept in jail custody. Commitment and trial should be expedited. L.C.R. be sent back forthwith.