JUDGMENT
M.M. Das, J.
1.This is an application under Section 438, Cr.P.C, for grant of anticipatory bail to the petitioner, but the case has assumed importance due to regular and wide publicity made in the Press and Electronic media. Considering the above, though the Court is not required to go into the details of facts while considering an application for anticipatory bail which is a discretionary power of the Court under Section 438, Cr.P.C., in my view, it would be proper to state the case of the rival parties as it stands today.
2. It is contended by Mr. I. Mohanty, learned counsel for the petitioner that the petitioner Bhubaneswar Singhdeo along with his wife, namely, Smt. Puspalata Singhdeo brought Prasanta Nahak, a boy of about 8/9 years from his village Sodaka in the district of Ganjam. The said boy was an orphan and none was there to bring him up. The couple, therefore, with permission of the grand-father of Prasanta, namely, one Dandasi Nahak brought the said child to Khariar and were properly looking after him. Mr. Mohanty submits that the boy was very weak: The petitioner and his wife were taking all care of the said boy and as a matter of fact were getting him medically treated for various ailments, which were the resultant of malnutrition. He submits that as a matter of fact even the wife of the petitioner donated her blood for blood transfusion to the said boy Prasanta. However, the petitioner, who belongs to the royal family of Khariar has been made a scapegoat in this case due to political rivalry by members belonging to the opponent camp and though there is no prima facie case of any criminal offence committed by the petitioner or his wife, this false case has been initiated against them and the same has been widely publicized in the Press as well as Electronic media not only to create public opinion against the petitioner and furore of the local people of the village Sodaka, but also the entire populous of the State with ulterior motive. He submits that initially a Station Diary entry was made against the petitioner in the Khariar Police Station of Nuapada District alleging ill-treatment to the said boy Prasanta by the wife of the petitioner and the petitioner. On enquiry being made by the police on the said Station Diary entry the police has ascertained that the boy Prasanta himself has stated to have not been tortured or assaulted mentally or physically by the petitioner or his wife. The boy has also stated that the injuries found on his person was not caused by Smt. Puspalata Singhdeo.
3. It appears from the case diary that pursuant to an office order dated 14.6.2004 the case was handed over to the Crime Branch and was entrusted to the Crime Branch Inspector to conduct investigation. The said Investigating Officer has recorded statements of a number of witnesses including the statement of the boy Prasanta and the statement of his grand-father Dandasi Nahak. The boy Prasanta has been medically examined and the report of the Medical Officer discloses that there are 11 external injuries on the boy of Prasanta including one injury, which is non-healing ulcer measuring 7 cm x 6 cm on the right sacral region. The medical papers also show that due to the nature of the above injury, the boy has been referred to the Plastic Surgery Department. It appears also from the Case Diary that various X-Ray plates of the boy have been taken by the Medical Officer disclosing old fractures on the left clavicle and left scapula.
4. Mr. Mohapatra, learned Addl. Standing Counsel on behalf of the State submits that the statements recorded by the Investigating Officer clearly makes out a case under Section 326, IPC and further the Investigating Officer during investigation has found out that the petitioner has criminal antecedents and is involved in 13 criminal cases out of which most of the cases are registered in Khariar Police Station and in some of the said cases serious allegations of commission of crime under Section 395, 394 and 325, IPC have been made. In reply to the contentions of Mr. Mohanty regarding the unnecessary wide publicity given to the case, Mr. Mohapatra contends that it is one of the sacred duty of the Press and media to bring truth to the knowledge of the general public and as such no imputation can be made to the action of publishing news items in paper or in the electronic media.
5. Considering the above statements made, I find that the contentions raised by the petitioner and the opp. party-State are two fold in nature – one being regarding the wide publicity given to the case and its effect and the other being whether in the facts and circumstances of this case the discretionary power under Section 438, Cr.P.C, is to be exercised.
6. With regard to the contention of the petitioner that wide pre-trial publicity has been given to this case only to sensitise the matter and prejudice the mind, a reference may be made to the case of Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers Bombay Pvt. Ltd. and Ors., AIR 1989 SC 190. In the said case while examining a question as to whether injunction can be granted to injunct a Newspaper from making a publication of a particular News item, the Supreme Court observed that the Courts have to balance between the two interests of great public importance, freedom of speech and administration of justice. A balance has to be struck, between the requirements of free Press and fair trial. Similarly the Supreme Court in the case of R. Balakrishna Pillai v. State of Kerala, (2000) 7 SCC 129 in a case of transfer of appeal on the ground of media hype held as follows :
“Therefore, elaborate submissions made in the transfer petition that a fair trial will not be possible in the State of Kerala as political parties in power have created such a situation that justice, fairness and rule of law cannot be expected in cases against the petitioner and that any person can be influenced consciously or subconsciously by the adverse publicity against the petitioner, are required to be rejected. Apart from not raising objection for a period of four years, we would further state that in this country there is complete separation of the judiciary from the executive and Judges are not influenced in any manner either by the propaganda or adverse publicity. Cases are decided on the basis of the evidence available on record and the law applicable.”
7. In Australia considerable research has been conducted to investigate the possible influence that exposure to pre-trial publicity has on the Jurors. The main conclusion reached in these studies is that such publicity has the potential to bias a juror against the defendant and such publicity exercises a compelling effect on the verdicts favourable to the prosecution’s case. Publicity that contains sensational information that serves to Ignite emotive feelings has also proved to be influential (Edwards & Bryan, 1997).
8. However, in India freedom of Press is a right guaranteed under. Article 19(1)(a) of the Constitution of India and the effect of the said right was detaily analysed by the Supreme Court in the case of Express Newspapers (Pvt.) Ltd. v. Union of India, AIR 1958 SC 578. Analysing the said Article of the Constitution it was observed that the freedom of speech and expression included freedom of propagation of ideas which freedom was ensured by the freedom of circulation and that the liberty of the Press consisted in allowing no previous restraint upon publication.
9. The hallmark of a democratic society is the notion of freedom of speech and expression. However, this is not an absolute right, it is a freedom which is subject to another’s democratic rights, and therefore constrained by the laws of defamation and contempt. Another feature of a democratic society is the right to a fair trial. As such, no individual should be denied his / her freedom by the state without first having the opportunity to be tried fairly and thus, defend the allegations within a Court of law.
10. One possible explanation for this susceptibility to pre-trial publication is that judging the accused in a criminal trial is considered to be a complex task. This task involves the examination of different factors such as identifying the motive for the crime, establishing ah opportunity to commit the crime, and considering the availability and face validity of the alibis presented. Determining the various, and sometimes conflicting, implications of these diverse complex elements to attain an overall evaluation of the accused can enhance susceptibility of extra-legal factors.
11. But, as observed by the Supreme Court quoted above, in India there is complete separation between judiciary and executive and Judges are not influenced in any manner either by propaganda or adverse publicity and cases are decided basing on the admissible evidence available on record and the law as applicable.
12. In this view of the matter, I repel the contention of the petitioner that the so called media hype made regarding the facts of the present case would prejudice the case of the petitioner with regard to granting or refusing anticipatory bail.
13. It being the case of the petitioner that due to wide publicity given to the case through electronic media and Newspapers the people of the locality have been persuaded to be enraged against the petitioner and his wife and as such the petitioner has reason to believe that if he appears in public he may be arrested for a non-bailable offence, I find that the petitioner has a right to pray for grant of anticipatory bail under Section 438, Cr.P.C.
14. With regard to exercise of jurisdiction under the said Section 438, Cr.P.C. the Supreme Court in the five Judges decision in the case of Gurbaksh Singh Sibbia etc. v. The State of Punjab, AIR 1980 SC 1632 has observed that with regard to anticipatory bail if the proposed accusation is not derived from motives of furthering the ends of justice but from some ulterior motive with an object to injure and humiliate the applicant by getting him arrested, a direction for release of the applicant on bail in the event of his arrest would generally be made, but on the other hand, if it appears likely, considering the antecedents of the applicant that by taking advantage of the order of anticipatory bail he will flee from justice such an order would not be made. The Supreme Court has further held in the said decision that no inexorable Rule can be laid down that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fide and that the anticipatory bail must be granted if there is no fear that the applicant will abscond. Keeping in view the above aspects the Supreme Court has further observed that the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant’s presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and “larger interest of the public or the State” are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail.
15. So viewing the matter and taking a stock of the allegations made, conduct of the petitioner, his antecedents and other matters which are brought to the notice of this Court, this Court is not inclined to grant anticipatory bail to the petitioner. Hence this application is rejected.
16. However, the observations made above will not influence the Court in the event the petitioner is either arrested and produced or surrenders before the Court and moves for regular bail.