A.K. Patnaik, J.
1. This is an application filed under Section 439(2) of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C') for cancellation of the bail granted to Sri Sushant Kumar Mohapatra by Order dated 27.9.2001 passed by the Learned Special C.J.M., CBI, Bhubaneswar under Section 167(2) of the Cr.P.C. in connection with RC No. 3/S/2000-Cal under Sections 120-B, 292, 342, 354, 363, 376 read with Section 511 of the Indian Penal Code (for short 'the IPC').
2. The facts briefly are that the petitioner Sri Prasanta Kumar Das filed a writ Petition in OJC No. 13305 of 1999 praying for investigation into the Balasore Sex Scandal case in which it was alleged that a Physical Training Instructor of Balasore was luring young girls from Balasore on false pretence for high officials. The High Court passed orders on 9.5.2000 for investigation by the Central Bureau of Investigation (for short, 'CBI') into the said case and pursuant to the said order passed by the High Court, the CBI registered an FIR in the aforesaid case treating the petitioner Sri Prasanta Kumar Das as the informant. Sri Sushant Kumar Mohapatra was arrested by the CBI in course of investigation on 31.5.2001 but thereafter Shri Mohapatra filed a petition under Section 167(2) of the Cr.P.C. on 26.9.2001 before the Learned Special CJM, CBI, Bhubaneswar and by Order dated 27.9.2001 the Learned Special CJM, CBI, Bhubaneswar released the petitioner on bail due to non-filing of charge-sheet by the CBI within the statutory period of 60 days.
3. Mr. Panda, Learned Counsel for the petitioner, submitted that considering the offences alleged in this case including the offence of conspiracy under Section 120-B of the IPC the accused persons could be released on bail under Section 167(2) of the Cr.P.C. only if the accused remained in custody for a period of 120 days without the CBI filing a charge-sheet as would be clear from the Orissa Amendment to the Proviso to Section 167(2) of the Cr.P.C. but by Order dated 237.9.2001 Sri Sushant Kumar Mohapatra has been released on bail on expiry of the period of 60 days ignoring the offence of conspiracy under Section 120-B of the IPC. He further submitted that the language of Proviso (a) to Section 167(2) of the Cr.P.C. would show that the person released on bail under Section 167(2) of the Cr.P.C. shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter and Section 437{3) in Chapter XXXIII provides that the Court may impose any condition which the Court considers necessary but the Order dated 27.9.2001 of the Learned Special CJM, CBI, Bhubaneswar would show that no such condition for bail was actually imposed by the Court. He pointed out that Sri Sushant Kumar Mohapatra is thereatening the witnesses and trying to gain them over by various tactics. In this context, he referred to ther allegations in Para 6 of the petition as well as the First Information Report dated 30.10.2004 lodged by Harapriya Barik the victim girl herself, and her statement recorded under Section 164, Cr.P.C. on 8.10.2004 as well as the First Information Report dated 9.10.2004 lodged by Ashok Kumar Tarai, husband of Harapriya Barik. He cited a decision of this Court in Sri Pitambar Swain v. Ainthu alias Ashok Kumar Sahu and Anr., 66 (1988) CLT 820 for the proposition that bail granted to the accused can be cancelled if it was granted illegally and/or improperly by wrong and arbitrary exercise of judicial discretion and if the accused abuses his freedom by violating the conditions imposed in the bail order or tampers with the prosecution evidence or commits such illegal or criminal acts which would make his freedom undesirable. He vehemently submitted that since the bail order was granted to Sri Sushant Kumar Mohapatra illegally and improperly and he has abused his freedom and tampered with the prosecution evidence, this Court should cancel the bail granted in his favour.
4. In reply to the aforesaid submissions, Mr. Dharanidhar Nayak, Learned Counsel appearing for Sri Sushant Kumar Mohapatra (the Opp. Party No. 2) submitted that Sri Mohapatra has been placed under suspension by the State Government and his headquarters has been fixed at Bhubaneswar and he has been granted bail on 27.9.2001 and more than three years have passed thereafter and no supervening circumstances have been brought to the notice of the Court warranting cancellation of the bail of Shri Mohapatra and on the false allegations in the F.I.Rs dated 8.10.2004 and 30.10.2004 and the statement under Section 164, Cr.P.C. of Harapriya Barik no order can be passed for cancellation of the bail. He submitted that there is no illegality committed in the order granting the bail because on a reading of Sections 57, 376 and 511 of the Indian Penal Code it will be clear that the maximum period for which the offences were punishable was not more than 10 years and in support of this submission cited the decision of a Learned Single Judge of this Court in Ananta Naik v. State of Orissa, 2000(1) OLR 477. He also relied on the decision of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi, AIR 2001 SC 2369 in which it has been held that for a case to be covered under Clause (i) of the Proviso (a) to Section 167(2) of the Cr.P.C. the offence should be one for which imprisonment for a clear period of 10 years or more is provided under law. He vehemently argued that this is therefore not a fit case in which the Court should cancel the bail of Sri Sushant Kumar Mohapatra the Opp. Party No. 2.
Mr. S. K. Padhi, Learned Counsel appearing for the CBI submitted that for ensuring a fair trial the Court has powers to cancel a bail granted in favour of the accused.
5. It appears on a reading of the Order dated 27.9.2001 passed by the Special CJM, CBI, Bhubaneswar that relying on the decision of the Supreme Court in Rajeev Chaudhary v. State (NCT) of Delhi (supra) and the decision of the Learned Single Judge of this Court in Ananta Naik v. State of Orissa (supra) the Learned Special CJM, CBI, has taken a view that the punishment for the major offence under Section 376/511 of the IPC was for a maximum period of ten years and that Clause (ii) of Proviso (a) to Section 167(2) of the Cr.P.C. was applicable and Sri Sushant Kumar Mohapatra was accordingly entitled to bail as a matter of right if the charge-sheet was not filed within a period of sixty days of his custody. Relevant portion for the said Order dated 27.9.2001 passed by the Learned Special CJM, CBI, Bhubaneswar in SPE No. 3 of 2000 is quoted herein below :
'In the present case, accused Susanta Kumar Mohapatra was produced in the Court after arrest on 1.6.2001. He is in custody for more than 60 days. The major offence alleged against the accused-petitioner is under Section 376/511, IPC. Therefore, the maximum period of punishment under Section 376, IPC shall be reduced to half in view inclusion of Section 511, IPC. The maximum punishment for offence of rape is imprisonment for life. According to Section 57, IPC imprisonment for life shall be reckoned, equivalent to imprisonment for 20 years. Half of 20 years is 10 years. For a limited purpose of bail, the imprisonment for life would be construed for a period of 20 years. As observed above, according to Clause (i) of Proviso (a) of Section 167(2), Cr.P.C. an asccused can be detained in judicial custody pending investigation for a maximum period of 90 days (In Orissa, it is 120 days) when the investigation relates . to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years but the expression 'not less than 10 years' will be construed as 10 years or more. It is clearly distinguishable from the expression punishable upto 10 years. In the latter case, the punishment cannot exceed 10 years. As the offence under Section 376/511, IPC is punishable with maximum imprisonment for 10 years, Clause (ii) of Proviso (a) of Section 167(2), Cr.P.C. is applicable. In the present case, charge-sheet has not been filed within a period of 60 days. Accused, Susanta Kumar Mohapatra is in judicial custody for more than 60 days. Therefore, the contention of the Learned Counsel for the defence holds good and is acceptable. At the same time, the contention of the Learned Sr. P.P., CBI is not well founded.
After careful consideration of the decisions relied on by both the parties, I am of the opinion that the I.O. has failed to file charge-sheet within a period of 60 days. Accused has indefeasible right to be released on bail. The bail petition was filed yesterday i.e. on 26.9.2001 and charge-sheet has been filed today. Subsequently filing of charge-sheet does not extinguish the accrued right of the accused to be released on bail in view of the decision of the Apex Court reported in 2001 AIR SCW 1500, Udayamohan Lal Acharya v. State of Maharastra. However, Learned Sr. Counsel for the CBI fairly concedes that subsequent filing of charge-sheet is immaterial. As charge-sheet could not be filed within the statutory period, the accused is entitled to bail. In the result, the petition of the accused-petitioner dt. 26.9.2001 is allowed.'
A reading of the aforesaid order would show that the Learned Special CJM, CBI has lost sight of the offence under Section 120-B of the IPC but it will not be proper for us to cancel the bail of Sri Mohapatra on this ground when he has remained at large for more than three years pursuant to the bail granted by the Learned Special CJM, CBI.
6. The language used in Proviso (a) to Section 167(2) of the Cr.P.C. makes it abundantly clear that every person released on bail under Section 167(2) shall be deemed to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter. Therefore, while releasing an accused on bail, the Court may impose conditions in exercise of powers under Section 437(3) of the Cr.P.C. But merely because the Learned Special CJM, CBI has not imposed any such conditions while granting bail, the grant of bail cannot be considered as a totally illegal or arbitrary exercise of judicial discretion warranting cancellation of the bail granted more than three years back.
7. In Sri Pitambar Swain v. Ainthu alias Ashok Kumar Sahu and Anr. (supra), there were materials before the Additional Sessions Judge to show the involvement of the accused in that case in the unusual death of his wife and yet the Additional Sessions Judge granted bail to the accused and on there facts the Court held that the Learned Additional Sessions Judge committed a serious impropriety and illegality in granting bail to the accused persons by Order dated 30.4.1988 and thereby hampered the investigation and accordingly cancelled the bail on 9.9.1988. But in the present case, the facts are entirely different. Investigation was over and charge-sheet was also filed on 27.9.2001 against three accused persons including Sri Sushant Kumar Mohapatra and the bail order was passed on 27.9.2001. Bail has been granted more than three years back and at this stage, it will not be proper for this Court to cancel such a bail granted more than three years back on the ground that no conditions were imposed in the bail order though this Court can now impose some conditions to ensure fair trial of the case.
8. In the State through the Delhi Administration v. Sanjay Gandhi, AIR 1978 SC 961 the Supreme Court has indicated the circumstances, in which the Court would exercise jurisdiction under Section 439(2) of the Cr.P.C. to cancel a bail granted to an accused person. Para 24 of the said judgment as reported in the AIR is quoted herein below :
'24. Section 439(2) of the Criminal P.C. confers jurisdiction on the High Court to Court of Session to direct that any person who has been released on bail under Chap. XXXIII be arrested and committed to custody. The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. But the power, though of an extra-ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. Refusal to exercise that wholesome power in such cases, few though they may be, will reduce it to a dead letter and will suffer the Courts to be silent spectators to the subversion of the judicial process. We might as well wind up the Courts and bolt their doors against all than permit a few to ensure that justice shall not be done.'
It will be clear from the aforesaid law laid down by the Supreme Court that the power to take back in custody an accused who has been enlarged on bail has to be exercised with great care and circumspection and is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. In this case, though some allegations have been made in the petition alleging that Sri Sushant Kumar Mohapatra is tampering with witnesses, those allegations have not been substantiated by material particulars giving specific instances as to how Sri Sushant Kumar Mohapatra has been tampering with witnesses and the dates on which the witnesses were tampered. After a long gap of about three years, First Information Reports dated 9.10.2004 of Sri Ashok Kumar Tarai and dated 30.10.2004 of Harapriya Barik have been lodged and the statement of Harapriya Bairk has been recorded under Section 164, Cr.P.C. on 8.10.2004 for the purpose of showing that attempts are being made to tamper with the witnesses. After considering all materials before us and after applying the test of preponderance of probabilities, we are unable to hold that Sri Sushant Kumar Moahpatra is actually tampering with the witnesses in this case.
9. For the aforesaid reasons, we are not inclined to cancel the bail granted in favour of Sri Sushant Kumar Mohapatra by Order dated 27.9.2001 passed by the Special CJM, CBI, Bhubaneswar in SPE No. 3 of 2000 but we direct that Sri Sushant Kumar Mohapatra will continue on bail subject to the condition that he will not enter into Balaspre Town (where Harapriya Barik is living) till the trial is over, except for the purpose of transit to other places after giving prior intimation to the Superintendent of Police, Balasore and that he will also not tamper with any of the witnesses in this case and the CBI the local police and the witnesses may bring to the notice of the Trial Court any case of tampering by Sri Sushant Kumar Mohapatra and the Trial Court will then consider the question of cancellation of bail of Sri Sushant Kumar Mohapatra on the basis of all materials placed before it.
10. With the aforesaid observations and directions, the Criminal Misc. Case stands disposed of.
M.M. Das, J.
11. I agree.