Full Judgment
S.C. Mohapatra, J.
1. On 25-3-1991 at about 5 p.m. one Seru Saha lodged First Information report at Bhadrak, Rural Police-station that some persons set fire to the house of Piru Saha in another busti of the village. In view of the blaze and sound on account fire on the houses in the Busti, Muslim population of the village became panic stricken and screamed. On suggestion of some Muslim people, they left their houses. He sent his children to the mango grove of Baraju Pati. Thereafter, packing the belongings in two bundles, he ! along with his middle son, left towards the mango grove at about 2 p.m. On the way 20 to 30 unknown persons armed with deadly weapons like Barchha, Farsa, stick surrounded both father and son. They assaulted his son causing bleeding injuries. Finding this he ran to the grove and informed Saha and others of the village who were in the grove. Abhi Jena of the village who was there was requested to give water to his injured son. Abhi went to the spot and returning back informed that his son is already dead. Subsequent events were also narrated in the report.
2. On investigation, four petitioners were arrested on allegation of having committed offences under Sections 147/148/302/436/149, IPC. Their applications for bail having been rejected, they moved this Court.
3. Order of learned Sessions Judge revealed that accused Japan Singh against whom allegations are the same has been released on bail by Additional Sessions Judge. Notice for cancellation of bail of Tapan Singh was issued. Later on, bail application of four accused persons was rejected and today the question of cancellation of bail granted to Tapan is under consideration.
4. When a person is accused of an offence clarified as non-bailable, he is to remain under custody if arrested as provided in Criminal Procedure Code. Since his fundamental right to liberty under the Constitution is temporarily affected, Parliament has taken precaution so that he does not remain in Police custody for more than 15 days in all. Continuance in judicial custody, however, is not limited where charge-sheet is filed after investigation within time specified. Where investigation is delayed beyond period prescribed, detained accused is granted bail as prescribed in Section 167(2) Proviso Cr. P.C. With all these checks and balances, power has been vested in Courts to grant bail to accused arrested and no guideline has been indicated making the power wide so that courts do/not feel helpless in given situations expecting that wide power would be exercised with much restraint.
5. Aforesaid position of law makes it clear that a person arrested on allegation of commission of a non-bailable offence is normally to remain in custody and his release on bail is an exception. Like all exceptions, special grounds are to be made out. Fundamental right of equality has no application. Merely because one accused has been wrongly released on bail, others are not to be released on that ground. Such detention ought not to be treated as pretrial punishments. It is mandate of Sovereignty to maintain the social order. Therefore, while considering applications for bail balance has to be struck between maintenance of social order and liberty of a person. Individual liberty has to be sacrificed for maintaining law and order in the society.
6. While granting bail, nature of offence alleged to have been committed has to be taken note of If the same is heinous, bail ought not to be granted. Absence of overt act is not a mitigating circumstance.Instances are not rare where shrewd persons pull the string from behind exposing others at the stage. They are more dangerous to society.
7. Allegation of setting fire to houses in a village; chasing and brutally assaulting an escaping person by a body of which accused is a member is heinous in nature. Bail ought not to have been granted to him. However, prosecution agency which is part of the executive government accepted the order granting bail without raising any voice. It might be that after being released Tapan has become a good member of the society which is best known to prosecution agency. When he has remained on bail for a long period without any protest by prosecution agency, no useful purpose would be served in cancelling the bail granted to him. This case, however, ought to be an eye opener to those who allege that rate of crime is increasing on account of liberal grant of bail by courts. They should remember that while one Court had become liberal, higher court could have examined the matter if it would have been moved in right time. Acceptance of a liberal order without protest and then blaming judicial action does not help maintaining a good society.
8. In the above background, notice for cancellation of bail is withdrawn and dis-charged.