Prasana Kumar Das Vs. State of Orissa

Prasana Kumar Das vs State of Orissa

Disposition Petition allowed Court Orissa Decided Dec 13, 2007

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Citation: sooperkanoon.com/536623
Court: Orissa High Court
Judge: M.M. Das, J.
Decided On: Dec 13, 2007
Subject: Criminal
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Prasana Kumar Das

Respondent

State of Orissa

Legal References

Reported In: 2008(I)OLR341

Excerpt

.....and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s......orderm.m. das, j.1. heard learned counsel for the petitioner and the learned counsel for the state.this is an application filed under section 439(1)(b) of the code of criminal procedure for modification of the conditions imposed by the learned addl. sessions judge, rourkela while directing the petitioner to be released on bail in b.a. no. 548 of 2007.learned addl. sessions judge by order dated 9.10.2007 passed in the aforementioned bail application filed by the petitioner, directed that the accused-petitioner shall be released on bail on furnishing bail bond of rs. 10,000/- with one solvent surety for the like amount to the satisfaction of the learned s.d.j.m., partposh with a condition that during the period when the accused is on bail, he shall clear up the advance amount taken from various people and report the fact of such clearance to the i.o. concerned. the other conditions imposed by the learned addl. sessions judge in the bail order is that the petitioner shall also report before the i.o. on each sunday at evening hours and submit the progress of his clearance/refund of the advance amount. after completion of one month from the date of his release, he shall surrender before the court of s.d.j.m., panposh who will consider his case for bail in case he fulfils all the conditions in the meantime.the application filed before the learned addl. sessions judge was one under section 439 cr.p.c. for grant of regular bail to the petitioner, who is an accused in g.r. case no. 1633 of 2007 and on being apprehended and produced before the learned s.d.j.m., panposh on 5.9.2007 was remanded to custody.2. the facts of the case reveal that an f.i.r. was filed by one abhimanyu mukhi, inter alia alleging that the petitioner, who was running a travel agency in the name and style of 'rabi tour and travels' on persuading the informant that he will undertake a conducted tour to port blair by flight and will bear the expenses towards flight ticket, boarding and lodging, the.....

Full Judgment

ORDER

M.M. Das, J.

1. Heard learned Counsel for the petitioner and the learned Counsel for the State.

This is an application filed under Section 439(1)(b) of the Code of Criminal Procedure for modification of the conditions imposed by the learned Addl. Sessions Judge, Rourkela while directing the petitioner to be released on bail in B.A. No. 548 of 2007.

Learned Addl. Sessions Judge by order dated 9.10.2007 passed in the aforementioned bail application filed by the petitioner, directed that the accused-petitioner shall be released on bail on furnishing bail bond of Rs. 10,000/- with one solvent surety for the like amount to the satisfaction of the learned S.D.J.M., Partposh with a condition that during the period when the accused is on bail, he shall clear up the advance amount taken from various people and report the fact of such clearance to the I.O. concerned. The other conditions imposed by the learned Addl. Sessions Judge in the bail order is that the petitioner shall also report before the I.O. on each Sunday at evening hours and submit the progress of his clearance/refund of the advance amount. After completion of one month from the date of his release, he shall surrender before the Court of S.D.J.M., Panposh who will consider his case for bail in case he fulfils all the conditions in the meantime.

The application filed before the learned Addl. Sessions Judge was one under Section 439 Cr.P.C. for grant of regular bail to the petitioner, who is an accused in G.R. Case No. 1633 of 2007 and on being apprehended and produced before the learned S.D.J.M., Panposh on 5.9.2007 was remanded to custody.

2. The facts of the case reveal that an F.I.R. was filed by one Abhimanyu mukhi, inter alia alleging that the petitioner, who was running a Travel Agency in the name and style of 'Rabi Tour and Travels' on persuading the informant that he will undertake a conducted tour to Port Blair by Flight and will bear the expenses towards Flight ticket, boarding and lodging, the informant paid a sum of Rs. 1,10,000/- to the petitioner and obtained a receipt with a condition that after delivering the Flight ticket, he will pay a further sum of Rs. 31,650/-. However, the petitioner did not deliver the Flight ticket nor returned the money. The petitioner also received amounts from many other persons, who were also dealt with in a similar manner. As the FIR discloses a cognizable offence, the same was registered by the police and investigation commenced. The petitioner as stated earlier, on being apprehended and produced before the learned S.D.J.M. on 5.9.2007 was remanded to the custody as his bail application was rejected by the learned S.D.J.M. On moving the learned Addl. Sessions Judge, Rourkela, the impugned order was passed.

3. Learned Counsel for the petitioner submits that the learned Addl. Sessions Judge has acted contrary to law in imposing a condition that the petitioner shall repay the amounts to the persons from whom he has received the same for the alleged conducted tour, while granting bail to him. He further submits that such condition, as has been imposed by the learned Addl. Sessions Judge amounts pre-judging the case and presuming that the petitioner is guilty of the alleged offences before the accused is tried. Learned Counsel also vehemently argues that once an application under Section 439 Cr.P.C. is allowed by directing that the accused will be released on bail, there is no provision in the Code of Criminal Procedure to direct that the accused will again surrender before the learned Magistrate, who will consider his prayer for bail afresh, as has been done in the instant case.

4. I have perused the order dated 9.10.2007 passed by the learned Addl. Sessions Judge. Section 439 Cr.P.C. prescribes that the High Court or the Court of Session may direct that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437 Cr.P.C. (i.e. commission of an offence punishable with imprisonment, which may extend to 7 years or more or of an offence under Chapter-VI, Chapter-XVI or Chapter-XVII of the I.P.C. or abetment of, or conspiracy or attempt to commit, any such offence) may impose any condition, which it considers necessary for the purposes mentioned in that sub-section. There is no provision in the Code of Criminal Procedure, under which, the Court of Session while granting bail can direct that after fulfilment of the condition, the accused shall surrender before the Magistrate, who shall consider the question of bail afresh.

It is, therefore, clear that once the jurisdiction under Section 439 Cr.P.C. is exercised and bail is granted to an accused, he cannot be directed to again surrender before the Magistrate and thereupon the Magistrate to consider the prayer for bail afresh.

5. As has been contended by the learned Counsel for the petitioner, the allegation of the prosecution being that the petitioner has received money from various persons by dishonestly inducing them to part with the said amounts, has cheated them. Unless the case is tried and the prosecution succeeds in proving its case beyond reasonable doubt, the petitioner cannot be compelled to refund the alleged amounts to the concerned persons. This, in my view, would amount to a sentence being imposed before finding the petitioner to be guilty of the alleged offences.

6. Thus, I am of the view that the conditions imposed by the learned Addl. Sessions Judge while granting bail to the petitioner cannot be sustained. All the conditions of bail as imposed by the learned Addl. Sessions Judge in the impugned order are, therefore, set aside and it is directed that the petitioner shall be released on bail of Rs. 10,000/- (Rupees ten thousand) with one solvent surety for the like amount to the satisfaction of the learned S.D.J.M., Panposh in G.R. Case No. 1633 of 2007 arising out of Rourkela P.S. Case No. 92 of 2007 subject to condition that the petitioner shall appear before the O.I.C. Rourkela Police Station once in every fortnight on Sundays by 10.30 A.M. till submission of the final form and shall appear before the learned S.D.J.M., Panposh on each of the dates to which the case is posted, unless he is prevented by sufficient cause from appearing before the said Court.

The CRLMC is accordingly allowed.

Urgent certified copy of this order be granted as per rules.

Same Court & Year Orissa · 2007 Same Parties Prasana Kumar Das vs State of Orissa Same Subject Criminal Same Judge M.M. Das, J.

Criminal