Such Judicial Adventurism Must Be Shunned: Orissa HC Criticises Trial Court For Sending Accused To Police Remand, Despite HC Granting Anticipatory Bail

The Orissa High Court has come down heavily on a Special Vigilance Judge for denying bail to two persons accused in a corruption case and sending them to police remand despite a previous order by the High Court granting them anticipatory bail.

Making adverse remarks against the manner in which the trial Judge summoned and remanded the accused into custody, the Single Bench of Justice V. Narasingh observed:

“It is disconcerting to note that while passing the impugned order, the learned Trial Court went on to re-examine the allegations on merit and thereby virtually sat in appeal over the order passed by this Court and in the process rendered the order of this Court passed in ABLAPL nugatory.”

Background

An FIR was registered against the petitioners for commission of offences under Section 13(2) read with 13(1)(c) of the Prevention of Corruption Act and Sections 409/468/471/477-A/120-B of the IPC on the allegation that they being public servants committed criminal conspiracy with some subordinate officials of their department in misappropriating a sum of Rs. 23,63,940/- causing wrongful loss to the Government.

Anticipating their arrest, they filed anticipatory bail applications before the High Court which were allowed after imposition of certain conditions and it was stipulated that violation of any of the terms shall entail cancellation of their anticipatory bail.

Subsequent to the grant of the anticipatory bail and after the completion of the investigation, a charge sheet was submitted in the case. Upon submission of the charge sheet, the trial Court took cognizance of the offence and issued summons to the petitioners.

In response to the summons, the petitioners appeared before the trial Court and filed bail applications. However, the Court did not grant them bail, instead remanded them to custody.

Senior Counsel appearing for the petitioners argued that the order of rejection of bail is ex-facie illegal as in doing so the Special Judge lost sight of sub-section (3) of Section 438 of CrPC whereby the Court was required to issue a bailable warrant in the face of the order passed by the High Court under Section 438(1) of the CrPC.

On the other hand, the counsel appearing for the Vigilance Department submitted that as an alternative remedy is available with the petitioners, the instant petition under Section 482 of the CrPC deserves no merit and hence, should be dismissed.

Court's Observations

The Court noted that the trial Court referred to the judgment of the Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation & Anr. wherein it was held that in cases of economic offences, the Court shall decide the bail application on merit on the appearance of the accused in Court pursuant to the issuance of process.

Thus, on the appearance of the petitioners, the trial Court held that even though the High Court granted them anticipatory bail after imposing certain conditions, inter alia, to cooperate in the investigation, they did not appear before the I.O. nor cooperated in the investigation in any manner. Accordingly, the Court had rejected their bail applications.

The Court held that the trial Judge failed to appreciate the position of law settled by the top Court, which has made it clear that the life-span of anticipatory bail extends till the conclusion of the trial.

“The impugned order of the learned Trial Court remanding the accused-Petitioners in custody in the face of anticipatory bail granted by this Court is ex-facie illegal in the light of the judgment passed by the constitution Bench of the Apex Court in the case of Sushila Aggarwal & others Vrs. State (NCT Delhi) & another, AIR 2020 SC 831 wherein, the Apex Court has held that Anticipatory bail once granted shall normally continue till end of trial,” it held.

It further observed that though the trial Court recorded that the petitioners did not cooperate with the investigating agency no basis/reason was provided for making such an observation.

After going through the submission of the counsel for the Vigilance Department, the Court was of the view that the investigating agency did not require the remand of the petitioners. Therefore, it was inappropriate for the trial Court to reject bail to the petitioners pursuant to their appearance on summons.

The Court took serious exception to the aforesaid development and disapproved the order passed by the Special Judge as it disregarded the hierarchal set-up of the judicial institution by passing an order which virtually nullified the effect of the High Court order.

“The justice delivery module of this country follows hierarchical system. In such a system, the Court sub-ordinate in the hierarchy has the bounden duty to follow the direction issued by the higher Court, otherwise, judicial discipline will go haywire,” it added.

The Court also referred to the observations made by the Apex Court in East India Commercial Co. Ltd Calcutta v. The Collector of Customs, Calcutta and Shri Baradakanta Mishra v. Shri Bhimsen Dixit wherein need to obey the orders of High Court has been emphasized.

Therefore, taking into account the order of the trial Court in the light of the above precedents, the Single Judge remarked:

“Such approach amounts to by passing the hierarchal discipline in judiciary which is the corner stone of people's faith in the administration of justice. Such judicial adventurism and overreach is to be shunned, otherwise the edifice will crumble.”

Accordingly, the interim bail order was made absolute till the conclusion of the trial and the impugned order was set aside.

Case Title: Susanta Kumar Samantaray & Anr. v. State of Odisha (Vig.)

Case No: CRLMC No. 1483 of 2023

Date of Judgment: December 18, 2023

Counsel for the Petitioners: Mr. H.K. Mund, Senior Advocate

Counsel for the State: Mr. N. Maharana, Standing Counsel (Vigilance)

Citation: 2023 LiveLaw (Ori) 119

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