HEMANTA KUMAR NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) This application under S. 438 of the Code of Criminal Procedure, 1973 (in short, 'the Code') has been filed by eight petitioners. It is the admitted position that by the date of application i.e., 18-2-98 charge-sheet in the case had already been submitted, inter alia, against petitioners 1, 5, 6 and 7 showing each of them as absconders. It is also the admitted position that charge-sheet was not submitted against petitioners 2, 3, 4 and 8. As it reveals from the case diary, on 31-12-97 the investigating officer made the endorsement that he submitted the charge-sheet on that date for the offences under Ss. 147, 148, 323, 325, 379, 506/149, IPC. The aforesaid bail application as well as the investigation relates to G.R. Case No. 2347 of 1997 of the Court of S.D.J.M. Bhubaneswar arising out of Balipatna P.S. Case No. 112 of 1997,

(2.) Mr. S. S. Das, learned counsel appearing for the petitioners argued for considering the prayer for anticipatory bail of the aforesaid petitioners notwithstanding the above- noted fact that half of them have not been charge-sheeted and the remaining petitioners have not only been charge-sheeted but have been shown as absconders in the charge-sheet. Learned counsel for the petitioners argued that prayer for anticipatory bail can be entertained even after submission of charge-sheet and, therefore, their applications may be allowed. Learned Additional Standing Counsel on the other hand argued that after submission of charge-sheet reasonable apprehension of arrest goes away until the cognizance taking Magistrate exercises his judicial mind to find out whether a prima facie case is made out and if cognizance of offence is taken then whether to issue summons or warrants. In any event, he argued, when the Magistrate remains in seisin of the matter relating to securing attendance/appearance of the accused in the criminal proceeding, the normal procedure for bail under S. 437 or 439 of the Code will apply and not the provision under S. 438, Cr. P.C.

(3.) Learned counsel for the petitioners has relied upon the cases of Hatanath Behera v. State of Orissa, (1994) 1 Orissa LR 51; (1994) 2 Orissa CR 41; Puran Singh v. Ajit Singh, 1985 Cri LJ 897 and also referred to paragraph 19 in the case of Gurbaksh Singh Sibbia v. The State of Punjab, AIR 1980 SC 1632 : (1980 Cri LJ 1125). On the other hand, learned counsel appearing for the State relied on the cases of Mohan Behera v. State, (1985) 59 Cut LT 110 and Md. Muzafar Hossain Khan v. State of Orissa, (1990) 3 Orissa Cri R 77 : (1990 Cri LJ 1024) besides the case of Gurbaksh Singh Sibbia (supra).