- (1.) Leave granted.
(2.) The appellant's son Rajib Das was murdered on 5/1/2009 in a hotel. FIR was lodged in respect thereof on 6/1/2009. PS Case No. 4 of 2009 was registered. It is the appellant's case that the police did not investigate the case properly. The appellant ultimately filed a writ petition in the Orissa High Court. Thereafter, the investigation gained momentum. On 3/1/2013, non-bailable warrant was issued against Mr. Sweekar Nayak, who is respondent 2, by the SDJM, Rayagada. Respondent 2 preferred an application for anticipatory bail in the Orissa High Court. The High Court disposed of the said application by the impugned order. We notice that in the impugned order, the High Court has made a categorical observation that considering the nature of the allegations made against respondent 2, it did not think it to be a fit case for grant of anticipatory bail. Surprisingly, however, the High Court gave a direction that in the event respondent 2 surrenders before the learned SDJM, Rayagada within four weeks and moves an application for bail, he shall be released on bail on such terms and conditions as the learned Magistrate deems fit and proper. Pursuant to this direction, respondent 2 surrendered before the learned Magistrate and was released on bail on 11/06/2013.
(3.) We are surprised at the direction issued by the High Court to the trial court to release respondent 2 on bail. When the High Court rejected the application for anticipatory bail, it was sufficient indication that the High Court thought it fit not to put a fetter on the investigating agency's power to arrest respondent 2. In such a situation, the investigating agency, if it so desired and if it thought that the custodial interrogation of respondent 2 was necessary, could have arrested him. Therefore, after rejecting the prayer for anticipatory bail, the High Court should not have negated its own order by directing that respondent 2 should be released on bail. This is contradiction in terms. It dilutes the order rejecting anticipatory bail. Such order is not legally sound. It overlooks the scope and purport of Sections 438 and 439 of the Code of Criminal Procedure, 1973.;