Dambaru Nayak @ Damba vs The State

P.K. Tripathy, J.—Criminal Misc. Case No. 2837 of 2001 has been filed by Petitioners Dambaru Nayak @ Damba for his bail u/s 439, Code of Criminal Procedure in G.R. Case No. 107 of 2000 of the Court of J.M.F.C., Digapahandi, arising out of Pattapur P.S. Case No. 56 of 2000 inter alia involving the offence u/s 302 I.P.C.

Criminal Misc. Case No. 3085 of 200 1 has been filed by Petitioner Biswanath Badaik with the prayer for bail u/s 439, Code of Criminal Procedure in G.R. Case No. 850 of 2000 of the Court of S.D.J.M. Panposh arising out of Plant Site P.S. Case No. 171 of 2000 involving the offence under Sections 302/34 L.P.C. and after commitment that having been registered as S.T. Case No. 125 of 2001 and pending in the Court of Additional Sessions Judge, Rourkela.

Criminal Misc. No. 3109 of 2001 has been filed by Petitioners Gunanidhi Naik and Dama Naik praying for bail u/s 439, Code of Criminal Procedure in G.R. Case No. 96 (A)/1999 of the Court of S.D.J.M., Banki, arising out of Banki P.S. Case No. 77/99 registered for the offences under Sections 304/201/176/34 I.P.C. read with Section 25 of the Arms Act.

Since a common defect of not granting proper certificate was noticed in the said cases, therefore, after issuing notice to the deponents who have sworn affidavits in support of the bail applications and after they filed their show-cause, all the three cases were taken up for hearing and disposal analogously on consent of Learned Counsel appearing for the Petitioners in each of the cases and learned Standing Counsel.

Because of the aforesaid defect in the bail applications, Petitioners did not press for bail as prayed for, therefore, the bail applications under Sections 439, Code of Criminal Procedure in each of the cases, stand rejected as not pressed.

In each of the three bail applications, below the cause. title of the applications, declaration has been made by the respective Petitioners that the matter out of which such applications arise was never before this Court. In that respect, such declaration has been made with added words of "in any form whatsoever" in Criminal Misc. Case No. 2837 of 2001 and "as per the instruction received from the ''client" in Criminal Misc. Case No. 3085. In Criminal Misc. Case Nos. 2837 and 3085, the respective Advocate''s Clerks Rama Kanta Mohanty and Prasanna Kumar Behera have sworn the affidavits whereas in Criminal Misc. No. 3109 one Susanta Kumar Muduli has sworn the affidavit claiming to be a relative of the Petitioner.

In Criminal Misc. Case No. 2837 of 2001, learned Additional Standing Counsel pointed out that the bail application filed by co-accused person was registered in this Court as Criminal Misc. Case No. 8402 of 2000 and notwithstanding that, the above noted declaration was made which was supported by the affidavit of the Advocate''s Clerk.

In Criminal Misc. Case No. 3085 of 2001 when learned Add\\. Standing Counsel pointed out about the earlier bail applications, Learned Counsel for the Petitioners stated that in paragraph 4 of the bail application, Petitioners have mentioned about the co-accused having been released on bail by this Court in Criminal Misc. Case No. 7234 of 2000. Since there is discrepancy between the declaration and the averment in the said paragraph, therefore the deponent was called upon to reconcile the same. In Criminal Misc. Case No. 3109 of 2001, also a similar situation arises because in paragraph 7 of the bail application reference has been made to several other cases filed and disposed of by this Court on the application of the co-accused persons and such fact being not mentioned in the certificate! declaration at the outset of the application.

Keeping in view the necessity of providing correct information to the Court by making proper declaration and existing practice thereof, Registry of this Court was called upon to file an affidavit about the rules and the practice which are prevalent. The then Register, Judicial, ML S.F. Ahmed, filed an affidavit in which the relevant averment reads as follows:

Thus, there is no provision in the Rules of the High Court of Orissa, to furnish in the bail application itself a certificate regarding earlier pending of case for bail or earlier disposal of application for bail by the High Court. But, as a practice in every bail application a certificate is given as follows:

The matter out of which the Criminal Misc. Case arises was never before this Court in any form whatsoever.

If there was earlier pendency or disposal, a certificate is furnished, showing the position/result of the case. This certificate is made in consonance with Rule-2 of Chapter-VI which provides that every petition shall state concisely and clearly the facts, matters and circumstances upon which the applicant relies."

Under the given circumstances non-mentioning in the declaration/certificate about pendency or disposal of other bail applications cannot be found to be in breach of any rules. When a practice is prevalent and that is being followed by the applicants for providing information to the Court, that information must be truthful and genuine and there shall not be any statement therein which shall have the effect of misleading the Court or amounts to suppression of relevant information. Thus, if the declaration made in such certificate is misleading or suppressing or not disclosing correct information then even if that is not in breach of any rule of the Rules of the High Court of Orissa, yet deponents are liable for criminal cOl,1tempt as defined in Section 2 (c) of the Contempt of Courts Act, 1971 and/or for proceeding against them for appropriate offence under Chapter XI of The Indian Penal Code after appropriate inquiry u/s 340, Code of Criminal Procedure

In each of the three affidavits the deponents resides narrating the circumstances under which such certificates were granted they have prayed for unqualified. apology. At the time of argument, Petitioners only prayed to excuse them for the mistakes. None of them contested on the issue by justifying their affidavits. When this Court is not aware of committing such contempt of court or giving misleading statements to the Court by the deponents in any other case and in that respect, Registrar has not volunteered any statement, therefore, this Court excuses them with a word of caution that detection of any such practice by any of them in any other case, shall be dealt with by resorting to proceedings for contempt of court besides taking action for prosecution for offence under Chapter XI of Indian Penal Code after due enquiry u/s 340. The Stamp Reporters of the Court are also directed to take note of the names or the three deponents and to report to the Court relating to any such false of incorrect declaration if shall be found against any of them.

It is necessary that a litigant approaching this Court by filing a case should give proper and adequate information relating to any earlier proceeding instituted in connection with the co-berried case of the lower courts. When cases of different nature are assigned to a Bench at different times therefore information of the above nature, is required for consistency in decision made by this Court relating to the self same proceeding and between parties to the same proceeding. As pointed out by the Registrar Judicial there is no specific rule mandating a procedure for giving such declaration or certificate. It may be convenient for a litigant to provide information relating to any earlier proceeding instituted in this Court in which he was a party to that proceeding. But where several persons are parties to the proceeding in the lower Court and any individual out of them may approach this Court, then the other litigants of that case may not have information relating to proceeding instituted by others and whether such proceeding is pending or disposed of. When computer facility is available to this Court, the above noted circumstance may not pose any difficulty for gathering the required information to indicate that in the certificate/declaration given at the outset of the application filed in this Court. AII that is necessary is to suitably amend the concerned Rules by providing relevant provision and also systematising the computer system and making provision for providing required information on due application by the concerned litigant who proposes to file a case in the High Court. If such system shall be adopted then it has several advantages, viz:

(i) consistency in delivering justice;

(ii) tagging up all pending cases for analogous hearing and disposal; and

(iii) preventing a practice of some of the litigants obtaining an order by suppressing material facts and information and matters of like nature.

Therefore, Registry of this ''Court is directed to bring to the notice of the Hon''ble the Chief Justice, the above view of this Court for consideration and further steps, if any, as the Hon''ble Chief Justice will consider.

All the three applications u/s 439 Code of Criminal Procedure, as noted above, stand disposed of as not pressed. AII the three deponents are excused in the above noted manner. Registry of this Court is directed to place the matter before Hon''ble the Chief Justice for consideration of the observation which has been made above.