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A bench of Justices K S Radhakrishnan and Dipak Mishra said that while liberty was precious to every human being, courts cannot go beyond the statutory provision in granting relief to such accused persons.
"In this regard, it is to be borne in mind that a court of law has to act within the statutory command and not deviate from it. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a court is bound to act within the four corners thereof. The statutory exercise of power stands on a different footing than exercise of power of judicial review," Justice Mishra, writing the judgement, said.
The apex court passed the ruling while quashing the Orissa High Court`s direction to a magistrate to grant bail to three accused persons - Uttam Das, Abhimanyu Das and Murlidhar Patra - involved in a murder case.
In this case the high court while declining to grant anticipatory bail directed them to them to surrender and asked the sub-divisional judicial magistrate to enlarged them on bail on such terms and conditions as may be deemed fit and proper by the court concerned.
Aggrieved by the order, Rashmi Rekha Thatoi, sister of the deceased, appealed in the apex court.
Citing the Constitution Bench ruling in the Gurbaksh Singh Sibbia (1980) and subsequent Savitri Agarwal case, the apex court said, "There is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender."
The bench said when the high court in categorical terms expressed the view that it not inclined to grant anticipatory bail to the accused petitioners it could not have issued such a direction as it "tantamount to conferment of benefit by which the accused would be in a position to avoid arrest".
The bench said it is in "clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in the case of Sibbia and the principles culled out in the case of Savitri Agarwal. "It is clear as crystal the court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed."
Accordingly, the bench said the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctness of law. "It is contradictory in terms and law does not countenance paradoxes. It gains respectability and acceptability when its solemnity is maintained. Passing such kind of orders the interest of the collective at large and that of the individual victims is jeopardised. That apart, it curtails the power of the regular court dealing with the bail applications," the apex court said.
