Sibani Naik @ Shibani Naik State of Odisha … v. CORAM: JUSTICE SAVITRI RATHO
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.574 of 2024 Sibani Naik @ Shibani Naik State of Odisha … vs. ... CORAM: JUSTICE SAVITRI RATHO Petitioner Mr.B.B.Routray, Advocate Opposite Party Mr.S.S.Mohapatra, ASC Order No. 03.
Decision
ORDER 04.03.2024 (Through hybrid mode) 1. Mr.B.B.Routray, learned counsel for the petitioner submits that he has filed a comprehensive date chart on 29.02.2024 and produces the receipt but the digital record reveals that the said date chart has not been scanned and placed in the record and only the date chart filed on 22.01.2024 is available in the digital record. 2. Office note indicates that the comprehensive date chart filed by learned counsel for the petitioner is kept at proper place. However, it is not known which is the proper place as Appendix-II is date chart dated 22.01.2024. 3. Mr.S.S.Mohapatra, learned Addl. Standing Counsel files a comprehensive date chart in Court which is accepted in the Court as the date chart filed by learned counsel for the petitioner on 29.02.2024 is not available in the record. 4. This application under Section 439 Cr.P.C. has been filed by the Page 1 of 6 petitioner in connection with Nalco Township P.S. Case No.155 of 2023 corresponding to G.R. Case No.718 of 2023 where charge sheet dated 26.10.2023 has been filed against the petitioner, one Prakash Bhutia @ Lulu Bhutia and Ranjan @ Manoj Biswal keeping the investigation open for arrest of other accused persons. 5. This application has been listed before me as BLAPL No.12953 of 2023 filed by the co-accused-Ranjan @ Manoj Biswal has been disposed of by me on 16.11.2023. 6. The prosecution allegation in brief against the petitioner is that the victim was kidnapped on 21.08.2023 at about 8.35 p.m. when she was travelling in an autorickshaw alongwith the petitioner. The next night, the petitioner has lodged the F.I.R. leading to registration of Nalco Township P.S. on 22.08.2023 at 8.30 p.m. and a case was registered under Section 365/34 of IPC against one Kalia, Tuku and two other accused persons and the statement of the petitioner under Section 161 Cr.P.C. was recorded on the same day. On 24.08.2023 the parents of the victim had been examined and they supported the FIR story regarding the kidnapping of their daughter as per the information received from the petitioner. On 24.08.2023, the father of the victim received a call from the victim from a mobile number stating that she has been kidnapped by 10 to 12 persons and after being sexually assaulted, she has been detained in a house at an unknown place. After tracking the location of the mobile number on the Page 2 of 6 next date morning, i.e., 25.08.2023 at 5.45 a.m. the I.O. raided the house of one Bharati Biswal @ Mitali and found the victim in a compromising position with accused Ranjan @ Manoj Biswal, son of Mitali. The statement of the victim was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. on the same day where she has stated that she was kidnapped by unknown persons and raped by them and that she could overhear that two of the accused persons were called-Bubun and Chintu. But after she went to the house of her parents, she told them the actual facts that the petitioner had lured her with a job in her beauty parlour but compelled her to have sex with customers by threatening to send her explicit video to her parents and she was been given some tablets by the petitioner. She also stated that the petitioner played a vital role in her kidnapping and her parents stated this in their statements recorded under section 161 Cr.P.C. for the second time. On 27.08.2023, the accused Prakash Bhutia @ Lulu Bhutia was arrested and he confessed before the police that he had committed rape on the victim at the instance of the present petitioner. The case turned to under Sections 365, 366, 380 (4), 376 (D)/34 of IPC and Manoj Biswal @ Ranjan was arrested. On 01.09.2023, the statement of the parents of the victim were recorded under section 164 Cr.P.C. On 05.09.2023, the petitioner was arrested by the police and her confessional statement was allegedly recorded by the police. On 07.10.2023, the statement of the victim was again recorded under Section Page 3 of 6 161 Cr.P.C., where she stated what has been told by her parents, implicating the petitioner. 7. On 08.10.2023, the statement of the auto driver - Rabi Bhutia, was recorded under Section 161 Cr.P.C. where he stated that Kalia and Tuku who had been named by the petitioner were not among the accused persons who kidnapped the victim. On 26.10.2023, charge-sheeet as stated earlier has been filed under Sections 365, 366, 370 (4), 376 (D), 376, 109, 506 of IPC read with Section 25/27 of the Arms Act against the petitioner and two others keeping the investigation open against 10 other accused persons. 8. The prayer for bail of the petitioner has been rejected on 29.11.2023 by the learned Addl. Sessions Judge, Angul. 9. Mr.B.B.Routray, learned counsel for the petitioner submits that the petitioner is a woman and she is in custody since 05.09.2023. She had lodged the FIR on 22.08.2023 for which investigation in the case commenced. After the victim was recovered her statement under Section 161 Cr.P.C. and 164 Cr.P.C. has been recorded where she has not implicated the petitioner, but for reasons best known to her after she went back to her parents house, she had made false allegation against the petitioner stating that the petitioner had compelled her to have sex with customers and was instrumental in her kidnapping and commission of gang rape on her by the accused persons. He further submits that Page 4 of 6 investigation so far as the petitioner is concerned has been completed and even if the allegations are accepted to be true, the petitioner being a woman, the offence under Section 376 (D) IPC is not made out against her and at best, Section 109 of IPC can be used to implicate her. 10. Mr.S.S.Mohapatra, learned Addl. Standing Counsel opposes the prayer for bail stating that the petitioner being a woman has lured the victim with the offer of a job in a beauty parlour but forced her into prostitution after recording a video of her and blackmailing her to continue with such activities. Only after the victim was recovered and went back to her parents, she gathered the courage to reveal the truth against the petitioner for which her statement has been recorded for the 2nd time under section 161 Cr.P.C. He further submits that as the petitioner has facilitated the commission of gang rape on the victim, a case under Section 376 (D) of IPC is made out against her which prescribes punishment not less than 20 years which may extend to life for which she does not deserve to be released on bail. 11. Considering the nature of allegations against the petitioner and the provision of Section-376 D of the IPC, even though the victim had not implicated the petitioner in her initial statement under section 161 Cr.P.C. and 164 Cr.P.C. and she is a woman, I am not inclined to release the petitioner on bail at this stage. 12. The BLAPL is accordingly dismissed. Page 5 of 6 13. It is open for the petitioner to move for bail afresh after examination of the victim and her parents. 14. Urgent certified copy of this order be granted as per rules. Bichi ………………………... (SAVITRI RATHO) JUDGE Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Reason: Authentication Location: Orissa High Court Date: 05-Mar-2024 18:38:57 Page 6 of 6