Subash Mandangi State of Orissa v. ….. CORAM: JUSTICE SAVITRI RATHO ORDER 01.05.2024 (Through hybrid mode) Order No. 06. 1
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 580 of 2024 Subash Mandangi State of Orissa Petitioner Mr. Saroj Kumar Padhy, Advocate Opp. Party Mr. M. R. Mishra, A.S.C. ….. Vs. ….. CORAM: JUSTICE SAVITRI RATHO ORDER 01.05.2024 (Through hybrid mode) Order No. 06. 1. This is the second application of the petitioner under Section 439 of Cr. P.C. in connection with Chandili P.S. Case No.157 of 2023 corresponding to T.R. Case No. 17 of 2023 pending in the Court of the learned ADJ-cum-Special Court under POCSO Act, Rayagada where chargesheet dated 03.08.2023 has been submitted against the petitioner for commission of offences punishable under Sections 376(2)(n), 376(3) and 506 of the IPC read with Sections 4(2) and 6 of the POCSO Act keeping investigation open. Thereafter final charge sheet dated 10.10.2023 has been submitted against the petitioner for Page1 of 6 commission of the same offences. 2. DNA Report dated 14.12.2023 has been received in the
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learned trial Court after submission of the final charge sheet. 3. BLAPL No. 13091 of 2023 filed by the petitioner earlier had been dismissed by this court granting him liberty to approach the learned court below for bail afresh in case there is delay in completion of the trial. 4. Thereafter the prayer for bail of the petitioner has been rejected on 08.01.2024 by the learned Additional Sessions Judge-cum-Special Court under POCSO Act, Rayagada. 5. As one of the offences under which charge sheet has been filed was under Section 376(3) of IPC, notice had been issued to
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the informant.The learned counsel for the petitioner did not file requisites for service of notice on the informant through registered post but pursuant to order dated 13.03.2024 of this Court, the bail application had been served on the informant by the IIC, Chandeli Police Station and the victim had appeared on this Court on 15.04.2024 on virtual mode from the Police Station being duly identified by the IIC of Chandeli Police Station. She had opposed the prayer for bail of the petitioner stating that he Page2 of 6 had spoilt her life. 6. Cognizance of the offences basing on the preliminary charge sheet had been taken on 15.09.2023. Seized exhibits had been sent to RFSL, Berhampur for chemical examination and opinion and samples had been sent to the SFSL, Bhubaneswar for DNA analysis. 7. In the report dated 05.03.2024 of the learned ADJ-cum-PO Special Court under POCSO Act, Rayagada, it has been stated that the accused is in custody since 03.07.2023, DNA report received from the Deputy Director, S.F.S.L., Rasulgarh, Bhubaneswar on 18.12.2023 and the case is posted to 27.03.2024 awaiting Chemical Examination report, Material Objects from the Deputy Director, R.F.S.L., Berhmapur and for consideration of charge. 8. The prosecution allegation in brief is that on 14th April 2019, at about 7.00 PM, when the informant-victim was returning to her house, near the Brick Kiln of the village, the petitioner gagged her mouth and dragged her inside the jungle and forcibly committed rape on her and also threatened to kill her, if she would disclose the incident to anybody. Again, during the year 2022, one day at about 11.00AM, while the victim had Page3 of 6 been to the cotton field for work, finding her alone the accused had again forcibly raped her. On 10.12.2022, while the victim had been to the river to take her bath, the accused took her inside the jungle of Batanga on his motorcycle, kept her there for 4 days and forcibly committed rape up on her. When it was found that the victim was pregnant the family members of the informant informed the accused and his family members, but they denied the allegations. They also abused the victim in obscene language, for which the victim lodged FIR on 02.07.2023. The victim has given birth to a male child on 13.07.2023 at the DHH, Rayagada. 9. Mr. Saroj Kumar Padhy, learned counsel for the petitioner submits that the petitioner is a young man aged about 22 years and is in custody since 03.07.2023. He submits that during medical examination of the victim, the doctor had advised for conducting ossification test and DNA paternity test of the baby for the interest of this case. In the DNA profiling report, it has been stated that the petitioner has been excluded as the biological father of the child, it is therefore apparent that false allegations have been made against the petitioner for which he Page4 of 6 may be released on bail. He further submits that charge has not yet been framed in this case and the case is posted to 21.05.2024 awaiting Chemical Examination report, Material Objects from the Deputy Director, R.F.S.L., Berhmapur and for consideration of charge. 10. Mr. M. R. Mishra, learned Additional Standing Counsel opposes the prayer for bail stating that the petitioner has spoilt the life of the informant, who was a minor on the date of the occurrence. She has given birth to a child even before she was aged 18 years. He further submits that DNA test report is not an infallible test for determining the paternity of the child unless it is proved that proper precautions were taken while drawing the samples. He further submits that the victim has implicated the petitioner in her statement recorded under Section 161 of the Cr.P.C. and 164 of the Cr.P.C. He further submits that whether the petitioner is the father of the child cannot be determined at this stage, but in view of the nature of allegations against the petitioner he does not deserve to be released on bail. 11. Considering the nature of allegations against the petitioner and as the case is posted to 21.05.2024 awaiting Page5 of 6 Chemical Examination report, Material Objects from the Deputy Director, R.F.S.L., Berhmapur and for consideration of charge, I am not inclined to release the petitioner on bail. 12. The BLAPL is accordingly dismissed. 13. It is open to the petitioner to move for bail afresh after examination of the victim girl or in case there is undue delay in her examination. The learned Court shall do well to take steps to examine the victim girl expeditiously. 14. Urgent certified copy of this order be granted on proper application. (Savitri Ratho) Judge Subhalaxmi Signature Not Verified Digitally Signed Signed by: SUBHALAXMI PRIYADARSHANI SAHOO Reason: Authentication Location: Orissa High Court, Cuttack Date: 06-May-2024 19:41:47 Page6 of 6