The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.831 of 2022 Nirakar Sahoo …. Petitioner Mr. S.R. Mohapatra, Advocate -versus- State of Odisha …. Opp. Party Mr. P.B. Tripathy, Addl. Standing Counsel Mr. S.S. Mohanty, Advocate (for the informant) CORAM: JUSTICE S.K. SAHOO Order No. ORDER 06.02.2023 13. This matter is taken up through Hybrid arrangement (video conferencing/physical mode).
Legal Reasoning
Heard Mr. Smruti Ranjan Mohanty, learned counsel for the petitioner and Mr. P.B. Tripathy, learned Addl. Standing counsel as well as Mr. S.S. Mohanty, learned counsel appearing for the informant. In support of such contention, learned counsel for the petitioner Learned counsel for the petitioner submits that in the meantime, the case has already been committed to the Court of Session and now pending before the learned Addl. Sessions Judge, Kamakhyanagar in C.T. Case No.36 of 2022. // 2 // This is an application under section 439 of Cr.P.C. for grant of bail to the petitioner in connection with Tumusingha P.S. Case No.131 of 2021 corresponding to C.T. Case No.36 of 2022 pending in the Court of learned Addl. Sessions Judge, Kamakhyanagar for alleged commission of offences under sections 302/120-B/34 of the Indian Penal Code and sections 25 and 27 of the Arms Act. Learned counsel for the petitioner submitted that the petitioner is in judicial custody since 27.09.2020 and he has been charge sheeted under sections 302/120-B/34 of the Indian Penal Code and sections 25 and 27 of the Arms Act. It is further submitted that the occurrence in question took place on 24.09.2021 and the First Information Report was lodged on 25.09.2021 and there are no eye witnesses to the commission of the murder of the deceased Deepak Kumar Mohanta and the only material available against the petitioner is the confessional statement of the co-accused persons namely, Gargi Badra and Disu Chatar and petitioner’s own confession before police and in the meantime, trial has commenced and out of twenty charge sheet witnesses, twelve witnesses have already been examined and they have stated nothing against the petitioner. The learned counsel for the petitioner has filed the deposition copies of the witnesses and submitted that in view of the nature of Page 2 of 7 // 3 // evidence available on record against the petitioner and at the stage, when there is no chance of tampering with the evidence, the bail application may be favourably considered. Mr. S.S. Mohanty, learned counsel appearing for the informant, on the other hand, opposed the prayer for bail and submitted that the petitioner and the deceased were the business partners and they were doing business in stone query and the petitioner was supposed to pay a sum of Rs.35,00,000/- (thirty five lakhs) to the deceased and the two of the co-accused persons Gargi Badra and Disu Chatar were the labourers under the petitioner and the materials available on record, particularly the confessional statement of the co-accused before police at the time of leading to discovery was that both the co-accused fired gunshot at the deceased at the instance of the petitioner. He further submitted that the C.D.R. of the mobile phone of the petitioner indicates that he had contacted with the deceased on 23.09.2021 and also on 24.09.2021. He also filed a written note of submission wherein it is indicated that since after grant of interim bail by this Court, the petitioner misutilised his liberty and threatened the petitioner on gun point, for which the informant lodged an FIR and therefore, he should not be released on bail. Learned counsel for the informant placed reliance Page 3 of 7 // 4 // in the case of Mahimananda Mishra -Vrs.- State of Orissa reported in 2017 (II) CLT Crl. (Supp.) 481 and also the decision of the Hon’ble Supreme Court in the case of The State of Orissa –Vrs.- Mahimananda Mishra reported in 2018 (II) OLR (SC)-768. Learned counsel for the State after verification of the case diary submitted that there is no criminal antecedent against the petitioner and there was previous enmity between the petitioner and the deceased and the petitioner was the key conspirator. Learned counsel for the State produced the written instruction dated 13.01.2022 received from the Officer in-charge of Tumusingha police station which indicated that on 16.08.2021, Dhenkanal Sadar P.S. Case No.363 of 2022 was registered against the petitioner on the report of one Dibya Darshan Mahanta under sections 341, 294, 307, 506/34 of the Indian Penal Code read with sections 25/27 of the Arms Act and on completion of investigation, final report has been submitted as insufficient evidence. Learned counsel for the informant submitted that the informant has not yet received any notice from the concerned Court for filling of the protest petition. In the first case of Mahimananda Mishra (supra), this Court in paragraph nos. 16 and 17 though held that it is a case in which the accusation is Page 4 of 7 // 5 // based on the confessional statement of the co- accused before police, but rejected the bail application mainly on the ground that the petitioner has got criminal antecedent of similar major offence like section 307 of the Indian Penal Code, inter alia other offences. In the second of Mahimananda Mishra (supra), which is a case under section 302 of the Indian Penal Code, the Hon’ble Supreme Court has observed as follows:- 11. It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the fact of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, on record during the course of trial. However, at this stage, prima facie, into to consideration the overall material while considering the prayer for bai. the Court needs take On perusal of the order sheets, it appears that the petitioner was granted interim bail for a period three weeks as per the order dated 17.05.2022 passed in I.A. No.816 of 2022. Though a case was instituted against him during the period of interim bail by the informant of this case, namely, Dibya Darshan Mahunta vide Dhenkanal (S) P.S. Case No.363 of Page 5 of 7 // 6 // 2022, inter alia, for commission of offence under section 307 of the Indian Penal Code, but final report has been submitted as insufficient evidence. There are no eye witnesses to the occurrence and only material available against the petitioner is the confessional statement of the co-accused persons, namely, Gargi Badra and Disu Chatar before police. It is also not disputed that in the meantime, trial has commenced and as many as twelve witnesses have been examined and none of them have stated anything against the petitioner and there is no criminal antecedent against the petitioner. Considering the submissions of the learned counsel for the respective parties, nature of accusation against the petitioner and further taking into account the period of detention of the petitioner in judicial custody, I am inclined to release the petitioner on bail. Let the petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin over the matter with further conditions as the learned Court may deem just and proper subject to conditions that the petitioner shall appear before the learned trial Court on each date when the case would be posted for trial and shall not Page 6 of 7 // 7 // try to tamper with the evidence and he shall not indulge in any criminal activities and he shall appear before the Inspector in-Charge of Tumusingha police station once in a week on every Sunday in between 10.00 a.m. to 4.00 p.m. till the end of trial. Violation of any terms and conditions shall entail cancellation of bail.
Decision
The BLAPL is accordingly disposed of. Issue urgent certified copy as per Rules. Judge ( S.K. Sahoo) P Page 7 of 7