The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.1201 of 2024 Dipak @ Dillip Kumar Satpathy @ Satapathy … Petitioner Mr. K.Mohanty, Advocate -versus- State of Odisha … Opposite Party Mr. S.N.Nayak, ASC Mr.B.P.B.Bahali, Advocate for informant Order No. 05. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 15.05.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. This is the second bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail arising out of Salipur P.S. Case No.54 of 2023 corresponding to Special G.R. Case No.30 of 2023 pending in the Court of learned Ad-hoc Addl. District & Sessions Judge, FTSC-II, Cuttack for commission of offences punishable under Section 363/342/366/376(2)(n)/34 of IPC read with Sec. 6 of POCSO Act, on the main allegation of kidnapping the victim and committing rape and aggravated penetrative sexual assault upon her by keeping her in a confinement. 3.
Legal Reasoning
After having considered the rival submissions upon perusal of the record, it appears that although 16 out of 22 charge sheet witnesses have already been examined in this case, but the victim is yet to be examined. However, the learned trial Court by its order dated 10.01.2024 in Special G.R. Case No. 30 of 2023 has stated inter alia that the victim was absent on that day though summon was issued against her through registered post and Mr.R.K.Routrai, learned specially engaged counsel by the informant has filed a petition through associate lawyer attached to that Court supported by an affidavit sworn in by the mother of the victim with a prayer to pass an order to examine the victim after completion of examination of other witnesses in the present case for saving the victim and her family members from their dangerous life and to secure the ends of justice. Accordingly, the learned trial Court has issued summons to all the charge sheet witnesses for their examination fixing the case to 19.01.2024, 20.01.2024 and 22.01.2024. Further, on the direction of this Court, the learned trial Court has also furnished a report about the status of trial and in such report, the trial Court had fixed the date 29.04.2024 for the evidence of the victim, but today it appears from the learned counsel for the mother of Page 3 of 6 the victim that the victim is yet to be examined. Further, the learned counsel for the mother of the victim has urged before this Court for making an arrangement for examination of the victim through video conference mode. It is not in dispute that the VWDC is in place in the District Court at Cuttack where the trial Court is situated, so also the VWDC facilities is also available at the residential district of the victim. It is true that while granting bail, the statement of the victim recorded U/S. 164 of Cr.P.C. cannot be considered in isolation with other materials on record, but in the present case, when the 164 Cr.P.C. statement of the victim is considered along with other materials placed on record, it appears to the Court that the petitioner deserves for bail since he has already been detained in custody for more than one year and three months and the grounds taken by the learned counsel for the mother of the informant about non-examination of the victim appears to be unacceptable, since the trial Court has also dealt the matter in its order dated 10.01.2024 on a petition filed by the mother of the victim requesting for examination of the victim after examination of the witnesses. 7. In view of the aforesaid facts and taking into consideration the materials placed on record together with the rival submissions and regard being had to the pre-trial detention of the petitioner in custody and Page 4 of 6 non-examination of the victim till today without any reasonable ground, this Court considers the bail application of the petitioner favourably. 8. Hence, the bail application of the petitioner stands allowed and the petitioner is allowed to go on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) with two solvent sureties each for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following conditions:- (i) the petitioner shall not commit any offence while on bail, (ii) the petitioner in the course of trial shall attend the trial Court on each date of posting without fail unless his attendance is dispensed with. In case the Petitioner fails without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law, (iii) the petitioner shall not leave the jurisdiction of the trial Court without prior permission till disposal of the case by giving his present address of stay and (iv) the petitioner shall report attendance before the jurisdictional Police Station once in a fortnight preferably on 2nd Sunday of each month in between 10 A.M. to 12 Noon for three(03) months from the actual date of his release from the custody, Page 5 of 6 (v) the petitioner shall not in any way try to contact the victim or visit her house on any day hereinafter. The I.I.C. of Jurisdictional Police Station shall not detain the petitioner unnecessarily after recording his attendance beyond the time as stipulated. It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioner without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioner in future for grave/similar type of offence on prima facie accusations may be treated as a ground for cancellation of bail in this case. 9. 10.
Arguments
Mr.Kuldeep Mohanty, learned counsel for the petitioner submits that this is the second bail Page 1 of 6 application of the petitioner and no bail application of the petitioner is pending before any other forum except this one. He further submits that the petitioner has been detained in custody since 19.02.2023, but even if, after examination of 16 out of 22 charge sheet witnesses, the victim is yet to be examined for the reason best known to her and non- examination of the victim in this case should not enlarge the custody of the petitioner for no fault of his. Accordingly, Mr.Mohanty prays to grant bail to the petitioner. 4. On the other hand, Mr.S.N.Nayak, learned ASC, however, strongly opposes the bail application of the petitioner by contending inter alia that the victim was 15 years at the time of commission of the crime. 5. Mr.B.P.B.Bahali, learned counsel appearing for the mother of the victim, submits that the victim could not be examined in the trial because of the threatening given by the petitioner and thereby, the mother of the victim has lodged an FIR to that effect. Mr.Bahali further submits that by committing forgery of Aadhar card of the victim and showing her to be his wife and aged about 24 years, the petitioner has aborted the pregnancy of the victim in the medical. Further, Mr.Bahali by relying upon the decision in the case of X(Minor) Vrs. the State of Jharkhand and another; 2022 LiveLaw(SC) 194 prays to not to Page 2 of 6 rely upon the 164Cr.P.C. statement of the victim to grant bail to the petitioner. 6.
Decision
Accordingly, the BLAPL stands disposed of. Issue urgent certified copy of the order as per Rules. 11. Further the learned trial Court is also requested to provide appropriate facilities for examination of the victim, if such a request is made on behalf of the victim for her examination through VC. (G. Satapathy) Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 16-May-2024 19:13:41 Kishore Judge Page 6 of 6