The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.1855 of 2024 Akshay Kumar Nayak ..... Petitioner State Of Odisha -versus- ..... Represented By Adv. - Bhabani Shankar Dasparida Opposite Parties Represented By Adv. - M/s Sukanta Kumar Nayak,kintara Jena,sushree Sunil Kanta Nayak,arbinda Nayak,sabita Behera Mr.M.K.Mohanty, ASC CORAM: JUSTICE A.K. MOHAPATRA Order No. ORDER 22.08.2024 01. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard learned counsel for the Petitioner as well as learned Additional Standing Counsel for the State. Perused the case diary as well as other materials placed before this Court for consideration. 3. This is an application under Section 439 of the Code of Criminal Procedure filed by the Petitioner for bail in connection with Bhandaripokhari P.S. Case No.07 of 2023 corresponding to G.R. Case No.07 of 2023 pending in the Court of the Page 1 of 6. learned J.M.F.C.-II, (Cog.-II), Bhadrak for alleged commission of offence under Sections 147/323/ 294/307/302/325/452/506/354/149 of I.P.C. 4. The prosecution case in brief is that, one Akhaya Mallik lodged the F.I.R. on 16.01.2023 at 10.45 P.M. at Bhandaripokhari Police Station inter alia stating that at 8.30 A.M. his brother Golokh Mallik was assaulted by one Akhaya Nayak and Bijay Nayak, Subhajit Nayak, Sanjib Nayak, Prafulla Nayak, Sameer Nayak. As a result of which the brother of the Petitioner sustained severe bleeding injuries. The F.I.R. further reveals that while the brother of the informant was laying on the ground the present Petitioner along with one Jajati Bhoi, Jaladhar Bhoi, Biswajit Nayak abused his brother and assaulted by means of Lathi. It has also been alleged that the accused persons by forming an unlawful assembly attacked by entire village and caused damage to the property. The injured was immediately shifted to the DHH, Jajpur for treatment. Thereafter, the injured was referred to the SCB Medical College, Cuttack while the injured-brother of the informant was undergoing treatment he is succumbed to the injuries sustained as a result of the assault by the accused persons.
Legal Reasoning
5. Mr. Dash, learned counsel for the Petitioner at the outset submitted that the present petitioner is no way involved in the alleged crime. He further contended that due to political rivalry between two groups, the petitioner has been falsely implicated in the present case. Learned counsel for the petitioner emphatically submitted before this Court that the present Page 2 of 6. petitioner had never assaulted the deceased and in course of his argument learned counsel for the petitioner read out the 161 statement of many witnesses including informant himself. By referring to the 161 statement of the witnesses, learned counsel for the petitioner submitted that there is no specific allegation with regard to any overt act by the present Petitioner. Although witnesses have named that the Petitioner was present at the spot. 6. In course of his argument learned counsel for the petitioner submitted that accused-Braja Kishore Nayak has been enlarged on bail by the learned District and Sessions Judge, Bhadrak in B.A. No.333 of 2023 vide order dated 24.05.2023. Similarly, accused-Pradip Nayak, Dillip @ Bimbadhar Sahoo, Ajaya Nayak have also been enlarged on bail in B.A. No.373 of 2023 vide order dated 08.06.2023. So far accused, Jajati Bhoi is concerned, it appears that he stands almost in an identical footing with the present petitioner. The said Jajati Bhoi has also been enlarged on bail by the learned District and Sessions Judge, Bhadrak in B.A. No.334 of 2023 vide order dated 24.05.2023. 7. Learned counsel for the petitioner further contended that the present Petitioner is in custody since 16.11.2023. In the meantime, investigation has been concluded and preliminary charge-sheet has already been filed as is evident from the bail orders produced before this Court passed by the learned District and Sessions Judge, Bhadrak. In such view of the matter, learned counsel for the petitioner submitted that the custodial detention of the Petitioner is not required for the Page 3 of 6. purpose of investigation. He further contended that since the Petitioner belongs to the locality and the alleged rivalry between two groups having different political allegiance, there is no chance of influencing, threatening and gaining over the witnesses or tampering with any of the prosecution witnesses. It was also contended that the learned District and Sessions Judge, Bhadrak has mechanically rejected the bail application of the Petitioner vide order dated 16.02.2024 by referring to observation of learned District and Sessions Judge in B.A. No.106 of 2024 to the effect that the Petitioner had brutally assaulted the deceased while he was laying on the ground by means of a stick. In the aforesaid context, learned counsel for the petitioner submitted that the District and Sessions Judge has mechanically rejected the bail application of the Petitioner without discussing the prima facie materials available against the petitioner conforming the Petitioner’s involvement in the alleged crime. He further submitted that the observation in B.A. No.106 of 2024 is not supported by any materials on record and none of the witnesses, who have been examined by the Police, have stated so. Therefore, the very basis of such observation in B.A. No.106 of 2024 is doubtful. 8. Learned Additional Standing Counsel on the other hand objected to the release of the petitioner on bail. He further contended that the Petitioner was arrested only on 16.11.2023 as such he is in custody barely for 1½ years. In course of his argument learned Additional Standing Counsel submitted before this Court that the petitioner has been named by almost all the witnesses, who have been examined by the prosecution Page 4 of 6. under 161 Cr.P.C. Therefore, the presence of the petitioner on the spot of occurrence is not disputed. Learned Additional Standing Counsel further argued that considering the seriousness and gravity of the allegation made in the F.I.R., the petitioner is not entitled to be released on bail. Moreover, he also submitted that in the event the petitioner is released on bail, the petitioner might abscond form justice and he might not appear before the Court for an early conclusion of the trial on each and every date to which the case would be posted by the Trial Court. In such view of the matter, learned Additional Standing Counsel submitted that bail application of the petitioner deserves to be rejected at this juncture. 9. Having heard learned counsel for the respective parties and on careful consideration of their submissions, further on a perusal of the case diary as well as statement of the witnesses and other materials placed before this Court for consideration, this Court observed that although the witnesses examined by the Police including some witnesses and the informant have named the Petitioner in their statements, however, none of them have alleged commission of any overt act by the petitioner. On further examination of the record, this Court observed that many of co-accused have already released on bail by the learned District and Sessions Judge, Bhadrak. One of the co-accused, namely, Jajati Bhoi, who stand in a similar footing with the Petitioner has already been released on bail in B.A. No.334 of 2023 vide order dated 24.05.2023. In such view of the matter, this Court is inclined to release the petitioner on bail. Accordingly, it is directed that let the Page 5 of 6. petitioner be released on bail on furnishing a bail bond of Rs.30,000/- (Rupees Thirty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter. 10. The release of the petitioner shall also be subject to such other conditions as would be deemed and fit proper by the Court in seisin over the matter. Further, it is made clear that if any allegation is made with regard to violation of any of the condition that would be imposed on the Petitioner by the learned Court in seisin over the matter, in such eventuality it would be open to the Court in seisin over the matter to treat this order as revoked and proceed against the petitioner as per law.
Decision
11. BLAPL is accordingly disposed of. 12. Issue urgent certified copy as per Rules. ( A.K. Mohapatra ) Judge RKS Page 6 of 6. Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 23-Aug-2024 17:22:15