The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPLNo.3868 of 2024 Saroj Kumar Swain …. Petitioner -versus- State of Odisha ..... Opposite Party Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Petitioner - Mr. Devashis Panda, Advocate. For Opposite Party- Ms. Babita Kumari Sahu, Addl. Govt. Advocate. Mr. R. K. Nayak, Advocate (for informant). CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :08.11.2024 :: Date of Order :11.11.2024 A.C. Behera, J. This bail application under Section 439 of the Cr.P.C.,
Legal Reasoning
1973 filed by the petitioner arising out of Spl. G.R. Case No.4 of 2024 in connection with Cuttack Sadar P.S. Case No.16 of 2024 pending in the Court of learned Adhoc Addl. Sessions Judge, F.T.S.C.-II, Cuttack is taken up into consideration. Page 1 of 9 {{ 2 }} 2.
Legal Reasoning
I have already heard from the learned counsel for the petitioner, the learned Additional Government Advocate for the State and the learned counsel for the informant. 3. The petitioner is facing trial in the Court of learned Adhoc Addl. Sessions Judge, F.T.S.C.-II, Cuttack in Spl. G.R. Case No.4 of 2024 arising out of Cuttack Sadar P.S. Case No.16 of 2024 remaining in the jail custody since 29.01.2024 as an under trial prisoner having been charged under Section 292-A, 212, 376(2)(n) of the IPC, 1860, Section 6 of the POCSO Act, 2012 and Sections 66-E, 67-A & 67-B of the I.T. Act, 2000 along with his other co-accused persons on the allegations alleged against him that, due to the frequent talking between the petitioner and the victim since the month of May, 2022, they loved each other and the petitioner proposed the victim for marriage. Thereafter, in the months of August and November, 2023, the petitioner took the victim by his motorcycle to the OYO Hotel on three different dates and made sexual intercourse with her in a room of that hotel in each occasion and took the naked/nude photographs of the victim inside the room of that hotel through his mobile phone and sent the said nude/naked photographs to the mobile phone of the victim through whatsapp and the said nude photographs of the victim were in her mobile phone, to which, she (victim) had not disclosed before Page 2 of 9 {{ 3 }} any of her family members including her parents. Thereafter, there was disturbance between the victim and the petitioner, for which, the victim stopped her talking with the petitioner. So, the petitioner made the nude photographs of the victim viral. Thereafter, on dated 07.01.2024, she (victim) lodged F.I.R. against the petitioner at Sadar police station, Cuttack, alleging the aforesaid allegations. 4. Basing upon such F.I.R, a case was registered and investigation was started. During investigation, the petitioner was arrested and forwarded to the Court on dated 29.01.2024 after being booked with the aforesaid offences and since, then, he (petitioner) is in jail custody. During investigation, the other co-accused persons of the petitioner were also arrested and forwarded to the Court. After completion of the investigation, charge-sheet was submitted on dated 07.03.2024 and then trial of the case, vide Spl. G.R. Case No.4 of 2024 was started against the petitioner and his co-accused persons. 5. As per the submissions of the learned counsel for the petitioner, the learned Additional Government Advocate and the learned counsel for the informant/victim that, except the petitioner, his co-accused persons are on bail and as he (petitioner) is the principal culprit, he is in jail. During trial, till yet, altogether seven numbers of witnesses including the Page 3 of 9 {{ 4 }} victim/informant and her father have already been examined out of 46 numbers of charge-sheeted witnesses. 6. Learned counsel for the petitioner submitted for liberal consideration of bail of the petitioner contending that, he (petitioner) is in jail custody for about more than 10 months and during his staying inside the jail, the examination of the victim and her father has already been completed before the Trial Court and he (petitioner) shall not interfere with the evidence of the prosecution in any manner, in case of his release on bail, to which, the learned Additional Government Advocate and learned counsel for the informant vehemently objected contending that, he (petitioner) is the principal culprit of the incident and in case of his release on bail, the same shall affect the interest of the prosecution during the trial. For which, he (petitioner) should not be allowed to go on bail. 7. During trial of the case, the victim has deposed in her evidence by stating that, “she was aged about 17 years at the time of occurrence and was prosecuting her study in +3 1st Year Commerce. In the month of October, 2023, she (victim) along with her mother had been to aadhar card center for bringing a SIM card and as the aadhar card of her mother was in their house, for which, they sent one boy to their village to bring the same from their house. Her younger brother, who is Page 4 of 9 {{ 5 }} prosecuting his study in class-7, also knew password of her mobile phone. When that boy arrived in their house, her younger brother was playing video game in her mobile and seeing that phone, the said boy took it and saw all the videos of her mobile and after taking OTP from her brother, the said boy shared all the videos from her (victim’s) mobile phone to his mobile phone and showed that videos to other villagers. After hearing from her brother about the same, she (victim) deleted all the videos from her mobile phone. One to two months prior to lodging of F.I.R., she (victim) had gone with the petitioner to the OYO Hotel in three occasions after attending her computer classes, as they had fallen in love with each other, they both went to the OYO Hotel by the motorcycle of the petitioner keeping her cycle in the computer center and after returning from OYO Hotel, she was taking her cycle from computer center and was moving to her house. On each occasion, they were moving to OYO Hotel after taking their meal outside. Before entering into OYO Hotel, they both had put their signatures and addresses and also showed their aadhar cards showing their age proof. After verification by the receptionist of OYO Hotel, a room was allotting to them on each occasion and she had never disclosed about their relationship before the manager or owner of the OYO Hotel or before her parents or before anybody till lodging of the F.I.R. It is a fact that, they both had enjoyed themselves inside OYO Hotel in each occasion Page 5 of 9 {{ 6 }} and if videos of the victim have not been made viral, she would not have lodged any F.I.R.” It is forthcoming from the papers of the investigation of the police that, one Pravat Mohanty had circulated the obscene videos of the victim to others, as he had received the same from someone. But, instead of intimating the same to the father of the victim, he (Pravat Mohanty) had made the same viral through his whatsapp to different persons. So, as per the report of the police, the nude/naked videos of the victim were made viral by the co-accused of the petitioner i.e. Pravat Mohanty and the said Pravat Mohanty is on bail. 8. The learned Trial Court has rejected the bail application of the petitioner on the following two grounds i.e. (i) in case of his release, he may flee away from the process of Court and (ii) there is every chance that, he may tamper with the prosecution evidence. 9. When the investigation of the case was completed during the staying of the petitioner inside the jail and when the petitioner is in jail custody since 29.01.2024 for about 10 months and when during trial, till yet, out of 46 numbers of charge-sheeted witnesses, only 7 numbers of witnesses have been examined including the victim and her father and the rest 39 numbers of witnesses are yet to be examined and when there is no certainty that, when the trial of the case shall be completed and when Page 6 of 9 {{ 7 }} there is no material on behalf of the prosecution to show that, during investigation and trial, he (petitioner) has made any attempt for making any interference with the investigation as well as trial and he had not cooperated with the investigation and trial and when the petitioner is a young boy aged about 23 years and at the time of the alleged incident, his age was 21 years and when his co-accused Pravat Mohanty, who had made the photographs of the victim viral, is on bail and when the source of making the videos viral has been generated from the own mobile phone of the victim through some other person and when the main purpose/object of bail is to secure the attendance of an accused during trial and when it is not the case of the prosecution that, the presence of the petitioner during trial cannot be secured and when the permanent house and homestead of the petitioner is under the jurisdiction of the learned Trial Court, then at this juncture, by taking the above factors into account, it is felt proper to allow the petitioner to go on bail with stringent conditions looking to the future safety and security of the informant/victim, her family members and the rest of the witnesses (those have not been examined) as well as the interest of the prosecution. Therefore, the bail application filed by the petitioner is allowed. Page 7 of 9 {{ 8 }} He (petitioner) is allowed to go on bail on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two solvent sureties each for the like amount to the satisfaction of the learned Trial Court i.e. learned Adhoc Addl. Sessions Judge, F.T.S.C.-II, Cuttack with conditions that:- (i) he (petitioner) shall not involve with similar nature of crime in future; (ii) he shall not move outside the State till the completion of the trial of the case without the permission of the Trial Court; (iii) he shall not terrorize, coerce, influence or threat to the victim, her family members or any witnesses of the case either directly or indirectly in any manner whatsoever till the conclusion of the trial of the case vide Spl. G.R. Case No.4 of 2024 in connection with Cuttack Sadar P.S. Case No.16 of 2024; (iv) he shall appear before the Trial Court personally on each date of adjournment of the case without fail till conclusion of its trial, but in case of his failure to comply any one of the aforesaid conditions by the petitioner, the learned Trial Court is authorized to cancel his bail order Page 8 of 9 {{ 9 }} out-rightly without seeking any permission for the same from this Court. 10. Accordingly, the bail application filed by the petitioner is disposed of finally. 11. Copy of this bail order be sent to the IIC, Sadar P.S., Cuttack for his information and to report before the Trial Court, in case of violation of any of the above conditions by the petitioner. 12. Grant certified copy of this order to the petitioner on proper application. Orissa High Court, Cuttack. 11th November, 2024//Utkalika Nayak// Junior Stenographer (A.C. Behera), Judge. Signature Not Verified Digitally Signed Signed by: UTKALIKA NAYAK Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 11-Nov-2024 17:22:52 Page 9 of 9