The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.451 of 2022 An appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Lulup Behera @ Nilup @ Nilu @ Nulupa …. Appellant 1.State of Odisha 2.Biswanath Samal -versus- …. Respondents Advocates appeared in this case through Hybrid Mode : For Appellant : Mr. S.K. Rout, Advocate For Respondents : Mr. J. Katikia, A.G.A. (for Respondent No.1) None for Respondent No.2 CORAM: JUSTICE SAVITRI RATHO ….……………………………………………………………………… Date of Judgment : 19.10.2023 .………………………………………………………………………… Savitri Ratho, J. This appeal under section 14-A of the SC & ST (PA) Act, has been filed challenging the order dated 06.05.2022 passed in C.T. (Special) No. 74 (A) of 2016 by the learned Judge, Special Court Dhenkanal rejecting the prayer for bail of the Appellant. Co-accused Mitu Swain is facing trial in C.T. (Special) No. 74 (A) of 2016 in the same Court. These cases arise out of Dhenkanal Sadar P.S. Case No. 475 of 2015 corresponding to G.R. Case No.1456 of 2015 in the Court CRLA No. 451 of 2022 Page 1 of 16 of learned S.D.J.M., Dhenkanal where chargesheet had been filed against the Appellant and co accused Mitu Swain for commission of offences punishable under Sections 302/201/34 of the IPC and Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act. The case had to be split up as the Appellant had absconded and he was arrested on 11.03.2018. 2. This is the successive appeal of the Appellant Lulup Behera @ Nilup @ Nilu @ Nulupa. CRLA No.948 of 2019 filed by him earlier had been disposed of on 23.12.2021. As ten witnesses had been
Facts
examined by that time, the trial Court had been requested to dispose of the trial within a period of four months and the Appellant had been granted liberty to the Appellant to move for bail afresh in case, the trial was not completed within four months. It is apparent from the
Legal Reasoning
impugned order that the order of this Court in CRLA No. 948 of 2019 has not been brought to the notice of the learned trial court. 3. Notice had been issued to the respondent no.2 - informant vide order dated 23.03.2023 and in spite of valid service of notice, neither he nor any counsel on his behalf, have appeared. 4. Perusal of the impugned order dated 06.05.2022, reveals that the informant was present in court and had submitted written objection that he anticipated danger to his life, if the appellant is released on bail. CRLA No. 451 of 2022 Page 2 of 16 The learned trial Court has observed that if the accused is released on bail, he will try to tamper with prosecution evidence and as he belongs to Cuttack District, he is likely to abscond. The prayer for bail has been rejected taking into account the nature and gravity of the offence and its social impact. 5. One Biswanath Samal lodged written report on 23.12.2015 at about 05.15 p.m. before the IIC, Sadar P.S. as he spotted a dead body with hands and legs tied up, while he was going to the bus stand of village-Bhapur. On the basis of the aforesaid information, Dhenkanal Sadar P.S. Case No.375 of 2015 was registered against unknown persons and investigation was taken up. Investigation revealed that the deceased had come to Village Gobindaprasad to attend the 21st day ceremony of the grandson of his brother, Panchu Sethy. He was carrying Rs.2000/- which had been seen by the petitioner and co- accused Mitu Swain who called the deceased and took him with them they came back after a few hours in a drunken condition without the deceased and denied knowledge about his whereabouts. Panchu Sethy had also alleged that the Appellant was accused in another murder case where the dead body was found in similar condition. 6. On 27.04.2023, in view of the submission of the learned counsel that the Appellant was in custody since 11.03.2018 and both the CRLA No. 451 of 2022 Page 3 of 16 trials (original and split up) were proceeding simultaneously, a report had been called from the learned trial Court regarding status of both the trials. 7. Report dated 03.05.2023 was received from the learned trial court which revealed that in CT (Special) Case No.74 of 2016, in respect of co accused Mitu Swain, twenty one out of thirty five witnesses including the informant had been had been examined, cross examined and discharged and P.W. 21 had been examined on 02.05.2023. Mitu Swain had been arrested on 08.01.2016 and granted bail by this Court in CRLA No.323 of 2022 by order dated 10.01.2023. The Appellant had been arrested on 10.03.2018, charge sheet had been submitted against him on 29.05.2018, and in C.T. (Spl) Case No. 74(A) of 2016 charge was framed against him on 18.03.2019 and out of 35 witnesses, 23 witnesses had been examined including the informant and P.W.23 was examined on 02.05.2023. 8. On 14.07.2023, the learned Addl. Govt. Advocate had been directed to obtain the criminal antecedents of the Appellant as the depositions of witnesses and forwarding report revealed that he had two criminal antecedents out of which one was a case under Section – 302 I.P.C. On 11.08.2023, as Budhia Behera, father of the Appellant filed an affidavit stating that the Appellant had been acquitted in the S.T. Case CRLA No. 451 of 2022 Page 4 of 16 No.75 of 2015 and there was no other case pending against him. Mr. Katikia, learned Addl. Government Advocate had been asked to obtain instructions regarding the criminal antecedents. On 18.08.2023, the learned Addl. Govt. Advocate Mr. J. Katikia on basis of instructions received from I.I.C., Dhenkanal Sadar Police Station, submitted that the Appellant had been acquitted in both the cases-Athagarh P.S. Case No. 40 of 2015 and 68 of 2015. 9. Mr. S.K. Rout, learned counsel for the appellant has submitted that the appellant is in custody since 11.03.2018 and in the meanwhile, out of 33 charge sheet witnesses, only 23 witnesses have been examined. He relies on the decision of the Apex Court in the case of Md. Raja & Another vs. State of West Bengal in Special Leave to Appeal (Crl.) No. 3133 of 2022 (decided on 22.08.2022), where the Hon’ble Supreme Court has allowed the prayer for bail of an accused facing trial for an offence under Section 20(b)(ii)(C) of the NDPS Act as he had remained in custody for almost four years. He further submits that the case is based on circumstantial evidence and the co-accused Mitu Swain @ Munda who is facing trial in the split up trial - C.T. (Special) Case No.74(A) of 2016 has been released on bail by this Court vide order dated 10.01.2023 passed in CRLA No. 323 of 2022 by this Court and the appellant stands on the same footing as him. CRLA No. 451 of 2022 Page 5 of 16 10. Mr. J. Katikia, learned Addl. Govt. Advocate for the State opposed the prayer for bail stating that the witnesses who have been examined in the trial have supported the prosecution case for which the appellant should not be released on bail. He further submits that trial was delayed in the case and had to be split up as the appellant absconded and was arrested on 10.03.2018. As the trial is in progress and some witnesses remain to be examined, the appellant is likely to influence witnesses who are yet to be examined and the possibility of his absconding again cannot be ruled out. 11. The case is based on circumstantial evidence. The deceased was last seen in the company of the Appellant and co accused Mitu Swain. The Appellant is alleged to have made an extra judicial confession admitting his complicity. Brother of the deceased Panchu Sethy and the informant Biswanath Samal have already been examined in the trial. The Appellant has been acquitted in the two cases in which he was accused. He is in custody for more than five years . 12. It has been held in a catena of decisions that deprivation of personal liberty without ensuring speedy trial violates Article 21 of the Constitution of India and denial of speedy justice is a threat to public confidence in the administration of justice. It has also been held that the CRLA No. 451 of 2022 Page 6 of 16 period of incarceration cannot be the only basis for granting bail to an accused. 13. The Supreme Court in Abdul Rehman Antulay vs. R.S. Nayak : (1992) 1 SCC 225, has laid down the guidelines to ensure that speedy trial is guaranteed to under trial prisoners and their right under Article 21 of the Constitution is not infringed. The relevant portion of the judgment is extracted below : “86. In view of the above discussion, the following propositions emerge, meant to serve as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are: (1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances. (2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view. CRLA No. 451 of 2022 Page 7 of 16 (3) The concerns underlying the right to speedy trial from the point of view of the accused are: (a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction; (b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and (c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise. (4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for Page 8 of 16 CRLA No. 451 of 2022 delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation. (5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one. (6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker [33 L Ed 2d 101] "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by White, J. in U.S. v. Ewell [15 L Ed 2d 627] in the following words: „... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.‟However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the Page 9 of 16 CRLA No. 451 of 2022 fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case. (7) We cannot recognize or give effect to, what is called the “demand‟ rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker [33 L Ed 2d 101] and other succeeding cases. (8) Ultimately, the court has to balance and weigh the several relevant factors -‘balancing test’ or ‘balancing process’- and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has Page 10 of 16 CRLA No. 451 of 2022 concluded -as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial. (11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High
Decision
Court must, however, be disposed of on a priority basis.” 14. In the case of Anil Kumar Yadav vs State of NCT: (2018)12 SCC 129, the Hon’ble Apex Court has held as follows: …” 24. As pointed out earlier, one of the grounds for grant of bail to the appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the accused was in custody for Page 11 of 16 CRLA No. 451 of 2022 more than one year, may not be a relevant consideration. In Gobarbhai Naranbhai case, it was observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail. The same was reiterated in Ram Govind Upadhyay v. Sudarshan Singh and others (2002) 3 SCC 598…” 15. In the case of Prahlad Singh Bhati vs. NCT, Delhi reported in (2001) 4 SCC 280 the Hon’ble Court has held as follows : “..The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is CRLA No. 451 of 2022 Page 12 of 16 not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt…”. 16. In a series of decisions, the Hon’ble Supreme Court , has enumerated the broad factors to be considered while considering an application for bail and also clarified that these factors are illustrative and not exhaustive . They are : (i) (ii) (iii) nature and gravity of the charge; severity of the punishment in the event of conviction; existence of a prima facie or reasonable ground to believe that the accused had committed the offence; (iv) (v) (vi) (vii) danger of accused absconding or fleeing if released on bail; the prior antecedents of the accused; likelihood of the offence being repeated; reasonable apprehension of the witnesses being tampered with; and (viii) Chances of the petitioner absconding. 17. Considering the mandate of the Supreme Court on right to speedy trial and factors to be considered while considering a bail application, nature of materials against the Appellant, period spent by him in custody, release of the co- accused on bail, completion of examination of the informant and examination of Panchu Sethi (brother of the deceased) in the trial, absence of criminal antecedents, I am inclined to allow the Appeal and release the Appellant on bail, but on stringent conditions as he had absconded for almost three years. CRLA No. 451 of 2022 Page 13 of 16 18. Let the Appellant Lulup Behera @ Nilup @ Nilu @ Nulupa be released on bail in the aforesaid case on furnishing a personal bond of Rs.50,000/- (Rupees Fifty Thousand only) with two local solvent sureties out of which one should be a Government servant / or relative of the Appellant to the satisfaction of the learned Court in seisin over the matter on the following conditions: i) The Appellant shall furnish cash surety of Rs 20,000/- . ii) The Appellant shall furnish his mobile number which shall be verified through the Police before he is released on bail. Any change in the mobile number should be intimated to the Court within three days. iii) The Appellant shall not involve himself in any criminal activity. iv) He shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner. v) He shall not enter Village – Gobindaprasad under Dhenkanal Sadar Police Station (village of the informant Biswanath Samal) or Village/ Mouza – Jenapada under Athagarh Police Station (where family of the deceased reside). CRLA No. 451 of 2022 Page 14 of 16 vi) He shall appear before the Athagarh Police Station every Sunday between 3.00 p.m. to 5.00 p.m. till conclusion of trial. He shall be released by 5.00 pm after recording his presence. vii) He shall appear invariably be present in the trial Court in person on each date it is fixed for trial, unless his presence is dispensed with by the learned trial Court under Section – 317 Cr.P.C. on any particular day for any compelling reason. viii) He shall not leave Cuttack (Home District) and Dhenkanal District (where trial is continuing) without prior permission of the learned Trial Court. The learned trial Court is free to impose any other condition it deems fit and proper. 19. Violation of any condition / failure to adhere to any condition will entail in automatic cancellation of bail. The concerned IIC should immediately inform the learned trial Court, if there is any infraction. 20. It is made clear that none of the observations in this order should influence the learned trial Court which is to decide the case in accordance with law, as the observations have been made for the purpose consideration of the prayer for bail. 21. The Criminal Appeal is disposed of in the aforesaid terms. CRLA No. 451 of 2022 Page 15 of 16 22. Urgent certified copy be granted on proper application. 23. Copy of this order be supplied to Mr. J. Katkia, learned Addl. Govt. Advocate for onward transmission to the I.I.C., Athagarh Police Station and Dhenkanal Sadar Police Station. ………………….. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 19th October, 2023 /Sukanta/Senior Stenographer Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 27-Oct-2023 17:18:16 CRLA No. 451 of 2022 Page 16 of 16