The High Court
Case Details
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMA No.160 of 2023 An application under Section 439 (1) (b) of the Code of Criminal Procedure. Informant …. Petitioner -versus- 1.State of Odisha 2.Sudhansu Jana 3. Surjendra Jana 4.Santanu Giri 5.Gouranga Mandal …. Opp. Parties For Petitioner : Mr. P.C.Jena, Advocate & Mr.P.C.Dash, Advocate For Opp. Parties : Ms.S.Mishra, ASC (for O.P.1) CORAM: JUSTICE SAVITRI RATHO ……….………………………………………………………………………… Date of Judgment : 23.02.2024 ……………………………………………………………………………......... Savitri Ratho, J. This application under section 439 (2) of the Code of Criminal Procedure has been filed by the petitioner – informant, for cancellation of bail granted to the opposite party no.2 by order dated 16.02.2023 passed by the learned A.D.J. & Sessions Judge - cum- Special Judge (POCSO), Kendrapara in Talchua Marine P.S. Case No. 45 of 2018 corresponding to G.R. Case No. 67 of 2018 (POCSO) where charge sheet CRLMA No.160 of 2023 Page 1 of 8 //2// has been filed against the opposite party no.2 - Sudhansu Jana for commission of offences punishable under Sections 363, 366, 506, 376 (3), 376 (2) (n), 34 of IPC read with Section 6 of POCSO Act. (For protecting their identity, neither the name of the victim nor the informant have been mentioned in the judgment.) 2. By order dated 31.07.2023, notice had been issued to the opposite party no.2 only. On 10.01.2024 this Court found from the postal tracking report, that the item had been delivered to the addressee on 21.08.2023 and hence notice was held to be sufficient. As none appeared for the opposite party no.2 when the matter was called, in order to give him one more chance, the matter was adjourned to 31.01.2024 and the Registry was directed to verify if any counsel had appeared for the opposite party no.2 in the meanwhile. 3. Office note dated 30.01.2024 indicates that no Vakalatnama has been filed on behalf of the opposite party no.2. On 31.01.2024, the matter was adjourned to 19.02.2024. No counsel appeared on behalf of the opposite party no.2 on 31.01.2024, on 19.02.2024 or on 22.02.2024. On 22.02.2024 this case had been adjourned to today with a direction to list alongwith ABLAPL No.1183 of 2019 which had been filed in this Court by opposite party No.2 under Section 438 of Cr.P.C. CRLMA No.160 of 2023 Page 2 of 8 //3// 4. Today also none appears for the opposite party No.2 when the matter is called. As notice is sufficient on opposite party no.2, the matter is taken up for disposal today. The photostat copy of ABLAPL No.1183 of 2019 has been tagged to this file. 5. Perused the order dated 08.04.2019 passed in ABLAPL No.1183 of 2019. The order is extracted below : “Heard, learned counsel for the petitioner and learned counsel for the State. The petitioner in this case having been implicated in Talachua Marine PS Case No.45 of 2018 corresponding to GR Case No.67 of 2018, pending in court of the learned Additional Sessions Judge, -cum-Special Court, Kendrapara for alleged commission of offence punishable under Sections 341, 363, 506, 376 (2) (i) (n)/34 of IPC and Section 6 of POCSO Act, has filed this petition for his release on pre-arrest bail. Learned counsel for the petitioner during course of argument submits that petitioner does not want to press this petition for pre-arrest bail as the petitioner intends to surrender and move for bail before the court in seisin over the matter. However, he submits to direct the court in seisin over the matter to dispose of the bail application of the petitioner on the same day. Considering the submission made, this ABLAPL stands disposed of with an observation that if the petitioner surrenders before the court of learned Additional Sessions Judge-cum-Special Court, Kendrapara within four weeks hence and makes a motion CRLMA No.160 of 2023 Page 3 of 8 //4// for bail the learned Additional Sessions Judge-cum-Special Court, Kendrapara shall consider and dispose of the same in accordance with law in course of the day, if there is no other legal impediment. It is made clear that this Court has expressed no opinion on the merit of the case….”
Legal Reasoning
indicated by this Court in the ABLAPL, the learned Court below did not have to dispose of the bail application on the same day, more so without hearing the informant. It was incumbent on the learned A.D.J. & Sessions Judge-cum-Special Judge (POCSO), Kendrapara, to comply with Section 439 (1) (A) of the Cr.P.C., as one of offences under which chargesheet had been filed against opposite party No 2 was under Section 376 (3) I.P.C. That apart the allegations against the opposite party No.2 have not been considered by the learned Court below and apart from stating that chargesheet has been filed which is a changing
Arguments
6. Mr. P.C.Dash, learned counsel for the petitioner submits that the petitioner is the mother of the minor victim and the informant in this case and the opposite party No.2 is the principal accused in Talchua Marine P.S. Case No. 45 of 2018 which had been registered against opposite party No. 2 and opposite party No.3 for commission of offences punishable under Sections 341, 363, 506, 376(2)(i)(n), 34 of IPC read with Section 6 of POCSO Act . After completion of investigation, charge sheet dated 24.08.2021 has been filed against the opposite party no.2 Sudhansu Jana for commission of offences punishable under Sections 363, 366, 506, 376(3), 376(2)(n), 34 of IPC read with Section 6 of POCSO Act showing him as an absconder. Charge sheet has also been filed against proforma opposite party nos. 3 to 5 Surjendu Jena @ Apu Jena @ Jean, Santanu Giri and Gouranga Mandal @ Goura respectively, for commission of offences punishable under Sections 363, 366-A, 34 of IPC. 7. Mr. P.C.Dash, learned counsel for the petitioner further submits that the opposite party No.2 had surrendered before the learned Court CRLMA No.160 of 2023 Page 4 of 8 //5// below on 16.02.2023 and althought the learned Court below found that chargesheet has been filed against the opposite party No.2 on 24.08.2021 for commission of offence under Sections 363, 366, 366-A, 376 (3), 376 (2) (n), 506, 34 of IPC read with Section - 6 of the POCSO Act, but without issuing notice to the informant, illegally allowed his prayer for bail on the same day by observing as follows: “Perused the case record and found that the charge sheet against the accused has already been filed on dtd.24.08.21 U/s.363/366/ 366A/376 (3)/376 (2)(n/506/34 IPC r/w Sec.6 POCSO Act. Hence, looking to the changing circumstance and as there is no order against the accused from the Appellate Authority regarding consideration of bail petition, in my view for the interest of justice, the accused be released on bail by furnishing bail bond of Rs.20,000/- (rupees twenty thousand) with one solvent surety for the like amount with condition that:- (i) He shall not commit similar type of offence during bail period; (ii) He shall not terrorise the victim or her family members while on bail; (iii) Any deviation of the above condition if reported it will amounts to cancellation of the bail. 8. The order dated 08.04.2019 was passed in ABLAPL No. 1183 of 2019, by a co-ordinate Bench of this Court, when investigation was in progress and the offences under which the case had been registered had been mentioned in the order. (The Hon’ble Judge has superannuated in the meanwhile). It had also been mentioned in the order that if the CRLMA No.160 of 2023 Page 5 of 8 //6// petitioner surrenders before the court of the learned Additional Sessions Judge–cum Special Court, Kendrapara within four weeks hence and makes a motion for bail, it would be considered and disposed of in accordance with law on the same day if there is no other legal impediment and that the Court had expressed no opinion on the merit of the case. (emphasis supplied). 9. The opposite party No.2 had not surrendered before the Court within four weeks of the order and there was a legal impediment as in the meanwhile, chargesheet had been filed against the opposite party No.2 for commission of offences punishable under Sections 363, 366, 366-A, 376 (3), 376 (2) (n), 506, 34 of IPC read with Section - 6 of the POCSO Act, which attracted the provsions under Section – 439 (1) (A) of the Cr.P.C. He was arrayed as an absconder in the chargesheet. 10. The provision of Section 439 (1A) Cr.P.C. is extracted below : “Section 439 (1A)- The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376-DB of the Indian Penal Code (45 of 1860).” 11. Section 439 (1) (A) of the Cr.P.C. has come into the statute by way of amendment with effect from 21.04.2018 and makes the presence of the informant or any person authorised by him obligatory at the time of CRLMA No.160 of 2023 Page 6 of 8 //7// hearing of the application for bail of a person accused under sub-section (3) of section 376 or section 376-AB or section 376-DA or section 376- DB of the Indian Penal Code. The occurrence in this case allegedly took place 26.08.2018 and FIR had been registered on 29.08.20l8. 12. In view of the mandate of Section- 439 (1) (A) of the Cr.P.C and as opposite party No.2 had not surrendered in the Court within the time
Decision
circumstance, the impugned order is bereft of reasons. 13. As bail has been granted to opposite party No.2 without issuing notice to the informant or hearing the informant, the impugned order is against the mandate of Section 439 (1) (A) of the Cr.P.C. and is laible for interference and the bail granted to the opposite party no.2 vide the impugned order is liable to be cancelled. CRLMA No.160 of 2023 Page 7 of 8 //8// 14. Accordingly, it is ordered :- Order dated 16.02.2023 passed by the learned A.D.J. & Sessions Judge -cum- Special Judge (POCSO), Kendrapara in Talchua Marine P.S. Case No. 45 of 2018 corresponding to G.R. Case No.67 of 2018 (POCSO) is set aside and the bail granted to the opposite party No.2 is cancelled . 15. If the opposite party No.2 does not voluntarily surrender in the Court in seisin over the matter, the said Court shall take steps for his apprehension. 16. After his surrender/apprehension, if the opposite party No.2 files an application for bail, the same shall be considered in accordance with law on its own merit but after hearing the informant as per the mandate of Section 439 (1) (A) of the Cr.P.C. 17. The CRLMA is allowed. …………….……. (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 23rd February, 2024/Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 11-Jun-2024 14:28:17 CRLMA No.160 of 2023 Page 8 of 8