The High Court
Case Details
Order No. 03. IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No.5434 of 2024 1) Satya Sundara Kabi 2) Sakal Sundara Kabi ..... Petitioners Represented By Adv. - Smita Ranjan Patnaik State Of Odisha -versus- ..... Opposite Parties Represented By Adv. –
Legal Reasoning
Mr.S.S.Mohapatra, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 03.09.2024 1. This matter is taken up through Hybrid Arrangement (Virtual/Physical Mode). 2. Heard learned counsel for the Petitioners as well as the learned Additional Standing Counsel for the State. Perused the records. 3. The Petitioners are apprehending arrest for the alleged commission of offence under Sections 294, 323, 302/34 of the Indian Penal Code in C.T.Case No.2839 of 2023 arising out of Ramachandrapur P.S.Case No.514 of 2023 pending in the court of the learned S.D.J.M., Jajpur. 4. It is submitted by the learned counsel for the Petitioners that the principal assailant in the present case is one Sanatan Kabi, who has assaulted Banoj Kabi by means of a bamboo Page 1 of 5. bahungi, as a result of which deceased Banoj Kabi sustained bleeding injury on his head. Thereafter, he fell down and became unconscious. While the deceased was being shifted to the hospital he died on the way. Referring to the P.M.report, learned counsel for the Petitioners submitted that that the deceased died due to hemorrhagic and neurogenic shock resulting from multiple bodily injuries which is homicidal in nature. In view of the aforesaid evidence collected by the prosecution, learned counsel for the Petitioners submitted that Sanatan Kabi is the principal assailant, who has dealt fatal blow on the head of the deceased. It was further submitted that the Petitioner No.1 had sustained injuries as the deceased assaulted first on the head of Petitioner No.1. Upon the assault by the deceased to Petitioner No.1, the father of Petitioner no.2 got enraged and snatched away bamboo from the hands of deceased and landed a fatal blow on his head. Learned counsel for the Petitioner further contended that the intention of the assailant was not to kill the deceased. Instead, the whole incident occurred due to sudden provocation coming from the side of the deceased. He further submitted that so far Petitioner No.2 is concerned, there is no evidence with regard to assault on the deceased. On such ground learned counsel for the Petitioner submitted that the Petitioners are innocent and they be released on pre-arrest bail subject to such terms and conditions that would be deemed just and proper by this Court. 5. Learned Additional Standing Counsel on the other hand objected to the release of the Petitioner on anticipatory bail on the ground that the Petitioner No.1 had assaulted the Page 2 of 5. deceased Banoj Kabi. Further reference was placed on the statements of the wife and daughter of the deceased, who were present at the spot and have specifically stated that Petitioner No.1 has assaulted the deceased. However, such assault runs contrary to the facts narrated in the Charge Sheet submitted by the prosecution. Further, it is submitted by the learned counsel for the State that there are other material to implicate the present Petitioners in the present crime. Therefore, the Petitioners are not entitled to pre-arrest bail. 6. Having heard the learned counsels for the respective parties, on a careful examination of the materials on record as well as the statements of the witnesses and the prima facie materials, this Court observes that it appears that the deceased died due to an assault on his head. On a perusal of the materials on record two conflicting views emerge. Firstly, assault by the father of the Petitioner No.2, Sanatan Kabi who is in custody, which is supported by the wife and daughter of the deceased. Secondly, assault by Petitioner No.1, with regard to which there appears nothing on record to indicate that the Petitioner No.1 had committed any overt act in the present crime. Further taking into consideration the nature of occurrence, it appears that accused persons were in a premeditated state of mind to cause death of the deceased and prima facie materials reveals that the entire occurrence occurred in the course of a quarrel between the two families. 7. Considering the submissions of the learned counsel, the Petitioner No.1 is given liberty to surrender before the learned S.D.J.M., Jajpur in the aforesaid case in the first hour within Page 3 of 5. 21 working days hence and move for bail. On such event, the learned Magistrate shall consider his application for bail in the first hour strictly on the basis of the materials on record. In case of rejection of the bail application, the Petitioner may move for bail before the higher forum in the second hour. On such event, the higher forum shall consider and dispose of the bail application of the Petitioner No.1 on the same day strictly on the basis of the materials on record, by maintaining the principles of parity, if applicable. 8. Case Diary be made available to the concerned courts. Records be transmitted to the higher forum at the cost of the Petitioner, if applied for. 9. So far petitioner no.2 is concerned, this Court finds that there is no material against Petitioner No.2. It is clearly indicated that Petitioner No.1 has participated in the alleged crime. 10. Considering the seriousness of the allegation, gravity of the offence and the fact of the case, although I am not inclined to grant anticipatory bail to the Petitioner No.2, however it is observed that, in the event the Petitioner No.2 surrenders and moves for bail before the learned S.D.J.M., Jajpur in C.T.Case No.2839 of 2023 arising out of Ramachandrapur P.S.Case No.514 of 2023 within a period of three weeks from today, he shall be released on bail on such terms and conditions as the learned Magistrate may deem just and proper in the facts and circumstances of the case. Violation of conditions shall entail cancellation of bail. Page 4 of 5. 11. The ABLAPL is disposed of accordingly. 12. Issue urgent certified copy of this order as per Rules. ( A.K. Mohapatra) Judge RKS Signature Not Verified Page 5 of 5. Digitally Signed Signed by: RAMESH KUMAR SINGH Reason: Authentication Location: High Court of Orissa Date: 04-Sep-2024 18:50:18