The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 7724 of 2024 An application under Section 439 of the Code of Criminal Procedure. -------------- Tapan Behera ..…. Petitioner -versus- State of Odisha …… Opp. Party ----------------------------------------------------------------------------- For Petitioner : Mr. Amlan Shakti Paul, Advocate For Opp. Party
Legal Reasoning
: Mr. S.S. Mohapatra, A.S.C. ----------------------------------------------------------------------------- CORAM: HON’BLE MISS JUSTICE SAVITRI RATHO JUDGMENT 06.09.2024 Savitri Ratho, J This is the third application under Section 439 of Cr.P.C. filed in connection with Barkote P.S. Case No. 93 of 2023 corresponding to S.T. Case No. 92/17 of 2023 pending in the court of the learned Addl. Sessions Judge, Deogarh where charge sheet dated 19.07.2023 has been submitted against the petitioner for commission of offences punishable under Sections 498-A, 304-B, 306 of IPC and Section 4 of the D.P. Act. BLAPL No. 7724 of 2024 Page 1 of 8 2. The earlier application BLAPL No. 10577 of 2023 filed by the petitioner had been dismissed on 04.10.2023 by this Court granting liberty to the petitioner to move the learned trial Court for bail after examination of the relatives of the deceased. BLAPL No. 3645 of 2024 filed by the petitioner had been dismissed on 21.05.2024 by this Court granting liberty to the petitioner to move the learned Court below for bail if there is undue delay in examination of the witnesses. 3. Thereafter, the petitioner has moved the learned Court below for bail and the prayer has been rejected by the learned Addl. Sessions Judge, Deogarh on 22.06.2024. 4. The prosecution allegation in brief is that the deceased Jayashree Behera was married to the petitioner on 09.03.2023 and on 27.03.2023 at 8.00 P.M. the deceased had informed her mother that the petitioner had assaulted her and on 28.03.2023, the deceased intimated her mother that the petitioner and his parents had forcibly given her poison and disconnected the phone call. Post mortem report reveals that the cause of death is asphyxia due to hanging. Chargesheet has been filed only against the petitioner under Sections 498(A)/ 304-B/306 of IPC read with Section 4 of D.P. Act. BLAPL No. 7724 of 2024 Page 2 of 8 5. I have heard the learned counsel for the parties and perused the case diary, the depositions of P.W.1 to P.W.6 annexed to the bail application, the order passed by the learned trial Court on 22.06.2024 rejecting the prayer for bail of the petitioner and the report dated 28.08.2024 of the learned Addl. District and Sessions Judge, Deogarh. 6. Mr. Amlan Shakti Paul, learned counsel for the petitioner submits that the petitioner is in custody since 30.03.2023 and till date out of 49 charge sheet witnesses, only seven witnesses have been examined in the trial. He further submits that P.W.4 Mamata Behera who is the neighbour of the petitioner, during cross- examination has stated that the deceased and the petitioner were living happily after the marriage and she has not kept physical relationship with her husband after the marriage and she has stated that her marriage has been solemnized with the petitioner against her will and she was sad about the marriage and she wanted to commit suicide but the deponent had tried to convince her not to do so. He also submits that he has annexed the copy of the post mortem report and perusal of that would reveal that there is no bodily injury on the deceased and the cause of death has been opined to be asphyxia due to hanging. He further submits that BLAPL No. 7724 of 2024 Page 3 of 8 considering the period the petitioner has remained in custody and in view of the nature of materials available against him, he may be released on bail. He further submits that the offence under Section 304-B of IPC is not be made out against the petitioner as there is no allegation that the deceased was subjected to cruelty soon before her death. 7. Mr. S.S. Mohapatra, learned Additional Standing Counsel for the State submits that P.W.4 during investigation has stated that she had heard that on account of unfulfilled the demand of dowry, the deceased was being tortured physically and mentally and for that reason her family members have come to the house of the accused on 18.03.2023 in order to convince the accused persons. On 28.03.2023, on hearing that the deceased committed suicide, she came to the spot and found that the deceased has committed suicide using a rope and while she held her legs, the petitioner cut the rope in order to bring her down and made her lie down on the bed. Opposing the prayer for bail, he submits that the victim has died within 17 days of her marriage and since there are allegations that she was being tortured on account of not bringing a fridge, a case under Section 304-B of IPC is squarely made out against the petitioner who is the husband. He further submits that as the trial is BLAPL No. 7724 of 2024 Page 4 of 8 going on, it cannot be said that there is undue delay in completion of the trial for which the petitioner does not deserve to be released on bail. He has submitted that six out of forty nine witnesses have been examined. As trial is in progress and many material witnesses including the Investigating Officer and the Medical Officers remain to be examined, any observation on merits of the case may influence the learned trial court. 8. P.W.1 brother of the petitioner has stated about physical assault on the deceased by the petitioner. P.W.3 Ambar Behera brother in law of the deceased has stated about quarrel between the petitioner and deceased for a fridge. P.W.4 Mamata Behera has stated in cross examination that Jayshree had told her that her marriage with the petitioner was against her will for which she was sorrowful and had contemplated suicide. But during investigation she has stated that the petitioner used to beat the deceased for non fulfillment of the demand for a fridge and unable to tolerate the torture she committed suicide. 9. Ketaki Dhibar a neighbour in her statement recorded under Section – 161 Cr.P.C. has stated about the torture of the deceased on account of non fulfillment of demand for dowry and that the accused was not keeping physical relations with the BLAPL No. 7724 of 2024 Page 5 of 8 deceased for the same reason for which she was always despondent. During investigation, other witnesses have also stated in similar manner. Only six out forty nine witnesses have been examined in the trial. The deceased has died an unnatural death seventeen days after her marriage. There is allegation that she has been assaulted by the petitioner on account of non fulfillment for demand of a fridge. She has died seventeen days after her marriage. 10. The Supreme Court in the case of State of M.P. vs. Kajad : (2001) 7 SCC 673 has held that successive bail applications are maintainable but in changed circumstances. The relevant paragraph is extracted below :- “8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa: [(2001) 1 SCC 169 : 2001 SCC (Cri) 113 and various other judgments.” BLAPL No. 7724 of 2024 Page 6 of 8 In the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan : (2005) 2 SCC 42, the Supreme Court has held as follows:- “though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete.” 11. While dismissing BLAPL No. 3645 of 2024 filed by the petitioner on 21.05.2024, liberty had been granted to the petitioner to move the learned Court below for bail if there is undue delay in examination of the witnesses. By that time, the six witnesses whose depositions are annexed with this bail application, had already been examined. The petitioner has moved the learned trial Court for bail one month thereafter and the learned trial court has rejected his prayer for bail on 22.06.2024. 12. In the report dated 28.08.2024, it has been stated that seven out of forty nine witnesses have been examined till 05.08.2024 and the case is posted to 11.09.2024 for examination of other witnesses. So it cannot be said that there has been undue delay BLAPL No. 7724 of 2024 Page 7 of 8 in examination of witnesses has can it be said that there is a change in the fact situation or in law as barely one month had elapsed after dismissal of his previous bail application. 13. I am therefore not inclined to release the petitioner on bail at this stage, for which the BLAPL is dismissed. 14. It is made clear that the observations in this order have been made for the purpose of deciding this bail application and should not be construed as an expression on the merits of the case and should not influence the learned Trial Court which should decide the case on the basis of evidence adduced during trial. (Savitri Ratho) Judge Orissa High Court, Cuttack. The 6th September, 2024. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 10-Sep-2024 19:52:46 BLAPL No. 7724 of 2024 Page 8 of 8