The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.9005 of 2024 An application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Anil Kumar Das …. Petitioner Mr. Asok Mohanty, Senior Advocate along with Mr. Jagabandhu Sahu, Advocate -versus- State of Odisha …. Opp. Party Mr. Manoranjan Mishra, ASC CORAM: JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 04.10.2024 | Date of Order: 29.10.2024 ______________________________________________________ A.K. Mohapatra, J. : 1. The instant application has been filed under Section 483 of the B.N.S.S. in connection with Bolagarh P.S. Case No.167 dated 06.08.2024 which corresponds to G.R. Case No.556 of 2024 pending in the file of learned J.M.F.C. (C.T.),
Legal Reasoning
Khordha. The Petitioner, who is in custody, being aggrieved by the order dated 29.08.2024 passed by the learned 2nd Additional Page 1 of 8 Sessions Judge, Khordha whereby the Petitioner’s prayer for release on regular bail was rejected, the Petitioner has approached this Court by filing the present application with a prayer to release him on regular bail. 2. Bolagarh P.S. Case No.167 of 2024 was registered on the allegation of commission of offence punishable under Sections 331(4)/ 351(2)/ 64 of the B.N.S. The prosecution allegation in brief is that, on 06.08.2024 the victim lodged an F.I.R. before the I.I.C., Bolagarh P.S. inter alia alleging that on the night of 05.08.2024, the Petitioner came to the house of the informant and knocked on the door. When the informant opened the door, the accused forcibly entered into the bed room of the informant and caught hold of her. When the informant started shouting, the accused forcibly covered the informant’s mouth by means of a napkin and pushed her on to the bed. Thereafter, the accused committed sexual intercourse with her. Although the informant-victim shouted, however, since the accused threatened to kill her, she was unable to put up much of a resistance. Thereafter, the husband of the informant arrived at the spot and caught hold of the accused-Petitioner. On the Page 2 of 8 basis of the aforesaid allegation, the Bolagarh P.S. Case No.167 of 2024 was registered under the aforesaid sections and the investigation was started. During investigation, the I.O. has recorded the statement of the witnesses, including the statement of the victim. The victim was sent thereafter for medical examination. 3.
Legal Reasoning
Heard Shri Asok Mohanty, learned Senior Counsel for the appearing Petitioner and learned Additional Standing Counsel for the State-Opposite Party. Perused the case diary as well as the other materials on record including the statement of the witnesses. 4. Mr. Mohanty, learned Senior Counsel appearing for the Petitioner at the outset submitted that the Petitioner is languishing in jail custody since 07.08.2024. He further contended that the bail application of the Petitioner has been wrongly rejected by the learned 2nd Additional Sessions Judge, Khordha vide his order dated 29.08.2024. He further submitted that the prosecution story is highly improbable and that the Petitioner and the victim are neighbors. He further submitted that the victim is a married lady aged about 28 years. Learned Page 3 of 8 Senior Counsel further submitted that the allegation made by the victim is neither supported by any independent witness nor by any medical evidence on record. He further submitted that there exists a previous enmity between the two neighboring families, as a result of which the Petitioner, who is serving as a Constable, has been falsely implicated in the present case. Learned Senior Counsel further submitted that the investigation has substantially progressed in the meantime and, since the Petitioner is working as a Constable in Odisha Police, there is no chance of his absconding. 5. Learned Additional Standing Counsel for the State on the other hand objected to the release of the Petitioner on bail on the ground that the investigation is still on. He further contended that considering the gravity and the seriousness of the allegation, the Petitioner should not be enlarged on bail at the stage of investigation. He further contended that in the event the Petitioner is released on bail there is every likelihood that he might try to influence or threaten the witnesses, including the victim, and that there exists every possibility that the Petitioner might abscond from justice. On such ground, Page 4 of 8 learned Additional Standing Counsel for the State submitted that the bail application of the Petitioner be rejected at this juncture. 6. On perusal of the record it appears that the statement of the victim, which has been recorded under Section 180 of B.N.S.S., reveals that she had supported the allegation made in the F.I.R. On the other hand, the statement of the victim recorded under Section 183 of the B.N.S.S. (corresponding to 164 Cr.P.C.), which was recorded on 06.08.2024, clearly reveals that both the Petitioner and the Victim are next door neighbors and are known to each other. The Vitim has also admitted that she was in contact with the Petitioner through mobile messages. Furthermore, in the same 183 Statement, the Victim has further submitted that the Petitioner entered into her room and forcibly touched the sensitive parts of her body, and tried to keep physical relationship with her. At that time, upon hearing her shouts, her husband came inside the room and rescued her. Thereafter, they have reported the matter to the police. On a plain reading of the 164 Statement of the victim it appears that the Petitioner, although did touch the sensitive Page 5 of 8 parts of the victim’s body, however, there is no allegation of commission of any forcible sexual intercourse on the Victim, in the aforesaid 183 Statement of the victim. 7. Moreover, the medical evidence obtained as a result of the examination of the victim at CHC, Bankoi does not clearly support the prosecution story. Additionally, the statement of the husband of the victim reveals that the Petitioner is related to him as a nephew and that while the Petitioner was attempting to commit forcible sexual intercourse with the victim, he rescued his wife. 8. Taking into consideration the prosecution case as well as the materials on record, including the statement of the witnesses and the statement of the victim recorded under Section 183 of the B.N.S.S., it appears that the Victim and the Petitioner are related to each other as Aunt and Nephew. Moreover, it also appears that the Petitioner and the Victim are next door neighbors. Further, the Medical Examination Report does not reveal any mark of violence suggesting any resistance by the victim. Additionally, the statement of the victim recorded under Section 183 of the B.N.S.S. does not clearly Page 6 of 8 indicate that the Petitioner forcibly committed sexual intercourse with the Victim. Taking into consideration the above noted surrounding facts and circumstances, and further keeping in view the period of detention of the Petitioner in custody, this Court is inclined to release the Petitioner on bail subject to imposition of stringent terms and conditions. 9. Hence, it is directed that the Petitioner be released on bail in the aforesaid case on furnishing bail bond of Rs.40,000/- (Rupees Forty thousand) with two solvent sureties each for the like amount to the satisfaction of the Court in seisin over the matter. The release of the Petitioner shall also be subject to the following conditions:- I. he shall cooperate with the investigation and appear before the I.O. as and when his presence is required; II. he shall not harass, threaten or terrorize the informant- victim and her family members, as well as the prosecution witnesses, in any manner whatsoever; III. he shall not make any attempt to tamper with any prosecution evidence in any manner whatsoever; and IV. he shall not enter into the house of the informant- victim and make any attempt to contact with the Page 7 of 8 informant-victim and her family members and he shall, at all times, stay away from the informant-victim and her family members. Violation of any of the above conditions shall automatically entail cancellation of the bail application. 10.
Decision
The BLAPL is, accordingly, disposed of. Orissa High Court, Cuttack The 29th October, 2024/ Anil, Jr. Steno (A.K. Mohapatra) Judge Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Reason: Authentication Location: High Court of Orissa Date: 29-Oct-2024 17:38:27 Page 8 of 8