Dhoku @ Niranjan Biswal 1. State of Odisha 2. Manas Kumar Jena … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 524 of 2021 Dhoku @ Niranjan Biswal 1. State of Odisha 2. Manas Kumar Jena ….. Vs. ….. Appellant Mr. Ashok Jena, Adv. Respondents Mr. J. Katikia, A.G.A. (For Respondent No.1) Mr. R.K. Mallick, Adv. (For Respondent No.2- Informant & Injured) Order No. 08. CORAM: JUSTICE SAVITRI RATHO ORDER 23.02.2023 In this appeal under Section 14 (A) (2) of S.C. & S.T. (PoA) Act, the order dated 03.09.2021 passed by the Presiding Officer, Special Court under SC & ST (PoA) Act, Cuttack in C.T. Case No. 158 of 2018 which arises out of Mahanga P.S. Case No. 236 of 2018 rejecting the prayer of the appellant for bail, has been challenged. Trial is in progress in this case for offences punishable under Sections 147, 148, 302, 149 of the IPC read with Section 3(I) (r) (s) and 2 (v) of the SC & ST (PoA) Act. The appellant and others are facing trial while two accused are stated to be absconding. 2. In compliance of Section 15-A(3) and (5) of the SC & ST (PoA) Act, notice had been issued to the informant-respondent No.2 Page 1 of 11 by registered post. Notice returned unserved due to continuous
Legal Reasoning
absence of the respondent no.2 in the village. However Mr. Rakesh Kumar Mallick, learned counsel and associates who had appeared for the informant in the earlier appeals have appeared on his behalf and on behalf of the injured Chandramani Jena and Paresh Kumar Jena. An objection in the form of an affidavit sworn by Paresh Kumar Jena has been filed on their behalf in Court today and is taken on record. 3. The prosecution allegation in brief as per the FIR is that on 13.12.208 while the deceased Bikash Jena and one Paresh Kumar Jena (P.W.2) had been to village Jaankoti to arrange labourers for cutting paddy crops, the accused persons named in the FIR including the present appellant and 10 to 15 others, armed with various weapons like lathi, crow-bar, sword and iron rod assaulted Paresh Kumar Jena (P.W.2), Bikash Jena and Chandramani Jena (P.W.3) who sustained injuries. Bikash Jena succumbed to his injuries while undergoing treatment at SCB, Medical College and Hospital, Cuttack. The FIR was lodged by Manas Kumar Jena (P.W.4) elder brother of the deceased, after learning about the incident from Paresh Kumar Jena (P.W.2). 4. It is stated at the bar that the trial is in progress and out of 23 Page 2 of 11 charge sheet witnesses, 13 witnesses have been examined till date. Paresh Kumar Jena (P.W.2) and Chandramani Jena (P.W.3) are the two injured witnesses. Manas Kumar Jena (P.W.4) is the informant. P.W.5. is one Ashok Kumar Jena. Anil Kumar Jena (P.W.1) has not supported the prosecution case. Their depositions have been filed by counsel for the appellant. 5. The appellant had earlier filed CRLA No. 362 of 2019 praying for bail. Since Mr. A, Jena, learned counsel for the appellant in the said appeal had submitted that the appellant who was aged about 70 years was suffering from various ailments, vide order dated 12.04.2021, a report had been called for from the Jail Authority regarding his health condition. After perusing the letter dated 02.03.2021 of the Senior Superintendent, Circle Jail, Cuttack at Choudwar, the report dated 02.03.2021 of the Jail Medical Officer, Circle Jail, Choudwar, Cuttack and the letter no. 516 dated 26.03.2021 of Prof. HOD, Neurology, SCB, Medical College and Hospital, Cuttack, this Court found the appellant was suffering from tremulousness of upper limbs, head and voice and head for which this Court had granted him interim bail for a period of six weeks. In this appeal vide order dated 29.09.2022 after hearing the submissions of the learned counsel for the appellant, counsel for the Page 3 of 11 State and Mr. R.K. Mallick, learned counsel for the informant, considering the age and health condition of the appellant and his earlier conduct, and as the I.As. filed on behalf of the informant for recall of the order granting bail to two co-accused were pending, the appellant had been granted interim bail for six weeks. It appears from the certified copy which is at Flag-1 that the appellant has surrendered after expiry of the period of bail on 25.11.2022. 6. I have heard Mr. Ashok Jena, learned counsel for the appellant, Mr. J. Katikia, learned Addl. Govt. Advocate for the respondent no.1-State and Mr. R.K. Mallick, learned counsel for the respondent no.2-informant Manas Kumar Jena and injured Paresh Kumar Jena and Chandramani Jena. 7. Mr. Ashok Jena, learned counsel for the appellant submits that the appellant is aged about 74 years and he is suffering from various health problems for which he suffers from tremulousness of the hands and legs and is unable to walk about properly and is unable to carry out his daily activities without help. He further submits that after calling a report about his health condition, the appellant had released earlier on interim bail twice by this Court and he has not misused the liberty granted to him and has surrendered in time. After the appellant surrendered, he had filed an application for bail before Page 4 of 11 the learned trial Court which has been rejected vide the impugned order dated 03.09.2021 after hearing the learned counsel for the accused, learned counsel appearing for the victim-informant and the Special P.P., on untenable grounds. He submits that three accused persons namely Manas Ranjan Pani in CRLA No. 338 of 2021 vide order dated 25.04.2022, Sudhansu Sethi in CRLA No. 548 of 2022 vide order dated 05.09.2022 and Banua @ Smruti Prasad Rout in CRLA No. 409 of 2022 vide order dated 07.02.2023 have been granted bail by this Court. I.A. No. 1623 of 2022 filed in CRLA No. 548 of 2022 by the informant for recall of the order granting bail to Sudhansu Sethi has been rejected on 15.12.2022 by a reasoned order. Thereafter in CRLA No. 409 of 2022, after hearing the counsel for the appellant, State and the informant and injured, the prayer for bail has been allowed by a well reasoned order on 07.02.2023. He further submits that the informant and the two injured eye witnesses have been examined in the trial and have specifically alleged that one Pramod Biswal, had assaulted the deceased on the head and have made omnibus allegation that the appellant along with others have assaulted the deceased with various weapons. False allegations have been made against the appellant on account of political rivalry. He also submits that the appellant stands Page 5 of 11 on the same footing as the three accused who have been granted bail by this Court. He also submits that the appellant is in custody since 19.12.2018. His two sons were also accused in this case. One of them Pramod Biswal is in custody while the other Prafulla Biswal has expired. The aged wife and daughter-in-law of the appellant are leading an insecure and wretched life while he is facing immense hardship in jail on account of his ill-health. Due to trembling of his limbs and head, he is unable to walk properly and carry out his daily activities. 8. Mr. J. Katikia, learned Addl. Govt. Advocate for the State opposes the prayer for bail submitting that this appellant has been named by the two injured persons P.W.2 Paresh Kumar Jena and P.W.3 Chandramani Jena as well as the P.W.4 informant Manas Kumar Jena of having taken an active part in the assault on the deceased and he has also been named in the dying declaration as per evidence of P.W.2 Paresh Kumar Jena and P.W.5 Ashok Kumar Jena. He further submits that since the trial is pending, the appellant should not be released on bail. But he does not dispute the submission of the learned counsel for the appellant that the appellant stands on the same footing as Manas Ranjan Pani, Sudhansu Sethi, Banua @ Mukti Prasad Rout who have been granted bail by this Page 6 of 11 Court. 9. Mr. R.K. Mallick, learned counsel appearing for the respondent no.2-informant and injured, vehemently opposes the prayer for bail stating that the appellant is the leader of the group and he has participated in the assault along with his two sons and his son Pramod Biswal is the principal assailant having assaulted the deceased on his head. He further submits that till date two accused persons Santosh Ranjan Pani and Priyanath Mallika could not be arrested and they are roaming about scot free and threatening the witnesses. Referring to the affidavit filed on behalf of the informant/injured, he has stated that two sons of the appellant who had absconded were involved in a case of double murder before they could be arrested. One of them, Pramod Biswal is now in custody while the other son has expired. It has also been stated in the affidavit that the appellant has been charge sheeted in a case involving offences under Sections 147, 148, 341, 324, 326, 454, 506, 380, 149 of the IPC and a copy of the order of cognizance dated 14.09.1998 in G.R. Case No. 49 of 1997 has been annexed. Referring to the post mortem examination report of the deceased, he submits that the deceased has sustained 14 injuries and cause of death is due to hemorrhage and shock as a result of the above Page 7 of 11 mentioned injuries. In view of the evidence that the appellant was armed and has assaulted the deceased, he is responsible for the death of the deceased and therefore, he should not be released on bail. He also submits that on account of incorrect submission on behalf of the learned State Counsel in CRLA No. 338 of 2021 and CRLA No. 548 of 2022 that notice could not be served on the informant as he was absconding from the village being involved in another case, the informant could not be heard in the two appeals, for which the appeals were allowed and the appellants therein were directed to be released on bail. I.As. have been filed in the two appeals on behalf of the informant for recall of the order granting bail, I.A. No.722 of 2022 filed in CRLA No. 338 of 2021 is pending and I.A. No. 1623 of 2022 filed in CRLA No. 548 of 2022 has been rejected on 15.12.2022. The order dated 15.12.2022 has been challenged by the informant in the Supreme Court. Mr. Mallick, learned counsel is however not able to furnish the diary number or SLP number on the status of the case. 10. I have perused the FIR, the depositions of P.Ws. No. 1 to 5, the post mortem examination report and the orders passed by this Court in CRLA No. 548 of 2022, CRLA No. 338 of 2021 and CRLA No. 409 of 2022 and considered the submissions of the learned Page 8 of 11 counsels. A threadbare analysis of the evidence of the witnesses is not called for at this stage, but the allegations and materials against the appellant are necessary to be referred to. The appellant has been named in the FIR and the injured witnesses P.W.2 and P.W.3 and P.W.5 have deposed that the appellant along with others have assaulted the deceased with different weapons. But have not attributed any specific overt act to the appellant but have named ten persons including the appellant along with 8 to 10 others to have jointly assaulted the deceased after he fell down senseless after being assaulted by Pramod Biswal on the head. But specific allegations of assault have been made against one Pramod Biswal that he assaulted the deceased on the head. P.W.3 -Chandramani Jena has made specific allegation against one Mitu Pani, Banua Rout, Kalia Sethi and Biba Biswal have assaulted the deceased while P.W.5 Ashok Kumar Jena has stated that Pramod Biswal, Jyotiranjan Pati and Priyanatha Mallika assaulted the deceased. P.W.2 Paresh Kumar Jena and P.W.5 Ashok Kumar Jena have stated that Pramod Biswal has assaulted the deceased on his head. P.W.5 has stated that the deceased in his dying declaration has named the appellant, seven others and one Rout to have assaulted him and accused Pramod Biswal to have pierced his head. This Page 9 of 11 submission has been refuted by the learned counsel by the appellant stating that this witness has stated the deceased had lost his senses, so the deceased could not have disclosed the name of his assailants. The antecedent of the Appellant relates to the year 1997. 11. As the trial is in progress and in view of the nature of evidence, normally I would not have allowed the prayer for bail. But keeping in mind the age and heath condition of the appellant, the period spent by him in judicial custody (since 19.12.2018), his conduct when he was released on interim bail twice, release of three co-accused persons standing on similar footing on bail and bleak chance of early completion of the trial, I am inclined to set aside the impugned order dated 03.09.2021 and allow the prayer for bail. 12. The appellant- Dhoku @ Niranjan Biswal shall be released on bail on such terms and conditions as may be fixed by the learned Court below in seisin over the matter, including the following conditions:- (i) He will not indulge in any criminal activity while on bail. (ii) He will not threaten or try to influence prosecution witnesses while on bail. ( iii) He will appear in the trial court on each date. Page 10 of 11 Violation of any condition will entail in cancellation of bail. 13. No observation in this order should influence the trial Court. The learned trial Court is however is requested to complete the trial within a period of six months. 14. The CRLA is accordingly allowed. 15. Urgent certified copy of this order be granted on proper application. 16. Copy of this order be sent to the learned trial Court. Sukanta (Savitri Ratho) Judge Page 11 of 11