The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMA No. 360 of 2023 An application under Section 439 (2) of the Code of Criminal Procedure for cancellation of bail. -------------- Pramila Sahu ..…. Petitioner -versus- 1.State of Odisha 2.Sipun Sahu …… Opp. Parties --------------------------------------------------------------------------- For Petitioner : Ms.P.P.Mohanty, Advocate : Mr.D.K.Mishra and Mr. S.S.Pradhan For Opp. Parties Additional Government Advocates (for O.P.1) Mr.Susanta KumarTripathy, Advocate (for O.P.2) ---------------------------------------------------------------------------- CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 18.04.2024 Savitri Ratho, J. This application under Section 439 of the Code of Criminal Procedure has been filed for cancelling the bail granted to the opposite party no.2 vide order dated 30.05.2023 passed by the learned Addl. Sessions Judge (Special Judge Vigilance), Dhenkanal in B.A. No. 197 of 2023. This CRLMA No. 360 of 2023 Page 1 of 19 case arises out of Hindol P.S. Case No.38 of 2023 which corresponds to G.R. Case No. 127 of 2023 in the Court of the learned S.D.J.M., Hindol. 2. Hindol P.S. Case No. 127 of 2023 had been registered against the opposite party no.2 and his parents Gelhi Sahu and Narayan Sahu on 26.02.2023 under Sections 498-A, 302, 304-B, 34 of IPC and Section 4 of the D.P. Act, on the information of the petitioner who is the mother of the deceased. 3. The prosecution story in brief as per the FIR is that Jagnyaseni Sahu the deceased - daughter of informant had married opposite party No. 2 Sipun Sahu of village Kamapur about one year back. At the time of marriage, the informant had given dowry including household articles as per the demand of the bridegroom side. After the marriage, the opposite party No.2 and his parents Narayan Sahu and Gelhi Sahu demanded cash of Rs. 1,00,000/- as more dowry and used to assault the deceased. It is further alleged that on 25.02.2023 night at about 10.01 PM, her daughter told her over phone that her son-in-law had consumed poison so she advised her daughter to give him detergent water so that he would vomit. At about 10.35 P.M, the opposite party No.2 informed her over phone that the
Facts
deceased had died. She lodged FIR alleging that the opposite party No.1 and his parents had killed deceased Jagnyaseni by pressing her neck. CRLMA No. 360 of 2023 Page 2 of 19 During investigation, the police recovered the CCTV footage as well as video footage from the mobile phone of the opposite party No.2 in which the suicide note of the deceased had been recovered. Chargesheet was submitted on 31.05.2023 against the opposite party No.2 for commission of offences under Sections - 498-A, 302, 304-B, 34 of IPC and Section 4 of the D.P. Act. 4. During investigation the petitioner was arrested and after his bail application was rejected by the learned S.D.J.M., Hindol, he had preferred BLAPL No.197 of 2023 before the learned ADJ-cum-Special Judge (Vigilance), Dhenkanal and the same was allowed on 30.05.2023 (the same day). SUBMISSIONS 5.
Legal Reasoning
members prima facie speaks of torture on the deceased by her husband and in laws prior to her death due to demand of dowry; (v) but erroneously observing that no independent witnesses had not been examined and 90 days was about to be completed, the prayer has been allowed. She has also submitted that the opposite party No.2 had tricked his wife - deceased to commit suicide and when she was doing so, instead of stopping her he has callously recorded her action in his mobile phone. She CRLMA No. 360 of 2023 Page 4 of 19 has relied on the decisions of the Supreme Court in the following cases in support of her submissions that the bail granted to the opposite party No.2 should be cancelled : i) Bhagwan Singh v. Dillip Kumar @ Deepu @ Depak and another : AIR 2023 SC 4165 ii) Vipan Kumar Dhir v. State of Punjab and another : AIR 2021 SC 4865 7. Mr. S.K.Tripathy, learned counsel for the opposite party No.2 referring to the order of the learned Court below has submitted that on the date of hearing the bail application, almost three months had elapsed, but no independent witness had been examined in the case and the facts prima facie did not speak about torture on account of non fulfillment of demand for dowry soon before death of the deceased for which neither the offence under Section – 302 IPC or Section 304 B of the I.P.C was made out against the opposite party No.2. Chargesheet was submitted on the very next day for commission of offences punishable Sections 498-A, 304-B, 306, 34 of IPC and Section 4 of the D.P. Act. So the prayer for bail has been rightly allowed and as there is no allegation that the petitioner has violated the bail conditions, the bail granted to the petitioner should not be cancelled. He relies on the decisions of the Supreme Court in the cases of: CRLMA No. 360 of 2023 Page 5 of 19 i) Bhagirathsinh v. State of Gujarat : (1984) 1 SCC 284, ii) Myakala Dharmarajam and others etc. v. The State of Telangana and another : (2020) 77 OCR (SC) – 948 and iii) Republic of India (CBI) v. Sandip Chattopadhyay : (2021) 81 OCR – 106 in support of his submission that bail granted to the opposite party should not be cancelled. 8. Mr.D.K.Mishra, learned Addl. Government Advocate referring to the statements of witnesses and entries in the case diary had submitted that the CCTV footage which indicated the deceased had once tried to commit suicide and had been brought out by the accused and again when she attempted to commit suicide for the second time, he did not try to stop her. The hard disk of the CCTV has been seized. STATUTORY PROVISIONS 9. Section 439 (2) of the Code of Criminal Procedure reads as follows: Section 439 (2) - A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. JUDICIAL PRONOUNCEMENTS 9.1 In the case of Vipan Kumar Dhir (supra), the Supreme Court held as follows: CRLMA No. 360 of 2023 Page 6 of 19 “9. At the outset, it would be fruitful to recapitulate the well settled legal principle that the cancellation of bail is to be dealt on a different footing in comparison to a proceeding for grant of bail. It is necessary that „cogent and overwhelming reasons‟ are present for the cancellation of bail. Conventionally, there can be supervening circumstances which may develop post the grant of bail and are nonconductive to fair trial, making it necessary to cancel the bail. This Court in Daulat Ram and others vs. State of Haryana1 observed that: “Rejection of bail in a nonbailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.” These principles have been reiterated time and again, more recently by a 3-judge Bench of this Court in X vs. State of Telegana and Another. CRLMA No. 360 of 2023 Page 7 of 19 10. In addition to the caveat illustrated in the cited decision(s), bail can also be revoked where the court has considered irrelevant factors or has ignored relevant material available on record which renders the order granting bail legally untenable. The gravity of the offence, conduct of the accused and societal impact of an undue indulgence by Court when the investigation is at the threshold, are also amongst a few situations, where a Superior Court can interfere in an order of bail to prevent the miscarriage of justice and to bolster the administration of criminal justice system. This Court has repeatedly viewed that while granting bail, especially anticipatory bail which is per se extraordinary in nature, the possibility of the accused to influence prosecution witnesses, threatening the family members of the deceased, fleeing from justice or creating other impediments in the fair investigation, ought not to be overlooked. 11. Broadly speaking, each case has its own unique factual scenario which holds the key for adjudication of bail matters including cancellation thereof. The offence alleged in the instant case is heinous and protrudes our medieval social structure which still wails for reforms despite multiple efforts made by Legislation and Judiciary.” 9.2 The Supreme Court in the case of Bhagwan Singh (supra) held as follows: “12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependant upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for grant of bail. However, it can be noted that; CRLMA No. 360 of 2023 Page 8 of 19 (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entails a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tempered with or the apprehension of there being a threat for the complainant should also weight with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ PappuYadav and another (2004) 7 SCC 528 where the parameters to be taken into consideration for grant of bail by the Courts has been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed CRLMA No. 360 of 2023 Page 9 of 19 a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh
Arguments
I have heard Ms. P.P. Mohanty learned counsel for the petitioner and Mr S.K. Panigrahi learned counsel appearing for the opposite party No.2 and Mr.S.S.Pradhan, learned Additional Government Advocate on 04.01.2024 and the counsel for the petitioner and opposite party No. 2 again on 10.01.2024. I carefully perused the impugned order and gone through the case diary. 6. Ms.P.P.Mohanty, learned counsel for the petitioner has submitted that : CRLMA No. 360 of 2023 Page 3 of 19 (i) the statements of the family members of the deceased recorded under Section 161 Cr.P.C. make out a case under Section – 304-B of the IPC against the petitioner ; (ii) at the time of consideration of the prayer for bail , independent witnesses ( not related to the deceased ) had been examined in the case who implicated the petitioner and other accused persons; (iii) as the case had been registered under Section - 498-A, 302, 304-B, 34 of IPC and Section 4 of the D.P. Act, 120 days was available for completing the investigation, but while passing the impugned order, the learned Court below observed that 90 days is going to be completed ; (iv) the learned court below found that the statements of the family