Sujata Pati State of Odisha … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 10824 of 2023 Sujata Pati State of Odisha ….. Vs. ….. Petitioner Mr. S.Mishra, Advocate Opposite Party Mr. A.P.Das, ASC Mr.A.Patnaik, Advocate CORAM: JUSTICE SAVITRI RATHO Order No. ORDER 11.10.2023 03. (Through hybrid mode) 1. This application under Section 439 of Cr.P.C. has been filed by the petitioner in connection with Sambalpur Sadar P.S.Case No.255/2022 corresponding to G.R. Case No.3343/2022 in the file of learned J.M.F.C.-II (CT), Sambalpur, registered under Sections- 467/468/471/420 of the Indian Penal Code (in short “IPC”) on the basis of an FIR lodged by one Amrut Lal Dash on 20.09.2022. 2. Allegations in brief against the petitioner as per the FIR are that a double storied building standing in the name of Late Smt Tapaswini Dash mother of the informant (who died on 25.08.2017) – had been given on rent to various tenants including the petitioner who is running a school – Modern Public School on the premises. After the demise of his parents, no tenancy agreement had been executed by him nor any NOC signed by him . From the documents obtained by him under the RTI Act vide letter dated 19.08.2022, he learnt that a // 2 // forged affidavit dated 22.01.2016 had been prepared by the petitioner to obtain provisional registration of the school and she has utilized the said affidavit subsequently. 3. Sambalpur Sadar P.S. Case No. 255 dated 20.09.2022 was registered against the petitioner. Apprehending arrest she had
Legal Reasoning
approached this Court in ABLAPL No.14625/2022. Initially she had been granted interim protection by order dated 30.11.2022, which was extended on 12.12.2022 and 11.01.2023. The ABLPL was ultimately disposed of on 14.2.2023. The operative portion of the order is extracted below :- “ 5. Considering the submission of the learned counsel for the Petitioner, nature of allegations, the circumstances appearing and the seriousness and gravity of the offences, while this Court is not inclined to grant anticipatory bail, it is directed that in the event the petitioner surrenders and moves for bail in connection with Sambalpur Sadar P.S. Case No.255 of 2022 corresponding to G.R. Case No.6283 of 2022 pending in the court of learned S.D.J.M., Sambalpur within a period of three weeks hence and move for bail, she shall be released on such terms and conditions as would be deemed just and proper by the said court with the following further conditions :- (i) The Petitioner shall furnish an undertaking to vacate the premises of the Informant within a period of three months hence. Page 2 of 11 // 3 // (ii) She shall not indulge in any correspondence with the Informant save and expect in the interest of the Informant; (iii) Shall in no way sabotage the condition resorting to any other means but to comply the undertaking. (iv) shall appear before the I.O. and shall cooperate with the investigation as and when required till submission of final form; (v) shall also appear before the trial court on each date of trial, without fail, till conclusion of the trial; (vi) shall not tamper with the prosecution evidence in any manner whatsoever. 6. Violation of any of the conditions shall entail cancellation of bail.
Decision
7. The ABLAPL is disposed of accordingly.” 4. The case was transferred to the Court of the J.M.F.C.- II (Cog), Sambalpur on 06.03.2023 by the learned S.D.J.M., Sambalpur and the petitioner surrendered in the Court on the same day and filed an application for bail . After perusing the order dated 14.02.2023 passed by this Court in ABLPL No.14625 of 2022, the learned JMFC released the petitioner on bail subject to the following conditions :- “1. She shall furnish an undertaking to vacate the premises of the Informant within a period of three weeks hence. 2. She shall not indulge in any correspondence with the Informant save and expect in the interest of the Informant; 3. She shall in no way sabotage the condition resorting to any other means but to comply the undertaking. Page 3 of 11 // 4 // 4. She shall appear before the I.O. and shall cooperate with the investigation as and when required till submission of final form; 5. She shall appear before the trial court on each date of trial, without fail, till conclusion of trial; 6. She shall not tamper with the prosecution evidence in any manner whatsoever.” 5. On the ground that the petitioner did not vacate the school premises within a period of three months (by 14.05.2023), on 25.9.2023, an application was filed by the informant for cancellation of bail. The said application was dismissed as premature on the ground that the period of six months would expire on 06.06.2023. 6. On 7.6.2023 the case was put up on the strength of an advance petition filed by the informant praying for cancellation of bail granted to the petitioner. The matter was adjourned from time to time as it was stated that an I.A had been filed by the petitioner in the High Court for extension of time. 7. By order dated 05.07.2023, I.A. No. 1010 of 2023 filed by the petitioner for extension of time , was dismissed by this Court. 8. On 10.07.2023 finding that this Court had not extended the time fixed for vacation of premises, learned JMFC cancelled the bail granted to the petitioner for violation of the condition to vacate the premises within the stipulated time and issued NBW against her. Page 4 of 11 // 5 // 9. On 30.08.2023, the NBW was executed and the petitioner was produced before the learned JMFC and she was remanded. Her petition praying for bail was rejected on the same day. 10. Her prayer for bail in BL APL No. 1197/268 of 2023 having been rejected by order dated 14.09.2023 by the learned 1st Addl. District and Sessions Judge, Sambalpur, on 21.9.2023 the petitioner has filed this application under Section 439 Crl.P.C, in this Court with the prayer to release her on bail. 11. When the matter was listed on 06.10.2023, Mr. Shibashish Misra, learned counsel for the petitioner and Mr. Avijit Patnaik learned counsel appearing on behalf of the informant, brought to my notice the order dated 25.09.2023 passed by the Hon’ble Supreme Court in SLP (Criminal) Diary No. 28513 of 2023. It was also submitted by learned counsel for the petitioner that petitioner had approached the Hon’ble Supreme Court in SLP (Criminal) Diary No.28513 of 2023 challenging the order dated 5.7.2023 passed in I.A. No.1010 of 2023 by this Court. 12. Perusal of the order dated 25.09.2023 of the Hon’ble Supreme Court reveals that notice has been issued on the limited prayer of granting some time for handing over peaceful vacant possession of the premises and the Hon’ble Supreme Court has granted ten days time Page 5 of 11 // 6 // to the petitioner to file affidavit to vacate the premises. Paragraphs-3, 4, 5, 6 & 7 of the order dated 25.9.2023 are extracted below :- “3. The petitioner’s counsel submits that in the premises in question a school is operating providing education up to 8th standard and the petitioner has already taken steps to vacate the present premises and re-locate to another building, which is currently under construction. It is then submitted that initially also the petitioner taking note of the timeline for construction, had made a request for extending the time to vacate the premises until January 2024. But since limited time was granted, the time schedule could not be adhered by the petitioner. It is however the say of the petitioner that she herself is interested to vacate and more out the school from the present location. 4. The learned counsel for the caveator in turn submits that petitioner failed to adhere to the timeline and for this reason her bail has been cancelled and she is currently in custody. 5. Considering the circumstances, only on the limited prayer of granting some time for handing over peaceful vacant possession of the premises, issue notice. 6. The petitioner is permitted to serve Dasti notice additionally, to the Standing Counsel for the State of Odisha. 7. The petitioner would file appropriate affidavit within 10 days, to confirm the timeline for vacating the premises. 8. List on 16th October, 2023.” 13. On 6.10.2023, the learned counsel for the petitioner had been directed to furnish the copy of the affidavit which had been directed to Page 6 of 11 // 7 // be filed by the Hon’ble Supreme Court. Pursuant to the said order, copy of the said affidavit sworn on 07.10.2023 has been filed in this Court on 10.10.2023. Paragraphs-1, 2, 3 & 4 of the said affidavit dated 7.10.2023 are extracted below :- “1. That I am the Petitioner in the accompanying Special Leave Petition, and I have been running a school by the name of “Modern Public School” (“School”) as a Principal, in the premises situated at Khata No.99, Non-Consolidable Plot No.30, Mouja-Dhankauda, P.S./District: Sambalpur (“Premises”). I state that the facts and circumstances in the accompanying Special Leave Petition may kindly be read as part and parcel to the present affidavit, the contents of which are not being repeated herein for the sake of brevity. 2. I state that as per the submissions made before this Hon’ble Court during the course of hearing on 25.09.2023, I undertake to vacate the School from the premises by 31.101.2024 and accordingly shall hand over the vacant and peaceful possession of the premises to the Informant. 3. In light of the aforesaid undertaking, it is my humbly request that my prayer for seeking an extension of time for vacating the premises by 31.01.2024 may kindly be considered. 4. I state that the present affidavit has been drafted by my counsels under my instructions. I state that I can read and understand English and thus I have clearly understood and confirm the contents of the present affidavit.” Page 7 of 11 // 8 // 14. A Copy of the SLP (Criminal) Diary No. 28513 of 2023 filed in the Hon’ble Supreme Court is filed in Court today alongwith a Memo and is taken on record . The main prayer as well as the interim prayer at Pages-9 & 10 are quoted below :- “Main prayer : Under the facts and circumstances of the present case, it is most respectfully prayed that this Hon’ble Court may kindly be pleased to : a) Grant Special Leave to Appeal against the Impugned Order dated 5.7.2023 of the Hon’ble High Court of Orissa at Cuttack passed in ABLAPL No.14625 of 2022. b) Pass an order(s) setting aside the Impugned Order dated 5.7.2023 of the Hon’ble High Court of Orissa at Cuttack passed in ABLAPL No.14625 of 2022 and grant the Petitioner further time till January, 2024 to vacate the premises located at Khata No.99, Non-Consolidable Plot No.30, Mouza-Dhankauda, P.S./District: Sambalpur; and/or c) Pass any such further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case as mentioned above. Interim Prayer Under the fact and circumstances of the present case, it is most respectfully prayed that during the pendency of the present Special Leave Petition this Hon’ble Court may kindly be pleased to : Page 8 of 11 // 9 // a) Grant stay of the operation of the Impugned Order dated 5.7.2023 of the Hon’ble High Court of Orissa at Cuttack passed in ABLAPL No.14625 of 2022; b) Pass ad interim ex parte order in terms of prayer (a) above.” 15. Mr. S. Misra, learned counsel for the Petitioner submits that the petitioner is in custody since 10.7.2023 and as she has complied with the direction of this Court and the Hon’ble Supreme Court and submitted the affidavit by giving the exact timeline for vacating the premises , her prayer for bail may be considered . He also submits that if she is released on bail, it will facilitate her to vacate the premises. 16. Mr. Avijit Patnaik, learned counsel for the informant opposes the prayer for bail stating that as the SLP is pending before the Hon’ble Supreme Court and the Hon’ble Court had refused the oral prayer of the petitioner to release her on bail on 25.09.2023 and adjourned the case to 16.10.2023 , the prayer for bail of the petitioner should not be considered by this Court . He further submits that as the petitioner has violated the condition imposed in the ABLAPL, she should not be shown any indulgence and her prayer for bail should be rejected. In view of her prior conduct if at all she is granted bail, there is a chance that she may not adhere to the undertaking given before the Hon’ble Supreme Court. So necessary condition may be imposed Page 9 of 11 // 10 // that the petitioner shall vacate the premises by the end of January, 2024. 17. Perusal of the synopsis at Page-B and the prayer at Page-10 of the SLP reveals that no prayer for releasing the petitioner on bail has been made in the said SLP. In its order dated 25.09.2023 , the Hon’ble Supreme Court has issued notice only on the limited prayer of granting some time for handing over peaceful vacant possession of the premises, and has granted ten days to her to file appropriate affidavit to confirm the timeline for vacating the premises. Therefore in my humble view the there is no bar for considering the prayer for bail of the petitioner. 18. Considering the facts and circumstances of the case and the fact that the petitioner is a lady and is in custody since 30.08.2023 and as she has already filed an affidavit as directed by the Hon’ble Supreme Court stating that she will vacate the premises by end of January 2024, I deem it expedient in the interest of justice to allow the prayer for bail of the petitioner , which shall necessarily be subject to any order which may be passed by the Hon’ble Supreme Court in SLP (Criminal) Diary No. 28513 of 2023. 19. The petitioner – Sujata Pati, shall be released on bail on such terms and conditions as deemed fit and proper by the learned Page 10 of 11 // 11 // Magistrate in seisin over the matter, including the following conditions : 1. She shall not indulge in any correspondence with the Informant save and expect in the interest of the Informant; 2. She shall comply with the undertaking given by for vacating the premises unless the time period is altered by the Hon’ble Supreme Court. 3. She shall appear before the I.O. as and when required for the purpose of investigation and shall cooperate with the investigation. 4. She shall appear before the trial court on each date of trial. 5. She shall not tamper with the prosecution evidence in any manner whatsoever. 20. The BL APL is accordingly disposed of. 21. Urgent certified copy of this order be granted on proper application. (Savitri Ratho) Judge ……………. M.K.Rout / Sukanta Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 12-Oct-2023 21:08:52 Page 11 of 11