JUSTICE v. NARASINGH Order No. ORDER
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No.12962 of 2025 Debaraj Sahu …. Petitioner Mr. D. K. Dhar, Advocate -versus- State of Odisha …. Opposite Party Mr. S. Panda, ASC CORAM: JUSTICE V. NARASINGH
Decision
Order No. ORDER 12.12.2025 02. 1. At the outset, it is submitted by the learned counsel for the State that notice of this application has been served on the informant, but there is no appearance on behalf of the informant when the matter is called. 2. Heard learned counsel for the Petitioner and learned counsel for the State. 3. The Petitioner is seeking pre-arrest bail in connection with C.T. Special(P) No.62 of 2025 pending on the file of learned Special Judge, Dhenkanal, arising out of Motonga P.S. Case No.366 of 2025 for commission of offences Page 1 of 7 punishable under Sections 64(2)(f) of BNS, 20231, 75 of J.J.P.C. Act2 and 6 of POCSO Act3. 4. It is submitted by the learned counsel that because the Petitioner as a teacher tried to discipline the students, the allegations have been xxx xxx xxx xxx xxx xxx 1 Section 64. Punishment for rape.— (1) xxx (2) Whoever,--- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; Interim order passed earlier shall continue till the next date. xxx xxx xxx 2 75. Punishment for cruelty to child.—Whoever, having the actual charge of, or control over, a child, assaults, abandons, abuses, exposes or wilfully neglects the child or causes or procures the child to be assaulted, abandoned, abused, exposed or neglected in a manner likely to cause such child unnecessary mental or physical suffering, shall be punishable with imprisonment for a term which may extend to three years or with fine of one lakh rupees or with both: Provided that in case it is found that such abandonment of the child by the biological parents is due to circumstances beyond their control, it shall be presumed that such abandonment is not wilful and the penal provisions of this section shall not apply in such cases: Provided further that if such offence is committed by any person employed by or managing an organisation, which is entrusted with the care and protection of the child, he shall be punished with rigorous imprisonment which may extend up to five years, and fine which may extend up to five lakhs rupees: Provided also that on account of the aforesaid cruelty, if the child is physically incapacitated or develops a mental illness or is rendered mentally unfit to perform regular tasks or has risk to life or limb, such person shall be punishable with rigorous imprisonment, not less than three years but which may be extended up to ten years and shall also be liable to fine of five lakhs rupees. 36. Punishment for aggravated penetrative sexual assault.—(1) Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of natural life of that person and shall also be liable to fine, or with death. (2) The fine imposed under sub-section (1) shall be just and reasonable and paid to the victim to meet the medical expenses and rehabilitation of such victim. Page 2 of 7 levelled in an over jealous manner and the Petitioner has been cited as an accused. Hence, the Petitioner may be protected by pre-arrest bail. 5. Learned counsel for the State opposes the prayer for pre-arrest bail referring to the statements of the victims recorded under Section 180 of BNSS4 and under Section 183 of BNSS5 as well. 4 180. Examination of witnesses by police; (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records: Provided that statement made under this sub-section may also be recorded by audio-video electronic means: Provided further that the statement of a woman against whom an offence under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023 is alleged to have been committed or attempted, shall be recorded, by a woman police officer or any woman officer. 5 183. Recording of confessions and statements; (1) Any Magistrate of the District in which the information about commission of any offence has been registered, may, whether or not he has jurisdiction in the case, record any confession or statement made to him in the course of an investigation under this Chapter or under any other law for the time being in force, or at any time afterwards but before the commencement of the inquiry or trial: Provided that any confession or statement made under this sub- section may also be recorded by audiovideo electronic means in the presence of the advocate of the person accused of an offence: Page 3 of 7 Provided further that no confession shall be recorded by a police officer on whom any power of a Magistrate has been conferred under any law for the time being in force. (2) The Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him; and the Magistrate shall not record any such confession unless, upon questioning the person making it, he has reason to believe that it is being made voluntarily. (3) If at any time before the confession is recorded, the person appearing before the Magistrate states that he is not willing to make the confession, the Magistrate shall not authorise the detention of such person in police custody. (4) Any such confession shall be recorded in the manner provided in section 316 for recording the examination of an accused person and shall be signed by the person making the confession; and the Magistrate shall make a memorandum at the foot of such record to the following effect:— "I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him. (Signed) A. B. Magistrate.". (5) Any statement (other than a confession) made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case; and the Magistrate shall have power to administer oath to the person whose statement is so recorded. (6) (a) In cases punishable under section 64, section 65, section 66, section 67, section 68, section 69, section 70, section 71, section 74, section 75, section 76, section 77, section 78, section 79 or section 124 of the Bharatiya Nyaya Sanhita, 2023, the Magistrate shall record the statement of the person against whom such offence has been committed in the manner specified in sub-section (5), as soon as the commission of the offence is brought to the notice of the police: Provided that such statement shall, as far as practicable, be recorded by a woman Magistrate and in her absence by a male Magistrate in the presence of a woman: Provided further that in cases relating to the offences punishable with imprisonment for ten years or more or with imprisonment for life or with death, the Magistrate shall record the statement of the witness brought before him by the police officer: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the Magistrate shall take the assistance of an interpreter or a special educator in recording the statement: Provided also that if the person making the statement is temporarily or permanently, mentally or physically disabled, the statement made by the person, with the assistance of an interpreter or a special educator, shall be recorded through audio-video electronic means preferably by mobile phone; Page 4 of 7 6. In the statements recorded under Section 183 of BNSS5, it is unequivocally stated by the all the alleged victims that because the Petitioner was trying to discipline the students, they complained to their mothers and accordingly, the present case has been instituted. And, this Court is of the considered view that the offence under Section 6 of POCSO Act3 is prima facie not made out nor under Section 64(2)(f) of BNS1. 7. Considering the same and in the light of the dictum of the Apex Court in the case of Satendra Kumar Antil Vrs. Central Bureau of Investigation6 relating to appreciation of pre- arrest bail, this Court directs that on surrendering within three weeks hence and moving for bail, the Petitioner shall be released on bail by the learned (b) a statement recorded under clause (a) of a person, who is temporarily or permanently, mentally or physically disabled, shall be considered a statement in lieu of examination-in-chief, as specified in section 142 of the Bharatiya Sakshya Adhiniyam, 2023 such that the maker of the statement can be cross-examined on such statement, without the need for recording the same at the time of trial. (7) The Magistrate recording a confession or statement under this section shall forward it to the Magistrate by whom the case is to be inquired into or tried. 6 Satendra Kumar Antil Vrs. Central Bureau of Investigation; 2023 SCC OnLine SC 452; “11……….. We would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail.” Page 5 of 7 Court in seisin on such terms as deemed just and proper. 8. Additionally, it is directed that the Petitioner shall appear before the I.O. on every Sunday for the next three months or till submission of final form whichever is earlier. Certification of such appearance shall be submitted to the learned Court in seisin. 9. It is directed that the Petitioners shall not in any way try to intimidate or threaten the Informant or his family. 10. It shall be open for the prosecution/Informant to seek variance of this order, if there is any threat perception. 11. Before parting with the case, it shall be open for the Government to consider to transfer the Petitioner from the concerned School. Copy of this order be made over to the learned counsel for the State for doing the needful by sending the same to the Department of School and Mass Education. 12. It is needless to state that the observations made herein are only for the purpose of consideration of the prayer of the Petitioner for pre- Page 6 of 7 arrest bail and it ought not to be construed as this Court expressing any view regarding his complicity which has to be established in an independent manner. 13. Accordingly, the ABLAPL stands disposed of. (V. NARASINGH) Judge Jina Signature Not Verified Digitally Signed Signed by: JINA DIGAL Reason: Authentication Location: High Court of Orissa Date: 13-Dec-2025 13:27:24 Page 7 of 7