Further, while trying to distinguish the law laid down by the Apex Court in v. State of Rajasthan & Another
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL NO.12108 of 2024 (In the matter of application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023). Maguni @ Sanjay Kumar Rout @ Sanjay Rout … Petitioner -versus- State of Odisha … Opposite Party For Petitioner : Mr. S.N. Das, Advocate For Opposite Party : Mr. B.P. Nayak, Addl. PP CORAM: JUSTICE G. SATAPATHY F DATE OF HEARING & JUDGMENT:15.01.2025(ORAL) G. Satapathy, J. 1. This is a bail application U/S.483 of BNSS by the petitioner for grant of bail in connection with Choudwar PS Case No.159 of 2023 corresponding to ST Case No.5 of 2024 pending in the file of learned 1st Additional Sessions Judge, Cuttack, for commission of offences punishable under Sections 302/34 of IPC, on the allegation of killing the deceased Lucky Rout along with co-accused persons in furtherance of their common intention. BLAPL No.12108 of 2024 Page 1 of 7 2.
Legal Reasoning
Heard, Mr. Sailaza Nandan Das, learned counsel for the petitioner, who elaborating his submission submits that not only the petitioner has been detained in custody for near about two years affecting his personal liberty, but also the witnesses examined so far in this case has become hostile to the prosecution case. Further, while trying to distinguish the law laid down by the Apex Court in X vs. State of Rajasthan & Another [Special Leave
Decision
Petition (Criminal) No.13378 of 2024] disposed of on 27.11.2024, Mr. Das submits that the aforesaid order does not lay any precedent so as to refuse bail to the petitioner and when a case is made out for grant of bail, the Court should not hesitate to exercise its discretion to grant bail. Mr. Das also submits that the petitioner is not the main assailant, rather all the allegation of giving fatal blow to the deceased has been directed against the co- accused and the petitioner being an innocent person should not be kept in confinement for an indefinite period merely on the expectation of conclusion of trial sometime after, especially when the right to liberty advocates for BLAPL No.12108 of 2024 Page 2 of 7 grant of bail to a person in confinement for a long period. Mr. Das, accordingly, prays to grant bail to the petitioner. 2.1. On the contrary, Mr. B.P. Nayak, learned Additional Public Prosecutor, however, submits that the right to liberty as guaranteed under Article 21 of the Constitution of India is not an absolute right as conferred on accused for grant of bail when prima facie case is made out against him and in this case, not only the materials on record reveals a prima facie case against the petitioner, but also his involvement in another three criminal cases makes it very clear that in the event of enlargement of the petitioner on bail, it would encourage him to commit the offence again and again. Further, Mr. Nayak also submits that materials witnesses are yet to be examined and release of the petitioner at this stage would definitely counterproductive to the prosecution case. 3. After having considered the rival submissions upon perusal of record, this Court has no hesitation to state here that while considering the bail application of an accused, the prima facie case has to be seen and if the BLAPL No.12108 of 2024 Page 3 of 7 materials on record discloses a prima facie case against the accused for commission of heinous offence, the right to liberty as granted under Article 21 of the Constitution of India cannot be said to be an absolute right for an accused to be released on bail, especially when the materials on record indicates his prima facie involvement in commission of offence like murder. In this context, this Court reminds itself of the decision in Ash Mohammad Vrs. Shiv Raj Singh @ Lalla Babu and another; (2012) 9 SCC 446, wherein the Apex Court has held the following in paragraphs-17, which reads as under:- to Needless emphasize, “17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of the vacuum. sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others’ rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and Page 4 of 7 BLAPL No.12108 of 2024 harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom". 19. Thus, analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act.” 4. Further, in a very recent order in X vs. State of Rajasthan & Another [Special Leave Petition (Criminal) No.13378 of 2024] disposed of on 27.11.2024, the Apex Court has been pleased to hold that ordinarily in serious offences like rape, murder, dacoity etc., once the trial commences and the prosecution starts examining its witnesses, the Court be it the trial Court or the High Court should be loath in entertaining the bail application of the accused. Admittedly, there is a serious allegation against the BLAPL No.12108 of 2024 Page 5 of 7 petitioner for facilitating the co-accused to stab the deceased on a dispute occurred in a cricket match and that too, the petitioner was called to the spot later on. Be that as it may, it is always be proper to see the prima facie case, while allowing or refusing the bail of the petitioner, who is an accused of serious offences like rape, murder, dacoity etc., but in the present case if the materials on record are taken into consideration, it cannot be denied that there is a prima facie case against the petitioner. However, the trial is going on, expressing any opinion on merits of this case would definitely prejudice the trial of the petitioner. This Court, therefore, does not consider it proper to analyze the materials or evidence on record to give any finding in the matter. No doubt, the learned counsel for the petitioner tries to distinguish the decision in X vs. State of Rajasthan(supra) by contending inter alia that what has been held in this decision is per-incurium and does not have any precedential value, but this Court is unable to agree with such contention of the petitioner and in terms of law precedence, the principle that has been BLAPL No.12108 of 2024 Page 6 of 7 stated in the aforesaid decision being the decision of the Apex Court is binding on this Court. 5. In the aforesaid facts and situation and after having considered the rival submissions and on a conspectus on materials on record together with the discussion made hereinabove, this Court without expressing any opinion on merits and by taking into consideration the allegations appearing against the petitioner and the supporting materials collected by the Investigating Agency, does not consider it proper to grant bail to the petitioner at this stage. Hence, the bail application of the petitioner stands rejected. The petitioner is, however, at liberty to renew his prayer for bail after examination of the material witnesses. 6. Accordingly, the BLAPL stands disposed of. Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 20-Jan-2025 18:10:50 (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 15th day of January, 2025/Subhasmita BLAPL No.12108 of 2024 Page 7 of 7