JUSTICE v. NARASINGH ORDER
Case Details
Order No. 05. IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No. 12681 of 2022 Kalia Singhari @ Taluchha Nityananda Mohapatra …. Petitioner Mr. B.P. Pradhan, Advocate -versus- State of Odisha …. Opposite Party
Legal Reasoning
Mr. K.K. Gaya, ASC Mr. J. Pal, Adv.(Informant) CORAM: JUSTICE V. NARASINGH
Decision
ORDER 28.03.2023 1. Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the informant. 2. The petitioner is an accused in connection with G.R. Case No.580 of 2022, pending on the file of the learned S.D.J.M., Puri, arising out of Puri Town P.S. Case No.90 of 2022, for alleged commission of offence under Sections 302/120-B/34 of IPC read with Section 25 and 27 of Arms Act. 3. Being aggrieved by the rejection of his application for bail U/s.439 Cr.P.C. by the learned 1st Additional Sessions Judge, Puri, by order dated 17.12.2022 in the aforementioned case, the present BLAPL has been filed. 4. It is submitted by the learned counsel that the petitioner is prima facie similarly circumstanced with the co-accused, who has Page 1 of 5 since been released on bail by this Court by order dated 15.11.2022 in BLAPL No.7695 of 2022. 5. Referring to the statement of the eyewitnesses Pichi Kalia @ Trinath Mohanty & Narasingha Panda CSW Nos.9 & 10 respectively, it is submitted that admittedly the overt act is attributed to co-accused Tutu @ Prafulla Kumar Mohapatra and Kunmun @ Laxman Suar and there was presence of two other co- accused Hari Panda and Baba @ Ashish Mohapatra. It is also submitted that since the present petitioner was not at the spot and as investigation has been concluded, his further continuance in custody is unwarranted. 6. Learned counsel for the State as well as informant oppose the prayer for bail. 7. Learned counsel for the informant brings to the notice of this Court that post charge sheet, the petitioner has moved this Court in BLAPL No.6593 of 2022 and the said bail application was withdrawn on 17.11.2022. For convenience of ready reference the order passed by this Court is extracted hereunder. 1. This matter is taken up through hybrid mode. 2. Learned counsel for the petitioner submits that the petitioner does not want to press this BLAPL. 3. Accordingly, the BLAPL stands disposed of as not pressed. 8. It is the submission of the learned counsel for the informant that since withdrawal of the bail application and seeking interference of this Court of the present bail application, there being Page 2 of 5 no change in circumstances, the present bail application ought to be rejected on such solitary ground. 9. It bears no repetition that there is no bar for an accused to renew his prayer for bail before the Court and since admittedly the bail application was not heard on merits which is evident from the order dated 17.11.2022 extracted hereinabove, this Court does not find force in the submission of the learned counsel for the informant. Therefore, proceeds to hear the matter on merits. 10. To drive home the allegation, learned counsel for the State has relied upon the statement of the eyewitnesses Pichi Kalia @ Trinath Mohanty & Narasingha Panda CSW Nos.9 & 10 respectively and also the statement of the co-accused Satya Narayan Panigrahi, Kunmun @ Laxman Suar and Tutu @ Prafulla Kumar Mohapatra under Section 27 of the Evidence Act. 11. It is stated with vehemence that on perusal of the said statement, it is clearly borne out that the accused, who committed the overt act were engaged by the petitioner and it is submitted that from the disclosure statement of the co-accused, it is clear that the present petitioner has orchestrated the entire incident which ultimately resulted in the gory death of the deceased Kalia @ Krushna Chandra Pratihari. 12. Per contra, the learned counsel for the petitioner submits that the limited extent to which the statement under Section 27 of the Evidence Act can be put to use is well outlined in the case of Venkatesh @ Chandra & Another vs. State of Karnataka reported in 2022 SCC Online SC 765 and in the case of Shahaja @ Shahajan Ismail Mohd. Shaikh vs. State of Maharashtra reported in 2022 SCC Online SC 883. Page 3 of 5 13. It is submitted that since there is no other material and since the co-accused similarly circumstanced has been released on bail, inter alia on the ground of parity, the petitioner should not be subjected to further incarceration. 14. There is no cavil as to the use of the statement under Section 27 of the Evidence Act. But the same has to be evaluated on the basis of materials on record. The principles laid down in a particular decision ought not to be applied bereft of the factual matrix. 15. This Court carefully perused the disclosure statement of the co-accused Kalu @ Satyanarayan Panigrahi and the recovery of Rs.1,00,000/- which is said to be the part of the payment as made by the petitioner. Such statement and the recovery of Rs.1,00,000/- lends credence to the prosecution story that the present petitioner is the person who funded the act of killing and is the mastermind. The statement of the co-accused Tutu @ Prafulla Kumar Mohapatra at whose instance the 9mm pistol allegedly used for the commission of the offence and live ammunition was recovered and of co- accused Kunmun @ Laxman Suar that the said pistol was given by the petitioner clearly distinguishes the role played by the petitioner as compared to the co-accused in BLAPL No.7695 of 2022 since released. 15(a). The disclosure statement referred to hereinabove indicating that the amount for commission of the crime was paid by the present petitioner and he provided the weapon of offence and live ammunition and subsequent recovery of the same at the instance of the co-accused negates the contention that the present petitioner was similarly circumstanced with the co-accused since released on Page 4 of 5 bail by this Court by order dated 15.11.2022 in BLAPL No.7695 of 2022. 16. At this juncture, this Court feels it appropriate to refer to the judgment of the Apex Court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan reported in (2004) 7 SCC 528, where the Apex Court has categorically laid down that there is no bar to refer to a co-accused statement at the stage of bail. The relevant paragraph of the said judgment is extracted hereunder. Paragraph-19:- X x x x x the “The admissibility or otherwise of confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of trial.” 17. On a conspectus of materials on record, taking into account the role ascribed to the present petitioner, the recovery of the amount, the weapon of offence and live ammunition as noted and relying on the ocular evidence of Narasingha Panda CSW No.10, who had specifically named the petitioner, this Court is not inclined to entertain this bail application. 18. 19. Accordingly, the BLAPL stands rejected. Urgent certified copy of this order be granted as per rule. (V. NARASINGH) Ayesha Judge Page 5 of 5