The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.12765 of 2023 An application under Section 439 of Cr.P.C. Siva @ Swapneswar Panigrahi … Petitioner -versus- State of Odisha …. Opp. Party Advocates appeared in this case through Hybrid Mode : For Petitioner : Dr.Sujata Dash, Advocate For Opp. Party : Ms.Sarita Moharana, ASC CORAM: JUSTICE SAVITRI RATHO .…………………………………………………………………………………… Date of Judgment : 10.01.2025 ……………………………………………………………………………………. This application under Section 439 Cr,.P.C. has been filed by Savitri Ratho, J. the petitioner in connection with Tarasing P.S. Case No.75 of 2023 corresponding to G.R. Case No.37 of 2023, pending in the Court of learned Addl. Sessions Judge -cum- Special Court under POCSO Act, Berhampur registered for commission of offences punishable under Sections 376(3), 376(2)(n)/506 of IPC read with Section 6 of the POCSO Act. 2.
Legal Reasoning
The first bail application of the petitioner, i.e., BLAPL No.10953 of 2023 had been dismissed on 10.10.2023, granting him liberty to approach the trial Court afresh for bail since the victim had been examined in the meanwhile. 3. Thereafter, the prayer for bail of the petitioner had been dismissed BLAPL No.12765 of 2023 Page 1 of 5 on 31.10.2023 by the learned Adhoc Addl. District and Sessions Judge (FTSC) under POCSO Act, Berhampur. 4. This BLAPL had been dismissed for default on 18.09.2024. It was
Legal Reasoning
restored on 13.12.2024 and Dr.Dash, learned counsel for the petitioner and Ms.Sarita Moharana, learned Addl. Standing Counsel were heard on 20.12.2024. 5. The allegation against the petitioner as per the FIR lodged by one Sukanta Gouda, father of the victim is that after death of this first wife he has got married to one Manorama Gouda nine years back and was staying in his father-in-law’s house with the children of his first wife. The victim was the daughter of his first wife. In order to maintain his family, he was working in Surat city as a labourer. Taking advantage of his absence, in the month of Kartika the petitioner had sexually assaulted his minor daughter and threatened to kill her, if she would tell anybody. He continued to have sexual relation with her on subsequent occasion under threat. When it was found that the victim was pregnant, and was asked about it, she disclosed the role of the petitioner. Thereafter FIR was lodged and a case registered against the petitioner. The victim was ostracized by the caste people for which she is staying in Utkal Balashram alongwith the girl child who was born during investigation of the case. 6. Dr. Sujata Dash, learned counsel for the petitioner has submitted BLAPL No.12765 of 2023 Page 2 of 5 that the petitioner is in custody since 07.03.2023 and out of previous enmity this case has been falsely foisted against him. She has further submitted that in the meanwhile, the victim and her parents have been examined in the trial and from their evidence it is apparent that she had worked in Phulbani and was in contact with one Litu at the relevant time for the petitioner could not have had sexual relation with her. She has also submitted that false allegations having been made against the petitioner and this being apparent from the cross-examination of the victim and her parents, the petitioner desires to be released on bail. She has also submitted that the petitioner should be released on bail as he is in custody since almost two years and some witnesses remain to be examined. 7. Ms.Sarita Moharana, learned Addl. Standing Counsel has opposed the prayer for bail stating that the petitioner who is aged about 54 years has raped a minor girl under 16 years of age and under threat had a sexual relationship with her which resulted in her pregnancy. Considering his age and age of the victim, he should not be shown any indulgence and his prayer for bail should be rejected. She further submits that the victim has given birth to a child and is staying with the child in Utkal Balashram, Berhampur. She finally submits that as the case is in the midst of trial, any observation on the evidence adduced so far may influence the trial Court. 8. The Supreme Court in the case of ‘X’ v. State of Rajasthan reported BLAPL No.12765 of 2023 Page 3 of 5 in 2024 INSC 909 held as follows: “14. 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. 15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach to its final conclusion which may either result in the conviction of the accused or acquittal of the accused. The moment the High Court exercises its discretion in favour of the accused and orders release of the accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event if the trial gets unduly delayed and that too for no fault on the part of the accused, the Court may be justified in ordering his release on bail on the ground that right of the accused to have a speedy trial has been infringed.” 9. I have perused the deposition of the victim and her parents. 10. I do not think it proper to analyze the alleged discrepancies and BLAPL No.12765 of 2023 Page 4 of 5 admissions in the evidence of any witness as that is the duty of the learned trial court. The matter would have been different if the witnesses had not supported the prosecution case, but this is not the case here. As the victim and her parents have supported the prosecution case, I am not inclined to release the petitioner on bail. 11. Considering the punishment prescribed for the offences for which the petitioner is facing trial and the period the petitioner has remained in custody, I am not convinced that his right to speedy trial has been violated especially as the trial is in progress, so as to grant him bail on that ground. 12. The BLAPL is dismissed. 13. As I am not inclined to release the petitioner on bail, I do not consider it necessary to issue notice to the informant. 14. The petitioner is at liberty to move for bail afresh if the trial is not completed by the end of April 2025. 15. Copy of this order be sent to the learned trial court forthwith. ……………………… (Savitri Ratho) Judge Orissa High Court, Cuttack Dated 10th January, 2025/Bichi Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: Orissa High Court Date: 13-Jan-2025 13:27:22 BLAPL No.12765 of 2023 Page 5 of 5