A.P. Mishra, S. Debata, P.R. Behera, Advocates v. For Opp. Party
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No. 14495 of 2023 Application for bail under Section 438 of Code of Criminal Procedure, 1973. Ritanjali Dash @ Gitanjali Das …. Petitioner --------------- -versus- State of Odisha …. Opp. Party Advocate(s) appeared in this case:- _______________________________________________________ For Petitioner : M/s. D. Sahoo, A.P. Bose, D.K. Mohanty, A.P. Mishra, S. Debata, P.R. Behera, Advocates Vs. For Opp. Party
Legal Reasoning
: Mr. C. Mohanty, (Additional Standing Counsel) __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA
Decision
ORDER 18.02.2025 I.A. No.2760 of 2024 SASHIKANTA MISHRA, J. This is an application filed by the petitioner seeking modification of order dated 19.04.2024 passed in I. A. No.2779 of 2023 in this case. Page 1 of 8 2. Originally, by order dated 11.12.2023, this Court taking note of the offences alleged against the petitioner as also the nature of accusations, passed the following order: “1.This matter is taken up through hybrid mode. 2.Heard learned counsel for the petitioner and learned Addl. Standing Counsel for the State. 3.The petitioner is apprehending arrest in connection with Pipili P.S. Case No.406 of 2023 corresponding to G.R. Case No.640 of 2023 pending in the Court of the learned JMFC, Pipili for the alleged commission of offence Sections under 294/506/341/323/325/34 of IPC. 4. It is alleged that the petitioner and other persons abused the informant in obscence language and also assaulted him by means of wooden plank causing injury on his head. the husband of liberty the ABLAPL 5.Considering the nature of accusations and also the materials on record, while not being inclined to grant anticipatory bail to the is disposed of petitioner, granting to surrender before the Court below within two weeks from the date of receipt of certified copy of this order and to move for bail. In such event, she shall be released on bail on such terms and conditions as the Court below may deem fit and proper to impose. the petitioner to 6.The ABLAPL is accordingly disposed of. 7.Issue urgent certified copy as per rules. Page 2 of 8 3. Subsequently, an application was filed being I.A. No.2779 of 2023 seeking modification of the order dated 11.12.2023 on the ground that the offence under Section 302 having been subsequently added for which, the petitioner apprehended that in case she surrendered to custody, she would not have been released on bail by the Court below on the ground of addition of the higher offence. 4. After hearing the parties, this Court was inclined to modify the order in the following manner: the nature “Considering of accusations and also the materials on record, while not being inclined to grant anticipatory bail to the petitioner, the ABLAPL is disposed of granting liberty to the petitioner to appear before the Court below and move for bail which shall be disposed of on the same day in the first hour. In case of rejection, it shall be open to the petitioner to move the higher forum on the same day, for which the records the case diary shall be including transmitted at his cost. The higher forum shall also dispose of the bail application on the same day.” 5. Be it noted that the petitioner has not availed the modified order as mentioned above till date. Page 3 of 8 6. The present application for modification has been filed mainly on the ground that it could not be brought to the notice of the Court at the time of hearing that charge-sheet under Section 302 had not been submitted against the petitioner but against the co-accused persons and that investigation was kept open with the observation that the petitioner has not been arrested. 7. Heard Mr. A.P. Bose, learned counsel for the petitioner and Mr. C. Mohanty, learned Additional Standing Counsel for the State. 8. Mr. Bose would argue that the status of the petitioner as on the date of filing of the anticipatory bail application remains the same even today as she never surrendered before the Court below as directed by this Court in the modified order dated 19.04.2024, though she has been protected by interim order passed by this Court. Mr. Bose, further submits that even otherwise, this Court having directed the petitioner to be released on bail in the event of her surrender taking note of the offences alleged against her, the said order also needs to be passed to cover the Page 4 of 8 offence under section 302. In support of his contention, Mr. Bose has relied upon the judgment passed by this Court in Prasanna Swain v. State of Odisha1 and Pradeep Ram v. State of Jharkhand2. 9. Per contra, Mr. Mohanty would submit that though charge-sheet has not been specifically submitted against the petitioner yet her involvement in the alleged occurrence being made out during investigation, the same has been kept open only because she has not been arrested so far. Since it is a case involving murder and this Court having already modified the order directing the petitioner to surrender before the Court below, no further modification is warranted. 10. As already stated, the order dated 11.12.2023 was passed taking note of the offences then alleged against the petitioner namely, 294/506/341/323/325/34 IPC. On motion being made by the petitioner for modification on the ground of addition of the graver offence of Section 302, the aforementioned order was modified in the manner narrated 1 2024(II)OLR157 2 AIR2019SC3193 Page 5 of 8 before. This is a case where the petitioner still remains at large as she has not surrendered before the Court below as per the modified order dated 19.04.2024 nor arrested. This is not a case where the petitioner is already protected by an order of anticipatory bail. Therefore, the ratio decided in Prasanna Swain(supra) would not be strictly applicable. That apart, the petitioner not having surrendered to custody, the judgment in Pradeep Ram(supra) would also not be applicable. 11. This Court would rather take note of the fact that the order dated 19.04.2024 was passed on the notion that the offence under Section 302 had been added but on careful perusal of the charge-sheet available in the case dairy, it is revealed that the same has been submitted only against two accused persons namely, Rabi Narayan Das and Rajesh Kumar Das. Further the name of the petitioner is not mentioned under Col No.11- ‘Particulars of accused persons charge-sheeted’ nor under Col No.12- ‘Particulars of accused persons not been charge-sheeted (suspect)’. Nonetheless, under Col No.16-‘Brief facts of the Case’, the petitioner’s name has been mentioned and it is further Page 6 of 8 stated that she is yet to be arrested. Thus, technically she has not yet been charge-sheeted under Section 302 of the IPC. 12. Even on merits, as was observed by this Court in order dated 19.04.2024, no specific overt act has been attributed to the petitioner in the alleged offence. Reference to the case diary simply reveals that the allegation of assault is directed against the two co-accused persons and all the witnesses have consistently stated that the petitioner was simply present at that time without attributing any overt act whatsoever to her. 13. Under the above circumstances, this Court finds no reason to deprive the petitioner from the benefit of the order originally passed in this case i.e., on 11.12.2023. 14. For the forgoing reasons therefore, the I.A. is allowed Order dated 19.04.2024 is hereby recalled and order dated 11.12.2023 is hereby revived. In other words, the ABLAPL is disposed of granting liberty to the petitioner to surrender before the court below within one week from the date of receipt of certified copy of this order and to Page 7 of 8 move for bail. In such event, she shall be released on bail on such terms and conditions as the Court below may deem fit and proper to impose. ..……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, 18th February, 2025/ Puspanjali Ghadai, Jr.Steno Signature Not Verified Digitally Signed Signed by: PUSPANJALI GHADAI Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 19-Feb-2025 12:51:31 Page 8 of 8