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2001 DIGILAW 516 (ORI)

Padan Paltasingh v. State of Orissa

2001-11-29

P.K.PATRA

body2001
JUDGMENT P. K. PATRA, J. — In this application under Section 439 (2) of the Code of Criminal Procedure, 1973 (Act 2 of 1974) (hereinafter referred to as ‘Cr.P.C.’), the petitioner has prayed for cancel¬lation of bail granted to opposite Party No. 2 Rasa Samantaray in S.T. No. 121 of 2000 arising out of G. R. Case No. 270 of 2000 corresponding to Khurda P. S. Case No. 113 of 2000, pending in the Court of the Additional Sessions Judge, Khurda. 2. Petitioner is the brother of deceased Gopinath Palta¬singh. It was alleged by the prosecution that on 8.4.2000 at about 10 a.m. while the deceased was returning to his house, opposite party No. 2 dealt a blow on his head by means of a wooden plank, causing severe bleeding injury. Initially the case was registered against opposite party No. 2 under Sections 307/323, IPC by the I.I.C. of Khurda P.S., but when the injured succumbed to the injury, the case turned to one under Section 302, IPC and after commitment of the case to the Court of Session opp. party No. 2 is facing her trial. Vide order dated 19.9.2000 in Criminal Misc. Case No. 5280 of 2000 opposite party No. 2 was allowed to be released on bail of Rs. 20,000.00 with two sure¬ties, each for the like amount to the satisfaction of the Addi¬tional Sessions Judge, Khurda. It is alleged by the petitioner that after being released on bail, opposite party No. 2 has been trying to tamper with the evidence by threatening witnesses as well as the petitioner with dire consequences, for which the petitioner filed ICC No. 189 of 2000 in the Court of the S.D.J.M., Khurda. Hence, the prayer for cancellation of bail. 3. None appeared for the petitioner at the time of hear¬ing. Shri S. K. Sahoo, learned counsel for opposite party No. 2 and the learned Addl. Govt. Advocate for the State were heard at length. 4. The order dated 19.9.2000 in Cri.M. C. No. 5280 of 2000 reveals that when the deceased attempted to commit rape on oppo¬site party No. 2 finding her alone in her house, she dealt a blow by means of a wooden plank on the head of the deceased in order to protect herself and that blow became fatal. After careful consideration of all the materials on record, bail was granted to opposite party No. 2. After careful consideration of all the materials on record, bail was granted to opposite party No. 2. There is no illegality or irregularity in the said order. The allegation of the petitioner regarding misu¬tilisation of the liberty granted to opposite party No. 2 has not been substantiated. The petitioner did not report before the police regarding misutilisation of the liberty granted to oppo¬site party No. 2, but filed a complaint case, being ICC No. 189 of 2000, against opposite party No. 2 and two others under Sec¬tions 294/506/34, IPC which was disposed of on 13.6.2001 by the J.M.F.C., Khurda acquitting the accused persons (xerox copy of the said judgment filed). A copy of the FIR in Khurda P.S. Case No. 114 of 2000 has been filed on behalf of opposite party No. 2 to show that the deceased attempted to rape her and the case has been registered under Sections 376/506, IPC. 5. In the case of Delhi Administration v. Sanjay Gandhi, reported in AIR 1978 SC 961 , it has held as follows : “Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive for a trial, to allow the accused to retain his freedom during the trial.” 6. In the facts and circumstances of the case, since the bail granted in favour of opposite party No. 2 was not illegal or improper warranting review of the same, and there is no material on record to believe that opposite party No. 2 misutilised the liberty granted to her, it would not be expedient to cancel the bail. Moreover, the petitioner has also failed to show that there are supervening circumstances for which it would be no longer conducive for the trial to allow opposite party No. 2 to retain her freedom during the trial. 7. Keeping in view the decision of the Apex Court referred to above and the facts and circumstances of the case, the peti¬tion is found to be devoid of any merit and is liable to be rejected. 8. 7. Keeping in view the decision of the Apex Court referred to above and the facts and circumstances of the case, the peti¬tion is found to be devoid of any merit and is liable to be rejected. 8. In the result, the application under Section 439(2), Cr.P.C. for cancellation of bail is rejected. Application rejected.