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2005 DIGILAW 341 (ORI)

Santosh Parida v. State of Orissa

2005-05-20

A.K.PARICHHA

body2005
JUDGMENT A. K. PARICHHA, J. — The petitioner has been arrayed as accused in Kodala P.S.Case No. 60 of 2002 corresponding to G.R.Case No. 104 of 2002 pending in the Court of learned J.M.F.C., Khallikote for the offence under Secs. 376/493, IPC. In that case he was arrested, produced in Court and finally released on bail by order dated 19.4.2002 of the learned Sessions Judge, Ganjam-Gajapati in B.A.No. 247 of 2002. Opposite party No. 2, who is the informant of the G.R.Case No. 104 of 2002 filed an appli¬cation under Sec. 439(2), Cr.P.C. before this Court in CRLMC No. 17 of 2002 for cancellation of bail of the petitioner. But by order dated 3.2.2003 this Court disposed of the said application giving liberty to opposite party No. 2 to move the learned Ses¬sions Judge, Ganjam-Gajapati under Sec. 439(2), Cr.P.C. Opposite party No. 2 thereafter filed Bail Application No. 264 of 2003 before the learned Sessions Judge, Ganjam-Gajapati for cancellation of bail of the petitioner. After considering the said prayer, learned Sessions Judge, Ganjam-Gajapati by order dated 12.8.2003 can¬celled the bail of the petitioner with observation that the petitioner misused the liberty granted to him. Aggrieved, the petitioner has filed the present application under Sec. 482, Cr.P.C. for quashing that order dated 12.8.2003 passed by the learned Sessions Judge, Ganjam-Gajapati. 2. Mr. G.D.Tripathy, learned Sr. Counsel appearing for the petitioner submits that the petitioner never violated any of the conditions of the bail bond and never misused the liberty while on bail, but the learned Sessions Judge, Ganjam-Gajapati without properly appreciating the situation and the reports of the I.O. passed the impugned order. He specifically submits that when the I.O. of the case had submitted a report that the accused-petitioner left for Surat in the State of Gujarat soon after his release on bail; there was no occasion for him to threaten the opposite party No. 2 at a remote village of Ganjam district situated thousands of Kms away from Surat. He also submits that the subsequent wireless message of the I.O. clearly indicated that the petitioner was appearing before him on the 1st of every month, and hence there was no violation of the terms of the bail bond. According to Mr. Tripathy, the impugned order is contrary to the reports of the I.O. and the materials on record and for that reason, the same should be quashed. 3. Ms. According to Mr. Tripathy, the impugned order is contrary to the reports of the I.O. and the materials on record and for that reason, the same should be quashed. 3. Ms. C. Kasturi, learned Addl. Government Advocate for the State and Mr. Lalatendu Samantaray, learned counsel appearing for the opposite party No. 2, on the other hand, contended that there are clear allegations of the victim and station diary entries of Beguniapada out-post to show that the petitioner after his release on bail threatened opposite party No. 2 more than once. They also submit that one of the conditions in the bail bond was that the petitioner would appear before the I.O. on the 1st of every month till investigation is over, but according to the report of the I.O. the petitioner left for Surat soon after his release on bail; so he could not have appeared before the I.O. on the 1st of every month. According to them, there is sufficient material to prove misuse of liberty by the petitioner and so the learned Sessions Judge was perfectly justified in cancelling his bail. 4. When the prayer for cancellation of bail of the peti¬tioner came up for consideration, learned Sessions Judge, Ganjam-Gajapati called for a report from the I.O. on the allegation of opposite party No. 2 that the petitioner threatened her after his release on bail and the I. O. reported that the petitioner left for Surat in Gujrat a few days after his relaese on bail and so he could not have threatened the opposite party No. 2. Then another report was called for from the I.O. about the allegation of violation of the terms of the bail bond and by wireless message dated 6.8.2003 the I.O. reported that the accused-petitioner appeared before him on 1.5.2002, 1.7.2002, 1.8.2002 and 1.9.2002 as per the conditions laid down in the bail order and since charge-sheet was submitted on 11.2002, there was no further occasion for the petitioner to appear before him. Since both the reports submitted by the I.O. were contradictory to each other, learned Sessions Judge, Ganjam-Gajapati discarded the reports and basing on the station diary entries made on the allegation of opposite party No. 2 against the petitioner, accepted the allegation that the petitioner threatened opposite party No. 2 asking her to withdraw the case and because such conduct amounts to tampering of the prosecution witnesses and misuse of the liberty granted to him, he cancelled the bail of the petitioner. 5. Opposite party No. 2 alleged that the petitioner and his associates threatened her with dire consequences unless she withdraws the case against the petitioner. There are station diary entries Nos. 183 dated 11.17.2002 and 65 dated 4.3.2003 about such allegation of opposite party No. 2. When the report was called for, the I.O. also admitted that the station diary entries have been made on the report of the opposite party No. 2, but indicated that the petitioner was all along at Surat after his release on bail and therefore, he could not have threatened opposite party No. 2. After the said report of the I.O. when the counsel for the prosecution pointed out that the petitioner by remaining at Surat throughout has violated the terms of the bail bond directing him to appear before the I.O. on 1st of every month, another report was called for and in the 2nd report the I.O. simply said that the petitioner was appearing on 1st of every month. Since both the reports were contradictory to each other, the learned Sessions Judge, Ganjam-Gajapati could not have accepted or acted on those reports. So, he was justified in rejecting those reports basing his conclusion on the contents of the station diary entries. 6. In the cases of Aslam Babalal Desai v. State of Maharashtra, AIR 1992 SC 1 , and Subhendu Mishra v. Subrat Kumar Mishra and another, AIR 1999 SC 3026 , the apex Court laid down the grounds on which bail already granted to an accused can be cancelled. Those grounds are : (i) The accused misuses his liberty by indulging in similar criminal activity; (ii) Interferes with the course of investigation. (iii) Attempts to tamper with evidence of witnesses. (iv) Threatens witnesses or indulges in similar activities, which would hamper smooth investigation. (v) There is likelihood of his fleeing to another country. Those grounds are : (i) The accused misuses his liberty by indulging in similar criminal activity; (ii) Interferes with the course of investigation. (iii) Attempts to tamper with evidence of witnesses. (iv) Threatens witnesses or indulges in similar activities, which would hamper smooth investigation. (v) There is likelihood of his fleeing to another country. (vi) Attempts to make himself scare by going underground or becoming unavailable to the investigating agency, and (vii) Attempts to place himself beyond the reach of his surety etc. It was however said that the aforesaid grounds are illustrative and not exhaustive. The same view was reiterated by this Court in the case of Chhaila Pradhan v. Bansidhar Pradhan,* Vol. 62 (1986) CLT 699 and Sudam Sahu v. State of Orissa and another, 2002 (Supp.) OLR 508. If an accused commits any of the above noted acts or some act, which amounts to abuse of the liberty granted to him, then his bail can be cancelled 7. In the present case, there are materials to show that the petitioner threatened the opposite party No. 2, who is the informant of the case, which amounts to interfere with the course of justice and tampering with the prosecution witnesses and evidence. Such acts come under the grounds, (iii) and (iv) noted above. So, the impugned order cancelling the bail of the peti¬tioner seems quite legal and proper. 8. For the aforesaid reasons, I find no good ground for quashing the impugned order dated 12.8.2003 passed by the learned Sessions Judge, Ganjam-Gajapati in BLAPL No. 264 of 2003. Accord¬ingly, prayer of the petitioner to quash the impugned order stands rejected. 9. CRLMC is dismissed. CRLMC dismissed.