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2006 DIGILAW 653 (ORI)

BABU @ GUPTESWAR BALABANTARAY v. STATE OF ORISSA

2006-09-11

N.PRUSTY

body2006
JUDGMENT : N. Prusty, J. - Heard Mr. P.S. Nayak Learned Counsel for the Petitioner and Mr. A.K. Budhia, Learned Counsel appearing on behalf of Mr. Panda, Learned Counsel for the Appellant. 2. This application has been filed to recall the order dated 29.06.2005 passed in Misc. Case No. 324 of 2005 whereby the Petitioner was released on bail for Rs. 50,000/- with two sureties each for the like amount to the satisfaction of the Learned Trial Court, i.e. Ad hoc Additional Sessions Judge, Fast Track Court No. IV, Bhubaneswar in S.T. No. 362/35 of 2004. 3. The present application has been filed by the victim lady/informant inter alia alleging therein that after being released on bail, the accused Appellant is threatening the victim and her family members to kill them and for which Khandagiri P.S. Case No. 268 of 2005 has already been registered against the Appellant for the offence u/s 294/506/323 Indian Penal Code. 4. As it appears the Appellant was convicted for the offence committed by him under Sections 376, 292-A and 506 of Indian Penal Code and sentenced to undergo R.I. for 10 (ten) years and to pay a fine of Rs. 50,000/- in default of payment of fine to undergo further R.I. for a period of two years for the offence u/s 376 I.P.C., R.I. for six months for the offence u/s 292 A of the Indian Penal Code and R.I. for six months for the offence u/s 506 I.P.C. and the sentences are to run concurrently. The appeal was admitted on 29.06.2005 and the L.C.R. was called for. However on the very same date the realization of fine was stayed and the accused was released on bail of Rs. 50,000/- with two sureties each for the like amount to the satisfaction of the Learned Trial Court, i.e. Ad hoc Additional Sessions Judge, Fast Track Court No. IV, Bhubaneswar in S.T. No.. 362/35 of 2004. 5. Mr. Nayak, Learned Counsel for the informant submits that even though they have appeared in this case on 12.5.2005 which is much prior to the day the matter was listed on 29.6.2005, their names were not reflected in the cause list and the order was obtained suppressing all the materials and the evidence available on record. 362/35 of 2004. 5. Mr. Nayak, Learned Counsel for the informant submits that even though they have appeared in this case on 12.5.2005 which is much prior to the day the matter was listed on 29.6.2005, their names were not reflected in the cause list and the order was obtained suppressing all the materials and the evidence available on record. In a case of this nature, the bail application of an accused/Appellant is always taken up/considered only after receipt of the L.C.R. and going through the evidence on record, keeping in view the gravity of the offence as well as the substantive sentence imposed by the Learned Trial Court. Furthermore, before the bail order was passed, he should have been heard in the matter. 6. This matter was listed for order on 5.5.2006, copy of the Misc. Case was served on the Learned Counsel for the Petitioner on that day in the Court and on his request the case was adjourned with a direction to file show cause/counter within two weeks. Again the matter was listed on 7.9.2006 and since the Learned Counsel for the Petitioner was not present the matter was adjourned to 11.9.2006. But no show cause/counter has been filed till date pursuant to order dated 5.5.2006. 7. Considering the submissions made by Learned Counsel for both the parties and after going through the impugned order as well as the contents of this petition, order dated 29.06.2005 is recalled and as such the bail of the Petitioner is cancelled. The Petitioner is directed to surrender immediately before the Trial Court and it is made clear that in case the Petitioner does not surrender immediately, appropriate action shall be taken against him in accordance with law. 8. However, after the Petitioner surrenders before the Learned Trial Court, if so advised, he is at liberty to move this Court for bail afresh and in that case his bail application shall be considered by the appropriate Bench, on its own merit keeping in view all the materials/evidence on record. Misc. Case is accordingly disposed of.A copy of the order be handed over to the Learned Additional Government Advocate. Misc.Case disposed of