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2007 DIGILAW 468 (ORI)

Srikanta Nayak v. State of Orissa

2007-06-21

M.M.DAS

body2007
ORDER 21.6.2007 — Heard Mr. D.C.Mohanty, learned counsel for the petitioner and the learned counsel for the State. Perused the materials available on record as well as in the case diary pro¬duced by the learned counsel for the State. This is an application under Sec. 439 Cr.P.C. for grant of bail to the petitioner. An information was lodged on 23.10.2006 by the mother of the deceased in Sikhar Police Out Post before the concerned policeman in charge of the Out Post, inter alia, alleging that her daughter Smt. Kuni, aged about 18 years came out of her house at 7.00 P.M. on 22.10.2006 for answering the call of nature but did not return to the house till 8.00 P.M. As such, the informant and her other daughter went out in search of said Kuni, but could not find her. On the next date, i.e. 23.10.2006 she found drops of blood near the well in her Bari. The police thereafter came to the spot and the dead body of the daughter of the informant being found in the well situated in the Bari of the informant, was hooked out by the police. A written complaint was prepared at the spot which has been treated as an FIR and registered under Sections 302/201/34, IPC. The said written report was received at 4.00 P.M. on 24.10.2006 on which a formal FIR was registered. In the statement recorded under Section 161 Cr.P.C., the informant stated that three persons, namely, Nalini Gahir, Sesha Macha Khandia and the present petitioner used to come to her house and she suspects that the said persons might have called her daughter to the back-yard and might have murdered her and thrown her dead body inside the well. During the course of investigation, the police has recorded the statements of a number of persons. It is seen from the statements of various witnesses recorded during the investigation under Section 161, Cr.P.C. that some of them saw the deceased in the company of the three persons, named above, at about 2.00 P.M. on 22.10.2006. One of the witnesses examined by the Investigating Officer is Sunita Kumar daughter of Mrutulal Kumar. She has stated that she was in love with the accused Nalini and the deceased developed a relationship with Sesha Macha Khandia. One of the witnesses examined by the Investigating Officer is Sunita Kumar daughter of Mrutulal Kumar. She has stated that she was in love with the accused Nalini and the deceased developed a relationship with Sesha Macha Khandia. On the fateful day at about 2.00 P.M. in the afternoon, she along with the deceased met the accused persons and chatted with them. The deceased Kuni was also talking with the accused Sesha separately. The accused persons suggested that both, the said witness Sunita as well as the deceased Kuni should come out of their house at 9.00 P.M. in the night and they will come to that place to which the witness Sunita did not agree. The petitioner along with other accused persons were arrested on 3.11.2006 and are in custody since then. Learned counsel for the State submits that considering the heinous nature of offence alleged and the severity of punishment, in case of conviction, coupled with the fact that many of the witnesses have stated that the deceased was last seen in the company of the accused persons at around 2.00 P.M. on 22.10.2006, the prayer for bail should be rejected. He further submits that it is the settled position of law that detailed examination of the evidence and elaborate discussion of the merits of the case should not be made while disposing of an application for bail. Mr. Mohanty, learned counsel for the petitioner, on the other hand, relying upon the case of Anwari Begum v. Sher Mohd. (2005) 7 SCC 326 vehemently argued that the Supreme Court in the aforesaid decision has clearly laid down that there is need to indicate in an order passed on an bail application the reasons for prima facie concluding why bail is being granted, particularly, when an accused has been charged of having commit¬ted a serious offence and he further submits that as there is no iota of material in the present case, implicating the petitioner with the alleged crime, it is open for this Court to refer to the statements of the witnesses examined during the investigation in order to conclude that there is no prima facie case made out against the petitioner. In the aforesaid decision in the case of Anwari Begum (supra), the Supreme Court has laid down that there is need to indicate in the order, reasons for prima facie concluding why bail is being granted, particularly when an accused is charged of having committed a serious offence. The Supreme Court held as follows : “........ It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are : (1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (2) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; (3) Prima facie satisfaction of the Court in support of the charge. Any order de hors of such reasons suffers from non-applica¬tion of mind as was noted by this Court in Ram Govinda Upadhyay v. Sudarshan Singh, (2002) 3 SC 598, Puran v. Rambilas, (2001) 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . The above position was highlighted by this Court in Chaman Lal v. State of U.P., (2004) 7 SCC 525 . Above being the position, the cryptic non-reasoned order of the High Court, is clearly indefensible. The inevitable conclusion is that the grant of bail to the respondent by a non-speaking and non-reasoned order was not proper.......” (Emphasis supplied) Examining the present case in the touch stone of the aforesaid decision in the case of Anwari Begum (supra), I find that the accusation made against the accused persons is serious in nature and in the event of conviction, the sentence to be passed is severe. However, with regard to the nature of the supporting evidence, on a closer scrutiny of the materials col¬lected during the investigation, I find that the same is neither conclusive in nature nor points towards the involvement of the accused persons in the alleged crime as all the statements recorded by the police during investigation indicate that the accused persons are suspected by the witnesses to have committed the alleged offence. Suspicion, however, strong cannot be accept¬ed as prima facie, material against the petitioner. Charge sheet having already been submitted against the accused persons, there is no scope for the petitioner to tamper with the prosecution witnesses. Suspicion, however, strong cannot be accept¬ed as prima facie, material against the petitioner. Charge sheet having already been submitted against the accused persons, there is no scope for the petitioner to tamper with the prosecution witnesses. I am also unable to satisfy myself with regard to a prima facie case in support of the charge. In view of the above, I find no reason as to why an order of bail should be withheld. In the above premises, I allow this application directing that the petitioner shall be released on bail by the learned Addl. Sessions Judge (FTC), Bhawanipatna in S.T.Case No. 31/17 of 2007 on furnishing a bond of Rs. 25,000/- (Rupees twenty-five thousand) with two sureties each for the like amount to the satisfaction of the learned Addl. Sessions Judge subject to further condition that the petitioner, while on bail, shall not make any attempt to threaten or coerce either the complainant/informant or the prosecution witnesses and shall appear before the Court in person on each of the dates to which the case shall be posted. Violation of any of the above condi¬tions by the petitioner will entail cancellation of this order of bail. It is made clear that the Court trying the case shall not be influenced by any observations made in this order. The BLAPL is accordingly disposed of. Urgent certified copy of this order be granted on proper application. BLAPL disposed of.