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Orissa High Court · body

2010 DIGILAW 223 (ORI)

Prafulla Kumar Mohanty v. State of Orissa

2010-03-29

C.R.DASH

body2010
ORDER 29.3.2010 — Heard. 2. The petitioner is implicated in offence punishable under sections 302/201 I.P.C. on the basis of allegation that he committed murder of a young student of Class-II and caused disap¬pearance of the evidence with a view to screen himself from legal punishment. 3. The informant named, Keshab Bhumia, whose foster son is alleged to have been killed by the present petitioner, has filed an affidavit asserting that on suspicion F.I.R. was lodged against the petitioner and lodging of such F.I.R. was outcome of a misunderstanding of the matter. 4. In course of investigation the petitioner moved this Court under section 438 Cr.P.C. and vide order passed in BLAPL No.4657 of 2009 the petitioner has been given interim protection and period of such interim protection after extension is to expire tomorrow i.e. 30.3.2010. In the meantime while under the cover of the interim protection in the order passed by this Court under section 438 Cr.P.C., the petitioner moved the competent Courts under sections 437 and 439 Cr.P.C., but in vain. Subse¬quently, on 22.2.2010 the present Bail Application under section 439 Cr.P.C. has been filed. 5. As the petitioner is not in custody in the strict sense of the terms as understood in the common parlance an obvious objection relating to maintainability of the bail Application is raised by the State. 6. Learned counsel for the petitioner relies on the case of Shri Indrajeet Roy v. Republic of India; 1997 (II) OLR 499 and the decision of Hon’ble Supreme Court in the case of Kanaksinh Mohansinh Mangrola v. State of Gujarat; (2007) 36 OCR (SC) 60 to substantiate her contention that the petitioner being under the cover of the interim protection extended by this Court under section 438 Cr.P.C. is to be deemed in legal custody of the competent Court and the present petition for bail under section 439 Cr.P.C. is maintainable. 7. 7. This Court in the case of Indrajeet Roy supra in para¬graph-8 of the decision examined the connotation and meaning of the word “custody” and held thus: “The expression “custody” though used in various provisions of the Code of Criminal Procedure, including Section 439, has not been defined in the Code, but keeping in view the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be cha¬racterised as “in custody” in a generic sense, and the observa¬tion made in the Division Bench decision of the Orissa High Court noticed above, there cannot be any doubt that the expression “custody” as used in Section 439, must be taken to be a compendi¬ous expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magis¬trate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate.” Hon’ble Supreme Court in the aforesaid case of Kanaksinh Mohansinh Mangrola supra, in paragraph-4 of the decision has held thus: “From the bail application filed on 19-4-2005 by the appel¬lant under Section 439 Cr.P.C., it clearly appears that on that day the appellant was in custody as he was on interim bail for 15 days from 13-4-2005 and his application could have been consid¬ered on merits instead of dismissing the same on the ground of non-maintainability.” 8. Taking into consideration the rationale in the afore¬said decision, I have no hesitation to hold that the petitioner though on interim protection extended under section 438 Cr.P.C., is to be deemed to be in custody for the purpose of the present Bail Application and the same is maintainable. 9. Coming to the merit of the case, it is found from the post-mortem examination report that there is no sign of external injury on the dead body and the petitioner is alleged to have (if the statements of the witnesses under section 161 Cr.P.C. are held to be believed for the purpose of finding prima facie case) assaulted the deceased by a stick. Charge Sheet in this case has already been submitted. Charge Sheet in this case has already been submitted. The petitioner being a Headmaster in the Government School, there is no chance of his absconding. 10. Regard being had to the aforesaid facts, factum of permanent residence of the petitioner and completion of investi¬gation in the meantime, it is directed that the petitioner shall be released on bail on his submitting to the jurisdiction of the learned S.D.J.M., Malkangiri in G.R. Case No.27 of 2009 by executing bond of Rs.20,000/- (twenty thousand) with two sureties each solvent for the like amount to the satisfaction of the aforesaid Court, subject to such conditions as deemed fit and proper by the learned Court below. 11. The BLAPL is accordingly disposed of. Certified copy of this order be granted on proper applica¬tion. BLAPL disposed of.