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2010 DIGILAW 225 (ORI)

MD. TASLLM ALIAS SAHATL AKHTAR v. STATE OF ORISSA

2010-03-29

C.R.DASH

body2010
JUDGMENT : C.R. Dash, J. - Heard. 2. Petitioner has been implicated in the offence punishable under Sections 302/364-A/201/120-B, I.P.C. and Sections 25 and 27 of the Arms Act. The present Petitioner and the co-accused persons are alleged to have kidnapped one Contractor named Rashmi Ranjan Mahapatra for a ransom and they are further alleged to have murdered him and have caused disappearance of the legal evidence to screen themselves from the legal punishment. The aforesaid transaction is alleged to have been committed pursuant to a conspiracy. 3. Learned counsel for the Petitioner prays to release the Petitioner on bail on the ground that there is no evidence of credence against the present Petitioner and he has been implicated on the basis of confessional statements of the co-accused persons before the police. 4. Learned Addl.Govt. Advocate takes me through the extra judicial confession of the present Petitioner before one 'Dhaba' owner, with whom the Petitioner is asserted to have good relationship. 5. Learned counsel for the Petitioner strenuously submits that it is well settled in law that any material, which cannot be transformed into legal evidence at the time of trial, should not be taken into consideration at the time of consideration of bail for finding out a prima facie case. He further submits that the extra judicial confession being a weak piece of evidence, the Petitioner is entitled to be released on bail in absence of any record of past criminal antecedent against him. 6. So far as consideration of bail is concerned, the Court is called upon to consider the following factors : (1) Whether there is any prima facie or reasonable ground to believe that the accused has committed the offence alleged. (2) . Severity of the punishment in the event of conviqtion; (3) Danger of accused absconding or fleeing the course of justice in the event of release on bail; (4) Character, behaviour, means, position and standing of the accused; (5) Likelihood of the offence being repeated; (6) Reasonable apprehension of the witnesses/evidence being tampered with, and (7) Danger, of course, of justice being thwarted by grant of bail. It is submitted by learned Counsel for the Petitioner that if no prima facie case is made out against the Petitioner on the basis of materials collected by the investigating agency and the Court is not prima facie satisfied in support of the charge, there is no necessity for looking into the other grounds enumerated supra nd the Petitioner should be released on bail as of right for lack of evidence, which are even deficient to constitute a prima facie case against the Petitioner. 7.The submission advanced by learned Counsel for the Petitioner is true, as it conforms to the settled position of law. If there is no prima facie case against the Petitioner moving for bail in support of the charge, other conditions should not be gone into and the Petitioner should be released on bail. So far as confessional statement of the co-accused persons recorded by the police during investigation is concerned, they come under the category of materials which cannot be transformed into legal evidence, as such a statement is hit by Section 25 of the Evidence Act. But, so far as extra judicial confession made by the present Petitioner before the 'Dhaba' owner is concerned, the contention of learned Counsel for the Petitioner is too spacious to be accepted at this stage inasmuch as the extra judicial confession made by an accused cannot be dismissed as a weak piece of evidence at the threshold. The extent of its weakness can be gone into only at the time of trial. 8. Taking into consideration the circumstances under which the offence has been committed, as found from the materials on record and the extra judicial confession made by the present Petitioner before the 'Dhaba' owner, I am prima facie satisfied in support of the charge, so far as the present Petitioner is concerned, as there is prima facie case against the Petitioner and there is no scope on the part of this Cdurt to embark upon detailed documentation of the materials on record at this stage, especially in view of the nature of the proceeding, other factors enumerated supra can be gone into and the nature and seriousness of the offence is one of such factor, which weigh with my mind. Petitioner being an outsider, there is also chance of his fleeing the course of justice, in the event of his release on bail. Petitioner being an outsider, there is also chance of his fleeing the course of justice, in the event of his release on bail. The Petitioner, from the materials on record, can be said to be a member of a notorious gang. In that view of the matter, in the event of his release on bail, there is every likelihood that he may influence the witnesses of the case. 9. Regard being had to all the aforesaid facts, I amount inclined to exercise my discretion u/s 439, Code of Criminal Procedure in favour of the Petitioner at this stage. Accordingly, Petitioner's prayer for bail is rejected and the BLAPL is dismissed. Final Result : Dismissed