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2010 DIGILAW 697 (ORI)

Bidhu Bisoyi v. State of Orissa

2010-10-08

B.K.NAYAK

body2010
ORDER 08.10.2010 — Heard learned counsel for the petitioners and learned Additional Standing Counsel for the State. Perused the records. 2.The petitioner Nos.1 and 2 in CRLMA No.152 of 2010 pray for setting aside/modification of the conditions imposed in the common bail order dated 16.08.2010 passed by the learned Special Judge (Vigilance)-cum-Additional Sessions Judge, Berhampur in Bail Application Nos.282 of 2010 and 281 of 2010. Similarly, petitioners in CRLMA No.155 of 2010 pray for setting aside/modification of the conditions imposed in the bail order dated 07.09.2010 passed by the learned Special Judge (Vigilance)-cum-Additional Sessions Judge, Berhampur in Bail Application No.307 of 2010 of his Court. Since the bail orders passed by the lower Court in all the bail applications arise out of G.R. Case No.3 of 2010 of the Court of learned S.D.J.M., Berhampur and the conditions imposed by the lower Court in the bail orders are exactly identical for all the petitioners in the bail applications, both the CRLMAs are heard together and disposed of by this common order. 3.The petitioners along with others including one Ramesh Jena, who is a sitting M.L.A., are implicated as accused persons in G.R. Case No.3 of 2010 of the Court of learned S.D.J.M., Berhampur, arising out of Gosani Nuagaon P.S. Case No.1 of 2010 for alleged commission of offences under Sections 120-B/212/302/34 of the I.P.C. and Sections 25(1-B) (a) and 27 of the Arms Act. It is to be noted that while the petitioners were in custody, co-accused-Ramesh Jena filed BLAPL No.12462 of 2010 in this Court under Section 439, Cr.P.C. for his release on bail in the aforesaid G.R. Case. It is to be noted that while the petitioners were in custody, co-accused-Ramesh Jena filed BLAPL No.12462 of 2010 in this Court under Section 439, Cr.P.C. for his release on bail in the aforesaid G.R. Case. The said bail application was disposed of by order dated 30.07.2010 and co-accused-Ramesh Jena was directed to be released on bail on certain terms and conditions which are extracted hereunder : “It is directed that the petitioner be admitted to bail of Rs.3,00,000/- (Rupees three lakhs only) with two solvent sureties each for the like amount to the satisfaction of the learned S.D.J.M., Berhampur and on furnishing cash security of Rs.3,00,000/- (Rupees three lakhs only) subject to the conditions that, until conclusion of trial, (i)the petitioner shall not leave the territorial limits of State of Orissa without prior permission of the Court in which the case may be pending; (ii)the petitioner shall ordinarily reside in Bhubaneswar; (iii)the petitioner shall furnish his address and telephone numbers to the D.C.P., Bhubaneswar and S.P., Berhampur immediately after his release from custody; (iv)the petitioner shall not leave Bhubaneswar without prior intimation to D.C.P., Bhubaneswar. (v)the petitioner shall furnish his itinerary to D.C.P., Bhubaneswar before leaving Bhubaneswar. (vi)the petitioner shall not enter into the territorial limits of Berhampur Municipality without prior permission of the Court in which the case may be pending; and (vii)the petitioner shall not make any attempt to influence any witness while on bail”. 4.After disposal of BLAPL No.12462 of 2010 by this Court, the bail applications of the present petitioners were heard by the Special Judge (Vigilance)-cum-Additional Sessions Judge, Berhampur and disposed of by the impugned orders wherein the lower Court has directed for release of the petitioners on bail on the ground of parity and further that the main accused was released on bail by this Court, by imposing the same terms and conditions as had been imposed by this Court in BLAPL No.12462 of 2010, only subject to substitution of the words, “Berhampur” and “S.P.” for the words, “Bhubaneswar and “D.C.P.”. 5.It is contended by the learned counsel for the petitioners that in BLAPL No.12462 of 2010 co-accused-Ramesh Jena was directed to be released on furnishing cash security of Rs.3.00 lakhs and executing bond for Rs.3.00 lakhs with two local solvent sureties each for the like amount and in giving such direction this Court was probably persuaded by the fact that the said co-accused was an M.L.A. and a moneyed and influential man, but the petitioners are ordinary individuals, who cannot be equated with the said co-accused and they are unable to arrange cash of Rs.3.00 lakhs each and sureties for Rs.3.00 lakhs each and as a result they have to languish in jail even though the Court below passed bail order in their favour. It is further submitted that co-accused Ramesh Jena is an M.L.A., who is required to stay in Bhubaneswar to discharge his official duties and has facilities to stay there. So far as the petitioners are concerned they are neither required nor have the means and resources to stay at Bhubaneswar. Since charge sheet has already been submitted, there is no question of tampering with the evidence by the petitioners. Imposition of the aforesaid conditions mechanically by the Court below virtually amounts to rejection of petitioner’s prayer for bail. 6.It has been held by the Apex Court in the case of Keshab Narayan Banerjee and another v. The State of Bihar, AIR 1985 SC 1666 that imposition of condition for deposit of very high amount of cash or fixed deposit of a nationalized Bank by way of security virtually amounts to denial of bail. Such conditions are liable to be set aside/modified. It is also held in the case of Jagroop Singh v. K. Chatterjee; (2000) 19 OCR (SC) 503 that affordability of the prisoner must be a consideration for the Court in fixing the amount of bond. 7.Considering the facts and circumstances of the present case, I am of the view that the petitioners cannot be equated with co-accused-Ramesh Jena with regard to their status and position in life and affordability to furnish security. The lower Court has granted bail to the petitioners on the ground of parity with co-accused-Ramesh Jena. For maintaining parity, it is necessary for the Court to examine materials in order to ascertain the nature and extent of involvement or complicity of accused persons in the crime. The lower Court has granted bail to the petitioners on the ground of parity with co-accused-Ramesh Jena. For maintaining parity, it is necessary for the Court to examine materials in order to ascertain the nature and extent of involvement or complicity of accused persons in the crime. Parity, however, does not mean and extend to the nature of terms and conditions to be imposed while granting bail, which may vary depending upon the social and economic status, position and affordability of the accused persons. 8.Considering the facts and circumstances of the case, I am of the view that the conditions imposed by the Court below virtually amount to denial of bail to the petitioners. I therefore, set aside the conditions imposed by the Court below in the impugned bail orders and direct that the petitioners shall be released on bail on furnishing cash security of Rs.5,000/- (rupees five thousand) each and executing bond for Rs. 50,000/- (rupees fifty thousand) with two local solvent sureties each for the like amount to the satisfaction of the learned S.D.J.M., Berhampur in G.R. Case No.3 of 2010 subject to the following further conditions that :- (i)the petitioners shall not leave the territorial limits of State of Orissa without prior permission of the Court in which the case may be pending; (ii)the petitioners shall furnish their address and telephone numbers to the Superintendent of Police, Berhampur immediately after their release from custody; (iii)the petitioners shall appear before the I.I.C., Gosani Nuagaon Police Station once on the last Saturday of every month till conclusion of trial of the case and in case of non-appearance the I.I.C., Gosani Nuagaon Police Station shall promptly intimate the trial Court about such non-appearance; (iv)the petitioners shall appear before the Court on each date till conclusion of trial unless on any particular date the appearance of any of them is dispensed with for sufficient reasons; and (v)the petitioners shall not, directly or indirectly, make any inducement threat or promise, nor shall in any manner try to influence the prosecution witnesses. Violation of any of the aforesaid conditions shall entail cancellation of bail. Both the CRLMAs are accordingly disposed of. Urgent certified copy of this order be granted on proper application. CRLMA disposed of.