Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 90 (ORI)

TIKI @ PRASANT BARIK v. STATE OF ORISSA

2013-04-03

B.N.MAHAPATRA

body2013
JUDGMENT : B.N. Mahapatra, J. - This bail application has been filed u/s 439, Cr.P.C. by the applicant Tiki @ Prasant Barik in connection with G.R. Case No. 2976 of 2011 pending before the learned S.D.J.M., Bhubaneswar corresponding to Laxmisagar P.S. Case No. 187 of 2011 for grant of bail to the applicant solely on the ground of parity. The petitioner is alleged to have committed offences punishable under Sections 457/395, I.P.C. read with Sections 25 and 27 of the Arms Act. 2. Prosecution case in a nutshell is that on 30.9.2011 at about 12 noon some unknown persons entered into the house of the informant on the pretext of a Courier Agent. Immediately, thereafter, other five unknown persons entered into the house and all of them asked the informant to handover the godrej almirah keys on the point of pistol and knife. The maid servant Laxmi and driver Rajendra, who were present at the house, were tied by the accused persons. Being scared the complainant handed over the Almirah keys to them. After opening all the almirahs, they took away the gold, silver ornaments and cash. On being lodged FIR by one Smt. Manju Behera, Laxmisagar P.S. Case No. 187 dated 30.09.2011 under Sections 450 and 395, I.P.C. read with Sections 25 and 27 of the Arms Act was registered and investigated into. During investigation the petitioner along with other accused persons were apprehended except Prasant @ Dilip Das. The confessional statements were recorded from the accused persons and they led to discovery of stolen properties which were seized in presence of witnesses. One country made pistol used during commission of offence has been seized from the petitioner-Tiki @ Prasant Barik. The said pistol has been sent to SFSL for examination and opinion. In T.I. Parade, accused persons were identified. Prayer was made to the Commissioner of Police, Bhubaneswar-Cuttack to accord sanction for prosecution under Sections 25 and 27 of the Arms Act and the same was received vide Letter No. 26/CP-Judl. Dated 01.08.2012. 3. The said pistol has been sent to SFSL for examination and opinion. In T.I. Parade, accused persons were identified. Prayer was made to the Commissioner of Police, Bhubaneswar-Cuttack to accord sanction for prosecution under Sections 25 and 27 of the Arms Act and the same was received vide Letter No. 26/CP-Judl. Dated 01.08.2012. 3. In the bail application grounds taken by the petitioner are that petitioner has no complicity in the alleged crime; he has been falsely implicated; there is no clinching legal evidence available against the petitioner to connect him with the alleged crime; he has been implicated on the basis of the statement of co-accused which is a weak piece of evidence and the petitioner is entitled to be released on the ground of parity as he is similarly situated with that of the co-accused person, namely, Kunia Behera @ Goura @ Sampad Behera who has been granted bail vide order dated 8.10.2012 in BLAPL No. 24420 of 2012. However, Mr. Mulia confined his argument for release of the petitioner on the ground of parity. He emphatically argued that the petitioner as well as Kunia was implicated in the case on the basis of statement of co-accused, namely Chakua @ Ramesh Mallick who was arrested at the spot. Mr. Mulia in order to show as to how the petitioner is similarly situated with that of Kunia submitted that confessional statement was recorded from the accused-petitioner, who led to recovery of stolen properties and one country made pistol which was seized in presence of the witnesses. Similarly, confessional statement of Kunia was recorded who led to discovery of stolen properties. So far as the criminal antecedent is concerned, the petitioner as well as Kunia has criminal antecedents. Both the petitioner and Kunia were identified in the T.I. parade. In support of his contentions, he filed a copy of the order dated 8.10.2012 passed in BLAPL No. 24420 of 2012 wherein Kunia has been granted bail and a comparative chart showing how the present petitioner Tiki is similarly situated with Kunia. Therefore, it was submitted that in the interest of justice and to maintain parity this petitioner should be released as co-accused Kunia has already been released on bail. 4. Mr. R.R. Mohanty, learned Additional Standing Counsel for the State vehemently opposed the prayer for grant of bail to the petitioner. Therefore, it was submitted that in the interest of justice and to maintain parity this petitioner should be released as co-accused Kunia has already been released on bail. 4. Mr. R.R. Mohanty, learned Additional Standing Counsel for the State vehemently opposed the prayer for grant of bail to the petitioner. He submitted that the petitioner is involved in a heinous crime. In a broad daylight the petitioner along with the co-accused persons entered into the house of the informant on the pretext of courier agent and on the point of pistol and knives committed dacoity and took away cash, gold and silver ornaments. Petitioner led to discovery of one country made Pistol, two mobile phones, one motorcycle used in the crime and cash of Rs. 5,000/-. Petitioner was identified in the T.I. Parade. Referring to the statement of the co-accused and the petitioner's own statement, Mr. Mohanty also stated that the petitioner has criminal antecedents which show that he is involved in seven criminal cases. If bail will be granted to such type of accused persons, then life and property of the people in the society will be unsafe. Further it is submitted that the petitioner does not stand on the similar footing with Kunia. It is also argued that even if co-accused-Kunia has been granted bail despite that his statement led to the discovery of stolen property, golden chain; he is involved in other four criminal cases and he was identified in T.I. Parade, no bail should be granted to the present petitioner in the interest of justice. 5. On the rival contentions of both parties, the only question that arises for consideration by this Court is whether the petitioner has made out a case for grant of regular bail on the ground of parity. 6. To decide the above question, it would be necessary to extract the order dated 08.10.2012 passed by this Court in BLAPL No. 24420 of 2012, wherein bail has been granted to the accused Kunia. This is an application for bail filed u/s 439, Cr.P.C. Heard learned counsel for the petitioner and learned counsel for the State. Perused the case diary. Considering the submissions made and the materials available on record, the prayer for bail is allowed. This is an application for bail filed u/s 439, Cr.P.C. Heard learned counsel for the petitioner and learned counsel for the State. Perused the case diary. Considering the submissions made and the materials available on record, the prayer for bail is allowed. Petitioner be released on bail by the learned S.D.J.M., Bhubaneswar, in G.R. Case No. 2976 of 2011, arising out of Laxmisagar P.S. Case No. 187 of 2011, on such terms and conditions, as the learned Court below may deem just and proper. The BLAPL is accordingly disposed of. Issue urgent certified copy as per rules. 7. Now, the question arises as to whether on the basis of the above order, the petitioner is entitled to be released on bail on the plea of parity. 8. At this juncture, it would be appropriate to refer the judgment of the Hon'ble Supreme Court in the case of Dipak Shubhashchandra Mehta Vs. C.B.I. and Another wherein it has been held as under: 32. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. 9. A plain reading of the order dated 08.10.2012 (extracted above) granting bail to the accused Kunia in BLAPL No. 24420 of 2012 does not reveal that the above aspects have been highlighted. 9. A plain reading of the order dated 08.10.2012 (extracted above) granting bail to the accused Kunia in BLAPL No. 24420 of 2012 does not reveal that the above aspects have been highlighted. In the said order, no reason has been indicated for coming to a prima facie conclusion as to why bail was granted particularly when the petitioner along with other co-accused persons is alleged to have committed a serious offence, i.e., dacoity in a broad daylight. No doubt the above order dated 08.10.2012 has been passed after hearing the learned counsel for the petitioner, learned counsel for the State and perusal of the record. Mere recording of so, will not suffice that various aspects of the case as observed by the Hon'ble Supreme Court in the case of Dipak Shubhashchandra Mehta (supra) for granting bail have been considered. 10. Needless to say that while granting bail, the Court must record reasons. Merely writing "perused the case diary", has no compliance. (See Prahalad Vs. Mohan Singh and Another, . 11. The order dated 8.10.2012 passed in BLAPL No. 24420 of 2012 on the basis of which the petitioner claims parity does not indicate that various aspects of the case, i.e., nature of offence committed by the accused Kunia, identification of accused in T.I. Parade, recovery of stolen property or weapon, his statement leading to discovery and his criminal antecedents have been considered. Therefore, it is not possible to accept the plea of parity claimed by the petitioner on the basis of the order dated 08.10.2012 passed in BLAPL No. 24420 of 2012 in which bail has been granted to the co-accused Kunia. Hence, it will be appropriate to extract here the comparative chart furnished by the learned counsel for the petitioner in course of hearing, claiming the right of parity: 12. On the basis of the above chart, the petitioner wanted to highlight the factual similarity between the petitioner and Kunia, a co-accused who has been released on bail. Since no details have been recorded in the order dated 08.10.2012 passed in BLAPL No. 24420 of 2012 quoted above, there is no question of making comparison. However, significant differences need to be highlighted are that while Kunia is involved in four earlier criminal cases, the present petitioner is admittedly involved in seven earlier criminal cases. Since no details have been recorded in the order dated 08.10.2012 passed in BLAPL No. 24420 of 2012 quoted above, there is no question of making comparison. However, significant differences need to be highlighted are that while Kunia is involved in four earlier criminal cases, the present petitioner is admittedly involved in seven earlier criminal cases. Additionally, a pistol stated to have been used for commission of offence was recovered from the possession of the petitioner. These factual differences also clearly rule out the claim of parity. 13. At this stage, it would be relevant to refer to some of the judgments of the Hon'ble Supreme Court and High Court. In SLP No. 4059 of 2000 (Rakesh Kumar Pandey Vs. Munni Singh @ Mata Bux Singh and another, decided on 12.3.2001), the Hon'ble Supreme Court strongly denounced the order of the High Court granting bail to the co-accused on the ground of parity in a heinous offence and while cancelling the bail granted by the High Court, the Hon'ble Supreme Court observed as under:- The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence released the accused-respondents on bail, since the co-accused, who had been ascribed similar role, had been granted bail earlier. xx xx xx xx Suffice it to say that for a serious charge where three murders have been committed in broad day light, the High Court has not applied its mind to the relevant materials, and merely because some of the co-accused, whom similar role has been ascribed, have been released on bail earlier, have granted bail to the present accused respondents. It is true that State normally should have moved this Court against the order in question, but at the same time the power of this Court cannot be fettered merely because the State has not moved, particularly in a case like this, where our conscience is totally shocked to see the manner in which the High Court has exercised its power for release on bail of the accused respondents. We are not expressing any opinion on the merits of the matter as it may prejudice the accused in trial. We are not expressing any opinion on the merits of the matter as it may prejudice the accused in trial. But we have no doubt in our mind that the impugned order passed by the High Court suffers from gross illegality and is an order on total non-application of mind and the judgment of this Court referred to earlier analyzing the provisions of sub-section (2) of section 439 cannot be of any use as we are not exercising power under sub-section (2) of section 439 Cr.P.C. 14. The Allahabad High Court in the case of Salim Vs. State of U.P., has held that there is no absolute hidebound rule that bail must necessarily be granted to the co-accused where another co-accused has been granted bail irrespective of the gravity of offence. 15. The Allahabad High Court in the case of Chander alias Chandra Vs. State of U.P. held as under: 21. Our answers to the questions referred are as follows: 1. If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity. 2. A judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail. 16. Keeping in mind the gravity of offence, materials available on record and the above principles of law, now I have to consider the present petition for grant of bail. Undoubtedly in the present case, accusations are of serious in nature. In a broad daylight, the petitioner along with other co-accused persons entered into the house of the informant on the pretext of courier agent. On the point of pistol and knives, they took the godrej almirah keys from the informant, committed dacoity and took away cash, gold and silver ornaments. The materials already on record are recovery of stolen properties from the possession of the accused, discovery of weapons stated to have been used in commission of offence from the possession of the accused-petitioner and identification of the accused-petitioner in the TI parade. The petitioner has criminal antecedents as he is involved in seven other criminal cases. The materials already on record are recovery of stolen properties from the possession of the accused, discovery of weapons stated to have been used in commission of offence from the possession of the accused-petitioner and identification of the accused-petitioner in the TI parade. The petitioner has criminal antecedents as he is involved in seven other criminal cases. The order granting bail to the co-accused Kunia is not supported by reasons. Therefore, the same cannot form basis for granting bail to the petitioner on the ground of parity. In view of the above, I am not inclined to accept the prayer of the petitioner for grant of bail. Accordingly, the Bail Petition is rejected.