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2017 DIGILAW 1406 (ORI)

Suresh Majhi v. State of Orissa

2017-12-05

S.K.SAHOO

body2017
JUDGMENT S.K. SAHOO, J. - The petitioner Suresh Majhi in BLAPL No. 4985 of 2017 who is in judicial custody since 18.03.2017 and the petitioner Karunakar Mahalik @ Milka in BLAPL No. 7741 of 2017 who is in judicial custody since 27.4.2017 are the accused persons in Balasore Sadar P.S. Case No. 21 of 2017 which corresponds to C.T. Case No. 247 of 2017 pending in the Court of learned S.D.J.M, Balasore in which charge sheet has been submitted under Sections 120-B/302/201/34 of the Indian Penal Code and Sections 25 and 27 of the Arms Act. It is apparently a case of preplanned, cold-blooded, brutal quadruple murders of deceased Prativa Mandal and her minor daughter Suman Mandal, minor son Subal Mandal and cousin brother Bibek Majhi who is also a minor which took place in the intervening night of 27.01.2017 and 28.01.2017 in village Paganai under Balasore Sadar police station. Since both the bail applications arise out of the same case, with the consent of the respective parties, those were heard analogously and are disposed of by this common order. The bail application of petitioner Karunakar Mahalik @ Milka was earlier rejected by this Court in BLAPL No. 3834 of 2017 vide order dated 07.07.2017. The first information report was lodged by one Smt. Anita Majhi, mother of deceased Bibek Majhi before the Inspector in charge, Sadar police station, Balasore on 28.01.2017 wherein she has mentioned that due to civil dispute with accused persons relating to landed properties at Sulepur, the accused persons being armed with different deadly weapons committed murders of the four deceased persons inside the house of deceased Prativa Mandal. Mr. Dharanidhar Nayak, learned Senior Advocate appearing for the petitioners contended that there is no direct evidence against the petitioners and the materials available on record indicate that at the instance of the co-accused Chandan Jena, eight numbers of Telanga Katari and one sword were recovered and in his statement recorded under Section 27 of the Evidence Act, the names of the petitioners find place. It is further contended that some of the co-accused persons have already been released on bail by this Court in BLAPL No. 3545 of 2017 and BLAPL No. 4678 of 2017 and the petitioners are similarly situated and unless the petitioners are released on bail, they will not be in a position to defend the case properly. It is further contended that some of the co-accused persons have already been released on bail by this Court in BLAPL No. 3545 of 2017 and BLAPL No. 4678 of 2017 and the petitioners are similarly situated and unless the petitioners are released on bail, they will not be in a position to defend the case properly. It is further contended that there is no criminal antecedents against the petitioners and therefore, the bail applications may be favourably considered. Mr. Priyabrata Tripathy, learned counsel for the State on the other hand opposed the prayer for bail and contended that there was previous civil dispute between the parties for which the ghastly murders were committed. He placed the statement of Bibhuti Patra which shows that in the occurrence night, a feast was organized where he participated in which the petitioner Suresh Majhi was present along with other accused persons and there was a discussion among the accused persons to kill the deceased Prativa Mandal and the further stated that after the feast was over, the accused persons being armed with weapons left the place in seven to eight motor cycles. He further placed the statement of witness Bimal Behera which indicates the participation of both the petitioners along with other accused persons in the feast. He further placed the statement of one Guruba Singh who has stated that in the occurrence night, the petitioner Suresh Majhi along with other co-accused persons being armed with deadly weapons came in motor cycles to the house of the deceased Prativa Mandal and he saw them returning back shouting that they have finished everything. It is contended by the learned counsel for the State that the deceased Prativa Mandal was beheaded and multiple injuries were caused to the other three deceased persons who were minors. It is further contended that even though there is no direct evidence in the case but in view of the clinching circumstantial evidence like criminal conspiracy, presence of the petitioners along with the co-accused persons at the spot at the time of occurrence, making declaration that they have finished everything and the manner in which the brutal crime was committed, the bail applications should be rejected. Mr. Mr. H.K. Rathsingh, appearing for the informant contended that there is constant threat to the lives of the family members of the deceased persons as well as to the witnesses and therefore, when the trial is under progress, if at this stage the petitioners are released on bail, they are likely to influence the witnesses. On perusal of the bail order of the co-accused persons in BLAPL No. 4678 of 2017, it appears that the State counsel submitted that except the confessional statement of co-accused and the statement of one independent witness who has stated about the presence of those co-accused persons in the feast prior to the occurrence, there is no other material. Similar statement was also made by the learned counsel for the State while the bail application of two of the co-accused persons in BLAPL No. 3545 of 2017 was under consideration. Thus on perusal of the bail orders, it is apparent that all the relevant materials available on records were not properly placed which resulted in grant of bail to the co-accused persons. Law is well settled that party cannot be a sole ground for grant of bail. It is one of the grounds for consideration on the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another accused has been granted bail. A Judge is not bound to grant bail to an accused on the ground of parity where in the bail order of the co-accused, the Court has ignored to take into consideration all the relevant facts available on record which are essential for granting bail. Such an order can never form the basis for a claim of parity. Merely because some of the co-accused against whom similar role has been ascribed, has been released on bail earlier and the State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience. In the case of Ram Govind Upadhaya –Vrs. – Sudarshan Singh reported in (2002) 3 SCC 598 , it has been held that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. In the case of Ram Govind Upadhaya –Vrs. – Sudarshan Singh reported in (2002) 3 SCC 598 , it has been held that the grant of bail though involves exercise of discretionary power of the Court, such exercise of discretion has to be made in a judicious manner and not as a matter of course. The heinous nature of crimes warrants more caution as there is a greater chance of rejection of bail though, however, dependent on the factual matrix of the matter. In the case of Prahalad Singh Bhati –Vrs. – NCT of Delhi reported in (2001) 20 Orissa Criminal Reports (SC) 551, it is held that while granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail, the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. In case of Chaman Lal –Vrs.- State of U.P. reported in (2004) 29 Orissa Criminal Reports (SC) 226, it is held that there is a need to indicate in the order, reasons for prima facie concluding why bail was granted particularly where an accused was charged of having committed a serious offence. In case of Chaman Lal –Vrs.- State of U.P. reported in (2004) 29 Orissa Criminal Reports (SC) 226, it is held that there is a need to indicate in the order, reasons for prima facie concluding why bail was granted particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with an application for bail to consider among other circumstances, the following factors also before granting bail, they are : (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence (ii) reasonable apprehension of tampering of the witness of apprehension of threat to the complainant (iii) prima facie satisfaction of the Court in support of the charge. In the case of Prasanta Sarkar – Vrs. – Ashis Chatterjee reported in (2011) 48 Orissa Criminal Reports (SC) 195, it is held that while dealing with the Court’s role to interfere with the power of the High Court to grant bail to the accused, the Court observed that it is to be seen that the High Court has exercised this discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in catena of judgments on that point. The Court proceeded to enumerate the factors as follows:- “11….. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. After bestowing my anxious consideration to weigh and analyse the materials available on record with utmost care and caution, the nature and gravity of the accusation, the strong and seething motive on the part of the accused persons to commit these brutal murders with severe crueity inflicting number of injuries on each deceased including beheading of a female, the intention of the accused persons to wipe out the entire branch of the family even not sparing the minor children, the manner in which the crime was committed, prima facie availability of supporting materials to establish the accusation and likelihood of the petitioners influencing the witnesses particularly when the trial is under progress and in absence of any supervening circumstances after the rejection of the earlier bail order so far as the petitioner Karunakar Mahalik @ Milka in BLAPL NO. 3834 of 2017 is concerned, I am not inclined to release the petitioners on bail. Accordingly, the bail applications being devoid of merit, stand rejected. Application rejected.