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2017 DIGILAW 937 (ORI)

Rajendra Barik v. State of Odisha

2017-08-24

D.P.CHOUDHURY

body2017
JUDGMENT Dr. D.P. CHOUDHURY, J. - This is an application under Section 439 of the Code of Criminal Procedure to release the petitioner on bail for the alleged offence under Sections 147/148/323/294/302/307/506/149 of Indian Penal Code read with Sections 25/27 of Arms Act and Section 3(1) (x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 in connection with C.T. No. 2704 of 2015 arising out of Khandagiri P.S. Case No. 302(39) of 2015 pending before the Court of S.D.J.M., Bhubaneswar. 2. The factual matrix leading to the case of the prosecution is that one apartment of Pratap Thakur was constructed at Patrapada near the All India Institute of Medical science, Bhubaneswar. The deceased was engaged by the contractor to look after the work. So on 05.06.2015 at about 10 a.m. deceased Dilip Naik had gone to the field to supervise the work. At that time the present petitioner along with his brothers and other co-accused persons being armed with deadly weapons came there. The petitioner and other co-accused persons asked Dilip Naik as to why he was gathering the building materials there and the accused persons also abused in obscene languages to the deceased. The informant was also present there. At this moment the present petitioner and other co-accused persons assaulted the deceased. The present petitioner fired from the pistol to deceased Dilip and due to the bullet injury the deceased fell down on the ground. Before firing the present petitioner has also threatened the deceased to kill. On the same day the brother of the deceased lodged F.I.R. On 20.06.2015 the petitioner was arrested and forwarded to custody and after due investigation, charge sheet has been submitted in the meantime. SUBMISSIONS 3. Mr. Debasis Panda, learned counsel for the petitioner submitted that the case has been falsely filed against the petitioner. Although the fire arm has been seized on being produced by the petitioner, but the cartridges seized from the spot as per the ballistic expert did not appear to have been fired from the fire arm seized from the petitioner. He further submitted that co-accused persons have been released on bail and charge sheet has been submitted. The petitioner is in custody for more than one year, for which he prayed to release the petitioner on bail with any condition as deemed just and proper. 4. Mr. He further submitted that co-accused persons have been released on bail and charge sheet has been submitted. The petitioner is in custody for more than one year, for which he prayed to release the petitioner on bail with any condition as deemed just and proper. 4. Mr. Mohanty, learned Additional Standing Counsel submitted that even if the dispute is for the land, but the overt act of the petitioner is discernible from the statements of the eye witnesses to show that the petitioner fired from the pistol causing bullet injury on the person of the deceased and he died out of such injury. He also submitted that the post mortem examination report is clear to show the cause of death due to injury caused by fire arm. He further submitted that the ballistic expert ;report clearly shows that the cartridges used for causing death have been seized from the spot which has also link to the case of the prosecution. So he submitted to reject the application for bail of the petitioner. 5. Mr. P.K. Ray, learned counsel for the informant submitted that when there are eye witnesses plentily available to show the overt act of the petitioner and the petitioner and the petitioner made leading to discover the weapon of offence, prima facie case is made out. According to him, in such heinous offence the Court should not take lenient view to grant bail to the petitioner and submitted to reject the application for bail. DISCUSSION 6. Before going to the facts of the case, the law on the question of granting bail should be addressed first. 7. In Prahlad Singh Bhati v. NCT, Delhi and another; (2001) 4 SCC 280 , where Their Lordships proceeded to observe the principles for granting bail in the following manner:- “(a) While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusation. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.” 8. Also in Prasanta Kumar Sarkar v. Ashis Chatterjee and another; (2010) 14 SCC 496 , Their Lordships observed at paragraph-9 in the following manner:- “9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. however, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance ;with the basic principles laid down in a plethora of decisions of this Court on the point. 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.” 9. The aforesaid views have been well followed by the Hon’ble Supreme Court in the case of Neeru Yadav v. State of Utter Pradesh and another; 2015 SCC Online SC 862. Their Lordships observed at paragraph-13 as follows:- “13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. Their Lordships observed at paragraph-13 as follows:- “13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases if does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilized society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:- “Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of thins that men of intemperate minds cannot be free. Their passions forge their fetters.” 10. With due regard to the aforesaid decisions, it is culled out that the Court while considering the bail under Section 439 Cr.P.C. must keep in mind the above principles which would be considered while taking note of the concept of liberty and curtailment of same by law. Not only this, but also in Neeru Yadav v. State of Uttar Pradesh and another (supra) Their Lordships have been pleased to observe that the criminal antecedent of the petitioner is also to be considered while considering the petition for bail. 11. Not only this, but also in Neeru Yadav v. State of Uttar Pradesh and another (supra) Their Lordships have been pleased to observe that the criminal antecedent of the petitioner is also to be considered while considering the petition for bail. 11. Now adverting to the facts of the case, the F.I.R. is stated to have been lodged by the brother of the deceased. From the F.I.R. it is clear that the deceased had undertaken to execute the work at the spot and the petitioner along with other co-accused persons reached there to obstruct the construction work. It is revealed from the F.I.R. and the statements of eye witnesses namely, Sambhu@Rashmi Ranjan Patsashani, Kalu Naik, Kirti Ranjan Jena, Kabula Behera, Jugal Jiban Patsashani and many other witnesses that the petitioner along with the co-accused persons had come to the spot by forming unlawful assembly and during protest, co-accused Jaya Barik fired from the pistol, but it did not hit the deceased Dilip Naik, but the petitioner took away the pistol from co-accused Jaya Barik and fired bullet which pierced to the body of deceased Dilip Naik and he fell down there. After that incident the accused persons including the petitioner fled away and then the witnesses present there took the deceased to Capital hospital, where the doctor declared him dead. The post-mortem examination report also supported the cause of death is due to injury by fire arm. 12. The materials on record show that the petitioner has led the police to discover the pistol from his house after making necessary disclosure statement. The seizure list shows that the police has seized two cartridges from the spot and sent the same for examination by ballistic expert. From the report of the ballistic expert it appears that those two cartridges have been fired from one and same fire arm other than the pistol seized from the petitioner. It is too early to opine whether the petitioner has given discovery of the correct fire arm used in the case or not. But the doctor has made it clear that no bullet was found in the body of the deceased while making autopsy. So, the bullet available from the spot seems to have been fired from one and same fire arm, which supports the case of the prosecution. From all the materials, prima facie case against the petitioner cannot be ruled out. 13. So, the bullet available from the spot seems to have been fired from one and same fire arm, which supports the case of the prosecution. From all the materials, prima facie case against the petitioner cannot be ruled out. 13. Release of co-accused persons on bail cannot be a ground to release the petitioner on bail inasmuch as the petitioner was leading the unlawful assembly and he fired, whereas other co-accused persons are not considered on the same footing. It is well settled in law that submission of charge sheet is not a ground to take lenient view to grant bail. Even if the petitioner is in custody for more than one year, but due to heinous crime as prima facie found out, the incarceration for undergone period cannot be a ground to release him on bail. Moreover, it is settled in law that the long period of custody of the accused cannot be a ground to release him on bail, when he is involved with heinous offence. So, applying the ratio of the aforesaid decisions, it appears that it is not a fit case where this Court would take lenient view to release the petitioner on bail. 14. Considering the submissions of learned counsels for the respective parties and after going through the materials available on record as discussed herein above, the Court is of the view that for the larger interest of the society and public, petitioner deserves no consideration to grant bail. On the other hand, I am loath to grant bail and the bail petition being devoid of merit stands dismissed. Application dismissed.