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2018 DIGILAW 400 (ORI)

Mrinal Mallick v. State of Odisha

2018-04-11

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. 1. Heard Mr. Himansu Sekhar Mishra, learned counsel appearing for the petitioner and Mr. Prem Kumar Patnaik, learned Addl.Govt. Advocate appearing for the State. 2. This is an application under section 438 of Cr.P.C. for grant of anticipatory bail to the petitioner in connection with Rourkela Plantsite P.S. Case No.259 of 2015 corresponding to G.R. Case No. 2091 of 2015 pending before the Court of learned S.D.J.M., Panposh for alleged commission of offences under sections 498-A and 306 of the Indian Penal Code. 3. Learned counsel for the petitioner submitted that the petitioner has been charge sheeted under sections 498-A/306 of the Indian Penal Code. The marriage of the petitioner with the deceased Puja Mallick was solemnized on 02.08.2010 and they were blessed with a son and a daughter. On 07.09.2015 the deceased committed suicide due to matrimonial dispute by pouring kerosene on her body bolting the door of a room from inside in her father’s house. It is contended that the petitioner was residing separately from the deceased at the time of occurrence on account of their dissension and there is no clinching material to show that the petitioner abetted the commission of suicide of the deceased and therefore, the bail application may be favourably considered. 4. Learned counsel for the State on the other hand submitted that the petitioner approached this Court earlier for anticipatory bail in ABLAPL No. 2576 of 2016 and vide order dated 11.04.2016, the anticipatory bail application was dismissed as withdrawn and he was directed to surrender before the learned S.D.J.M., Panposh within three weeks and to move for bail. It is further contended that without moving an application for bail in the Court below in compliance of the order of this Court, the petitioner has approached this Court again and therefore, in absence of any change in the circumstances, the bail application should not reconsidered. He placed the statement of Jaganath Dey, the father of the deceased, statement of Santosh Behera, a distant relation of the deceased and also the statements of Mahesh @ Mahadev Sutar and Thakur Bholasankar Srichandal. 5. There is no dispute that this is second anticipatory bail of the petitioner. Let me discuss the scope of entertaining the second anticipatory bail application. 6. 5. There is no dispute that this is second anticipatory bail of the petitioner. Let me discuss the scope of entertaining the second anticipatory bail application. 6. Law is well settled that the second or subsequent bail application under section 438 of Cr.P.C. can be filed if there is a change in the fact situation or in the law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further development, different considerations, some more details, new documents or illness of the accused. [Ref: Ganesh Raj -Vrs-State of Rajasthan reported in 2005 Criminal Law Journal 2086 (Full Bench)] 7. In case of Sudip Sen -Vrs.-The State of West Bengal reported in 2010 Criminal Law Journal 4628, a five –Judge Bench of Calcutta High Court held that a person will not be entitled to move the High Court or the Court of Session, as the case may be, for the second time. He can do so only on the ground of substantial change in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the Court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court. 8. In case of Bhimal Ram –Vrs.-State of Jharkhand through C.B.I. passed in A.B.A. No. 565 of 2009 (disposed of on 25.08.2009), a Division Bench of Jharkhand High Court held that successive or subsequent bail application or anticipatory bail application on the same very ground on which it was earlier rejected on merit by a co-ordinate bench cannot be entertained. Unless it is shown that there is a substantial change in the facts situation or in the law which requires earlier view being interfered with, or where the earlier finding become obsolete. Change in the fact situation, would never mean any new or additional ground, which was earlier available to the accused but that was not taken on the earlier occasion. Change in the fact situation, would never mean any new or additional ground, which was earlier available to the accused but that was not taken on the earlier occasion. Of course when another co-accused of that very case, whose case is similarly situated with identical allegations, has been granted bail or anticipatory bail then in that case, it can be considered to be a change in the fact and on that ground the second application for bail/anticipatory bail can be entertained but in that case also, the question of grant or refusal of the prayer would certainly rest with the Judge exercising judicial discretion on consideration of the facts and circumstances of the case being dealt with by him and on nature of crime, circumstances under which it committed etc. In the case of Maya Rani Guin –Vrs.-State of West Bengal reported in 2003 Criminal Law Journal 1, a full Bench of Calcutta High Court held that entertaining a second application for anticipatory bail would amount to review or reconsideration of the earlier order passed by a Bench having coordinate jurisdiction as the accusation remains unchanged. The ‘accusation’ being the sine qua non and which remains the same, there cannot be any revival of “reasons to believe” or apprehension of arrest which was considered by Court in the earlier application for anticipatory bail. The earlier anticipatory bail application of the petitioner was dismissed as withdrawn on 11.04.2016 in ABLAPL No. 2576 of 2016 and the petitioner while withdrawing the application sought for liberty to surrender and move for bail before the Court below and accordingly liberty was given to him to surrender within a period of three weeks before the learned S.D.J.M., Panposh and to move for bail in the first hour and in the event of his rejection of the bail application, to move for bail before the higher forum in the second half of the day. Admittedly, the petitioner has not complied with such order. Charge sheet was submitted on 30.06.2016. The earlier withdrawal of the anticipatory bail application presupposes that the petitioner was sure that he would not get bail on merit or the concerned Judge was not inclined to grant bail on merit for which the learned counsel withdrew the application. On perusal of the statements of the witnesses, it appears that the petitioner tortured the deceased both physically and mentally and demanded cash of Rs. On perusal of the statements of the witnesses, it appears that the petitioner tortured the deceased both physically and mentally and demanded cash of Rs. 40,000/-(rupees forty thousand) for purchase of motorcycle. The deceased could not tolerate the torture for which she came to her father’s place and stayed there with her daughter. She was not allowed by the petitioner to enter into his house and to meet her son. No doubt the statements indicate that at the time of occurrence, the deceased was staying at her father’s place but the materials on record indicate that it was due to continuous torture of the petitioner that she was remaining depressed and for that reason she committed suicide by bolting the door of a room from inside after pouring kerosene on her body. The post mortem report indicates that the cause of death was due to shock following ante mortem burn injuries of 95 to 97 %. Therefore, when prima facie materials are available on record against the petitioner for commission of offences under which charge sheet has been submitted and when the first anticipatory bail application was withdrawn and accordingly dismissed and the petitioner has not complied with the earlier order passed by this Court on 11.04.2006 in ABLAPL No. 2576 of 2016 and there is no substantial change in the facts and circumstances of the case except the submission of charge sheet after disposal of the first anticipatory bail application, I am not inclined to reconsider the prayer for anticipatory bail application. Accordingly, the anticipatory bail application stands dismissed.