Dismissed

Susha@Sushanta Dhala v. State of Orissa

Orissa HC7 Apr 2017BLAPL/1352/2017

Case brief

AI extract

What is this about?

In a bail application under Section 439 CrPC, the High Court refused to grant bail based on the parity argument used for a co-accused. The court held that parity cannot be the sole ground for bail, especially in grievous offences where the accused faces life imprisonment and the victim suffered permanent 100% disability. The application was dismissed.

What did the court decide?

The bail application BLAPL No. 1352 of 2017 was dismissed; the petitioner is directed to approach the Trial Court post-medical examination of the injured.

Susha@Sushanta Dhala Vs State of Orissa — Bail and Remand | Orissa HC (2017)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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BLAPL NO. 1352 Of 2017

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An application under section 439 of the Code of Criminal Procedure, 1973.

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------------------------- Susha @ Sushanta Dhal…..… -Versus-	--- Petitioner
State of Orissa……...	Opp. Party
For Petitioner: -	Mr. Anirudha Das A. Das, S. K. Rout P. Rout
For Opp. party: -	Mr. Arupananda Das Addl. Govt. Advocate
For Informant: - ------------------------ P R E S E N T:	Mr. Gagan Bihari Singh A.N. Samantaray ----

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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……………………………………………………………………….................. Date of Hearing and Order: 07.04.2017

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S. K. SAHOO, J . Mr. Gagan Bihari Singh, learned counsel entered

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appearance on behalf of the informant by filing vakalatnama. The same is taken on record.

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Heard Mr. Anirudha Das, learned counsel for the petitioner, Mr. Arupananda Das, learned counsel for the State and Mr. Gagan Bihari Singh, learned counsel for the informant.

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This is an application under section 439 of Cr.P.C. for grant of bail to the petitioner Susha @ Sushanta Dhala in connection with G.R. Case No.1171 of 2016 arising out of Dhenkanal Sadar P.S. Case No.382 of 2016 pending in the Court of learned S.D.J.M., Dhenkanal for offences punishable under sections 341/294/326/307/34 of the Indian Penal Code.

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The petitioners moved an application for bail before the Court of learned Sessions Judge, Dhenkanal which was rejected on 02.02.2017.

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Learned counsel for the petitioner submits that the petitioner is in custody since 07.11.2016 and in the meantime, after completion of investigation, charge sheet has been submitted under sections 341/294/326/307/34 of the Indian Penal Code. He further submits that one of co-accused namely Beda @ Prasanta Dhala has already been released on bail by this Court in BLAPL No. 1388 of 2017 vide order dated 28.03.2017 and therefore, on the ground of the parity and equity, the bail application of the petitioner may be favourably considered. In support of such contention, learned counsel for the petitioner

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files the copy of the bail order which is taken on record. Learned counsel for the petitioner further submits that the wife of the petitioner filed a complaint petition against the injured Rajat Kumar Rout relating to commission of offence of rape and the complaint petition was forwarded to Dhenkanal Sadar Police Station and accordingly, Dhenkanal Sadar P.S. Case No.459 of 2016 was registered under sections 341/448/457/506/376 of the Indian Penal Code and sections 25/27 of the Arms Act. He filed the certified copy of the first information report which is taken on record. He further submits that taking into account the period of detention of the petitioner in judicial custody, the bail application of the petitioner may be favourably considered.

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Learned counsel for the informant on the other hand submitted that the occurrence has taken place in an extremely brutal, barbaric and inhuman manner and both the hands of the injured were chopped off by the accused persons. He filed the disability certificate of the injured which indicates that the disability is 100%.

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Learned counsel for the State while opposing the prayer for bail placed the statement of the injured which indicates as to how the petitioner and the co-accused chopped off both of his hands.

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On perusal of the bail order of co-accused Beda @ Prasanta Dhala passed in BLAPL No.1388 of 2017, it is seen that it has been granted mainly on the ground that the investigation has been completed and there was no further scope of custodial interrogation and there was no criminal antecedent against him and that he being a permanent resident of village Jhampuda, there was no apprehension of his absconding from justice.

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Law is well settled that while granted bail, the Court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witnesses being tampered with so also the larger interests of the public or State. Parity cannot be the sole ground for grant of bail and there is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another coaccused has been granted bail. 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 no cogent reasons or if the same has been passed in flagrant

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violation of well settled principle of law and the Judge ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis of claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. Merely because some of the co-accused against whom similar role has been ascribed, has been released on bail and the State has not moved before the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience.

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The injured Rajat Kumar Rout has stated that on 28.10.2016 at about 11.30 p.m. while the petitioner and others were attempting to steal fishes from the pond, he protested for which the accused persons lifted him from that place and took him inside the latrine and GI wire was pressed around his neck and both his hands were chopped off. Hearing his shout, the covillagers came there and then the injured was shifted to District Headquarters Hospital, Dhenkanal and then to S.C.B. Medical College and Hospital, Cuttack where he was asked to take admission in Aswini Hospital. The injury report indicates that there was absence of left forearm 2” below elbow and absence of

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right forearm 6” below the elbow apart from other injures and injuries were opined to be grievous in nature. The further report of the Sub-Inspector of Police, Bhapur outpost indicates that both the cut hands of the injured which were found near the spot were taken Aswini Hospital, Cuttack for rejoin but it was too late and the Medical Officer of Aswini Hospital refused for the operation and returned the cut hands.

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The materials on record indicates that not only there is prima facie accusation against the petitioner to have committed the ghastly crime along with the co-accused but also for no fault of the injured, he had lost both his hands and for the entire life, he has become 100% disabled.

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While granting bail to the co-accused, the nature and gravity of the accusation has not been considered so also the nature of evidence in support of such accusation. Laxity in granting bail in serious offences creates an adverse impact on the society and makes the society a paradise for the criminals. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. The punishment prescribed for the offences under which the petitioner has been charge sheeted extend to life imprisonment and therefore, even though the co-accused has been released on

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bail, in view of the nature and gravity of accusation against the petitioner, I am not inclined to exercise the discretion in favour of the petitioner on the ground of parity. The petitioner is at liberty to move the learned Trial Court for bail after the examination of the injured which shall be considered on its own merit.

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Accordingly, the BLAPL stands dismissed.

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Orissa High Court, Cuttack The 7^th April, 2017/ Sukanta

Susha@Sushanta Dhala v. State of Orissa

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Susha@Sushanta Dhala v. State of Orissa

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