Allowed

Subrat Mohanty v. State of Odisha

Orissa HC2 Aug 2019CRLA/228/2019

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and set aside the High Court Special Judge's order rejecting bail. The court held that while the crime was heinous, the appellant faced no specific overt acts of commission, similarly situated co-accused were released, and no material indicated a risk of absconding or witness tampering, necessitating the appellant's release on bail.

What did the court decide?

The impugned order of the Special Judge rejecting bail is set aside, and the Special Judge is directed to release the appellant on bail.

Subrat Mohanty Vs State of Odisha — Corruption | Orissa HC (2019)

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CRLA No.228 of 2019

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09. 02.08.2019

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This criminal appeal has been preferred against the order dated 05.03.2019 passed by the learned Sessions Judge, Kendrapara in G.R. Case No.1345 of 2017 rejecting the prayer for bail of the appellant, who has been indicted in Kendrapada Sadar P.S. Case No.320 of 2017 registered for alleged commission of offences punishable under Sections 498-A, 304-B, 302, 201/34 of I.P.C. read with Section 3(2)(v) of the S.C. & S.T. (PA) Act.

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2. Heard learned counsel for the appellant, learned counsel for the State, learned counsel for the father of the deceased and learned counsel for the first-husband of the deceased.

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3. On the consent of the parties, the case is taken up for disposal at the stage of admission.

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4. Admit.

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5. The allegation of the prosecution in this case is that the deceased was initially married to Prasant Mallick and through him begotten two children. However, Prasant Mallick deserted her and thereafter, her relationship developed with the brother-in-law of the appellant, namely, Prakash Rout while both of them were staying at Rourkela and as such, both of them got married in the temple. Three months thereafter, the deceased stated to have been allegedly tortured by her second husbandPrakash Rout and his family members for non-fulfillment of their illegal demand of dowry. The matter was also reported earlier in Kendrapara Sadar Police Station in this regard. Thereafter the victim was rescued by the police and kept in a Shortstay home. But, on the

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intervention of some gentries she came and stayed in the house of her second husband, namely, Prakash Rout and in-laws members. As the victim belonged to Scheduled Caste and also for non-compliance of illegal demand of dowry, allegedly there was nonacceptance of the deceased in her in-laws’ house and for that, she stated to have been tortured by her in-laws including her husband. The dead-body of the victim was found in a gunny bag on the road near the Chhaka of village Hindulia. It is alleged that, since the victim belongs to Scheduled Caste and also did not fulfill the illegal demand of dowry, her second husband, father-in-law, mother-in-law, unmarried sister-in-law and also the present appellant who happens to be the husband of the married sister-in-law of the deceased stated to have killed her and with an intention to screen them from legal punishment from the offence of murder, he along with the husband of the deceased made an attempt to disappear the dead-body of the deceased but could not succeed as they fell down from the scooter on their way in Hindulia Chhaka, they left the dead-body there on the road and fled away.

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6. Learned counsel appearing for the appellant submits that since in this case no direct evidence is available indicating the involvement of the appellant either in commission of the murder of the deceased or in disposal of the dead-body and all the evidences are hearsay in nature and similarly situated in-laws members have since been released on bail, the impugned order of

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the trial court rejecting the prayer for bail of the appellant cannot be sustained and as such, liable to be set aside so also, the appellant deserves to be released on bail.

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7. However, learned counsel appearing for the father of the deceased vehemently opposed such prayer advancing the submissions that the appellant had been to the house of the deceased on the date of occurrence and one of the persons though not named the appellant but had seen two persons carrying a body of the deceased in a scooter and when the same fell down, they fled away leaving the body there. The appellant had been to the house of her father-in-law with the scooter on the date of occurrence. Hence, circumstances exists against the appellant to indict him in the aforesaid case. The husband of the deceased is absconding. In his absence, it is difficult to ascertain the exact role played by the appellant and as such, the appellant being indicted in a heinous and serious offence, does not deserve to be released on bail, submits the learned counsel for the father of the deceased.

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8. However, learned counsel appearing for the first husband of the deceased submits that he has nothing to say since the deceased had already deserted him and only being noticed, he is appearing in this case and he is also not aware of the facts and circumstances in which the deceased died.

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9. Learned counsel for the State defended the order of the learned Special Judge impugned, advancing the

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submissions that the deceased died a homicidal death and the materials are available on record indicating the appellant disposing the dead-body along with his brotherin-law who happens to be the husband of the deceased and on the way, when the dead-body fell down from the scooter in which it was being carried to wipe out the evidence of murder, they left the dead-body and fled away. The husband of the deceased is yet to be arrested and the appellant having played an active role, does not deserve to be released on bail particularly, when the offence is of heinous and serious in nature prescribing capital punishment on conviction and the crime was committed against the deceased belonging to Scheduled Caste on caste consideration.

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10. No doubt, the aforesaid is a criminal appeal, but the same is directed against an order of refusal for bail. Therefore, the consideration of grant bail should weigh the mind of the Court while deciding this criminal appeal. The consideration of grant of bail as held by the Apex Court in the case of Gurcharan Singh and others vrs. State (Delhi Administration), reported in 1978 AIR 179, wherein it has been held as follows:-

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“xxxxx The over-riding considerations in granting bail are the nature and gravity of the circumstances in which the offence is committed, the position and the status of the accused with reference to victim and the witnesses, the likelihood of the accused fleeing from justice, of repeating the offence, of jeopardizing his own life being faced with a grim prospect of possible conviction in the case, of tampering with the witnesses, the history of the case as well as of its investigation and other relevant grounds which in view of so many

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variable factors, cannot be exhaustively setout.”

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11. Taking into the aforesaid law laid down and the contention advanced when the materials on record vis-àvis the contention advanced with regard to the sustainability of the impugned order is addressed, it appears to this Court that the appellant is the husband of the married sister-in-law of the deceased. No specific overt act is available against him with regard to the commission of the murder of the deceased in any manner. However, besides the presence of the appellant in the spot house when the deceased was done to death, the other role ascribed to him in helping in disposal of the deadbody by the husband of the deceased knowing well that an offence of murder has been committed to screen them from capital punishment, i.e., charge under Section 201 of I.P.C. which is bailable in nature and evidence in this regard is too slender and feeble. The other in-laws member who were also there in the spot house on the date of occurrence, have since been released on bail by the court is not in dispute. No doubt the crime is committed within the four corners of the walls of home and the appellant was present there in the home but the similarly situated other co-accused has already been released on bail.

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The appellant was taken to custody and for his custodial interrogation, the police have not taken him on remand. However, after his arrest no incriminating material has been collected against the appellant

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belonging besides the aforesaid. The only material is therefore, that the appellant was present in home on the date when the deceased was done to death as well and he was instrumental in disposal of the deadbody. The in-laws members who are similarly situated with the appellant to have been released on bail under Section 439 of Cr.P.C. by this Court vide BLAPL No.2221 of 2018 and the appellant is in custody for more than four months, Nothing is there on record indicating the fact that the appellant shall abscond and/or tampering with the prosecution evidence, if released on bail. No material is also there indicating the fact that his release shall have an adverse impact on a free and fair trial and he shall also abscond.

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12. Considering the aforesaid facts and submissions made, especially the nature of accusation, circumstances in which the deceased died and the appellant’s indictment, so also the fact that similarly situated coaccused persons have already been released on bail besides the fact that least is the chance of the appellant’s absconding and/or tampering with the prosecution evidence, if released on bail, I am of the view that the appellant appears to have made out a case for his release on bail.

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13. Accordingly, the Criminal Appeal is allowed and the impugned order dated 05.03.2019 passed by the learned Special Judge, Kendrapara in G.R. Case No1345 of 2017 is set aside and the Special Judge in seisin over the matter is directed to release the appellant on bail in

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the aforesaid case on such terms and conditions as the said court may deem it just and proper.

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14. With the aforesaid order, the CRLA stands disposed of being allowed.

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Urgent certified copy of this order be granted on proper application.

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………………….. S.Pujahari, J.

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RKS