Petitioner sought bail in a criminal trial regarding alleged abduction and gangrape attempt. Court granted bail noting completion of investigation and low flight risk, while directing lower court to consider framing charges under Section 376-D IPC instead of Section 376.
Petitioner released on bail in C.T. Case No.05/14/07 of 2019-20.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO.8168 OF 2019
Dillip Mahananda.
…. Petitioner -VersusState of Odisha. ….Opp.party
CORAM: HON’BLE SHRI JUSTICE S.PUJAHARI
O R D E R
05. 09.04.2021
This matter is taken up by Video Conferencing mode.
Learned counsel for the petitioner files a memo before this Court stating therein that now the case is pending before the learned Women’s Court, Bargarh vested with the power of Asst. Sessions Judge, vide C.T. Case No.05/14/07 of 2019-20. The same be kept on record.
The petitioner being in custody in C.T. Case No.05/14/07 of 2019-20, arising out of Attabira P.S. Case No.242 of 2018, pending in the court of the Women’s Court, Bargarh vested with the power of Asst. Sessions Judge, has filed this petition for his release on bail.
Heard learned counsel for the petitioner and learned counsel for the State.
The allegation of the prosecution reveals that the petitioner along with the co-accused persons has been indicted in a case of abducting the victim with a
2
purpose to rape her and made an attempt to gangrape, so also criminally intimidated her.
Regard being had to the facts and submissions made, especially the nature of accusation, character of incriminating materials appearing against the petitioner in support of the charge, circumstances in which the petitioner has been indicted, release of the similarly situated co-accused persons on bail by this Court vide orders passed in BLAPL Nos.5861 of 2019, 5888 of 2019 and 1389 of 2020 and factum of completion of investigation, coupled with the fact that hardly any material being there to suggest that the petitioner is likely to abscond and/or tamper with the prosecution evidence, if enlarged on bail, I am of the view that the petitioner in this case deserves to be released on bail.
Hence, the petitioner be released on bail in the aforesaid case by the Court in seisin over the matter on such terms and conditions as it would deem just and proper.
However, while parting with this case, I cannot refrain myself from observing the fact that though the allegation reveals an attempt to gang-rape punishable under Sections 376-D/511 of IPC, but charge-sheet has been filed under Sections 376/511 read with Section 34 of IPC. The learned Magistrate appears to have proceeding in a wrong premises also taken cognizance of the said offences. Therefore, this fact be brought to the notice of the learned Sessions Judge,
3
Bargarh to apprise the same to different cognizance taking Magistrates under his jurisdiction not to take cognizance of offences in a mechanical manner looking into the charge-sheet filed or frame charge, but to apply their judicial mind to the facts and circumstances of the case.
Accordingly, the BLAPL stands disposed of being allowed.
A copy of this order be communicated to the learned Sessions Judge, Bargarh.
As the restrictions due to the COVID-19 situation are continuing, learned counsel for the parties may utilize a soft copy of this order available in the High Court’s website or print out thereof at par with certified copy in the manner prescribed, vide Court’s Notice No.4587, dated 25th March, 2020.
…………………
S.Pujahari, J.
MRS
4
2 issues framed by the court
Whether the petitioner should be released on bail after the completion of investigation given the nature of the accusation and lack of flight risk.
Whether the charge-sheet framed in the lower court was based on the correct section of the Indian Penal Code.
2 provisions across 1 enactments
Dillip Mahananda
State of Odisha
S. Pujahari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
