Hasan @ Ashish Kumar Behura Vs State of Odisha

The Petitioners are seeking pre-arrest bail in connection with G.R. Case No. 489(A)/2019 pending on the file of learned J.M.F.C., Astaranga, Dist-Puri, arising out of Astaranga P.S. Case No. 82 of 2019 for commission of offences punishable under Sections 498-A/ 304-B/ 302/ 34 of IPC and R/w Section 4 of D.P. Act.

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It is submitted by the learned counsel for the Petitioners that the husband, father-in-law and mother-in-law of the deceased faced trial being cited as accused for commission of offence under Sections 498-A/ 304-B/ 302/ 34 of IPC and R/w Section 4 of D.P. Act.

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It is apt to note that though the Petitioners were charge sheeted, they were shown as not arrested.

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It is further submitted by the learned counsel for the Petitioners that the Petitioners were before this Court seeking pre-arrest bail in ABLAPL No.13643 of 2019 and the present Petitioners were Petitioner Nos.3 and 4 in that said case which was disposed of vide order dated 03.09.2021, granting leave to the Petitioners to surrender and seek bail.

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It is submitted by the learned counsel that for reasons beyond their control, the Petitioners could not avail such order.

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It is stated that in the interregnum the coaccused -husband (Bapi @ Ganesh Behura) and the father-in-law and mother-in-law, namely, Hadibandhu Behera and Kanchanabala Behura respectively faced trial in ST Case No.90 of 2022 in the Court of learned Additional Sessions Judge, Nimapara, Dist-Puri. And, by judgment dated 10.11.2023 while the learned Trial Court convicted the husband (Bapi @ Ganesh Behura), the father-in-law and mother-in-law were also acquitted.

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Referring to the same, it is submitted that subjecting the Petitioners to pre-trial incarceration is unwarranted.

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Learned counsel for the State opposes the prayer for pre-arrest bail and submits that the

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evidence so far as the co-accused is concerned, cannot be taken into account in respect of the accused, who has not been put to trial. There is no cavil about such proposition of law.

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But, at the same time, the nature of allegations qua the present Petitioners are also of relevance, more so, in the backdrop of the in-laws having been acquitted as noted.

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Considering the same, this Court is not inclined to entertain the application for pre-arrest bail. However, it is directed that the Petitioners may surrender before the learned J.M.F.C., Astaranga, Dist-Puri in connection with the aforementioned case within one month from today.

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In the event of their surrender and motion for bail, the same be considered by the learned J.M.F.C., Astaranga, Dist-Puri on merits, in the first hour of the day.

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In the event of rejection of the prayer for bail by the learned J.M.F.C., Astaranga, Dist-Puri, the Petitioners are at liberty to move the higher forum for bail in the second hour on the same day.

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On being so moved, the higher forum is requested to make an endeavor to dispose of the bail application of the Petitioners on the same day.

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The case diary shall be made available to the concerned courts to facilitate disposal of the bail application of the Petitioners and learned J.M.F.C.,

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Astaranga, Dist-Puri is called upon to transmit the case record to the higher forum in the second hour expeditiously in the event of rejection of the bail application by him.

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Ground of parity, if any, may be considered by the learned court(s) below.

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