Basanta Panda vs State Of Odisha
2021 Latest Caselaw 8046 Ori

                   IN THE HIGH COURT OF ORISSA, CUTTACK

                            BLAPL No. 8126 of 2020

        Application under section 439 of the Code of Criminal Procedure,
        1973 in connection with S.T. Case No. 21 of 2020 pending in the
        Court of Sessions Judge, Sambalpur.
                                -----------------------------

            Basanta Panda                  .......                      Petitioner


                                        -Versus-

            State of Odisha                .......                      Opp. Party


                 For Petitioner:              -            Mr. Devashis Panda


                 For Opp. Party:              -            Mr. Purna Chandra Das
                                                           Addl. Standing Counsel

                 For Informant:               -            Mr. S.S. Das
                                                           Senior Advocate
                                -----------------------------

        P R E S E N T:


                  THE HONOURABLE MR. JUSTICE S. K. SAHOO

.......................................................................................................................... Date of Hearing: 23.07.2021 Date of Order: 02.08.2021 ..................................................................................................................................

S.K. SAHOO, J. The petitioner Basanta Panda has filed this

application under section 439 of Cr.P.C. in connection with S.T.

Case No.21 of 2020 pending in the Court of learned Sessions

Judge, Sambalpur which arises out of Sambalpur Town P.S. Case // 2 //

No.289 of 2019 in which charge sheet has been submitted under

sections 364, 302, 201 of the Indian Penal Code. The petitioner

moved an application for bail in the trial Court which was

rejected vide order dated 12.10.2020.

The first bail application of the petitioner was

rejected by this Court in BLAPL No.365 of 2020 vide order dated

03.08.2020 taking into account the manner in which the

occurrence has taken place, the extra judicial confession by the

petitioner before the labourer, the surrounding circumstances in

which the offence was committed and the nature and gravity of

the accusation against the petitioner.

2. The first information report was lodged by one

Bijayani Mishra, the daughter of Jayashree Mishra (hereafter 'the

deceased') before the Inspector in-charge, Town police station,

Sambalpur on 21.07.2019 wherein it is stated that the deceased

was found missing from her house for which on the report of the

informant, Sambalpur Town P.S. SDE No.365 dated 14.10.2011

and MMR No.25 of 2011 were registered. The informant came to

know from the locality that petitioner had kidnapped her mother,

committed her murder and concealed the dead body somewhere.

The local people were also aware about the incident but out of

fear, they did not disclose the matter. She received phone calls

// 3 //

about the fact from the local people that the petitioner was not

staying in the village since the date of occurrence. It is further

stated that the family members of the petitioner were also

involved in the kidnapping of her mother. Taking the advantage

of death of the father of the informant and since there was no

male member in the family to look after them, the petitioner

used to borrow money and jewellery from the deceased from

time to time.

Basing on such written report, Sambalpur Town P.S.

Case No.289 dated 21.07.2019 was registered under sections

364/302/201 of the Indian Penal Code against petitioner.

3. During course of investigation, S.I. of police Sri R.K.

Biswal, the Investigating Officer examined the informant Bijayini

Mishra, her brother Bhabani Shankar Mishra and others and

recorded their statements and finding prima facie materials

against the petitioner, the I.O. arrested the petitioner on

22.07.2019 and during interrogation, the petitioner confessed his

guilt and disclosed that he strangulated the neck of deceased by

means of a towel and killed her brutally and buried her dead

body at Mahulmunda side and after the occurrence, he left the

village and resided at Jharsuguda area for three years and then

he was residing at Jujomura since one year. The I.O. sent a

// 4 //

requisition to S.D.M., Sambalpur to depute an Executive

Magistrate to disinter the dead body of the deceased from the

spot. He also made a requisition to the Scientific Officer, DFSL,

Sambalpur to assist in the collection of physical evidence with

videographer. As per version of petitioner, the I.O. proceeded to

village Badsinghari, Mahulmunda along with Executive

Magistrate, scientific team and witnesses and searched for the

dead body of deceased at all the possible places as per

statement of the petitioner but found no result. As prima facie

evidence was found for commission of offences under sections

364/302/201/120-B of the Indian Penal Code against the

petitioner, the I.O. arrested him and forwarded him to Court on

22.07.2019. The wearing apparels of the petitioner were seized

and he was taken on police remand as per the orders of the

Court and during police remand, the petitioner further led the

police team, Scientific team, Executive Magistrate and witnesses

to Badasinghari, Mahulmunda where the petitioner had

concealed the dead body of the deceased. During unearthing of

the place, some bone parts suspected to be the bone parts of the

deceased were recovered which was captured by videography.

Those bone parts were collected and sealed in presence of the

Executive Magistrate and witnesses. The I.O. seized the exhibits

// 5 //

on production by the Scientific Officer, DFSL, Sambalpur in

presence of Executive Magistrate and witnesses and seizure list

was prepared and the petitioner was forwarded to judicial

custody after his medical examination. Subsequently, Sri R.C.

Dora, IIC of Town P.S., Sambalpur took charge of investigation

from Sri R.K. Biswal, re-examined the informant and other

witnesses and recorded their statements, re-visited the spot in

presence of the informant and other witnesses and made a

prayer to the ADMO, Medical, DHH, Sambalpur to collect the

blood sample of the informant for DNA profiling as per the order

of the learned S.D.J.M., Sambalpur. As per the requisition to the

ADMO, DHH and order of the learned SDJM, Sambalpur, the

blood sample of the informant was collected and the same was

sent to SFSL, BBSR for DNA profiling. The I.O. received the DNA

examination report from SFSL, Rasulgarh, BBSR in which it was

opined that the DNA conducted on the exhibits could not be

generated as the required quantity of DNA could not be

extracted and therefore, the comparison with other exhibits was

not possible and hence, the opinion was inconclusive. The report

from Dept. of Forensic Medicine and Toxicology, VIMSAR, Burla

was received, in which it was opined that the skeletal remains

examined appears to be human in origin, age of the examined

// 6 //

occipital bone was less than sixty years, the individuality of the

skeletal remains could not be determined from the available

contents and time since death was more than one year at the

time of examination. During further investigation, the I.O.

received some reliable information that, the marriage between

Dinesh Pandey and Purnima Mishra who is eldest sister of

informant Bijayini Mishra was held on 23.06.2011 and deceased

was found missing since 09.06.2011. The I.O. sent the exhibits

to the Director, CDFD, Hyderabad for DNA profiling and for

chemical examination and opinion, which could not be received

till submission of chargesheet. The case was supervised by Dr.

Kanwar Visal Singh, Superintendent of Police, Sambalpur and

ultimately charge sheet was submitted on 16.11.2019 against

the petitioner under sections 364, 302 and 201 of the Indian

Penal Code. Subsequently DNA profiling report was received

from the Director, CDFD, Hyderabad in the Court of learned

S.D.J.M., Sambalpur on 20.02.2020 which indicated that the

sources of exhibit A (occipital bone and broken parts of cervical

vertebrae with soil remnants) and exhibit B (parietal bone

fragment) did not yield any DNA profiles and therefore, no

opinion could be furnished.

// 7 //

4. Mr. Devashis Panda, learned counsel appearing for

the petitioner contended that the petitioner who is aged about

sixty years is in judicial custody since 22.07.2019 and the case is

based on circumstantial evidence and there is no clinching

material available on record against the petitioner. The

occurrence in question stated to have taken place in the year

2011 and the first information report was lodged only on

21.07.2019. He argued that the date of missing of the deceased

as per the statement of the informant is also discrepant. After

the petitioner was taken into custody, he stated to have led the

police to a place to show where he buried the dead body but

nothing was found and again he was taken on police remand and

gave his statement, on the basis of such statement, some bone

fragments were recovered by digging the earth. He further

argued that DNA profiling report which was received from the

Director, CDFD, Hyderabad in the Court of learned S.D.J.M.,

Sambalpur on 20.02.2020, which is a very vital document was

not placed at the time of rejection of the earlier bail application

by this Court. According to Mr. Panda, since the DNA profiling

report indicated that the occipital bone and broken parts of

cervical vertebrae with soil remnants and parietal bone fragment

did not yield any DNA profiles for which no opinion could be

// 8 //

furnished, it cannot be said the bones recovered by digging out

the earth were that of the deceased and as such the place of

burial of the dead body as per the statement of witness

Chaitanya Kunar @ Manu is not acceptable. The so-called

extrajudicial confession of the petitioner is a concocted version to

falsely entangle the petitioner in the alleged crime. He further

placed reliance in the case of Babu Singh -Vrs.- State of Uttar

Pradesh reported in A.I.R. 1978 S.C. 527 and contended that

even in the absence of any change in the circumstances, since

the important document like DNA profiling report was not placed

and it was not considered while rejecting the earlier bail

application, the same can be considered to take a different view

as the refusing bail is an interim adjudication. It is further

argued that trial has not yet commenced even though the

petitioner is in custody for two years and in view of the delayed

trial, the bail application of the petitioner may be favourably

reconsidered.

Mr. Purna Chandra Das, learned Addl. Standing

Counsel appearing for the State on the other hand opposed the

prayer for bail and placed the statement of one Chaitanya Kunar

@ Manu to show that how he was asked to dig the soil which

according to the prosecution case was the place utilized for

// 9 //

burying the dead body. He further submitted that the murder

was committed in a very pre-planned and calculated manner and

the circumstantial evidence is very clinching and even though

the DNA profiling report of occipital bone and broken parts of

cervical vertebrae with soil remnants and parietal bone fragment

did not yield any result but in view of the available materials on

record, the complicity of the petitioner in the crime is clearly

borne out and when the earlier bail application was rejected on

merit on 03.08.2020 and the petitioner moved for bail in the trial

Court on 28.09.2020, which came to be rejected on 12.10.2020,

in absence of any change in the circumstances, the bail

application of the petitioner should be rejected.

Mr. S.S. Das, learned Senior Advocate for the

informant also vehemently opposed the prayer for bail and

contended that there was motive behind the commission of

crime, the petitioner was last seen in the company of the

deceased, the petitioner made extra judicial confession before

the labourer whose services were utilised for digging the soil for

burying the dead body. The petitioner kept his identity secret

after the occurrence. The statements of witnesses namely Dr.

Birendra Kumar and Geeta Mohanty indicate that the petitioner

employed himself as a cook in DIET-ITC Sunarimund in the name

// 10 //

of Bibhuti Panda from the year 2011 to 2015 and those

witnesses could came to know about the correct identity of the

petitioner when his photograph was telecasted in electronic

media. It is argued that once the petitioner is released on bail,

he is likely to tamper with the evidence and the trial is yet to

commence and therefore, till all the material witnesses are

examined in the trial Court, the petitioner may not be released

on bail. He placed reliance in the cases of Kalyan Chandra

Sarkar -Vrs.- Rajesh Ranjan reported in A.I.R. 2004 S.C.

1866 and Jogia @ Jogendra Jena -Vrs.- State of Odisha

reported in 2018(1) Cuttack Law Times Crl (Supp) 781.

5. Adverting to the contentions raised by the learned

counsel for the respective parties, it is the admitted position that

there is no change in the circumstance after the rejection of the

earlier bail application by this Court on 03.08.2020 in BLAPL

No.365 of 2020, except the fact that the case has been

committed to the Court of Session and the petitioner is detained

a further period of one year. The learned counsel for the

petitioner contended on 23.04.2021 that even though there is no

change in the circumstances but since some important materials

could not be placed before this Court at the time of hearing of

the earlier bail application, in this successive bail application,

// 11 //

those materials can be considered and he also took time to place

certain citations in that respect and accordingly, Mr. Panda relied

upon the case of Babu Singh (supra). In the said decision, the

Hon'ble Supreme Court has held that at an earlier stage, the

application for bail of the petitioners was rejected by the Court

on 7th September 1977, but an order refusing application for bail

does not necessarily preclude another, on a later occasion, giving

more materials, further development and different consideration.

It is further held that an interim direction is not a conclusive

adjudication, and updated reconsideration is not over-turning an

earlier negation. The judgment cited does not answer the point

raised by the learned counsel for of the petitioner on 23.04.2021

rather it clearly indicates about further development and giving

of more materials can be a ground for reconsideration.

The question comes up for consideration is whether

successive bail application can be entertained and a different

view can be taken on the already existing materials when the

earlier bail application was rejected on merit, merely because

some documents/statements available in the case record were

not taken into account.

In the case of Kalyan Chandra Sarkar (supra),

Hon'ble Supreme Court held as follows:

// 12 //

"Before concluding, we must note though an accused has a right to make successive applications for grant of bail, the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications."

In the case of Jogia @ Jogendra Jena, I have held

as follows:

"Successive bail applications are maintainable but there has to be material change in the fact situation and not mere cosmetic change.

Successive bail applications on the same grounds which were available to the accused at the time of consideration of the earlier bail application would not be maintainable. Neither a ground that the earlier bail application was not properly placed by the previously engaged counsel can be entertained."

Thus it is the settled position of law that successive

bail applications are permissible under the changed

circumstances. The change of circumstances must be substantial

one which has a direct impact on the earlier decision and not

merely cosmetic changes which are of little or no consequence.

// 13 //

Without the change in the circumstances, the subsequent bail

application would be deemed to be seeking review of the earlier

rejection order which is not permissible under criminal law. While

entertaining such subsequent bail applications, the Court has a

duty to consider the reasons and grounds on which the earlier

bail application was rejected and what are the fresh grounds

which persuade it warranting the evaluation and consideration of

the bail application afresh and to take a view different from the

one taken in the earlier application. There must be change in the

fact situation or in law which requires the earlier view being

interfered with or where the earlier finding has become obsolete.

This is the limited area in which the application for bail of an

accused that has been rejected earlier can be reconsidered. If a

bail application is rejected considering some grounds urged by

the counsel for the accused and on the self same materials and

without any change in the circumstances, the successive bail

application is moved taking some other grounds and the Court is

asked to reconsider the prayer of bail, it would be an endless

exercise for the Court and entertaining such application would be

a sheer wastage of valuable time of the Court.

On the earlier occasion, taking note of statement of

Chaitanya Kuanr and that the murder was committed in a

// 14 //

calculated manner, the incident being planned and chalked out,

the motive behind the commission of crime and the last seen of

the petitioner in the company of the deceased, the bail was

rejected.

While moving the present bail application, the fresh

ground which was urged by the learned counsel for the petitioner

was the non-placement of DNA profiling report on the earlier

occasion and to consider the same and its effect. Since the DNA

profiling report received from the Director, CDFD, Hyderabad

indicates that the sources of exhibit A (occipital bone and broken

parts of cervical vertebrae with soil remnants) and exhibit B

(parietal bone fragment) did not yield any DNA profiles and no

opinion could be furnished, it neither helps the prosecution nor

the accused. The other grounds are just repetitions which were

earlier urged in the previous bail application.

The 161 and 164 Cr.P.C. statements of Chaitnaya

Kuanr Amit Swain, Sanjib Panda are very relevant to prima facie

show the involvement of the petitioner in the commission of

crime. The statements of Dr. Birendra Kuma Padhi and Geeta

Mohanty prima facie indicate as to how the petitioner by

changing his name as Bibhuti Panda, was employed as a cook in

their institution i.e. DIET- ITC, Sunarimanda from November

// 15 //

2011 to June 2015. The motive behind the commission of

offence is prima facie apparent from the statements of the

informant Bijayini Mishra, Purnima Mishra, Bhabani Shankar

Mishra, Prasant Kumar Hota and Laxmi Priya Mishra to the

extent that the petitioner had taken cash of Rs.1,60,000/- and

gold ornaments from the deceased but when the deceased asked

him to refund the same because of its necessity in the marriage

of the elder daughter, he did not refund.

Detailed discussion of the evidence and elaborate

documentation on the merits of the case is to be avoided while

considering an application for bail. No party should have the

impression that his case has been pre-judged. Existence of a

prima facie case is only to be considered. Where the offence is of

serious nature, the question of grant of bail has to be decided

mainly keeping in view the nature and gravity of the accusation,

character of the evidence, chance of absconding of the accused,

chance of tampering with the evidence and also the larger

interest of the public.

6. In view of the foregoing discussions, this bail

application, being a successive one moved within two months of

the rejection of the earlier bail application before the learned trial

Court without any changed circumstances and after its rejection,

// 16 //

the petitioner has rushed to this Court again, I am not inclined to

release the petitioner on bail.

The learned trial Court shall do well to expedite the

trial and take necessary steps for examination of material

witnesses. The petitioner is at liberty to renew the prayer for bail

after examination of such witnesses.

It is made clear that observations made in this order

for rejecting the prayer for bail will not be treated as expression

of any opinion on merits of the case and the learned trial Court

shall decide the case without being influenced by any such

observations.

In the result, the application for bail stands rejected.

A copy of this order be sent down to the learned trial

Court forthwith for information and necessary action.

..............................

S.K. Sahoo, J.

Orissa High Court, Cuttack The 2nd August 2021/Pravakar