P.Shyam Sundar Prusty vs State Of Odisha
2021 Latest Caselaw 10597 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   CRLA No.503 of 2019


            P.Shyam Sundar Prusty                    ....          Appellant
                                               Mr.Devashis Panda, Advocate

                                          -versus-

            State of Odisha                          ....       Respondent
                                     Mr.B.K.Ragada, Advocate for informant
                                               Mr.J.Katikia, AGA for State

                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE B. P. ROUTRAY

                                      ORDER

4.10.2021 Order No. I.A.No.1156 of 2019

17. B.P.Routray, J.

1. The sole Appellant, namely, P. Shyam Sundar Prusty has prayed to release him on bail under Section 389(1) of the Cr.P.C., He along with four others faced the trial for charges under Sections 302/34/109/120-B of the I.P.C. The learned Additional Sessions Judge convicted the Appellant for commission of offences under Sections 302/120-B of the I.P.C. as well as Section 302 read with Section 109 of the I.P.C. and sentenced the Appellant along with others to undergo imprisonment for life.

2. The deceased Tarun Kumar Acharya was a Journalist and worked for different news channels. The present Petitioner- Appellant is a businessman and having a cashew factory. Some

news items relating to employment of child labour in the said cashew factory was published in news newspapers and telecasted in different news channels on the report of the deceased. This caused enmity between the deceased and the present Petitioner. The present Petitioner along with others hatched conspiracy to eliminate the deceased. In the night between 27th and 28th May, 2014, the deceased was murdered by multiple stab wounds and cut wounds on his neck. The investigation was taken over by the CID & CB, Odisha. All the five accused persons including the present Petitioner were convicted and one remained absconded.

3. It is submitted on behalf of the Appellant that the evidence brought against him in course of trial are circumstantial in nature and the theory of conspiracy stated by different prosecution witnesses against him have not been established beyond all reasonable doubts. It is further submitted that two other Appellants, namely, [email protected] Naik and Suresh Sahoo in the accompanied appeals have been granted bail by this Court on 19th February, 2021 and 3rd August, 2021 respectively and the present Petitioner, who stands on similar footing, should also be released on bail. Learned counsel for the Appellant also relies on the decisions in Kashmira Singh vs State of Punjab, (1977) 4 SCC 291; Gudikanti Narasimhulu vs P.P., (1978) 1 SCC 240; Babu Singh vs State of U.P., (1978) 1 SCC 579; Akhtari Bi vs State of M.P., (2001) 4 SCC 355 and Surinder Singh vs State of Punjab (2005) 7 SCC 387 in support of his prayer for bail.

4. The prayer for bail of the Petitioner is seriously opposed by the State. Learned Additional Government Advocate submitted

that it is incorrect to say that this Appellant is standing on similar footing with those other two convicts who have been released on bail by this Court. It is further submitted that the present Petitioner is the principal accused in the commission of offences and the master-mind of the conspiracy. It is also submitted that there are circumstances brought against the Appellant in course of trial to form the chain complete pointing his guilt. The enmity of the Appellant with the deceased relating to publication of news item, threat to kill given by the Petitioner through his henchman, his remote presence at the spot and sharing of mind with other convicts have been well established by the prosecution. All such circumstances are so interlinked that hardly leave any doubt or gap to complete the chain against the Petitioner.

Apart from the above, four other criminal cases have been registered against the Appellant in Khalikote PS Case No 162 dated 13th August 2013, 198 dated 21st September 2014, 253 dated 07th November 2016 and 265 dated 17th November 2016, and there is every chance of his absconding in case of his release on bail.

5. Learned counsel for the Appellant stated in reply that, out of those four cases stated to be registered against the Petitioner, three of them were registered after the present occurrence, which are relating to giving threat to different witnesses at different point of time. Khalikote PS Case No 162 dated 13th August 2013 was though closed on 3rd May, 2014 as "no clue" but has been reopened after arrest of the Petitioner in the present case and charge-sheet has been submitted on 13th September, 2016.

Further, Khalikote PS Case No 198 dated 21st September 2014 has been ended in acquittal by judgment dated 18th May 2015.

6. The informant also appeared through Mr. Ragada, learned counsel who put forth his objection to the prayer of bail of the Petitioner. His main contention is that, there would be danger to the life of members of informant's family if the Petitioner were to be released on bail.

7. The Petitioner was arrested on 27th June, 2014 and since then he is inside custody.

8. In the case of Surinder Singh (supra), it has been held by the Supreme Court that,

"8. .. xx .. In this case, we are concerned with the case where a person has been found guilty of an offence punishable under Section 302 IPC and who has been sentenced to imprisonment for life. The Code of Criminal Procedure affords a right of appeal to such a convict. The difficulty arises when the appeal preferred by such a convict cannot be disposed of within a reasonable time. In Kashmira Singh Vs. State of Punjab this Court dealt with such a case. It is observed:-

"The practice not to release on bail a person who has been sentenced to life imprisonment was evolved in the High Courts and in this Court on the basis that once a person has been found guilty and sentenced to life imprisonment, he should not be let loose, so long as his conviction and sentence are not set aside, but the underlying postulate of this practice was that the appeal of such person should be disposed of within a measureable distance of time, so that if he is ultimately found to be innocent, he would not have to remain in

jail for an unduly long period. The rationale of this practice can have no application where the Court is not in a position to dispose of the appeal for five or six years. It would indeed be a travesty of justice to keep a person in jail for a period of five or six years for an offence which is ultimately found not to have been committed by him. Can the Court ever compensate him for his incarceration which is found to be unjustified?

Would it be just at all for the Court to tell a person: 'We have admitted your appeal because we think you have a prima facie case, but unfortunately we have no time to hear your appeal for quite a few years and, therefore, until we hear your appeal, you must remain in jail, even though you may be innocent?' What confidence would such administration of justice inspire in the mind of the public? It may quite conceivably happen, and it has in fact happened in a few cases in this Court, that a person may serve out his full term of imprisonment before his appeal is taken up for hearing. Would a judge not be overwhelmed with a feeling of contrition while acquitting such a person after hearing the appeal? Would it not be an affront to his sense of justice? Of what avail would the acquittal be to such a person who has already served out his term of imprisonment or at any rate a major part of it? It is, therefore, absolutely essential that the practice which this Court has been following in the past must be reconsidered and so long as this Court is not in a position to hear the appeal of an accused within a reasonable period of time, the Court should ordinarily, unless there are cogent grounds for acting otherwise, release the accused on bail in cases where special leave has been granted to the accused to appeal against his conviction and sentence".

10. Counsel for the parties submitted before us that though it has been so understood by Courts in Punjab, the

decision of the Punjab and Haryana High Court in Dharam Pal case only lays down guidelines and not any invariable rule. Unfortunately, the decision has been misunderstood by the Court in view of the manner in which the principles have been couched in the aforesaid judgment. After considering the various decisions of this Court and the difficulties faced by the Courts, the High Court in Dharam Pal case observed:-

"We, therefore, direct that life convicts, who have undergone at least five years of imprisonment of which at least three years should be after conviction, should be released on bail pending the hearing of their appeals should they make an application for this purpose. We are also of the opinion that the same principles ought to apply to those convicted by the Courts Martial and such prisoners should also be entitled to release after seeking a suspension of their sentences. We further direct that the period of five years would be reduced to four for females and minors, with at least two years imprisonment after conviction. We, however, clarify that these directions shall not be applicable in cases where the very grant of bail is forbidden by law."

12. We, therefore, hold that the High Court of Punjab and Haryana in Dharam Pal case laid down guidelines which ought to be kept in mind by Courts dealing with applications for grant of bail in a pending appeal. It does not lay down any hard-and-fast rule of universal application. As we have observed earlier, it would be futile to lay down any straitjacket formula in such matters." (emphasis supplied)

9. Here as seen from record, the prosecution case is based on circumstantial evidences and broadly those circumstances are that, visit of the deceased to the cashew factory of the Appellant and publication of news relating to child labour in Appellant's factory in print and electronic media, meeting of mind to hatch

the conspiracy of murder at different places including Kasturi Niwas, Barkul, giving discovery of weapon of offence i.e., the knife stained with blood by one of the co-accused, Call Detail Records of mobile phones of the appellant and other convicts, Tower location of SIM No.9937222543 of the appellant along with other SIM numbers of different convicts, receipt of threat calls in the mobile phone of the deceased, overhearing of the plan to eliminate the deceased by different witnesses and extra judicial confession of one of the co-accused (convict). 46 witnesses were examined by the prosecution in the course of trial and evidence of one witness was adduced by the defence. Numerous documents have also been marked as exhibits by the prosecution.

10. Grant of bail is not a matter of course and the discretion is to be exercised judiciously. For grant of post-conviction bail to a convict, one of the conditions is to be satisfied that, there are strong and compelling reasons for release of the appellant pending appeal. In the case of Preet Pal Singh v. State of U.P. (2020) 8 SCC 645, the release of a life convict (under section 304B) on bail pending appeal by the Allahabad High Court was under challenge. While setting aside the order of the high court, it is observed by the Supreme Court as follow;

"23. It is not for this Court to go into the merits of the appeal pending before the High Court. Suffice it to mention that prima facie the Sessions Court has proceeded on the basis of evidence and the Respondent No.2 has not been able to make out a case of any patent infirmity and/or illegality in the judgment and order of the Sessions Court.

25. Section 389 provides that, pending any appeal by a convicted person, the Appellate Court may, for

reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against, be suspended and, also, if he is in confinement, that he be released on bail. Of course, in view of the mandate of Section 389(3) of the CrPC, the principles are different in the case of sentence not exceeding three years and/or in the case of bailable offences. In this case, of course, none of the offences for which the Respondent No. 2 has been convicted are bailable. Moreover, Respondent No.2 has, inter alia, been given life imprisonment for offence under Section 304B of the IPC and imprisonment for five years for offence under Section 3 of the Dowry Prohibition Act.

26. As the discretion under Section 389(1) is to be exercised judicially, the Appellate Court is obliged to consider whether any cogent ground has been disclosed, giving rise to substantial doubts about the validity of the conviction and whether there is likelihood of unreasonable delay in disposal of the appeal, as held by this Court in Kashmira Singh v. State of Punjab and Babu Singh and Ors. v. State of U.P.

31. Even though detailed examination of the merits of the case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious manner and not as a matter of course as held by this Court in Chaman Lal v. State of U.P.[(2004) 7 SCC 525]

34. In Ajay Kumar Sharma[(2005) 7 SCC 507] a three- Judge Bench of this Court relied on Chaman Lal v. State of U.P. and set aside order of bail granted by the High Court holding, that it was well settled that even though detailed examination of the merits of the case may not be required by the courts while considering an application for bail, at the same time exercise of discretion has to be based on well settled principles and in a judicious manner and not as a matter of course.

35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P.[(2018) 3 SCC 22] However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the CrPC. "

11. In the instant case, upon a thorough perusal of the circumstances brought on record by the prosecution in course of trial and on consideration of the evidence as well as the fact of involvement of the Petitioner-Appellant in other criminal cases, this Court finds that no strong and compelling reasons exist for the release of the Petitioner on bail pending appeal at this stage. Accordingly, the prayer for bail is rejected.

12. The I.A. is dismissed.

13. Registry is directed to prepare the paper books and list the present appeal along with all connected appeals for hearing in the 2nd week of February, 2022.

14. Urgent certified copy of this order be issued as per Rules.

( B.P. Routray) Judge

(Dr. S. Muralidhar) Chief Justice

C.R. Biswal