Santoshini Mohapatra vs State Of Odisha And Others
2022 Latest Caselaw 5308 Ori

                        IN THE HIGH COURT OF ORISSA AT CUTTACK

                                      CRLMA No.10 of 2021

                 Santoshini Mohapatra                    ....        Petitioner
                                                   Mr.M.R.Mohapatra, Advocate

                                              -versus-

                 State of Odisha and others               ....    Opposite Parties
                                                               Mr.K.K.Das, ASC

                            CORAM:
                            JUSTICE B. P. ROUTRAY
                                          ORDER

10.10.2022 Order No.

8. 1. The Petitioner prays for cancellation of bail under Section 439(2) of the Cr.P.C granted to Opposite Party No.2 Niranjan Behera @ Subash Behera and Opposite Party No.3 Jisu Swain @ Bisu Swain as per order dated 06.08.2020 of this Court in BLAPL No.980 of 2020 in connection with G.R. Case No. 220 of 2019 arising out of Fategarh P.S Case No.177 of 2019 pending in the court of learned J.M.F.C., Bhapur for alleged commission of offences under Sections 341/323/324/326/307/506/34 of the IPC and Sections 25/27 of the Arms Act.

2. It is submitted on behalf of the Petitioner that, Opposite Parties No. 2 and 3 have violated the terms and conditions of the bail order granted by this Court. Opposite Party No.2 has also been involved in several cases after being released on bail vide Fategarh P.S Case No.164 of 2020 dated 19.09.2020, Badambadi P.S Case No.249 of 2020 dated 24.11.2020 and Fategarh P.S Case No.141 of

2021 dated 06.08.2021. It is also submitted that Opposite Party No.2 is not appearing before the I.O. weekly, for which the I.O. has prayed before the JMFC, Bhapur for cancellation of bail.

3. The law on cancellation of bail is no more res integra. In the case of Deepak Yadav v. State of U.P and Another, 2022 SCC OnLine SC 672, the Supreme Court have laid down grounds upon which bail can be cancelled under Section 439(2) of the Cr.P.C. The relevant part of the judgment is as follows:-

"30. This Court has reiterated in several instances that bail once granted, should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. Having said that, in case of cancellation of bail, very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail (which was already granted). A two Judge bench of this Court in Dolat Ram v. State of Haryana [(1995) 1 SCC 349] laid down the grounds for cancellation of bail which are :-

i. Interference or attempt to interfere with the due course of administration of justice. ii. Evasion or the attempt to evade the due course of justice iii. Abuse of the concession granted to the accused in any manner iv. Possibility of accused absconding v. Likelihood of/actual misuse of bail vi. Likelihood of the accused tampering with the evidence or threatening witnesses"

4. The Supreme again in the case of Kanwar Singh Meena v.

State of Rajasthan and Another reported in (2012) 12 SCC 180 has held that,

"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Session regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling the bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel the bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant

materials, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this Court are much wider, this Court is equally guided by the above principles in the matter of grant or cancellation of bail."

5. The FIR registered by the Petitioner shows that Opposite Party No.2, along with three others consequent upon being released on bail, have allegedly threatened the informant and her family members with dire consequences. The investigating officer supports such allegation.

6. Neither Opposite Party No.2 nor Opposite Party No.3 appeared before this court despite service of notice on them.

7. The Inspector of Police, Fategarh Police Station, Nayagada was directed by order of this Court dated 26.07.2022 to submit his response. He filed his response in the form of affidavit dated 23.08.2022. Perusal of the same reveals the position has been reaffirmed that Opposite Party Nos.2 and 3 have violated the terms

and conditions of the bail order granted by this Court. It is also submitted that Opposite Party No.2 is involved in many cases after having been released on bail and has also failed to appear weekly before the I.O in clear violation of the terms and conditions upon which bail was granted to him.

8. This being the position, the circumstances are overwhelming against the Opposite Parties to justify cancellation of the liberty extended in their favour. Bail is a restricted and conditional liberty granted to the accused in a criminal case and he should not be allowed to misuse the same. In the instant case, the allegations of the informant and lodging of police case by her for the threat posed by the Opposite Parties after being released on bail is a serious matter concerned. The affidavit of the Inspector of Police also suggests that the Opposite Parties are very comfortably engaged in committing many more offences after their release on bail where they furnished the bond with conditions not to dissuade any witness of the case directly or indirectly either by way of inducement, threat or promise, and not to be involved in any other offence. Therefore, it is clear that the Opposite Parties have not only violated the conditions of bail and posed threat to the informant to abuse the process of law, but also misused the liberty granted to them.

9. Accordingly, the bail granted in favour of Opposite Party No. 2 and 3, namely - Niranjan Behera @ Subash Behera and Jisu Swain @ Bisu Swain, by order dated 06.08.2020 in BLAPL No.980 of 2020 is cancelled. The learned Magistrate or the Court in seisin over the matter is directed to arrest both Opposite Party No.2 and 3 and

commit them to custody without delay in connection with G.R. Case No. 220 of 2019 arising out of Fategarh P.S Case No.177 of 2019. The learned trial Court is further directed to complete the trial as expeditiously as possible and the prosecution is to cooperate in the same.

10. A copy of the order be communicated to the learned J.M.F.C., Bhapur.

11. The CRLMA is accordingly allowed.

( B.P. Routray) Judge

C.R.Biswal/Secy.