Itishree Pati & Anr vs State Of Odisha
2022 Latest Caselaw 4634 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                              BLAPL No.1433 of 2022

            Itishree Pati & Anr.                ....          Petitioners
                                        Mr. Dharanidhar Nayak, Sr. Adv.
                                                            along with
                                           Mr. Biswaranjan Swain, Adv.

                                      -versus-
            State of Odisha                        ....      Opposite Party
                                                  Mr. G.R.Mohapatra, ASC


                     CORAM:
                     DR. JUSTICE S.K. PANIGRAHI
Order                                 ORDER
No.                                  13.09.2022
 8.
        1.

This matter is taken up through hybrid mode.

2. The Petitioners have been falsely implicated and are in

custody in connection with Tihidi P.S Case No. 74 of 2020

corresponding to S.T Case No.52 of 2020 pending before

the court of the Learned Sessions Judge, Bhadrak for

commission of offences punishable u/s 302/201/34 of IPC.

3. The prosecution story, in brief, has been summarised in

the following points:

i. On 05.03.2020, the complainant Sabita Sahu of village

Icchapur, PS-Tihidi, Dist-Bhadrak lodged a FIR at the

Tihidi Police Station alleging that her son Prasanna

Kumar Sahu has been missing since 25.01.2020.

// 2 //

ii. The Complainant suspected the involvement of the

Petitioners behind her son's ("deceased")

disappearance on the basis of some past disputes

even though the same had been amicably settled

between the parties.

iii. Upon further investigation, it was found that the

deceased was in an illicit relationship with Itishree

Pati ("accused"). The husband of the accused i.e.,

Debendra Pati came to know about the same and

asked the accused to accompany him to Kolkata. The

accused was tortured by her husband for above-

mentioned grounds and she intimated her difficulty

to her brother Sukdeb Padhi who conspired with the

petitioners to earth out a plan to murder the

deceased.

iv. On the evening of 24.01.2020, the accused ascertained

the whereabouts of the deceased through her brother

and also asked him to accompany the deceased to

the house of Debendra Pati. Thereafter, they

committed the murder of the deceased by

strangulating him by means of a nylon/plastic rope

and shifted the dead body of the deceased into a big

empty sack. The sack containing the dead body was

carried and disposed of at the Baisnab Gohiri Canal.

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4. It is submitted by the learned counsel for the Petitioners

that the Petitioners are no way connected to the present

case and they have been falsely implicated in the alleged

occurrence. It is contended that even though the name of

the Petitioners was not included in the FIR, their names

have been falsely implicated in the charge-sheet in absence

of any material.

5. It is further contended by the learned counsel for the

Petitioners that the Petitioners have no intention to tamper

with the evidence nor do they have any capacity to do so.

It is submitted that the Petitioners are the permanent

residents in their locality and that negates any chance of

absconding if they are granted bail.

6. Per Contra, Learned Counsel for the State submitted that

the bail application is devoid of any merit as it is the

subsequent application filed by the accused persons as the

earlier bail application was rejected vide order dated

11.12.2020 and there is no change in circumstances for

considering the bail application afresh.

7. The Supreme Court has, in a catena of judgments,

outlined the considerations on the basis of which

discretion under Section 439, Cr.P.C. has to be exercised

while granting bail. In the case of Gurcharan Singh v. State

// 4 //

(Delhi Administration)1, the Supreme Court has held

as to the various parameters which must be

considered while granting bail. This Court held as follows:

"24. ...Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."

8. The above factors do not constitute an exhaustive list. The

grant of bail requires the consideration of various factors

which ultimately depends upon the specific facts and

circumstances of the case before the Court. There is no

strait jacket formula which can ever be prescribed as to

what the relevant factors could be. However, certain

important factors that are always considered, inter-alia,

(1978) 1 SCC 118

// 5 //

relate to prima facie involvement of the accused, nature

and gravity of the charge, severity of the punishment, and

the character, position and standing of the accused.

9. In the case of Prahlad Singh Bhati vs. NCT of Delhi &

Ors2, the Supreme Court highlighted the aspects which are

to be considered by a court while dealing with an

application seeking bail. The same may be extracted as

follows:

"The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge."

(2001) 4 SCC 280

// 6 //

10. The Supreme Court in the case of Brijmani Devi v. Pappu

Kumar and Anr3discussed on the aspect of application of

mind and requirement of judicious exercise of discretion in

arriving at an order granting bail to the accused. The Court

while setting aside an unreasoned and casual order of the

High Court granting bail to the accused, observed as

follows:

"While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail Courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion. While considering an application for grant of bail a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence/s alleged against an accused."

11. In the case of Prasanta Kumar Sarkar v. Ashis Chatterjee

and Anr4, Justice D.K. Jain, speaking for a two-Judge Bench

of the Supreme Court laid down the principles for

Criminal Appeal No. 1663/2021

(2010) 14 SCC 496

// 7 //

examining the correctness of orders granting bail to an

accused. The Court held:-

"9. ...It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mindwhile considering an application for bail are: i. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

ii. nature and gravity of the accusation; iii. severity of the punishment in the event of conviction;

iv. danger of the accused absconding or fleeing, if released on bail;

v. character, behaviour, means, position and standing of the accused;

vi. likelihood of the offence being repeated; vii. reasonable apprehension of the witnesses being influenced; and viii. danger, of course, of justice being thwarted by grant of bail.

10.It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of nonapplication of mind, rendering it to be illegal."

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12. Further, in the case of Basanta Panda v. State of Odisha5,

this court while highlighting the importance of change in

circumstances as a parameter for grant of bail observed

here asunder:

"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. 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. The present 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 the petitioner has rushed to this Court again and hence the bail stands rejected."

13. Adverting to the contentions raised by the learned counsel

for the respective parties, it is the admitted position that

BLAPL No. 8126 of 2020

// 9 //

there is no change in the circumstance after the rejection of

the earlier bail application by this Court vide order dated

11.12.2020 in BLAPL No.9165 of 2020. The question that

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.

14. In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan6,

the Supreme Court held as follows:

"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."

15. 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. Without the change in the

circumstances, the subsequent bail application would be

AIR 2004 SC 1866

// 10 //

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 warrants 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 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.

16. In the case at hand, one of the accused Sukdev Padhi

confessed after committing the murder of the deceased in

presence of two local witnesses that the seized brown

// 11 //

coloured rope is the one through which the Petitioners

strangulated the deceased. These statements of the co-

accused are relevant to prima-facie show the involvement

of the petitioners in commission of the crime.

17. Moreover, 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.

18. In view of the foregoing discussions, this bail application,

being a successive one moved within one month of the

rejection of the earlier bail application before the learned

trial court without any changed circumstances and after its

rejection, the petitioners have rushed to this Court again.

Therefore, this Court is not inclined to release the

Petitioners on bail and the application for bail stands

rejected.

// 12 //

19. 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.

(Dr. S.K. Panigrahi) Judge

B.Jhankar