Pupun @ Satyanarayan Pradhan vs State Of Odisha
2023 Latest Caselaw 8538 Ori

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                             CRLA No. 206 of 2016

      Pupun @ Satyanarayan Pradhan            .....                              Appellant
                                                                      Mr. N. Panda, Adv.
                                              Vs.
      State of Odisha                         .....                            Respondent
                                                                   Ms. S. Patnaik, A.G.A.

            CORAM:
                  JUSTICE S.TALAPATRA
                  JUSTICE SAVITRI RATHO

                                         ORDER

04.08.2023 Order No. I.A. No. 1038 of 2023

14. (Through hybrid mode)

1. The sole appellant-petitioner Pupun @ Satyanarayan Pradhan

(hereinafter referred to as the 'petitioner') has been convicted for

commission of offences under Sections - 302/ 201 I.P.C. and sentenced to

undergo imprisonment for life and to pay a fine of Rs.10,000/-, in default to

undergo further R.I. for a period of six months under section - 302 I.P.C.

and to undergo R.I. for a period of 5 years and to pay a fine of Rs.1,000/-, in

default of payment, to undergo R.I. for a period of three months more for

the offence under Section-201 I.P.C. with a direction for the sentences to

run concurrently vide judgment and order dated 18.01.2016 passed by the

learned Sessions Judge, Puri in S.T. Case No.188 of 2013. The petitioner

has been acquitted of the charges under Sections 364, 366 and 376 I.P.C.

2. I.A. No.1609 of 2019 filed by the petitioner for releasing him on

bail during pendency of the appeal had been rejected by order dated

21.10.2020 and the Registry had been directed to prepare the paper books so

that the appeal could be heard early. The paper books have been prepared.

3. I.A. No.1079 of 2020 filed by the petitioner for releasing him on

interim bail on the ground of his mother's illness has been rejected vide

order dated 23.03.2021.

4. This I.A. has been filed for releasing the petitioner on bail during

pendency of the bail.

5. We have heard Mr. N. Panda, learned counsel for the petitioner and

Ms. S. Patnaik, learned Addl. Government Advocate for the State on the

question of grant of bail to the petitioner under Section 389 of Cr.P.C.

6. Mr. N. Panda, learned counsel has submitted that the petitioner is in

custody since more than ten years (since 05.01.2013) and there are no

chances of early hearing of the appeal. He has further submitted that the

prosecution case is based on circumstantial evidence but the chain of

circumstances is not complete. The dead body has not been identified by

father of the victim and no motive has been ascribed to the petitioner to

commit the crime, for which the theory of 'last seen' cannot be utilized

against him. The recovery attributed to the petitioner is from an open place

and not supported by independent witnesses and his call details have also

not been proved. As chances of his acquittal are high, he should be released

on bail as chances of early hearing of the appeal are remote. He relies on the

decisions of the Supreme Court in the cases of Kashmira Singh vs. State :

(1977) 4 SCC 291 and Surinder Singh Shingara Singh vs. State of

Punjab: (2005) 7 SCC 387 in support of his submission that the petitioner

should be released on bail during pendency of the appeal.

7. Ms. S. Patnaik, learned Additional Govt. Advocate vehemently

opposed the prayer for bail stating that the chain of circumstances in the

case is complete and the evidence on record unerringly points to the

complicity of the petitioner to have killed the deceased in a gruesome

manner and then burnt the dead body. She submitted that the motive to kill

the deceased was her insistence for marriage to which the petitioner and his

father were not agreeable on the apparent ground that he was unemployed.

But the deceased continued to have relation with him and was insisting for

marriage. The petitioner and deceased were seen in the house of deceased

around 9.00 pm and after three hours she was found to be missing. After she

went missing, on 04.03.2013, the petitioner had informed P.W.29 brother of

the deceased that he and the deceased had eloped and were at Bhubaneswar.

The call records are tell tale as they confirm that they were at the same place

after her disappearance. She has further submitted that the petitioner has

given recovery of incriminatory articles under Section 27 of the Evidence

Act. But the petitioner has not given any explanation whatsoever when these

circumstances were put to him during recording of his statement under

Section Sec-313 Crl.P.C. She has further stated the grounds urged by the

counsel can be considered at the time of hearing of the appeal and a

threadbare analysis of the evidence should not be done for considering the

prayer for grant of bail under Section 389 Cr.P.C. She finally submits that as

paper books having been prepared and a Bench has been hearing Criminal

Appeals from the year 2016 onwards, this Appeal can also be heard by the

Bench expeditiously.

8. In the case of Kashmira Singh (supra), the appellant has been

convicted by the trial Court under Section 323 IPC. The High Court set

aside his acquittal under Section 302 IPC and convicted him and sentenced

him to imprisonment for life. Special Leave to Appeal to the Supreme Court

was granted . While hearing his successive bail application, the Supreme

Court held as follows :

"2. 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."

"3. ....The appeal is of the year 1974 and is not likely to come up for hearing for at least two years as this Court is at present hearing appeals passed in the year 1972. The very fact that this Court has granted to the appellant special leave to appeal against his conviction shows that in the opinion of this Court, he has prima facie a good case to consider and it would be unjust to detain him in jail any longer during hearing of the appeal"

9. In the case of Surinder Singh, (supra) the Supreme Court has

inter alia observed as follows:

"9. Similar observations are found in some of the other decisions of this Court which have been brought to our notice. But, however, it is significant to note that all these decisions only lay down broad guidelines which the Courts must bear in mind while dealing with an application for grant of bail to an appellant before the Court.

None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, has been laid down over the years by the Courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matters."

10. In the case of Om Prakash Sahni vs. Jai Shankar Chaudhary

reported in (2023) 6 SCC 123, while setting aside the order of the High

Court which had suspended the sentence of life imprisonment and directed

the release on bail of the Respondents convicted under Section - 302 I.P.C.,

the Supreme Court referred to some of its earlier decisions and held as

follows :

"31. In Vijay Kumar v. Narendra and Others : (2002) 9 SCC 364 and Ramji Prasad v. Rattan Kumar Jaiswal and Another : (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302 of the IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In Vijay Kumar (supra), it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 of the IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of

releasing the accused on bail after they have been convicted for committing the serious offence of murder.

32. The aforesaid view is reiterated by this Court in the case of Vasant Tukaram Pawar v. State of Maharashtra : (2005) 5 SCC 281 and Gomti v. Thakurdas and Others : (2007) 11 SCC

160.

33. Bearing in mind the aforesaid principles of law, the endeavour on the part of the Court, therefore, should be to see as to whether the case presented by the prosecution and accepted by the Trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the answer to the above said question is to be in the affirmative, as a necessary corollary, we shall have to say that, if ultimately the convict appears to be entitled to have an acquittal at the hands of this Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually take very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable. The Appellate Court should not reappreciate the evidence at the stage of Section 389 of the CrPC and try to pick up few lacunas or loopholes here or there in the case of the prosecution. Such would not be a correct approach."

11. From a reading of the above decisions and the provision of Section

- 389 of the Cr.P.C., it is forthcoming that the power of the Court power to

suspend the sentence and grant bail to an accused . It can even do so while

admitting an appeal and is not required to wait for the convict to remain in

custody for any period of time , provided it is satisfied that there is

something apparent or gross on the face of record on the basis of which the

Court can be prima facie satisfied that the conviction may not be sustainable

and liable for interference . But the evidence should not be re - appreciated

at the stage of Section - 389 Cr.P.C or only a few loopholes picked up in

the case of the prosecution . In cases involving conviction under Section -

302 IPC , it is only in exceptional cases that the benefit of suspension of

sentence can be granted and the Court should consider the relevant factors

and the desirability of releasing the accused on bail . The Court has to

exercise its jurisdiction having regard to the relevant facts and circumstances

, but no hard and fast rule or strait jacket formula can be laid down ,

regarding grant of bail . The endeavour of the Court should be to see that if

the convict appears to be entitled to an acquittal , he / she should not be

detained in custody till conclusion of the appeal which may take a long time.

12. After perusal of the impugned judgment and hearing the

submissions of the learned counsel , in view of the nature of evidence

available against the petitioner, for the purpose of consideration of the

prayer for suspension of sentence, we are not prima facie satisfied that the

conviction of the appellant is liable for interference. We are therefore not

satisfied that the sentence should be suspended and the appellant released on

bail.

13. As the paper books are ready and there is a Bench assigned for

hearing criminal appeals of the year 2016 - 2023 there is no reason to

suspend the sentence and release the petitioner on bail on the sole ground

that the appeal cannot be heard in the near future.

14. The I.A. is accordingly dismissed.

15. Urgent certified copy of this order be granted as per rules.

CRLA No. 206 of 2016

15. As Paper Books have been prepared, learned counsels are directed to

collect the paper book from the Registry. The Registry is directed to obtain

instructions of the Hon'ble Chief Justice and list this matter before the

assigned Bench for hearing as soon as possible.

Sukanta (S.Talapatra) Judge

(Savitri Ratho) Judge

Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 29-Aug-2023 11:30:28