Mama @ Mamata Behera vs State Of Odisha
2023 Latest Caselaw 1616 Ori

            IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No. 133 of 2019

            Mama @ Mamata Behera                ....        Appellant/
                                                          Petitioner

                                 Mrs.P. Mohapatra, Advocate

                                    -versus-

            State of Odisha                     ....     Respondent/
                                                       Opp. Party

                                 Mr. Rajesh Tripathy
                                 Addl. Standing Counsel

                                CORAM:
                          JUSTICE S.K. SAHOO
                                ORDER

Order No.                     21.02.2023

                   I.A. Nos. 117 of 2020 and 224 of 2020

   13.          This   matters     are   taken       up   through    Hybrid

Arrangement (Video Conferencing/Physical Mode). Learned counsel for the petitioner seeks permission of the Court to withdraw these interim applications. Permission is granted.

The interim applications stand disposed of as withdrawn.

( S.K. Sahoo) Judge

I.A. No. 535 of 2022

14. This is an application for bail.

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Learned counsel for the State has produced the written instruction received from the Inspector in-charge of Nilagiri police station dated 18.04.2021 in the connected CRLA No.254 of 2019, wherein it is indicated that the victim could not be traced out and she is not residing in the address which is given in the F.I.R. and even her relatives also could not tell her whereabouts. The written instruction is taken on record.

Since the prosecution is unable to serve the copy of the notice on the informant in spite of giving opportunities, I am constrained to hear this matter on merit without the appearance of the informant.

The appellant-petitioner Mama @ Mamata Behera has been convicted under sections 376(2)(c)/313/109/ 34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for a further period of three months for the offence under section 376(2)(c)/109 of the Indian Penal Code and to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- (rupees ten thousand), in default, to undergo rigorous imprisonment for a further period of three months for the offence under section 313/34 of the Indian Penal Code and both the substantive sentences were directed to run concurrently by the learned Addl. Sessions Judge -cum- Special

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Judge, Balasore vide judgment and order dated 20.02.2019 in Special Case No. 33 of 2015.

Learned counsel for the petitioner submitted that the petitioner was initially taken into judicial custody on 28.02.2015 and she was released on bail on 01.10.2016 pursuant to the order of this Court dated 28.09.2016 passed in BLAPL No. 6409 of 2015 and again she was taken into judicial custody on the date of pronouncement of the impugned judgment and since then she is in judicial custody. It is further submitted that the earlier bail application of the petitioner in I.A. No.409 of 2019 was rejected as per order dated 18.06.2019. Learned counsel further submitted that the appeal case is not yet ready for hearing and the petitioner has got a fair chance of success in the appeal and balance of convenience lies in her favour and therefore, the bail application of the petitioner may be favouraly reconsidered.

Learned counsel for the State, on the other hand, opposed the prayer for bail and placed the evidence of the victim (P.W.1) and the doctor (P.W.22) and submitted that on examination of the victim, the doctor found that there was no sign and symptoms of resent sexual inter course and she is within the age group of more than twenty years.

Considering the submissions made by the learned counsel for the respective parties, the nature of evidence adduced during trial, the period of detention of the

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petitioner in judicial custody, the sentence imposed by the learned trial Court, absence of any chance of early hearing of the appeal in the near future and keeping in view the proviso to section 437(1) of Cr.P.C., I am inclined to release the petitioner on bail.

Let the appellant-petitioner be released on bail pending disposal of the appeal on furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two solvent sureties each for the like amount to the satisfaction of the learned trial Court with such terms and conditions as the learned Court may deem just and proper.

The I.A. is disposed of.

Issue urgent certified copy as per Rules.

( S.K. Sahoo) Judge

PKSahoo