Orissa High Court
Surya Nahak vs State Of Odisha on 30 January, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 4910 of 2022
Surya Nahak .... Petitioner
Mr. A.K.Sahoo, Advocate
-Versus-
State of Odisha .... Opposite Party
Mr. S.S.Mohapatra, ASC
CORAM:
MR. JUSTICE R.K. PATTANAIK
ORDER
30.01.2023
Order No.
04. 1. Heard learned counsel for the petitioner and Mr.
Mohapatra, learned counsel for the State.
2. Instant petition under Section 439 Cr.P.C. is filed for release
of the petitioner on bail in connection with S.T. Case No. 37 of 2021
corresponding to G.R. Case No. 295 of 2008 arising out of Polsara P.S.
Case No. 101 of 2008 pending in the file of learned Additional District
& Sessions Judge, Kodala on the grounds stated therein.
3. A copy of the F.I.R. is at Annexure-1. Annexure- 2 is a copy
of the rejection order dated 13th April, 2022 passed by the learned
Sessions court.
4. Pursuant to the direction of this Court, a report is received
from the learned Additional District & Sessions Judge, Kodala which is
at flag- B. Considering the said report, the Court finds that there was
some amount of delay in receiving the lower court record and the
learned Sessions court has assured to take immediate steps for closure
of trial which is posted to 2nd/3rd February, 2023 for hearing.
5. Learned counsel for the petitioner further submits that the accused-
father has been convicted for an offence under Section-304 Part-II IPC
whereas another accused related as brother stood acquitted by the
learned Sessions court in S.T. Case No. 195 of 2014 vide judgment
dated 31st October, 2014. It is further submitted that the fatal blow was
caused to the victim by accused-father and another, namely, Japan
which is revealed from the judgment and considering the fact that
another accused is acquitted and in so far as the petitioner is concerned
he dealt only a Kati blow on the hand of the victim and having regard
to the fact that he has already been in judicial custody since 15th March,
2021 and trial could not be completed within the time stipulated by
the Court while disposing of the BLAPL No.8386 of 2021, he should be
allowed to go on bail subject to any conditions.
6. Mr. Mohapatra, learned counsel for the State on the other
hand objects to the release of the petitioner on bail considering the
allegations in the F.I.R. and the fact that he was also instrumental in
the assault and did arrive at the spot first and thereafter participated
and notwithstanding the acquittal judgment in favour of one of the
accused but having regard to the nature of evidence received and an
order of conviction against the accused-father under Section 304-Part-II
IPC, the petitioner should not be released.
7. A copy of the judgment in S.T. Case No. 195 of 2013 dated
31st October, 2014 passed by the learned Additional Sessions Judge,
Chatrapur, Ganjam is submitted to the Court by learned counsel for
the petitioner for its perusal.
8. The Court finds that father of the petitioner and brother
accused, namely, Karunakar Nahak faced trial for an offence under
Section 302 IPC but the former was convicted under Section 304-Part-
II IPC, whereas, the latter was acquitted of the charge. The details of
the evidence stand described in the said judgment by the learned
Sessions court. It does reveal that the petitioner assaulted the victim by
means of a Kati which landed on the latter's left hand whereas the
other accused persons did the overt acts besides the accused-father,
who caused the assault on the head of the deceased which proved to
be fatal. Notwithstanding the assault by the accused-father, the learned
Sessions court at the end on consideration of the evidence reached at a
conclusion that an offence under Section 304-Part-II IPC is made out.
So to say, the chargesheet offence under Section 302 IPC could not be
established against the convicted accused.
9. It is submitted that the petitioner though participated in the
assault but he was not responsible for the fatal wound which led to the
death of the victim. It is further submitted that the petitioner has been
in custody for close to two years and there has been no
commencement of trial despite a direction of this Court which fixed a
time limit for its closure within six months and also granted a liberty to
renew the prayer for bail.
10. Considering the above facts, submissions of the learned
counsel for the respective parties, the Court is of the view that there
has been delay in commencement of the trial and the learned Sessions
court could not achieve the closure of the trial as against the petitioner
despite a direction issued by this Court earlier while disposing of the
BLAPL No. 8386 of 2021. Having considering the same and nature of
evidence received during the trial in S.T. Case No. 195 of 2013 and the
fact that the petitioner has remained in judicial custody since 15th
March, 2021, the Court is of the view that he should be released on
bail subject to conditions.
11. Accordingly, it is ordered.
12. The BLAPL stands allowed. Consequently, the petitioner is
directed to be released on bail by the court seisin over the matter in
connection with G.R. Case No. 295 of 2008 arising out of Polsara P.S.
Case No. 101 of 2008 subject to conditions as would be fixed keeping
in view the facts and circumstances. Furthermore, the learned Sessions
court is hereby directed to expedite the trial and ensure that it is
accomplished within a reasonable period of time.
13. A certified copy of this order be issued as per rules.
(R.K. Pattanaik)
Judge
Kabita
s
