Orissa High Court

Dharmananda @ Dharama Mallik vs State Of Odisha .... Opposite on 24 April, 2025

Author: S.K.Panigrahi

Bench: S.K.Panigrahi

                 IN THE HIGH COURT OF ORISSA AT CUTTACK
                            BLAPL No.2423 of 2025

       Dharmananda @ Dharama Mallik                 ....       Petitioner
                                                   Mr.P.K.Jena, Advocate
                                     -versus-
       State of Odisha                              ....        Opposite
                                                                  Party
                                                  Ms.Gayatri Patra, ASC
                                 CORAM:
                            DR. JUSTICE S.K.PANIGRAHI
                                      ORDER

Order No.                            24.04.2025

 01.

            F.I.R.     Dated       Police       Case      No.   Sections
            No.                    Station      and Courts'
                                                Name
            15         25.01.2025 Singla        C.T. Case       Sections 351
                                                No.50      of   (2), 69, 87 of
                                                2025            BNS.
                                                pending in
                                                the court of
                                                learned
                                                J.M.F.C.,
                                                Basta

1. This matter is taken up through hybrid arrangement.

2. Heard learned counsel for the parties.

3. The petitioner being in custody in connection with C.T.

Case No.50 of 2025 arising out of Singla P.S. Case No.15 of 2025,

pending in the court of the learned J.M.F.C., Basta, registered for

the alleged commission of offence under Sections 351 (2), 69, 87

of the BNS, has filed this petition for his release on bail.

4. The prosecution case in short is as follows:

One 25.01.2025 at about 8.30 a.m. the informant lodged an

F.I.R. alleging therein that since 06 months ago, one

Dharamandas Mallik @ Dharama Mallik, Village Kunduli, PS

Singla District Balasore collected her phone number and

thereafter contacted with her by his phone and assured to marry

her. On 17.01.2025 around 10 a.m., the said Dharamananda

Mallik came to the house of complainant with his motor cycle,

took the complainant towards Chandipur Sea Beach. When

returned, on the way near Haladipada Gala Pola, at about 8 p.m.,

the accused Dharamananda Mallik stopped his motor cycle and

tied the mouth of complainant by means of a napkin and took

her to a nearby field where he ravished her against her will.

After that when complainant protested then the accused

threatened her to do away with her life by seeing a knife.

Thereafter the accused bring her to nearby her house and

dropped her with a caution that if she discloses the matter

before anyone, then he will not marry her. On 17.1.2025 the

complainant disclosed the matter before her mother. On

19.1.2025 at about 11 a.m., accused again came to the house of the

complainant where he was detained by the family members of

the complainant and accordingly a meeting was sat in presence

of the father of accused, husband of Sarpanch, named-Dilip

Kumar Jena and the father of accused took Zima of accused by

giving an undertaking. Later neither any compromise took place

regarding that issue for which finding no other way complainant

reported the matter before the concerned police station for taking

legal action against the accused-Petitioner. Hence, the case.

5. Learned counsel for the Petitioner submits that there is no

prima facie material against the Petitioner to implicate him in the

crime in question and that he has no criminal antecedent.

Further, the Petitioner is languishing in jail since 25.01.2025. In

light of these facts, the counsel prays that the Petitioner be

enlarged on bail, as continued detention is unjustified in the

absence of substantial evidence.

6. Learned counsel for the State vehemently opposes the

prayer for bail stating that there is prima facie material against

the Petitioner to implicate in the crime and as investigation of the

case is going on, the Petitioner may not be released on bail at this

stage as there is every likelihood of tampering with prosecution

evidence. Given the egregious nature of the allegations and the

potential for evidence tampering, the State strongly opposes any

grant of bail to the Petitioner.

7. This Court finds it necessary to observe that in cases

involving allegations of sexual offences arising from

relationships developed on the basis of a purported promise of

marriage, the issue of consent must be approached with careful

consideration. While the law recognises that consent obtained

through deception or coercion may not be valid, it is equally

important to acknowledge the principle of sexual autonomy,

which presumes that an individual is capable of making

voluntary choices unless demonstrably impaired. Allegations

that consent was vitiated solely on the ground of a failed promise

may not, in every case, constitute an offence, particularly where

the nature of the relationship suggests mutual engagement over

a sustained period. Premature conclusions regarding lack of

consent, in the absence of clear indicators of coercion or bad

faith, may cause unfair prejudice. Each case must therefore turn

on its own facts, and courts must tread cautiously in drawing

inferences at the pre-trial stage.

8. This Court had an occasion to deal with a case of similar

facts to this case i.e. in CRLMC No.4485 of 2024 (Manoj Kumar

Munda -vrs. State of Odisha & Anr.) wherein the Petitioner/

alleged accused had challenged the proceeding initiated against

him for commission of the alleged offences under Sections

376(2)(a), 376(2)(i), 376(2)(n), 294, 506, and 34 of the I.P.C. This

Court vide judgment dated 14.02.2025 taking into account the

various judicial pronouncements of the Supreme Court had

made an elaborate discussion on the concept of consent and the

issue of sexual autonomy and allowed the CRLMC No.4485 of

2024 quashing the proceedings against the Petitioner. The

ordering portion of the said judgment is extracted hereinbelow:

"36. The legal system, by criminalizing sex under a "false promise of marriage," upholds this performative construct, one that assumes that women engage in sexual relationships only as a prelude to matrimony, rather than as autonomous agents of their own desires.

37. In its pursuit of justice, the law must not become an instrument of moral policing. It must acknowledge that sexual agency is not a promise, nor is it a contract that mandates a predetermined outcome. To assume otherwise is to deny women the full measure of their autonomy, desire, and choice, reducing them to mere bearers of honour, rather than as individuals possessing an intrinsic right to their own bodies and decisions.

...

39. It is in this light that the automatic criminalization of failed relationships under the guise of "false promise of marriage" must be scrutinized. The assumption that every physical relationship between a man and a woman carries the implicit condition of matrimony is not a principle of law but a vestige of control."

9. Considering the facts and circumstances, and keeping in

view the submissions of the learned counsel for the Petitioner,

and the view taken in Manoj Kumar Munda (supra), this Court is

of the view that the Petitioner should be granted bail by the court

in seisin over the matter in the aforesaid case, on some stringent

terms and conditions with further conditions that:-

i. The Petitioner shall appear before the local Police Station on every Monday between 10 A.M. to 1.00 P.M.; ii. The Petitioner shall not indulge himself in any criminal offence while on bail;

iii. The Petitioner shall not tamper with the evidence or intimidate the prosecution witnesses in any manner; and iv. The Petitioner, after the onset of monsoon, shall plant 100 saplings of local varieties, such as mango, neem, tamarind, etc., around his village on Government land, community land, or private land in the possession of the Petitioner or his family members. In the event that suitable land is unavailable, the Revenue Authority shall assist in identifying the land for plantation.

Violation of any of the above conditions shall lead to

cancellation of the bail.

10. The District Nursery/D.F.O. shall extend the helping hand

by supplying the saplings to the Petitioner and the Revenue

Authority shall assist the Petitioner in identifying the location for

plantation of the saplings. If the land is not available, the

Petitioner to approach the Revenue Authority for identifying the

land for plantation and the Revenue Authority shall do the

needful.

11. The I.I.C. of the concerned Police Station in coordination

with the local Forest Officer shall monitor; whether the Petitioner

has planted the saplings or not.