Orissa High Court
Kaifi Khan vs State Of Odisha ..... Opp. Party on 7 February, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 11529 of 2024
Kaifi Khan ..... Petitioner
Mr. Smruti Ranjan Rout, Advocate
Vs.
State of Odisha ..... Opp. Party
Smt. Siva Mohanty, A.S.C.
(for State)
Ms. Bini Mishra, Advocate
(for Informant)
CORAM:
JUSTICE SAVITRI RATHO
ORDER
07.02.2025
Order No. (Through hybrid mode)
03.
1. Heard Mr. Smruti Ranjan Rout, learned counsel for the
petitioner, Smt. Siva Mohanty, learned Additional Standing Counsel
for the State and Ms. Bini Mishra, learned counsel appearing on
behalf of the informant.
2. This is the fourth application of the petitioner under Section
439 of Cr.P.C. in connection with Mangalabag P.S. Case No.114 of
2023 corresponding to G.R Case No.334 of 2023, pending in the
Court of the learned J.M.F.C., Cuttack where chargesheet dated
24.06.2023 has been submitted against the present petitioner-Kaifi
Khan, one Sk. Ismail and Amir Khan under Sections 419, 420, 403,
120 (B), 34 of IPC keeping the investigation open for collection of
bank statements, arrest of other accused persons, recovery of cheated
amount, examination of more witnesses as well as further evidence in
this case. Thereafter chargesheet dated 22.12.2023 has been submitted
against the present petitioner-Kaifi Khan, Sk. Israel, Amir Khan, Samir
Khan and Md. Sakil for commission of offences punishable under
Sections 419, 420, 403, 120 (B), 506, 34 of IPC keeping investigation
open for collection of more evidence, arrest of other accused persons,
compliance to the instructions of submission note and further course of
investigation. During further investigation one Sk. Aspak @
Mohammad Aspak has been arrested.
3. The first bail application of the petitioner i.e. BLAPL No. 14705
of 2023 had been disposed of by me on 17.01.2024 granting the
petitioner liberty to file a fresh application for bail after returning the
amount of Rs.11,00,000/- to the informant.
His second application i.e. BLAPL No. 2809 of 2024 had been
dismissed by me on 02.05.2024 granting the petitioner liberty to
approach the learned court below for bail, if so advised.
His third application i.e. BLAPL No. 5169 of 2024 had been
dismissed by me on 23.05.2024 granting him liberty to move for bail
afresh after completion of further investigation or if there is undue in
completion of further investigation.
4. The petitioner thereafter moved the learned court below for bail
and the learned 2nd Additional Sessions Judge, Cuttack has rejected his
prayer in BLAPL No. 614 of 2024 vide order dated 16.05.2024
observing that the petitioner has similar criminal antecedents and has
not complied with the order of this Court.
5. Perused the status report dated 21.01.2025 of the learned
J.M.F.C., Cuttack in G.R. Case No. 334 of 2023 corresponding to
Mangalabag P.S. Case No. 114 of 2023 where it is stated that on
07.01.2025 charge sheet witness Joseph Ekka (Seizure witness) was
examined, cross examined and discharged. The petition filed under
Section 311 Cr.P.C by the learned APP for recalling the informant
Sharmila Sen which was allowed on 10.12.2024 and she was present
in the Court on 07.01.2025 but Ld. Defence Counsel denied to cross-
examine her as he had not received the copies of documents which
was filed by the Ld. APP. The petition filed by the Defence counsel
for supplying the copies of the documents had been allowed on
16.01.2025. Summons had been issued to the chargesheet witnesses
namely Amity Kumar Mallik and S. Babula for their appearance on
28.01.2025 to adduce the evidence and the case was posted to
28.01.2025 for evidence.
6. Mr. Smruti Ranjan Rout, learned counsel for the petitioner
submits that the petitioner is in custody since 27.04.2023 and this is
the fourth bail application of the petitioner and while rejecting the
prayer for bail of the petitioner in BLAPL No. 5169 of 2024 dated
23.05.2024, he had been granted liberty to move for bail afresh after
completion of investigation. Referring to the provision in Section
436 (A) of the Cr.P.C., he submits that as the petitioner has stayed in
custody for almost two years and the learned Magistrate can impose
sentence maximum upto three years, the petitioner should have been
released on bail. He further submits that under Section 437 (6) of
the Cr.P.C. if the trial is not completed within two months of the
examination of the first witness, the accused should be released on
bail. In support of his submission, he relies on the decisions of the
Supreme Court in the case of Javed Gulam Nabi Shaikh vrs. State
of Maharashtra and Another (Criminal Appeal No. 2787 of 2024
decided on 3rd July, 2024) and the decision of this Court in BLAPL
No. 5798 of 2024 and 5813 of 2024 decided on 07.11.2024 in the
case of Laxmi Narayan Das and Another vrs. State of Odisha and
Another reported in 2025 (1) OLR 106. He also submits that
although it is stated that the petitioner has five criminal antecedents,
he has been granted bail in all the five cases.
7. Ms. Bini Mishra, learned counsel appearing on behalf of the
informant vehemently opposes the prayer for bail stating that the
petitioner cannot avail the benefit under Section 437 (6) of the
Cr.P.C. as the delay in trial can also be attributed to the petitioner as
the petitioner has not examined the witness who had been recalled
under Section 311 of Cr.P.C. She further submits that the petitioner
should not be released on bail or granted the benefit of Section 436
(A) of the Cr.P.C. which is discretionary and not mandatory. She
also submits that the submission of the learned counsel for the
petitioner that the learned Magistrate First Class can only impose
maximum sentence up to three years is also fallacious, as because
under Section 325 of the Cr.P.C., the learned Magistrate has the
option to forward the case to the learned Chief Judicial Magistrate to
impose a higher sentence. She also submits that in view of the
nature of allegations against the petitioner and as he has five
criminal antecedents, he does not deserve to be released on bail as he
is a habitual offender. In support of her case, she relies on the
decisions of the Bombay High Court at Aurangabad in the case of
Latabai WD/O Bhimsingh Jadhav vrs. State of Maharashtra (Bail
Application No. 1547 of 2024 decided on 23.09.2024) and the
decision of Madhya Pradesh High Court at Indore in Misc. Criminal
Case No. 58222 of 2022 decided on 26 th June, 2023 in the case of
Raju @ Rajesh S/o Heeralal Goswami vrs. The State of Madhya
Pradesh through Police Station-Gandhi Sagar, District Mandsaur
(M.P.).
8. Hearing is concluded.
9. Judgment is reserved.
10. If the learned counsel for both the parties want to file date
charts and any other decisions on which they rely on, they may do so
by 10.02.2025.
(Savitri Ratho)
Judge
puspa
Signed by: PUSPANJALI MOHAPATRA
