Orissa High Court
Ritanjali Dash @ Gitanjali Das vs State Of Odisha .... Opp. Party on 18 February, 2025
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 14495 of 2023
Application for bail under Section 438 of Code of Criminal
Procedure, 1973.
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Ritanjali Dash @ Gitanjali Das .... Petitioner
-versus-
State of Odisha .... Opp. Party
Advocate(s) appeared in this case:-
_______________________________________________________
For Petitioner : M/s. D. Sahoo, A.P. Bose,
D.K. Mohanty, A.P. Mishra, S. Debata,
P.R. Behera, Advocates
Vs.
For Opp. Party : Mr. C. Mohanty,
(Additional Standing Counsel)
__________________________________________________________
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
18.02.2025
I.A. No.2760 of 2024
SASHIKANTA MISHRA, J.
This is an application filed by the petitioner seeking
modification of order dated 19.04.2024 passed in I. A.
No.2779 of 2023 in this case.
2. Originally, by order dated 11.12.2023, this Court
taking note of the offences alleged against the petitioner as
also the nature of accusations, passed the following order:
"1.This matter is taken up through hybrid
mode.
2.Heard learned counsel for the petitioner
and learned Addl. Standing Counsel for the
State.
3.The petitioner is apprehending arrest in
connection with Pipili P.S. Case No.406 of
2023 corresponding to G.R. Case No.640 of
2023 pending in the Court of the learned
JMFC, Pipili for the alleged commission of
offence under Sections
294/506/341/323/325/34 of IPC.
4. It is alleged that the petitioner and other
persons abused the husband of the
informant in obscence language and also
assaulted him by means of wooden plank
causing injury on his head.
5.Considering the nature of accusations and
also the materials on record, while not being
inclined to grant anticipatory bail to the
petitioner, the ABLAPL is disposed of
granting liberty to the petitioner to
surrender before the Court below within two
weeks from the date of receipt of certified
copy of this order and to move for bail. In
such event, she shall be released on bail on
such terms and conditions as the Court
below may deem fit and proper to impose.
6.The ABLAPL is accordingly disposed of.
7.Issue urgent certified copy as per rules.
3. Subsequently, an application was filed being I.A.
No.2779 of 2023 seeking modification of the order dated
11.12.2023 on the ground that the offence under Section
302 having been subsequently added for which, the
petitioner apprehended that in case she surrendered to
custody, she would not have been released on bail by the
Court below on the ground of addition of the higher
offence.
4. After hearing the parties, this Court was inclined to
modify the order in the following manner:
"Considering the nature of
accusations and also the materials on
record, while not being inclined to grant
anticipatory bail to the petitioner, the
ABLAPL is disposed of granting liberty to
the petitioner to appear before the Court
below and move for bail which shall be
disposed of on the same day in the first
hour. In case of rejection, it shall be open
to the petitioner to move the higher forum
on the same day, for which the records
including the case diary shall be
transmitted at his cost. The higher forum
shall also dispose of the bail application
on the same day."
5. Be it noted that the petitioner has not availed the
modified order as mentioned above till date.
6. The present application for modification has been filed
mainly on the ground that it could not be brought to the
notice of the Court at the time of hearing that charge-sheet
under Section 302 had not been submitted against the
petitioner but against the co-accused persons and that
investigation was kept open with the observation that the
petitioner has not been arrested.
7. Heard Mr. A.P. Bose, learned counsel for the
petitioner and Mr. C. Mohanty, learned Additional Standing
Counsel for the State.
8. Mr. Bose would argue that the status of the petitioner
as on the date of filing of the anticipatory bail application
remains the same even today as she never surrendered
before the Court below as directed by this Court in the
modified order dated 19.04.2024, though she has been
protected by interim order passed by this Court. Mr. Bose,
further submits that even otherwise, this Court having
directed the petitioner to be released on bail in the event of
her surrender taking note of the offences alleged against
her, the said order also needs to be passed to cover the
offence under section 302. In support of his contention, Mr.
Bose has relied upon the judgment passed by this Court in
Prasanna Swain v. State of Odisha1 and Pradeep Ram v.
State of Jharkhand2.
9. Per contra, Mr. Mohanty would submit that though
charge-sheet has not been specifically submitted against
the petitioner yet her involvement in the alleged occurrence
being made out during investigation, the same has been
kept open only because she has not been arrested so far.
Since it is a case involving murder and this Court having
already modified the order directing the petitioner to
surrender before the Court below, no further modification
is warranted.
10. As already stated, the order dated 11.12.2023 was
passed taking note of the offences then alleged against the
petitioner namely, 294/506/341/323/325/34 IPC. On
motion being made by the petitioner for modification on the
ground of addition of the graver offence of Section 302, the
aforementioned order was modified in the manner narrated
2024(II)OLR157
AIR2019SC3193
before. This is a case where the petitioner still remains at
large as she has not surrendered before the Court below as
per the modified order dated 19.04.2024 nor arrested. This
is not a case where the petitioner is already protected by an
order of anticipatory bail. Therefore, the ratio decided in
Prasanna Swain(supra) would not be strictly applicable.
That apart, the petitioner not having surrendered to
custody, the judgment in Pradeep Ram(supra) would also
not be applicable.
11. This Court would rather take note of the fact that
the order dated 19.04.2024 was passed on the notion that
the offence under Section 302 had been added but on
careful perusal of the charge-sheet available in the case
dairy, it is revealed that the same has been submitted only
against two accused persons namely, Rabi Narayan Das
and Rajesh Kumar Das. Further the name of the petitioner
is not mentioned under Col No.11- 'Particulars of accused
persons charge-sheeted' nor under Col No.12- 'Particulars
of accused persons not been charge-sheeted (suspect)'.
Nonetheless, under Col No.16-'Brief facts of the Case', the
petitioner's name has been mentioned and it is further
stated that she is yet to be arrested. Thus, technically she
has not yet been charge-sheeted under Section 302 of the
IPC.
12. Even on merits, as was observed by this Court in
order dated 19.04.2024, no specific overt act has been
attributed to the petitioner in the alleged offence. Reference
to the case diary simply reveals that the allegation of
assault is directed against the two co-accused persons and
all the witnesses have consistently stated that the
petitioner was simply present at that time without
attributing any overt act whatsoever to her.
13. Under the above circumstances, this Court finds no
reason to deprive the petitioner from the benefit of the
order originally passed in this case i.e., on 11.12.2023.
14. For the forgoing reasons therefore, the I.A. is
allowed Order dated 19.04.2024 is hereby recalled and
order dated 11.12.2023 is hereby revived. In other words,
the ABLAPL is disposed of granting liberty to the petitioner
to surrender before the court below within one week from
the date of receipt of certified copy of this order and to
move for bail. In such event, she shall be released on bail
on such terms and conditions as the Court below may
deem fit and proper to impose.
.................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
18th February, 2025/ Puspanjali Ghadai, Jr.Steno
Designation: Junior Stenographer
Location: High Court of Orissa, Cuttack.
Date: 19-Feb-2025 12:51:31
