Orissa High Court
Maguni @ Sanjay Kumar Rout vs State Of Odisha ... Opposite Party on 15 January, 2025
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL NO.12108 of 2024
(In the matter of application under Section 483 of
Bharatiya Nagarik Suraksha Sanhita, 2023).
Maguni @ Sanjay Kumar Rout ... Petitioner
@ Sanjay Rout
-versus-
State of Odisha ... Opposite Party
For Petitioner : Mr. S.N. Das, Advocate
For Opposite Party : Mr. B.P. Nayak, Addl. PP
CORAM:
JUSTICE G. SATAPATHY
F DATE OF HEARING & JUDGMENT:15.01.2025(ORAL)
G. Satapathy, J.
1. This is a bail application U/S.483 of BNSS by the
petitioner for grant of bail in connection with Choudwar
PS Case No.159 of 2023 corresponding to ST Case No.5
of 2024 pending in the file of learned 1st Additional
Sessions Judge, Cuttack, for commission of offences
punishable under Sections 302/34 of IPC, on the
allegation of killing the deceased Lucky Rout along with
co-accused persons in furtherance of their common
intention.
2. Heard, Mr. Sailaza Nandan Das, learned counsel
for the petitioner, who elaborating his submission submits
that not only the petitioner has been detained in custody
for near about two years affecting his personal liberty,
but also the witnesses examined so far in this case has
become hostile to the prosecution case. Further, while
trying to distinguish the law laid down by the Apex Court
in X vs. State of Rajasthan & Another [Special Leave
Petition (Criminal) No.13378 of 2024] disposed of on
27.11.2024, Mr. Das submits that the aforesaid order
does not lay any precedent so as to refuse bail to the
petitioner and when a case is made out for grant of bail,
the Court should not hesitate to exercise its discretion to
grant bail. Mr. Das also submits that the petitioner is not
the main assailant, rather all the allegation of giving fatal
blow to the deceased has been directed against the co-
accused and the petitioner being an innocent person
should not be kept in confinement for an indefinite period
merely on the expectation of conclusion of trial sometime
after, especially when the right to liberty advocates for
grant of bail to a person in confinement for a long period.
Mr. Das, accordingly, prays to grant bail to the petitioner.
2.1. On the contrary, Mr. B.P. Nayak, learned
Additional Public Prosecutor, however, submits that the
right to liberty as guaranteed under Article 21 of the
Constitution of India is not an absolute right as conferred
on accused for grant of bail when prima facie case is
made out against him and in this case, not only the
materials on record reveals a prima facie case against the
petitioner, but also his involvement in another three
criminal cases makes it very clear that in the event of
enlargement of the petitioner on bail, it would encourage
him to commit the offence again and again. Further, Mr.
Nayak also submits that materials witnesses are yet to be
examined and release of the petitioner at this stage
would definitely counterproductive to the prosecution
case.
3. After having considered the rival submissions
upon perusal of record, this Court has no hesitation to
state here that while considering the bail application of an
accused, the prima facie case has to be seen and if the
materials on record discloses a prima facie case against
the accused for commission of heinous offence, the right
to liberty as granted under Article 21 of the Constitution
of India cannot be said to be an absolute right for an
accused to be released on bail, especially when the
materials on record indicates his prima facie involvement
in commission of offence like murder. In this context, this
Court reminds itself of the decision in Ash Mohammad
Vrs. Shiv Raj Singh @ Lalla Babu and another;
(2012) 9 SCC 446, wherein the Apex Court has held the
following in paragraphs-17, which reads as under:-
"17. We are absolutely conscious that liberty of
a person should not be lightly dealt with, for
deprivation of liberty of a person has immense
impact on the mind of a person. Incarceration
creates a concavity in the personality of an
individual. Sometimes it causes a sense of
vacuum. Needless to emphasize, the
sacrosanctity of liberty is paramount in a
civilized society. However, in a democratic body
polity which is wedded to the rule of law an
individual is expected to grow within the social
restrictions sanctioned by law. The individual
liberty is restricted by larger social interest
and its deprivation must have due sanction
of law. In an orderly society an individual is
expected to live with dignity having respect for
law and also giving due respect to others' rights.
It is a well-accepted principle that the
concept of liberty is not in the realm of
absolutism but is a restricted one. The cry of
the collective for justice, its desire for peace and
harmony and its necessity for security cannot be
allowed to be trivialized. The life of an individual
living in a society governed by the rule of law
has to be regulated and such regulations which
are the source in law subserve the social
balance and function as a significant instrument
for protection of human rights and security of
the collective. It is because fundamentally laws
are made for their obedience so that every
member of the society lives peacefully in a
society to achieve his individual as well as social
interest. That is why Edmond Burke while
discussing about liberty opined, "it is regulated
freedom".
19. Thus, analyzed, it is clear that though
liberty is a greatly cherished value in the life of
an individual, it is a controlled and restricted
one and no element in the society can act in a
manner by consequence of which the life or
liberty of others is jeopardized, for the rational
collective does not countenance an anti-social or
anti-collective act."
4. Further, in a very recent order in X vs. State of
Rajasthan & Another [Special Leave Petition
(Criminal) No.13378 of 2024] disposed of on
27.11.2024, the Apex Court has been pleased to hold
that ordinarily in serious offences like rape, murder,
dacoity etc., once the trial commences and the
prosecution starts examining its witnesses, the Court be
it the trial Court or the High Court should be loath in
entertaining the bail application of the accused.
Admittedly, there is a serious allegation against the
petitioner for facilitating the co-accused to stab the
deceased on a dispute occurred in a cricket match and
that too, the petitioner was called to the spot later on. Be
that as it may, it is always be proper to see the prima
facie case, while allowing or refusing the bail of the
petitioner, who is an accused of serious offences like
rape, murder, dacoity etc., but in the present case if the
materials on record are taken into consideration, it
cannot be denied that there is a prima facie case against
the petitioner. However, the trial is going on, expressing
any opinion on merits of this case would definitely
prejudice the trial of the petitioner. This Court, therefore,
does not consider it proper to analyze the materials or
evidence on record to give any finding in the matter. No
doubt, the learned counsel for the petitioner tries to
distinguish the decision in X vs. State of
Rajasthan(supra) by contending inter alia that what
has been held in this decision is per-incurium and does
not have any precedential value, but this Court is unable
to agree with such contention of the petitioner and in
terms of law precedence, the principle that has been
stated in the aforesaid decision being the decision of the
Apex Court is binding on this Court.
5. In the aforesaid facts and situation and after
having considered the rival submissions and on a
conspectus on materials on record together with the
discussion made hereinabove, this Court without
expressing any opinion on merits and by taking into
consideration the allegations appearing against the
petitioner and the supporting materials collected by the
Investigating Agency, does not consider it proper to grant
bail to the petitioner at this stage.
Hence, the bail application of the petitioner
stands rejected. The petitioner is, however, at liberty to
renew his prayer for bail after examination of the material
witnesses.
6. Accordingly, the BLAPL stands disposed of.
(G. Satapathy)
Location: High Court of Orissa
Orissa High Court, Cuttack,
Dated the 15th day of January, 2025/Subhasmita
