Daitary Behera vs State Of Odisha .... Opposite Party
2025 Latest Caselaw 6320 Ori

Orissa High Court

Daitary Behera vs State Of Odisha .... Opposite Party on 26 June, 2025

Author: V. Narasingh

Bench: V. Narasingh

                 IN THE HIGH COURT OF ORISSA AT CUTTACK

                            ABLAPL No.4150 of 2025

            Daitary Behera                 ....              Petitioner
                                     Mr. D.P. Nanda, Sr. Advocate
                                      Mr. S.K. Dwibedi, Advocate

                                    -versus-

            State of Odisha                ....      Opposite Party
                                              Mr. C.R. Swain, AGA
                                         Mr. S. Palit, Sr. Advocate
                                         Mr. S. Mohanty, Advocate


                          CORAM: JUSTICE V. NARASINGH

                           Date of hearing : 24.06.2025

                            Date of order: 26.06.2025


Order No.
   05.      1.     Heard Mr. Nanda, learned Senior Advocate being
            assisted by Mr. Dwibedi, learned counsel for the
            Petitioner,   Mr.   Swain,   learned   Addl.   Government
            Advocate and Mr. Palit, learned Senior Advocate being
            assisted by Mr. Mohanty, learned counsel for the
            Informant.

            2.     The Petitioner is seeking pre-arrest bail in
            connection with G.R. Case No.1785 of 2023 pending in
            the Court of learned J.M.F.C., Khallikot, arising out of
            Kodala P.S. Case No.473 of 2023 for commission of the
                                                                   Page 1 of 8
 alleged offence under Sections 341/ 324/ 294/ 302/
323/307/120

-B/34 IPC.

3. Admittedly though the Petitioner was a named accused in the FIR but while filing the charge sheet, he was not cited as an accused. Assailing the same, the Informant-injured approached this Court by filing CRLMP No.485 of 2024 under Articles 226 and 227 of the Constitution of India seeking a direction for further investigation in Kodala P.S. Case by any other investigating agency or by CBI. Such contention was opposed by the learned counsel for the State.

Considering the submissions and the materials on record, this Court directed for further investigation into the involvement of the present Petitioner. While so directing, this Court also observed that such direction ought not to be construed as this Court expressing any opinion regarding complicity of the Petitioner. Paragraph-9 of the order of this Court directing for further investigation regarding role played by the present Petitioner in the conspiracy which resulted in the gruesome murder of Sunil @ Judhisthir Nahak is extracted hereunder for convenience of reference:

"9. In view of the aforesaid facts and circumstance and discussion made hereinabove, since it appears to the Court that the IO has not directed his investigation

towards the conspiracy made by FIR named accused as alleged by the informant, it would be just and proper to direct a further investigation in the matter with regard to any involvement of the said person specifically alleged to have hatched any conspiracy in the matter."

3-A. Assailing the said order, the Petitioner moved the Apex Court by fling Special Leave to Appeal (Crl.) No(s).16443 of 2024 (Diary No.50031 of 2024) and by order dated 22.11.2024 while issuing notice, the Hon'ble Supreme Court directed that no coercive measures may be taken against the Petitioner provided the Petitioner shall extend all cooperation in the investigation and the trial and by order dated 3.2.2025, the SLP was dismissed. The said order is extracted hereunder:

"We are not inclined to interfere with the impugned judgment and order. The Special Leave Petition is, accordingly, dismissed.

After dismissal of the SLP, apprehending arrest the present application has been filed.

4. It is submitted by the learned Senior Advocate for the Petitioner, Mr. Nanda that admittedly at the relevant time, the Petitioner was not present at the site of the occurrence and because of political vendetta, an attempt is to rope him as an accused.

It is his further submission that even if the entire allegation of the prosecution is accepted at its face value, there is no need for custodial interrogation of the Petitioner since there is no allegation of interference in the concluded investigation and the Petitioner was in fact examined thoroughly during investigation. Since, his complicity was not established, charge sheet was not filed and notwithstanding the caveat of this Court not expressing any view regarding complicity of the Petitioner in its order dated 23.09.2024 in CRLMP No.485 of 2024, brazen attempt is being made to take the Petitioner to custody.

It is the further submission of the learned Senior Counsel for the Petitioner that since the Petitioner has firm roots in the society, there is no chance of his absconding. As such, he may be protected by pre-arrest bail.

5. Learned Addl. Government Advocate, Mr. Swain and learned Senior Counsel for the Informant, Mr. Palit being assisted by Mr.Mohanty, learned counsel for the Informant oppose the prayer for pre- arrest bail.

6. Learned counsel for the State apart from referring to the materials on record submits that the Petitioner has following five criminal antecedents:

"I. Khalikote P.S. Case No.54 dated 20.05.2007 under Sections 376/506/34 IPC. II. Khalikote P.S. Case No.75 dated 18.02.2020 under Sections 147/ 148/ 294/ 506/149/354 IPC.

III. Khalikote P.S. Case No.55 dated 11.02.2021 under Sections 452/294/506/34 IPC.

IV. Khalikote P.S. Case No.488 dated 02.08.2021 under Sections 143/ 341/ 294/ 323/506/149 IPC.

V. Khalikote P.S. Case No.492 dated 5.8.2021 under Sections 147/ 148/ 294/ 427/ 336/ 506/ 452/ 307/ 149 IPC read with Section 3/ 4 of the E.S Act."

6-A. Per contra, learned Senior Advocate for the Petitioner, Mr. Nanda has stated that the Petitioner has been acquitted in respect of Khalikote P.S. Case No.54 of 2007. In Khalikote P.S. Case No.75 of 2020, name of the Petitioner does not figure in the charge sheet. In Khalikote P.S. Case No.55 of 2021, it is mentioned that final form has been filed indicating that this is a false case. In Khalikote P.S. Case No.488 of 2021 charge sheet has been filed on 20.12.2021 deleting the name of the Petitioner. In Khalikote P.S. Case No.55 of 2020, charge sheet in respect of the Petitioner has not been filed.

Hence, it is submitted that antecedents ought not to weigh with this Court in considering the prayer for anticipatory bail in the background of the

undisputed position that the Petitioner was cited as an accused and after due inquiry, his complicity could not be established and acting in an over-jealous manner on extraneous consideration it is the endeavour of the Informant to get the Petitioner arrested as some pretext or the other.

6-B. Learned Senior Counsel further submitted that non-grant of anticipatory bail in a case of this nature would amount to violation of the rights of the Petitioner guaranteed under Article 21 of the Constitution of India.

7. Recently the Apex Court has clarified that the directions in Satender Kumar Antil vs. Central Bureau of Investigation and Anr., 2023 SCC OnLine SC 452 apply in equal measure to cases of anticipatory bail and the observation which is germane is extracted hereunder;

"..........we would like to clarify that what we have enunciated qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of a bail".

Hence, the materials on record have to be examined on the touchstone of the recent judgment of the Apex Court in the case of Satender Kumar Antil (supra).

8. Learned counsel for the State has referred to the statement of two witnesses Jogi Sahu and Pabitra Kumar Bisoi whose statements were recorded under Section 164 Cr.P.C.

9. On perusal of both the statements recorded under Sections 164 Cr.P.C. the proximity of the accused taken into custody is prima facie well established with the Petitioner and from the CDR, which is on record, it is seen that the present Petitioner was in constant touch with the co-accused Kumar Sahu at the time of the alleged occurrence i.e. around 8.15 P.M on 28.09.2023.

The statement of the Informant-injured and that of the witnesses Bhramar Bisoi and Padmanava Behera indicate that the motive for commission of the offence was that the Informant-injured was opposing the Petitioner.

10. Law is no longer res integra that anticipatory bail is a statutory right and "power to grant anticipatory bail should be exercised in very exceptional cases". Considering the background in which the accusation has been made, this Court finds force in the submission of the learned counsel for the State that interrogation of the Petitioner insulated by an order of pre-arrest bail would be an exercise in futility.

Hence, taking into account the nature of allegations and the alleged role ascribed to the present Petitioner this Court does not find any merit in the bail application.

11. Accordingly, the ABLAPL stands rejected.

It is needless to state that the observations made herein regarding the alleged role ascribed to the present Petitioner is only for the purpose of disposal of the present ABLAPL.

(V. Narasingh) Judge

PKS

Signed by: PRADEEP KUMAR SWAIN Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 26-Jun-2025 17:19:26