Orissa High Court
BLAPL/8280/2020 on 8 December, 2020
Author: D. Dash
Bench: D. Dash
BLAPL NO.8280 OF 2020
03. 08.12.2020: The matter is taken up through video conference
mode.
The petitioner being in custody in Sessions Trial
No.62/194/22 of 2016/17-2020 arising out of Naktideul P.S.
Case No.11 of 2016 pending trial in the court of learned
Additional Sessions Judge-cum-Special Court under POCSO
Act for alleged commission of offence under section-
363/366/364/302/201 of the IPC read with section 4 of the
POCSO Act and section 3 of the SC&ST (PA) Act has filed this
application under section 439 of the Cr.P.C. for his release
on bail.
The prosecution has been initiated on the written
report of one Prahallad Kisan, the father of the deceased. The
report was to the effect that on 14.01.2016 morning, the
informant's daughter having gone to fetch water did not
return. As on a prior occasion, the petitioner had attempted
to kill the informant by firing; finger of suspicion was pointed
out at the petitioner. On completion of investigation charge-
sheet was filed on 22.04.2016.
At the outset, learned counsel for the State raises an
objection as to the maintainability of the application under
section 439 of the Cr.P.C. According to him, the order dated
08.10.2020 passed by the learned Addl. Sessions Judge-
cum-Special Court under POCSO Act; Sambalpur ought to
have called in question by filing appeal under section 14(A) of
the SC & ST (PA) Act.
Learned counsel for the petitioner in countering the
above submissions contends that POCSO Act being a special
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enactment subsequent to the SC & ST (PA) Act containing a
non-substantive clause, the bar under section 14(A) of the
SC & ST (PA) Act would not come to have its play. In support
of the same, he has placed reliance upon a decision in case
of Suraj S. Paithankar Vrs. State of Maharashtra in B.A. No.
817 of 2020 disposed of on 03.07.2020 (Annexure-5).
The POCSO Act being a special enactment providing
protection of children from the offences of child abuse and it
was brought into force on 14.11.2012. The Act provides
protection of Children from offences of sexual assault, sexual
harassment and pornography by safeguarding their interest,
right from the beginning even during judicial process with
the special provision as to the reporting, the investigation,
recording of evidence and trial with all the safeguards for its
progress at a faster pace and its early conclusion. Section-
42(A) of the POCSO Act provides that the provisions made in
the Act are in addition to and not in derogation of the
provisions of any other law for the time being force and in
case of any inconsistency, the provisions of the Act shall
have the overriding effect on the provision of such law to the
extent of such inconsistency. Under section-31 of the POCSO
Act, the provision of the code of Criminal Procedure are made
applicable to the proceedings before the Special Court trying
the offences under the Act as also the provision of appeal
contained therein in the Code. have been made equally
applicable to the proceedings to the offences under the
POCSO Act. In view of all the aforesaid, this Court overrules
the objection raised by the learned counsel for the State.
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Learned counsel for the petitioner submits that the
petitioner being in custody since 25.02.2016, by now in the
trial, out of 32 witnesses, only 10 have been examined. He
further submits that from the evidence tendered by the
prosecution so far, nothing clinching has come to surface in
attributing the petitioner with the authorship of the crime.
He submits that the case is not based on direct evidence and
the only material against the petitioner is his so called extra
judicial confession before a person of village Chandrapur
who in turn is said to have divulged the same to the
informant. He then brings another feature to the notice of the
court that although the informant has deposed that after
hearing from that man of Chandarpur who had given his
daughter in marriage at their village, he had lodged the
F.I.R.; that important fact does not at all find mention in the
F.I.R. In such state of affairs in the evidence, further placing
the long period of detention of the petitioner in custody
contending that the trial under the circumstances as it
appears is not expected to be completed so soon; he urges for
grant of bail to the petitioner as according to him, at present
there remains no scope on the part of the petitioner to flee
from justice and tamper the evidence.
Learned counsel for the State opposes the move.
According to him, the stage is too premature to take a view
upon consideration of the evidence on record. According to
him, the so called extra judicial confession and statement of
the petitioner before the police leading to recovery of the
weapon as also showing the place of burial of the dead body
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so as to cause disappearance of the evidence are enough to
say that strong prima facie case under section 302 IPC
against this petitioner stands and for that the prayer for
grant of bail to the petitioner has to be rejected.
Perusal of the record reveals that first witness i.e.,
this informant having been examined on 12.10.2017, the last
witness i.e. P.W.10 has been examined on 19.07.2018 and it
appears to that out of total cited prosecution witnesses
despite lapse of four years, just 1/3rd of them have been
examined in the trial which is going on. Due to the present
spread of Pandemic COVID-19, the normal functioning of the
court was also paralyzed and now it is just opening up. In
the above premises, this Court without going to the merits of
the allegations feels inclined to direct that the petitioner be
released on interim bail for a period of sixty days on such
terms and conditions as the trial court deems just and
proper with further condition that he shall surrender before
the said court on the sixty first day of his release from
custody. It is further observed that the trial court shall take
all such effective steps as provided in law to procure the
attendance of the rest of the prosecution witnesses, examine
them and conclude the trial by taking necessary
precautionary measures notwithstanding the prevailing
situation, wherein the petitioner shall fully cooperate. The
petitioner is also given the liberty to renew his prayer before
the trial court after surrender to the custody and if such
prayer is made, the same shall be considered on its own
merit and disposed of early in accordance with law. It is
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further observed that in the event the trial is delayed for any
reason attributable to this petitioner, the liberty as
aforegranted will not be available.
The BLAPL is accordingly disposed of.
The copy of this order be sent to the Superintendent
of Police, Sambalpur for information and to take necessary
action keeping in view the observations made hereinabove.
Learned State Counsel is also directed to impart
necessary instructions to all concerned by transmitting the
downloaded copy of the order.
..........................
D. Dash, J.
Narayan