Orissa High Court
Sipun Kumar Kabi vs State Of Odisha ... Opposite Party on 15 February, 2021
Equivalent citations: AIRONLINE 2021 ORI 138
Author: S. K. Panigrahi
Bench: S.K. Panigrahi
AFR
HIGH COURT OF ORISSA: CUTTACK
BLAPL Nos.5786 & 5787 OF 2020
(In the matter of applications under Section 439, Criminal
Procedure Code, 1973)
Sipun Kumar Kabi ... Petitioner
Versus
State of Odisha ... Opposite Party
For petitioner : Mr.Satya Prakash Satpathy
& Miss Prajna Sarita Mohanty
Advocates
For the Opp. Party: Mr. S.S. Kanungo,
Additional Government Advocate
PRESENT
THE HONOURABLE SHRI JUSTICE S.K. PANIGRAHI
Date of Hearing: 03.02.2021 Date of judgment: 15.02.2021
1. BLAPL No.5786 of 2020 and BLAPL No.5787 of 2020 being
similar in facts, nature of offence committed and the involvement
of the same person, hence both are heard analogously and taken
up together for disposal by this common judgment.
2. The petitioner has filed BLAPL No.5786 of 2020 under Section
439 of Cr.PC seeking bail in connection with Khandagiri P.S.
Case No.272 of 2020 dated 19.05.2019 corresponding to C.T.
Case No.2187 of 2019 pending before the court of the learned
S.D.J.M., Bhubaneswar. The petitioner herein is the accused in
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connection with alleged commission of offences punishable
under Section 394 of I.P.C and Sections 25 and 27 of the Arms
Act.
3. The case of the prosecution, in short, is that the complainant on
19.05.2019 at about 5:30 to 6:00 A.M. while on his way to drop
his brother-in-law Deepak Rout at the Railway Station, was
attacked by some suspects in front of Jaya Durga Club,
Jagamara. The alleged suspects appeared on two bikes, attacked
them and on the point of Bhujali and Pistol, took away their gold
chains, lockets, gold ear ring and escaped. Thereafter the
complainant lodged the FIR in the Khandagiri Police Station as
he further came to know that the suspects also snatched away
gold ornaments of two other women at different places in a
similar manner.
4. The petitioner has also filed BLAPL No.5787 of 2020 under
Section 439 of CrPC seeking bail in connection with Khandagiri
P.S. Case No.317 of 2020 dated 10.06.2019 corresponding to
C.T. Case No.2540 of 2019 further corresponding to C.T. No.41
of 2020 pending before the court of the learned Additional
Sessions Judge, Bhubaneswar. The petitioner herein is the
accused in connection with alleged commission of offences
punishable under Sections 364 and 394 of I.P.C.
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5. The case of the prosecution is that the complainant Dillip
Dehury is a driver of an Innova car and on 09.06.2019 at about
10 P.M. while he was taking his car out from the parking area in
front of SBI ATM near Gitanjali Vatika, he was strongly received
a blow on his head from behind. Thereafter, the suspects forcibly
made the complainant sit on the middle seat and tied a napkin
on his face. One of the suspects drove the vehicle while the
others caught hold of him. After sometime the suspects parked
the car and took the complainant to kill him. However, the
complainant managed to escape and fled away from the spot and
with the help of local people he informed the Police after which
he was taken to hospital for treatment.
6. The forwarding report in Badagada P.S. Case No.186, dated
04.08.2019 reveals that the present accused is involved in 15
other Criminal Cases of similar nature. It is further revealed that
on that particular date, the IIC, Badagada P.S. got information
about the presence of accused and co-accused Harekrushna
Sahu in Rabi Talkies area. At about 3:15 A.M. in the night, the
IIC Badagada P.S. along with his staff tried to apprehend the
accused and his associate. However, rather than surrendering,
they fired five rounds of bullets at the police. In the counter
firing, the present accused and his associates got injured and
both of them were apprehended. Out of their possession, one
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loaded pistol with live ammunition, mobile phones and cash
were recovered.
7. Heard Ms. Prajna Sarita Mohanty, learned counsel appearing for
petitioner and Mr. S. S. Kanungo, learned Additional
Government Advocate for the State and perused the case
records.
8. Learned counsel for the petitioner, Ms. Prajna Sarita Mohanty
has submitted that a bare perusal of the FIR would go to show
that there is no specific allegation against the present petitioner
or person by name. The petitioner has been falsely implicated in
the alleged crime though there is complete absence of evidence
on record to implicate him in the crime. Further, she has
submitted that the statement of the witnesses recorded under
Section 161 of Cr.P.C. reveals that none of the witnesses have
seen the petitioner committing the alleged offences. Rather from
the stereotype 161 statements it can be easily inferred that all
the witnesses have been planned in order to implicate this
innocent petitioner in the case. Learned counsel has relied on
the Supreme Court case in Surinder Kumar Khanna vs
Intelligence Officer Directorate of Revenue1 and Odisha High
Court case in Rabinarayan Jena and Ors. vs State of Orissa2
1
(2018) 8 SCC 271.
2
2013 (II) OLR 262.
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and submits that the confessional statement of the co-accused
cannot be used as a substantive piece of evidence in the Court:
"14. On the touchstone of law laid down by this
Court such a confessional statement of a co-accused
cannot by itself be taken as a substantive piece of
evidence against another co-accused and can at best be
used or utilized in order to lend assurance to the Court.
In the absence of any substantive evidence it would be
inappropriate to base the conviction of the appellant
purely on the statements of co-accused."
9. Learned counsel for the petitioner has further submitted that
the perusal of materials available on record would go to show
that there is no specific evidence and reason for alleging against
the petitioner for commission of the alleged offences. Further,
the Police have completed the investigation and submitted the
charge-sheet. As such, any further detention of the petitioner
shall in no way be beneficial for the prosecution. Hence, he may
be granted bail.
10. The Hon'ble Supreme Court in the case of Haricharan Kurmi
v. State of Bihar3 held that:
"12... though such a confession may not be evidence as strictly
defined by Section 8 of the Act, it is an element which may
be taken into consideration by the Criminal Court and in
that sense, it may be described as evidence in a non-
technical way. But it is significant that like other evidence
which is produced before the Court, it is not obligatory on
3
AIR 1964 SC 1184.
6
the Court to take the confession into account. When evidence
as denned by the Act is produced before the Court, it is the
duty of the Court to consider that evidence. What weight
should be attached to such evidence, is a matter in the
discretion of the Court. But a Court cannot say in respect of
such evidence that it will just not take that evidence into
account. Such an approach can, however be adopted by the
Court in dealing with a confession, because Section 30
merely enables the Court to take the confession into
account."
11. Kerala High Court in the case of K.C. Peter vs State of Kerala4
has provided the importance of confessional statement of co-
accused and its consonance with 69th Law Commission Report:
"17.......The main condition to consider and act upon such a
confession statement is that through such confession
statement, he shall inculpate himself as well as the other
accused who jointly tried along with the maker. A
confession statement made by the co-accused inculpating
another accused but exculpating himself-the maker will not
come under Section 30 of the Evidence Act. Of course, the
value of a confession statement made by a co-accused is
lesser than the evidentiary value of the statement of an
accomplice. Still then, according to me, a confession
statement of the co-accused can be considered for the
purpose of appreciating the evidence in that trial and for
taking appropriate judicial decision in a criminal trial. The
purpose under which Section 30 was incorporated in the
Evidence Act, according to 69th report of the Law
Commission is that if a person implicates himself (while
implicating others), there is some guarantee that the
implication is true. In paragraph 11.78 of the 69th Law
Commission report, it is stated as "It is also said that it
4
Crl.Rev.Pet.No. 624 of 2011.
7
is difficult in such a situation to require the court to
exclude the statement altogether from its mind, when
it comes to consider the case against the other
accused."
I am of the view that the above purpose is more relevant
and required in this time. According to me, at the time of
incorporating Section 30 in the Evidence Act, the I.P.C.
offences against the mankind and the society are
comparatively lesser than the present one. Now-a-days, the
number of economic offences and other offences connected
with monetary interest are being increased and to commit
such offences, the wrong doers are using all the modern
sophisticated devices so as to screen the offenders, offence
and evidence and to escape from the clutches of law and
penal liability. Such economic offences as well as crimes are
being committed in pursuance of criminal conspiracy and by
way of abetment and particularly with the help of modern
devices including computers. Therefore, though it is not
practically impossible, it is difficult to get direct evidence."
12. It is significant that like other evidence which is produced before
the Court, it is not obligatory on the Court to take the confession
into account. However, when evidence as denned by the Act is
produced before the Court, it is the duty of the Court to consider
that evidence. What weight should be attached to such evidence, is
a matter in the discretion of the Court. But a Court cannot say in
respect of such evidence that it will just not take that evidence into
account. Further while considering bail applications, the Court
must consider the nature of accusation, severity of punishment in
case of conviction, apprehension of tampering with evidences and
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the case history of the accused persons while looking at the
confession of the co-accused as the sole evidence.
13. At this juncture, it would be appropriate to refer to the judgment
of the Hon'ble Supreme Court in the case of Dipak
Shubhashchandra Mehta v. CBI and another5, wherein it has
been held as under:
"32. Court granting bail should exercise its discretion in a
judicious manner and not as a matter of course. Though at
the stage of granting bail, a detailed examination of evidence
and elaborate documentation of the merits of the case need
not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being
granted, particularly, where the accused is charged of having
committed a serious offence. The court granting bail has to
consider, among other circumstances, the factors such as (a)
the nature of accusation and severity of punishment in case
of conviction and the nature of supporting evidence; (b)
reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant; and (c) prima facie
satisfaction of the court in support of the charge. In addition to
the same, the court while considering a petition for grant of
bail in a non- bailable offence, apart from the seriousness of
the offence, likelihood of the accused fleeing from justice and
tampering with the prosecution witnesses, have to be noted."
14.In the instant case, the investigation is still going on. From
perusal of the FIR, it appears that offences under the Indian Penal
Code, are prima facie made out. A perusal of the FIR and charge
sheet filed in the present cases shows that there are very specific
5
(2012) 4 SCC 134.
9
allegations against the Petitioner, who is same person in both
cases arrayed as an accused. It is not, as if, the allegations are
casual and sweeping against all the accused in general. Moreover,
the IIC, Badagada in P.S. Case No.186 dated 04.08.2019 has
reported that there are 15 other criminal cases of similar nature
are pending against the petitioner and further he has tried to
refrain arrest by firing at the police officers with the help of his
associates.
15. There are numerous other allegations as well in the charge sheet
which are very detailed and need not be reproduced since the
above extracts are sufficient to indicate that the allegations are
specific and not of a general nature. Upon a reading of the FIR
and the charge sheet as a whole, it is not possible to come to the
conclusion that they do not make out even a prima face case
against the petitioner for the offences in question. Moreover, the
allegations are specific qua each of them.
16. In view of the above, I am not inclined to allow the prayer for bail
of the petitioner in both the bail applications. Accordingly, both
the bail applications are dismissed.
17. However, the petitioner will be at liberty to raise all the points,
already raised in these petitions, at the time of framing of the
charge, which will be considered by the trial court concerned by
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passing a reasoned order. None of the observation made herein
above shall come in the way of the fair trial of the instant case.
.. ..
S. K. Panigrahi, J.
Orissa High Court, Cuttack. The 15th day of February, 2021/AKK/LNB