Orissa High Court
Nakula Nayak vs State Of Odisha .... Opposite Party on 21 October, 2021
Author: Savitri Ratho
Bench: Savitri Ratho
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 7278 of 2020
Nakula Nayak .... Petitioner
Mr. A.K. Dash, Advocate
Versus
State of Odisha .... Opposite Party
Sk. Zafrullah, A.S.C
CORAM:
JUSTICE SAVITRI RATHO
ORDER
Order No. 21.10.2021 06. 1. I have heard Mr. A.K. Dash, learned counsel for the
petitioner and Sk. Zafrullah, learned Additional Standing Counsel for the State through Video Conferencing mode and hybrid mode.
2. This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner-Nakula Nayak in connection with Ambadola P.S. Case No.61 of 2019 corresponding to C.T. Case No.63 of 2019 pending in the Court of the learned Additional Sessions Judge, Gunupur registered for commission of offences under Section 302 of I.P.C.
3. The prayer for bail of the petitioner has been rejected by the learned Addl. Sessions Judge, Gunupur in C.T. Case No.63 of 2019 by order dated 14.07.2020.
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4. The prosecution case in brief is that on 20.06.2019 at 6.00 P.M. the deceased Karuna Nayak was hiding in the house of Mathura Takri after killing Makura Nayak brother of the petitioner. The petitioner armed with a bamboo lathi, dragged him outside the house of Mathura Takri to a jack fruit tree, and assaulted him with lathi and cement concrete rock under at village Bandhamunda Chowk till he died. The informant had been to the spot after getting such information and found the dead body of deceased Karuna Nayak lying at the spot and thereafter reported the matter at the Police Station.
5. It has been averred in his bail application that the informant has falsely implicated the petitioner on the confessional statement of the co accused and FIR has been lodged with malafide intention and vindictive attitude of the informant. Mr. A.K. Dash, learned counsel for the petitioner however submits that the said averment is on account of typographical error as there is only one accused in this case. He has also submitted that the incident took place on the spur of the moment when the informant came to learn that the deceased had killed the petitioner's brother suspecting him to have practiced witchcraft. He ultimately submits that Article 21 of the Constitution is violated as the petitioner is in custody since BL APL 7278 of 2020 Page 2 of 15 21.06.2019 and trial is yet to start and therefore keeping in view the settled principle of law that "Bail is the rule and detention in jail is the exception", where there is no apprehension that the accused would flee from justice, he should be granted bail. He would submit that investigation having been completed and the petitioner being a permanent resident of Suklabhata, there is no chance of tampering with evidence or absconding if released on bail. He relies on the decision of the Hon'ble Apex Court reported in the case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40.
6. Mr. Sk. Zafrullah, learned Additional Standing Counsel states that the petitioner had the motive to kill the deceased and he had come armed with a lathi looking for the deceased and although the informant is not an eye witness , but there are a number of eye witnesses who have seen the petitioner drag the deceased outside the house of Mathura Takri where he was hiding and then beating him with the lathi till the lathi broke and he fell down and thereafter assaulting him on the head with a concrete cement rock and lathi till he died. He has further submitted that while considering a bail application, the Court has to first consider the gravity of the offence, the nature of punishment prescribed, the nature of BL APL 7278 of 2020 Page 3 of 15 materials available against the petitioner alongwith the chances of the petitioner absconding from the process of justice or tampering with evidence. The prayer for bail of the petitioner is liable to be rejected as the petitioner has assaulted the deceased on the head with lathi and the cement concrete block which have resulted in his death and this has been seen by a number of witnesses and chargesheet has been filed against the petitioner for commission of offence under Section - 302 I.P.C which is punishable with life imprisonment or death.
7. In Sanjay Chandra vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, the accused were facing trial in respect of offences under Sections - 120-B, 420, 468, 471 and 109 of I.P.C. read with Section - 13 (1)(d) of the Prevention of Corruption Act, 1988 where the maximum punishment was for seven years. After referring to and discussing the earlier decisions of the Court in the matter of grant of bail and keeping in mind the voluminous nature of evidence to be led in the case and the maximum punishment prescribed for the offences which was seven years , the Hon'ble Court directed for release of the petitioners on bail, subject to stringent conditions.
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Paragraphs- 24, 25, 39, 40, 41, 42 and 43 of the judgment which are relevant are extracted below:
..."24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice".
25. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our BL APL 7278 of 2020 Page 5 of 15 system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. .................
39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not BL APL 7278 of 2020 Page 6 of 15 to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh vs. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of bail in a non-
bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view the same is not convincing.
42. When the under trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is:
whether the same is possible in the present case.
43. There are seventeen accused persons. Statements of the witnesses run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, BL APL 7278 of 2020 Page 7 of 15 who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet."...... In the case of Mahipal vs. Rajesh Kumar @ Polia reported (2020) 2 SCC 118 , the Hon'ble Supreme Court while cancelling the bail granted to the Respondents by the High Court has observed as follows:
"...11. Essentially, this Court is required to analyse whether there was a valid exercise of the power conferred by Section 439 of the CrPC to grant bail. The power to grant bail under Section 439 is of a wide amplitude. But it is well settled that though the grant of bail involves the exercise of the discretionary power of the court, it has to be exercised in a judicious manner and not as a matter of course. In Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, Justice Umesh Banerjee, speaking for a two judge Bench of this Court, laid down the factors that BL APL 7278 of 2020 Page 8 of 15 must guide the exercise of the power to grant bail in the following terms:
"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case...The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail. (c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to considered in the matter of grant of bail, and BL APL 7278 of 2020 Page 9 of 15 in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail."
In the case of Anil Kumar Yadav vs State of NCT:
(2018)12 SCC 129, the Hon'ble Apex Court has held as follows:BL APL 7278 of 2020 Page 10 of 15
..." 24. As pointed out earlier, one of the grounds for grant of bail to the appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the accused was in custody for more than one year, may not be a relevant consideration. In Gobarbhai Naranbhai case, it was observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail. The same was reiterated in Ram Govind Upadhyay v. Sudarshan Singh and others (2002) 3 SCC 598..."
In the case of Prahlad Singh Bhati vs. NCT, Delhi reported in (2001) 4 SCC 280 the Hon'ble Court has held as follows :
"..The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for BL APL 7278 of 2020 Page 11 of 15 believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt...".
In a series of decisions, the Hon'ble Supreme Court , has enumerated the broad factors to be considered while considering an application for bail and also clarified that these factors are illustrative and not exhaustive They are :
(i) nature and gravity of the charge; (ii) severity of the punishment in the event of conviction; (iii) existence of a prima facie or reasonable ground to
believe that the accused had committed the offence;
(iv) danger of accused absconding or fleeing if released on bail;
(v) the prior antecedents of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) Chances of the petitioner absconding.
8. I have gone through the case diary and more particularly, the statements of the eye witnesses namely Mathura Takri, Pichi Dangari, Jagabandhu Dagari, Khagapati Bag, Padman Suna and others and the postmortem examination report. The eyewitnesses BL APL 7278 of 2020 Page 12 of 15 have stated that the petitioner came looking for the deceased armed with a lathi and declaring that he would murder him as he had killed his brother and then dragged the deceased out from the house of Mathura Takri, and assaulted him with the bamboo lathi till it broke and then took him to a nearby jackfruit tree and beat him on the head with lathi and a cement concrete rock till he died. A number of lacerated injuries were detected on the head of the deceased and the epidural membrane on the right temporal region was torn. Cause of death has been opined to be shock and epidural hemorrhage caused by blunt force trauma to temporal region of the skull and the broken pieces of the bamboo lathi and cement concrete rock have been seized from the spot.
9. Of course , no material has been brought on record by the prosecution to show that the petitioner will abscond or tamper with prosecution evidence if he is released on bail. But at this stage, in view of the material collected by the prosecution, there is no reason to doubt that the petitioner did not commit the offence. That apart, in the case of Sanjay Chandra, there were seventeen accused persons, the maximum punishment prescribed for the offences was seven years, statements of witnesses ran into several hundred pages and the documents relied on by the prosecution were voluminous, BL APL 7278 of 2020 Page 13 of 15 for which the Court felt that the trial would take considerable time.
In the present case the petitioner is the sole accused, there are twenty chargesheet witnesses and the maximum punishment prescribed for the offence is imprisonment for life or death.
10. In view of the discussion above and after considering the submissions of the learned counsels , the nature of materials available against the petitioner and the punishment prescribed for the offence he is alleged to have committed, I do not consider this to be a fit case to grant bail to the petitioner. The prayer for bail therefore has no merit and is rejected.
11. But as it is submitted that the petitioner is in custody since 22.06.2019 and even though the case has been committed since almost two years , the trial is yet to start , I request the learned trial court to endeavour to complete the trial by the end of July 2022.
Liberty is granted to the petitioner to move the trial Court afresh for bail, in case there is delay in completion of the trial. Copy of this order be sent to the Additional Sessions Judge, Gunupur by the Registry , for compliance.
12. Observations in this order are for the purpose of deciding the bail application and should not influence the learned trial court . BL APL 7278 of 2020 Page 14 of 15
13 . The BLAPL is dismissed with the aforesaid observations.
14. Urgent certified copy of the order be granted on proper application.
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(Savitri Ratho) Judge Sukanta BL APL 7278 of 2020 Page 15 of 15