Orissa High Court
Jayaprakash Pati And Others vs State Of Odisha on 17 August, 2022
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No. 212 of 2018
Jayaprakash Pati and Others .... Appellants
Mr. Devashis Panda, Advocate
-versus-
State of Odisha ... Respondent
Mr. J. Katikia, Addl. Govt. Advocate
Mr. H.S. Mishra, Advocate (Informant)
CORAM:
THE CHIEF JUSTICE
JUSTICE R.K. PATTANAIK
ORDER
Order No. 17.08.2022
I.A. No.978 of 2021
23. 1. This is an application for bail on behalf of the Appellant No.1 (Jayaprakash Pati) along with the co-appellant Nos.2 to 5 being convicted by the judgment dated 21st February, 2018 of the learned 2nd Additional Sessions Judge, Balangir in Sessions Case No.47/24/11 of 2013-16 for the offence punishable under Sections 302/34 IPC and sentenced to rigorous imprisonment (RI) for life and each to pay a fine of Rs.25,000/- in default to pay to undergo RI for six months each and similar sentence for the conviction of offence under Section120-B read with 34 IPC.
Page 1 of 62. It must be noted at the outset that by an order dated 21st September, 2021 Appellant Nos. 4 and 5 were released on bail.
3. This Court has heard the submissions of Mr. Debasish Panda, learned counsel appearing for the Appellant No.1/Applicant and Mr. J. Katikia, learned Addl. Government Advocate for the Respondent (State). Mr. H.S. Mishra, learned counsel appearing for the Informant has also been heard.
4. Pursuant to the hearing on 25th July, 2022 Mr. Katikia, learned Additional Government Advocate has filed an affidavit of the Superintendent, District Jail, Balangir regarding the conduct of Appellant No.1 while in custody. In this affidavit, it is pointed out that although some staff members of the jail had presented a petition before the Superintendent of Jail, Bolangir and the Additional Director of Police-cum-IG Prisons, alleging misbehavior by Appellant No.1 and about the threats issued by him, from the report submitted by the Superintendent of Jail to the Director of Correctional Services, Odisha on 28th January, 2016 it appears that the said allegations were baseless and 'manufactured' and as such the enquiry was dropped. By a further instruction by letter dated 8th July, 2021 conveying the health status, it is mentioned that he is a diabetes and hypertension patient and under treatment with drugs. He had undergone two surgeries for indirect Inguinal Hernia.
Page 2 of 65. It is submitted that the false complaint regarding alleged misconduct in jail was inadvertently attached to the said instructions about the health condition of Appellant No.1. It is stated in the affidavit as under:
"As far as the present behavior of the appellant No.1 is concerned, it is submitted that during the incumbency of the present deponent since 20.04.2022 to till date, no such allegation and/complaint has ever been made before the undersigned either by the jail inmates or by the staff of the office regarding ill-treatment and misbehavior by the appellant No.1"
6. The admitted position is that the Appellant No.1 has been in custody since 30th January, 2013 i.e. for more than nine and a half years. The further admitted position is that he had been released on furlough from 6th March, 2020 to 19th March, 2020 and again from 9th October 2020 to 29th October, 2020. He has not misused the parole period.
7. It is pointed out by Mr. Panda, learned counsel for the Appellant No.1 that although this is a case of double murder, it is based on the circumstantial evidence and the only material brought out in the evidence during trial is an alleged extra judicial confession of Appellant No.2 and the recovery made at his instance. According to Mr. Panda, the allegation that the vehicle of Appellant No.1was involved was unable to be established by the prosecution at the trial. It is also pointed out that the present Appellant's alleged confession before PWs 9 and 10 has not been established and Page 3 of 6 nothing incriminating against the present Appellant was revealed from the examination of his Xylo Car.
8. Mr. Katikia, learned Additional Government Advocate does not dispute any of the above contentions but seeks to rely on the impugned judgment of the trial Court finding the Appellant No.1 guilty of the aforementioned offences. Mr. H.S. Mishra, learned counsel for the Informant prayed that the appeal itself could be set down for hearing at an early date.
9. This being an appeal of 2018, it is unlikely that in its own turn, it can be finally heard at an early date.
10. Considering that the Appellant No.1 has been in custody for more than nine and a half years and considering that he has no criminal antecedents, has not misused the liberty granted to him during the periods of furlough, the Court is of the view that the Appellant No.1 has made out a case for being enlarged on bail during pendency of the present appeal. The Court clarifies that it is not expressing any final view on the above contentions of the parties on merits, which have been set out in this order only for the purposes of consideration of the present application for bail.
11. Accordingly, the Applicant/Appellant No.1 (Jayaprakash Pati) be enlarged on bail during pendency of the appeal subject to the satisfaction of and to the conditions to be imposed by the trial Court. In addition to the conditions to be imposed by the trial Page 4 of 6 Court, the following conditions shall also be part of the release order:
(i) Appellant No.1 will not leave Orissa during the period of bail without prior permission of the trial Court;
(ii) Appellant No.1 will surrender his passport, if any issued to him, at the time of his release on bail;
(iii) Appellant No.1 shall not try to directly or indirectly get in touch with any of the families of the victims during the period he is on bail;
(iv) Appellant No.1 will report to the IIC of the concerned police station within the limits of which he resides once in a fortnight;
reports of compliance in that regard shall be filed by the concerned IIC with the trial Court every fortnight.
(iv) The Appellant No.1 should be available whenever the appeal is taken up for hearing; and
(v) If any of the above bail conditions or those to be imposed by the trial Court are violated by the Applicant/Appellant No.1, the State and/or the informant would be at liberty to apply for cancellation of the bail.
Page 5 of 612. The I.A. is disposed of in the above terms. An urgent certified copy of this order be issued as per rules.
CRLA No.212 of 201813. The Registry will prepare the paperbooks of the appeal within four weeks and supply copies thereof to the learned counsel for the Appellants, the Additional Government Advocate as well as learned counsel for the Informant.
14. As soon as the paper books are ready and copies thereof have been supplied to learned counsel as directed, the appeal will be included in the list of final hearing before the roster Bench.
(S. Muralidhar) Chief Justice (R.K. Pattanaik) Judge S.K. Jena/Secy.
Page 6 of 6