Babuni alias Subrat Patra vs State of Orissa

M.M. Das, J.—Heard Mr. B. Mishra, learned Senior Counsel appearing for the Petitioner and the learned Counsel for the State.

This application has been filed by the Petitioner, Babuni alias Subrata Patra, for grant of bail u/s 439 Code of Criminal Procedure.

Mr. Mishra, learned Senior Counsel appearing for the Petitioner submitted that there is no material on record to implicate the Petitioner with the offences alleged to have been committed by him u/s 449/302/120-B/34 I.P.C. He further submitted that the Petitioner has been implicated in the case only on the allegation of conspiracy u/s 120-B I.P.C. and is languishing in the custody since 8.2.2003. Mr. Mishra further submitted that though admittedly previous bail applications filed by the Petitioner have been rejected by this Court on various occasions, but even though a direction was issued by this Court to take steps for expeditious disposal of the case, preferably by the end of 2003, the sessions trial could not be disposed of as, at the instance of the State, a case has been filed before this Court for transfer of the sessions trial, in which, stay of further proceeding of the sessions trial has been directed by this Court. He vehemently argued that in these circumstances, the previous orders passed by this Court rejecting the prayer for bail made by the Petitioner should not stand on the way of the Court to release him on bail and keeping the Petitioner in custody during the trial of the case, the conclusion of which, within a short period, has become uncertain due to the stay order of this Court, would amount to infringing the right of the petition under Article 21 of the Constitution of India. It has also been submitted on behalf of the Petitioner that though various other cases were alleged to be pending against the Petitioner, it would be seen from the copies of the judgments filed in some of those cases that the Petitioner has been acquitted in as many as seven cases out of twelve cases alleged to be pending against him. It is also submitted that the cases now pending against the Petitioner are for minor offences and no allegation of commission of any heinous crime is made in those cases.

Learned Counsel for the State per contra relying upon the decision in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan '' Papu Yadav and Anr. 2005 (1) SC 285 submitted that if successive bail application of a Petitioner has been rejected, the Court has a duty to consider reason and grounds on which the earlier bail applications were rejected and it has also a duty to record fresh grounds which persuaded it to take a view different from one taken earlier. In reply to the contention of the counsel for the Petitioner that the Petitioner has been implicated in the case on the statement of a co-accused, the learned Counsel for the State relying on the decision of the Supreme Court in the case of State of Maharashtra v. Damu Gopinath Shinde and Ors. AIR 2000 SCW 1617 submitted that such confession of a co-accused while considering a bail application cannot be thrown out on the ground that the same is not admissible in evidence. Further, relying upon the decision in the case of Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 30 OCR (SC) 327, he submitted that if prima facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by any one of the conspirators in furtherance of the common object is admissible against all. This decision is also relied upon by the learned counsel for the Petitioner in support of the submission that there is no material whatsoever collected during investigation to show that there exists prima facie evidence that the Petitioner was a party to the conspiracy.

From the facts of the case as disclosed and on perusal of the case diary produced before me, it is clear that heinous offence, such as, an offence of murder u/s 302 I.P.C. was committed.

Considering the materials available during the respective periods when the previous bail applications were rejected by this Court, this Court did not feel it appropriate to grant bail to the Petitioner and his prayer was repeatedly rejected.

In the decision reported in 2005 (1) SC 285 (supra), the Supreme Court has held as follows:

It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorized by law. But even persons accused of non bailable offence are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that inspite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases, if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the Courts can do so.

In the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, , the Supreme Court has held as follows:

... In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (there years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the Appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.

It has been held in several decisions on the question of grant of bail that the Court before granting bail should take into consideration the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complaint, prima facie satisfaction of the Court in support of the charge and also antecedents of the Petitioner.

Applying the above principles to the facts of the case and on considering the materials available on record, I do not find this to be an appropriate case where the Petitioner should be released on bail. The prayer for bail is, therefore, rejected.

The BLAPL is accordingly disposed of.

Urgent certified copy of this order be granted on proper application.