Nilamadhab Mandal vs State Of Odisha

Dr. S.K. Panigrahi, J

This matter is taken up through hybrid arrangement.

Heard learned counsel for the Petitioner and learned counsel for the State.

The Petitioner being in custody in connection with Pattapur P.S. Case No.115 of 2020 corresponding to S.T. Case No.127 of 2022 pending before the court of learned Additional District and Sessions Judge, Berhampur, Ganjam, registered for the alleged commission of offence under Sections 342/302/364/120-B, 34 of I.P.C., has filed this petition for his release on bail.

The allegation as made in the F.I.R. reveals that on 23.05.2020 at about 2.30 P.M, one Tarini Mandal of Village Sriram Nagar called the nephew of Kalinga Kumar Dash/informant, named Bibhu Prasad Das to go to Sriram Nagar near Taptapani with two of his friends named Udhab Gouda and Gangadhar Patra by a car from Sastri Nagar, Berhampur. It is further alleged that on the same day, Tarini Mandal, Tukuna Mandal and their co-workers took Bibhu Prasad Das to the forest. Since then, his nephew has been missing. Despite frantic search, he was untraced. The aforesaid accused persons assaulted to Gangadhar Patra and also threatened him. Gangadhar Patra somehow managed to escape from their clutch and returned to home. Further, it was alleged that Udhab also returned to his village by hiding himself and on 26.05.2020, they informed the informant about the incident.

Learned counsel for the Petitioner submits that the Petitioner has been falsely implicated in this case and he is an innocent person. He has been in custody since 08.06.2020. He also submits that the co-accused persons named Tarini Mandal and Tukuna Mandal, who stand on similar footing, have already been released on bail by the learned court below. He further contends that the trial has not yet been concluded.

Learned counsel for the Petitioner further contends that the Supreme Court has held that right to have speedy trial is a fundamental right of a citizen. Hence, keeping a person in custody for such a long time without any trial is not justified and violative of his fundamental right. The importance of speedy trial has been emphasized in the case of Hussainara Khatoon & Ors. vrs. Home Secretary, State of Bihar 1979 AIR 1360, wherein the Supreme Court has iterated that:

"Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just" procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial."

He further argues that the period of long incarceration suffered, which entitles the Petitioner for grant of bail. Right to Speedy trial is a fundamental right of an under trial prisoner and this observations have been resonated, time and again, in several judgments including that of Kadra Pahadiya & Ors. v. State of Bihar (1981) 3 SCC 671 wherein it has been stated that the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in a country like ours, where the large majority of the accused come from poorer and weaker sections of the society and are not versed with laws and after face the dearth of competent legal advice, the application of the said NDPS Rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But an accused cannot be disentitled from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial.

The Supreme Court has also held in Mohd. Muslim @ Hussain v. State (NCT of Delhi) SLP (Crl.) No. 915 of 2023 that incarceration has further deleterious effects where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.

Learned counsel for the State vehemently opposes the bail prayer of the Petitioner.

Without going into the merits of the case and since co-accused persons have been released on bail by the learned court below, this Court directs the court in seisin over the matter to release the Petitioner on bail in the aforesaid case on  some stringent  terms  and  conditions  with  further conditions that:

i. the Petitioner shall appear before the concerned Police Station on every Monday between 10.00A.M. to 1.00P.M. till conclusion of the trial;

ii. the Petitioner after the onset of monsoon, shall plant 100 saplings of local variety like mango, neem, tamarind etc. around his village over the Government land/ community land/ private land, if it is in the possession of the Petitioner or his family members.

iv. the Petitioner shall not indulge himself in any criminal activities in future;

v. the Petitioner shall not tamper the evidence of the prosecution witnesses in any manner;

vi. the Petitioner shall not threaten or cause any kind of inconvenience to the victim or the family members of the victim;

Violation of any of the above conditions shall entail cancellation of the bail.

The I.I.C. of the concerned Police Station in coordination with the local Forest Officer shall monitor; whether the Petitioner has planted the saplings or not.

It is further made clear that the Petitioner shall file an affidavit after plantation of the saplings before the local Police Station assuring that he will maintain those plants for two years. The said affidavit be also produced before the learned court below at the time of trial.

The BLAPL is, accordingly, disposed of..

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