Sushanta Dhalasamanta & Another vs State Of Odisha

G. Satapathy, J

These are applications U/S.439 of the Code of Criminal Procedure(in short, “CrPC”) by the petitioners for grant of bail in connection with Chauliaganj P.S. Case No.27 of 2016 corresponding to S.T. Case No.35 of 2018/ S.T. Case No.100 of 2023 (G.R. Case No. 222 of 2016) pending in the file of learned Sessions Judge, Cuttack, for commission of offences punishable U/Ss.387/120-B/34 of IPC r/w. Sec.25(1-B)(a)/25(1- AA)/27 of Arms Act, 1959 (in short “the Act”), on the main allegation of demanding extortion money and possessing prohibited firearms and live ammunitions.

In the course of hearing, Mr. Chandan Samanataray, learned counsel for the petitioners in all these three bail applications submits that although the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta in BLAPL No. 9082 of 2025 have been made as accused persons in this case, but the seizure was made in Chauliaganj P.S. Case No. 12 of 2016, and therefore, the present case registered against the aforesaid petitioners is not maintainable and thereby, the offence U/S.25(1-AA) of the Act is not attracted against the petitioners, but the petitioners having already been detained in custody for a substantial period, may kindly be granted bail. Further, Mr. Samantaray submits that the petitioners Debasish Kar (BLAPL No.9084 of 2025) and Lipuna @ Debadutta Das (BLAPL No. 12246 of 2025) have no substantial criminal antecedents, but they having been detained in custody for a substantial period without any material, their bail application may kindly be considered favourably by extending the principle of parity in view of grant of bail to co-accused Arif Khan and Dilu @ Pradeep Sahu in BLAPL Nos. 7411 of 2025 & 8201 of 2025.

2.1. On the other hand, Mr. Partha Sarathi Nayak, learned Special engaged Counsel in these cases opposes the bail applications of the petitioners by contending, inter alia that the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta are not only history-sheeters, but also they have got past conviction under the Act, but the punishment prescribed for the offence U/S.25(1-AA) of the Act is not less than 10 years, however, the same may extend up to imprisonment for life, but the penalty as provided therein would be doubled in case of previous conviction for offence under the Act in view of the provision of Section 31 of the Act, and therefore, the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta having been previously convicted for the offence under the Act, there is every likelihood of imposition of twice the penalty as prescribed for the offence on the Dhala Samanta brothers in case of their conviction for the said offence. Accordingly, Mr. Nayak, prays not only to reject the bail application of the petitioners Suhanta Dhalasamanta and Sushil Kumar Dhalasamanta, but also that of the petitioners Debasish Kar and Lipuna @ Debadutta Das, however, Mr. Nayak does not dispute about grant of bail to co-accused Arif Khan and Dilu @ Pradeep Sahu.

After having considered the rival submissions upon perusal of the record, there appears allegation against the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta for possessing prohibited firearms and live ammunitions, but some of the witnesses so far examined have deposed against the aforesaid two petitioners by supporting the prosecution allegation. Further, it is not in dispute that the petitioner Sushanta Dhalasamanta has been convicted in two criminal cases and is accordingly, sentenced to undergo imprisonment for 07 years in one criminal case and imprisonment for 05 years in another criminal case. Similarly, the petitioner-Sushil Kumar Dhalasamanta has been convicted in one criminal case with sentence to undergo imprisonment for 07 years therein. Besides, there are series of criminal antecedents reported against the petitioners. What should be the consideration for grant bail has been elucidated in a plethora of decisions, but in addition to such factors for consideration of bail application, the criminal antecedents of an accused cannot be brushed lightly as it has got definite impact on the society. In this regard, this Court is fortified with the decision of the Apex Court in Neeru Yadav vs. State of Uttar Pradesh & another; (2014) 16 SCC 508, wherein at Paragraph-17, it has been held as follows:-

“17. Coming to the case at hand, it is found that when a stand was taken that the 2nd respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinize every aspect and not capriciously record that the 2nd respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the 2nd respondent has been charge sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this court would tantamount to travesty of justice, and accordingly we set it aside.”

Further, Section 480(1)(ii) of BNSS prescribes that such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but less than seven years : provided further that the Court may also direct such person referred to above be released on bail, if it is satisfied that it is just and proper so to do for any other special reason.

Further, it is also not disputed that the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta have already been convicted for offence under the Act, but Section 31 of the Act prescribes punishment for subsequent offences in following words,

“31. Punishment for subsequent offences-Whoever having been convicted of an offence under this Act is again convicted of an offence under this Act shall be punishable with double the penalty provided for the latter offence.”

Additionally, Section 25(1-AA) of Act provides punishment, which shall not be less than ten years, but may extend to imprisonment for life and shall also be liable for fine. In this Case, the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta are facing trial for the offences under IPC & for Section 25(1-AA) of Act. It is, however, contended by the learned counsel for the petitioners that Section 25(1-AA) of the Act is not made out against the petitioners, but such plea has to be decided by the learned trial Court after evidence is being led. In a bail proceeding, this Court neither considers advisable nor desirable to accept such plea at this stage to say that the offence under Section 25(1-AA) of the Act is not made out. The only consideration in granting or refusing bail is dependent upon existence of prima facie case or not, but after going through the materials placed on record together with the evidence of the witnesses as produced, this Court does not consider it proper to opine that the offence under Section 25(1- AA) of the Act is not made out against the petitioners-Suhanta Dhalasamanta and Sushil Kumar Dhalasamanta

Further, the length of custody has been advanced as a plea for grant of bail, but this Court is fortified with a decision of the Apex Court in State of Bihar and another Vrs. Amit Kumar @ Bachcha Rai; (2017) 13 SCC 751 wherein it has been held in paragraph-8 as under:-

“8. Xxx xxx xxx When the seriousness of the offence is such, the mere fact that he was in jail for however long time should not be the concern of the courts. We are not able to appreciate such a casual approach while granting bail in a case which has the effect of undermining the trust of people in the integrity of the education system in the State of Bihar.”

On coming back to the bail plea of co-accused petitioners Debasish Kar and Lipuna @ Debadutta Das, it appears that the aforesaid two petitioners are having only criminal antecedents of two or three criminal cases, but they are in custody since 13. 08.2018 (Lipuna @ Debadutta Das) and 16.03.2016 (Debasish Kar). Further, co-accused Arif Khan and Dilu @ Pradeep Sahu in BLAPL Nos. 7411 of 2025 & 8201 of 2025, who appear to be standing on similar footing with the aforesaid two petitioners, have already been granted bail by this Court.

In view of the above facts and after having considered the rival submissions and on going through the materials placed on record together with the undisputed fact of previous convictions of the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta for offences under the Act and other offences and they having been sentenced to undergo imprisonment for seven years on the backdrop of the petitioners having checkered criminal history, but the petitioners Debasish Kar and Lipuna @ Debadutta Das having no serious criminal background and they having detained in custody for a substantial period and the main allegation of possessing unauthorized firearms and live ammunitions being directed against the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta and taking into account grant of bail to co-accused Arif Khan and Dilu @ Pradeep Sahu in BLAPL Nos. 7411 of 2025 & 8201 of 2025, this Court while not being inclined to grant bail to Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta, considers it proper to admit the petitioners Debasish Kar and Lipuna @ Debadutta Das to bail.

Hence, the bail applications of the petitioners namely Debasish Kar (BLAPL No.9084 of 2025) and Lipuna @ Debadutta Das (BLAPL No. 12246 of 2025) stand allowed, whereas the bail application of the petitioners Sushanta Dhalasamanta and Sushil Kumar Dhalasamanta (BLAPL No. 9082 of 2025) stands rejected and accordingly the petitioners- Debasish Kar & Lipuna @ Debadutta Das are allowed to go on bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One Lakh) each with two solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it.

Accordingly, these three BLAPLs stand disposed of. A soft copy of this judgment be immediately communicated to the concerned Court, who shall afterwards communicate the same to the concerned Jail through e-mail for reference.