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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Basanta Panda – Appellant
Versus
State of Odisha – Respondent
BLAPL No. 8126 of 2020
Decided on : 02-08-2021
Indian Penal Code, 1860 - Sections 364/302/201/120-B - Code of Criminal Procedure, 1973 - Section 439 - Criminal Conspiracy - Nature and gravity of accusation - Whether successive bail application can be entertained and a different view can be taken on already existing materials when earlier bail application was rejected on merit, merely because some documents/statements available in case record were not taken into account - first information report was lodged by e daughter of deceased that deceased was found missing from her house for which on report of informant, Informant came to know from the locality that petitioner had kidnapped her mother, committed her murder and concealed dead body somewhere - Local people were also aware about incident but out of fear, they did not disclose matter. She received phone calls about fact from local people that petitioner was not staying in village since date of occurrence. Further stated that family members of petitioner were also involved in kidnapping of her mother. Taking advantage of death of father of informant and since there was no male member in the family to look after them, petitioner used to borrow money and jewellery from deceased from time to time.
Finding of the Court :
This bail application, being a successive one moved within two months of the rejection of earlier bail application before learned trial Successive bail applications are maintainable but there has to be material change in fact situation and not mere cosmetic change. Successive bail applications on same grounds which were available to accused at time of consideration of earlier bail application would not be maintainable. Neither a ground that earlier bail application was not properly placed by the previously engaged counsel can be entertained - Court without any changed circumstances and after its rejection, petitioner has rushed to this Court again, court not inclined to release the petitioner on bail - Detailed discussion of the evidence and elaborate documentation on merits of case is to be avoided while considering an application for bail. No party should have the impression that his case has been pre-judged. Existence of a prima facie case is only to be considered. Where offence is of serious nature, question of grant of bail has to be decided mainly keeping in view nature and gravity of accusation, character of evidence, chance of absconding of the accused, chance of tampering with evidence and also larger interest of public
Result: Bail Application rejected
JUDGMENT :
S.K. SAHOO, J.
The petitioner Basanta Panda has filed this application under section 439 of Cr.P.C. in connection with S.T. Case No.21 of 2020 pending in the Court of learned Sessions Judge, Sambalpur which arises out of Sambalpur Town P.S. Case No.289 of 2019 in which charge sheet has been submitted under sections 364, 302, 201 of the Indian Penal Code. The petitioner moved an application for bail in the trial Court which was rejected vide order dated 12.10.2020.
The first bail application of the petitioner was rejected by this Court in BLAPL No.365 of 2020 vide order dated 03.08.2020 taking into account the manner in which the occurrence has taken place, the extra judicial confession by the petitioner before the labourer, the surrounding circumstances in which the offence was committed and the nature and gravity of the accusation against the petitioner.
2. The first information report was lodged by one Bijayani Mishra, the daughter of Jayashree Mishra (hereafter ‘the deceased’) before the Inspector in-charge, Town police station, Sambalpur on 21.07.2019 wherein it is stated that the deceased was found missing from her house for which on the report of the informant, Sambalpur Town P.S. SDE No.365 dated 14.10.2011 and MMR No.25 of 2011 were registered. The informant came to know from the locality that petitioner had kidnapped her mother, committed her murder and concealed the dead body somewhere. The local people were also aware about the incident but out of fear, they did not disclose the matter. She received phone calls about the fact from the local people that the petitioner was not staying in the village since the date of occurrence. It is further stated that the family members of the petitioner were also involved in the kidnapping of her mother. Taking the advantage of death of the father of the informant and since there was no male member in the family to look after them, the petitioner used to borrow money and jewellery from the deceased from time to time.
Basing on such written report, Sambalpur Town P.S. Case No.289 dated 21.07.2019 was registered under sections 364/302/201 of the Indian Penal Code against petitioner.
3. During course of investigation, S.I. of police Sri R.K. Biswal, the Investigating Officer examined the informant Bijayini Mishra, her brother Bhabani Shankar Mishra and others and recorded their statements and finding prima facie materials against the petitioner, the I.O. arrested the petitioner on 22.07.2019 and during interrogation, the petitioner confessed his guilt and disclosed that he strangulated the neck of deceased by means of a towel and killed her brutally and buried her dead body at Mahulmunda side and after the occurrence, he left the village and resided at Jharsuguda area for three years and then he was residing at Jujomura since one year. The I.O. sent a requisition to S.D.M., Sambalpur to depute an Executive Magistrate to disinter the dead body of the deceased from the spot. He also made a requisition to the Scientific Officer, DFSL, Sambalpur to assist in the collection of physical evidence with videographer. As per version of petitioner, the I.O. proceeded to village Badsinghari, Mahulmunda along with Executive Magistrate, scientific team and witnesses and searched for the dead body of deceased at all the possible places as per statement of the petitioner but found no result. As prima facie evidence was found for commission of offences under sections 364/302/201/120-B of the Indian Penal Code against the petitioner, the I.O. arrested him and forwarded him to Court on 22.07.2019. The wearing apparels of the petitioner were seized and he was taken on police remand as per the orders of the Court and during police remand, the petitioner further led the police team, Scientific team, Executive Magistrate and witnesses to Badasinghari, Mahulmunda where the petitioner had concealed the dead body of the deceased. During unearthing of the place, some bone parts suspected to be the bone pa
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