Prafulla Kumar Mohanty vs The State of Orissa

C.R. Dash, J.—Heard.

The petitioner is implicated in offence punishable under sections 302/201 I.P.C. on the basis of allegation that he committed murder of a young student of Class-II and caused disappearance of the evidence with a view to screen himself from legal punishment.

The informant named, Keshab Bhumia, whose foster son is alleged to have been killed by the present petitioner, has filed an affidavit asserting that on suspicion F.I.R. was lodged against the petitioner and lodging of such F.I.R. was outcome of a misunderstanding of the matter.

In course of investigation the petitioner moved this Court u/s 438 Cr.P.C. and vide order passed in BLAPL No. 4657 of 2009 the petitioner has been given interim protection and period of such interim protection after extension is to expire tomorrow i.e. 30.3.2010. In the meantime while under the cover of the interim protection in the order passed by this Court u/s 438 Cr.P.C, the petitioner moved the competent Courts under sections 437 and 439 Cr.P.C, but in vain. Subsequently, on 22.2.2010 the present Bail Application u/s 439 Cr.P.C. has been filed.

As the petitioner is not in custody in the strict sense of the terms as understood in the common parlance an obvious objection relating to maintainability of the bail Application is raised by the State.

Learned Counsel for the petitioner relies on the case of Shri Indrajeet Roy Vs. Republic of India, and the decision of Hon''ble Supreme Court in the case of Kanaksinh Mohansinh Mangrola v. State of Gujarat (2007) 36 OCR (SC) 60 to substantiate her contention that the petitioner being under the cover of the interim protection extended by this Court u/s 438 Cr.P.C. is to be deemed in legal custody of the competent Court and the present petition for bail u/s 439 Cr.P.C. is maintainable.

This Court in the case of Indrajeet Roy supra in paragraph-8 of the decision examined the connotation and meaning of the word "custody" and held thus:

The expression "custody" though used in various provisions of the Code of Criminal Procedure, including Section 439, has not been defined in the Code, but keeping in view the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as "in custody" in a generic sense, and the observation made in the Division Bench decision of the Orissa High Court noticed above, there cannot be any doubt that the expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate.

Hon''ble Supreme Court in the aforesaid case of Kanaksinh Mohansinh Mangrola supra, in paragraph-4 of the decision has held thus:

From the bail application filed on 19-4-2005 by the appellant u/s 439 Cr.P.C, it clearly appears that on that day the appellant was in custody as he was on-interim bail for 15 days from 13-4-2005 and his application could have been considered on merits instead of dismissing the same on the ground of non-maintainability.

Taking into consideration the rationale in the aforesaid decision, I have no hesitation to hold that the petitioner though on interim protection extended u/s 438 Cr.P.C, is to be deemed to be in custody for the purpose of the present Bail Application and the same is maintainable.

Coming to the merit of the case, it is found from the postmortem examination report that there is no sign of external injury on the dead body and the petitioner is alleged to have (if the statements of the witnesses u/s 161 Cr.P.C. are held to be believed for the purpose of finding prima facie case) assaulted the deceased by a stick. Charge Sheet in this case has already been submitted. The petitioner being a Headmaster in the Government School, there is no chance of his absconding.

Regard being had to the aforesaid facts, factum of permanent residence of the petitioner and completion of investigation in the meantime, it is directed that the petitioner shall be released on bail on his submitting to the jurisdiction of the learned S.D.J.M., Malkangiri in G.R. Case No. 27 of 2009 by executing bond of Rs. 20,000/- (twenty thousand) with two sureties each solvent for the like amount to the satisfaction of the aforesaid Court, subject to such conditions as deemed fit and proper by the learned Court below.

The BLAPL is accordingly disposed of.

Certified copy of this order be granted on proper application.