Ramesh Dalabehera Vs. State of Orissa

Ramesh Dalabehera vs State of Orissa

Type Court Judgment Court Orissa Decided Aug 02, 2005

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Citation: sooperkanoon.com/534576
Court: Orissa High Court
Judge: N. Prusty, J.
Decided On: Aug 02, 2005
Case Number: Misc. Case No. 507 of 2005 (Arising out of CRLA 337 of 2004)
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

Criminal - Bail - Sections 34, 304-B and 498A of Indian Penal Code, 1860 (IPC) - Appellants convicted under Sections 34, 304-B and 498A - Appeal before Session Court - Earlier appellant No. 3 along with his parents appellants 1 and 2 had filed application for bail, which was disposed of directing release of appellan...

Key legal issue: Criminal
Acts & sections: Indian Penal Code (IPC) - Sections 34, 201, 302, 304B and 498A; Code of Criminal Procedure (CrPC) , 1973 - Sections 235(1)

Parties & Advocates

Appellant / Petitioner

Ramesh Dalabehera

Advocate S.K. Sahoo,; A.P. Ray,; G. Sahoo,;

Respondent

State of Orissa

Advocate Additional Standing Counsel

Legal References

Acts: Indian Penal Code (IPC) - Sections 34, 201, 302, 304B and 498A; Code of Criminal Procedure (CrPC) , 1973 - Sections 235(1)
Cases Referred: Shailendra Kumar v. State of Delhi
Reported In: 101(2006)CLT25; II(2005)DMC829; 2005(II)OLR438

Excerpt

.....convicted under sections 34, 304-b and 498a - appeal before session court - earlier appellant no. 3 along with his parents appellants 1 and 2 had filed application for bail, which was disposed of directing release of appellants 1 and 2 of on bail, but petitioner's prayer for bail was rejected and he was given liberty to move fresh bail application after receipt of l.c.r - in meantime, l.c.r. has already been received and hence petitioner has filed present application to release him on bail during pendency of appeal - held, petitioner is only son of his parents, there is no one else in his family to look after his old parents as well as his minor children, he has undergone more than half of period of his sentence and he can undergo balance period of three years even if decision goes against him in appeal and in case ultimately his appeal is allowed he cannot be compensated in any manner as well as will be deprived of benefits of final order - in view of above petitioner deserves to be considered for his release on bail till final disposal of appeal - writ disposed of accordingly - labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - sahoo, learned counsel for the petitioner submits that the petitioner is the only son of appellants 1 and 2. there is no one else in the family to look after his old parents as well as his minor children. furthermore, on merits also since there is no corroborative evidence in support of the allegation of continuous torture on account of demand of dowry..........against the petitioner and the medical evidence having failed to prove the exact cause of death, by which the deceased can be said to have met with an unnatural death to attract the ingredients of the offence under section 304-b of the indian penal code, the petitioner may be also entitled for a clean acquittal in this case. however, without going into the merits of the case, keeping in view of the facts as narrated above and further taking into consideration of his age, he can even undergo the remaining period of his sentence to be imposed after disposal of the appeal, he should be released on bail during pendency of this appeal, so that in case the appeal is ultimately allowed in his favour, he shall at least get some relief/benefit of the final order to be passed by this court in this appeal.5. in support of his contention, learned counsel for the petitioner has relied upon and cited the decision in the case of shailendra kumar v. state of delhi reported in 2000 supreme court cases (crl.) 795 wherein it has been observed by the apex court as follows :'that taking into account the fact that the appellant-applicant is in custody for more than three years and there is no likelihood of the appeal being heard early, we direct that the appellant-applicant be released on bail to the satisfaction of the additional judge, new delhi.' 6. learned counsel for the petitioner further submits that the above cited case also relates to an offence of dowry death and cruelty to woman by the husband and in-laws punishable under section 304-b/498-a of the indian penal code and in the said case the appellants were convicted and sentenced to undergo 7 years r.i. under section 304-b and two years r.i. under section 498-a of the indian penal code and were in custody for more than three years. there was no chance of early hearing of the appeal. taking all these factors into consideration, the apex court directed release of the petitioner on bail. the present petitioner stands on a.....

Full Judgment

N. Prusty, J.

1. Appellant No. 3, who has been convicted alongwith appellants 1 and 2 under Sections 498-A, 304-B read with Sections 34 of the Indian Penal Code and sentenced to undergo R.I. for 7 years under Section 304-B/34 of the Indian Penal Code and to undergo R.I. for two years and to pay a fine of Rs. 1000/- each in default to undergo R.I. for two months under Section 498-A/34 of the Indian Penal Code and both the sentences were directed to run concurrently, has filed this Miscellaneous Application to release him on bail during pendency of the Criminal appeal.

2. Earlier the petitioner (appellant No. 3) alongwith his parents (appellants 1 and 2) had filed Misc. Case No. 633 of 2004 for bail, which was disposed of by order dated 23.12.2004 directing release of the parents (appellants 1 and 2) of the petitioner on bail, but the petitioner's prayer for bail was rejected and he was given liberty to move for bail afresh after receipt of the L.C.R. In the meantime, L.C.R. has already been received and hence the petitioner has filed this application to release him on bail.

3. Mr. Sahoo, learned Counsel for the petitioner submits that the petitioner is the only son of appellants 1 and 2. There is no one else in the family to look after his old parents as well as his minor children. Even though the petitioner faced trial alongwith his parents, having committed the offence punishable under Section 302 of the Indian Penal Code alternatively under Section 304-B/498-A/201 read with Section 34 of the Indian Penal Code, the charges were not proved against them by the prosecution under Section 302/201 of the Indian Penal Code. As such the accused persons were not found guilty under Section 302/201/34 of the Indian Penal Code and acquitted therefrom under Sections 235(1) Cr.P.C., but they were found guilty and convicted under Section 498-A, 304/B/34 of the Indian Penal Code and were sentenced thereunder as stated above. The petitioner is in custody since 23.6.2001 and thereby he has remained in custody for more than four years in the meantime.

4. As. such the petitioner has undergone more than half of the sentence imposed. Even though this Criminal Appeal has been filed since November 2004, the Paper Books, which are required for hearing of the appeal, have not yet been prepared and so there is no likelihood of hearing of the appeal in near future. Keeping in view the fact that the petitioner has already remained in custody for more than four years, out of the total period of 7 years, if holidays etc. are deducted, there is likelihood of the petitioner being released after one year or one and half years. In that view of the matter, the petitioner would be at least, entitled to be considered for his release on bail. Furthermore, on merits also since there is no corroborative evidence in support of the allegation of continuous torture on account of demand of dowry as against the petitioner and the medical evidence having failed to prove the exact cause of death, by which the deceased can be said to have met with an unnatural death to attract the ingredients of the offence under Section 304-B of the Indian Penal Code, the petitioner may be also entitled for a clean acquittal in this case. However, without going into the merits of the case, keeping in view of the facts as narrated above and further taking into consideration of his age, he can even undergo the remaining period of his sentence to be imposed after disposal of the appeal, he should be released on bail during pendency of this appeal, so that in case the appeal is ultimately allowed in his favour, he shall at least get some relief/benefit of the final order to be passed by this Court in this appeal.

5. In support of his contention, learned counsel for the petitioner has relied upon and cited the decision in the case of Shailendra Kumar v. State of Delhi reported in 2000 Supreme Court Cases (Crl.) 795 wherein it has been observed by the Apex Court as follows :

'That taking into account the fact that the appellant-applicant is in custody for more than three years and there is no likelihood of the appeal being heard early, we direct that the appellant-applicant be released on bail to the satisfaction of the Additional Judge, New Delhi.'

6. Learned counsel for the petitioner further submits that the above cited case also relates to an offence of dowry death and cruelty to woman by the husband and in-laws punishable under Section 304-B/498-A of the Indian Penal Code and in the said case the appellants were convicted and sentenced to undergo 7 years R.I. under Section 304-B and two years R.I. under Section 498-A of the Indian Penal Code and were in custody for more than three years. There was no chance of early hearing of the appeal. Taking all these factors into consideration, the Apex Court directed release of the petitioner on bail. The present petitioner stands on a better footing than the appellant, in the aforesaid reported case. In this case also if the present appeal is taken up for hearing in its chronological order, the same is likely to be heard after two to three years and if the petitioner is not released on bail at this stage and his appeal is ultimately allowed, he will not be in a position to avail the benefit of his acquittal/judgment of this Court.

7. Learned Additional Standing Counsel for the State submits that in this case if paper books are prepared on priority basis and the case is heard immediately, the same can be disposed of at best within a period of one or two months or even without paper books the appeal can also be heard on the basis of Lower Court Record. In that view of the matter, the petitioner having been convicted for the offence punishable under Sections 498-A and 304-B of the Indian Penal Code, should not be released on bail following the ratio of the above cited case. The order of the Apex Court which has been cited by the learned counsel for the petitioner has been passed taking into account the facts and circumstances of that case and the order can be treated as an order in personam buy not an order in rern. As such it can be treated as a settled principle to be followed in each case.

8. Considering the submissions made by the learned counsel for both the parties and keeping in view the facts and circumstances of the case that the petitioner is the only son of his parents, there is no one else in his family to look after his old parents as well as his minor children, he has undergone more than half of the period (four years out of seven years) of his sentence and he can undergo the balance period of three years even if the decision goes against him in the appeal and in case ultimately his appeal is allowed he cannot be compensated in any manner as well as will be deprived of the benefits of the final order, even if treating the above cited decision of the Apex Court only as a direction while considering a particular bail application and not treating the same as a settled principle which is to be followed in all cases, the petitioner deserves to be considered for his release on bail till final disposal of the appeal.

9. Keeping in view the observations made above, it is directed that the appellant No. 3/petitioner, Ramesh Dalbehera, be released on bail of Rs. 15.000/- (rupees fifteen thousand) with one surety for the like amount to the satisfaction of the learned Additional Sessions Judge, Nayagarh in S.T. Case No. 24/108 of 2002 on the condition that during pendency of the appeal he shall not indulge himself in any criminal activities.

10. However, this order shall not be treated as a precedent, while considering the bail application of the accused persons who have remained in custody for more than half of their period of sentence imposed as well as where the accused is convicted for commission of heinous crimes and offences against the society whereby the general public suffer and those who have been sentenced for more than five years for commission of such crimes. The application for bail of those accused persons has to be considered on the basis of merits of their appeal, the basis being the evidence on record/on perusal of the LCR,

11. Misc. Case is accordingly disposed of.

Same Court & Year Orissa · 2005 Same Parties Ramesh Dalabehera vs State of Orissa Same Subject Criminal Same Judge N. Prusty, J. Acts & Sections Indian Penal Code (IPC) - Sections 34, 201, 302, 304B and 498...

Criminal