Anil Kumar Samartha Vs. State of Orissa

Anil Kumar Samartha vs State of Orissa

Disposition Application dismissed Court Orissa Decided Dec 04, 2001

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Citation: sooperkanoon.com/536667
Court: Orissa High Court
Judge: L. Mohapatra, J.
Decided On: Dec 04, 2001
Case Number: Crl. Misc. Case No. 7444 of 2001
Subject: Criminal
Disposition: Application dismissed

Case Summary

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

- Sections 100-A [As inserted by Act 22 of 2002], 110 & 104 & Letters Patent, 1865, Clause 10: [Dr. B.S. Chauhan, CJ, L. Mohapatra & A.S. Naidu, JJ] Letters Patent Appeal Order of Single Judge of High Court passed while deciding matters filed under Order 43, Rule1 of C.P.C., - Held, After introduction of Section ...

Key legal issue: Criminal
Outcome / disposition: Application dismissed
Acts & sections: Indian Penal Code (IPC), 1860 - Sections 376(2) and 457; Code of Criminal Procedure (CrPC) , 1974 - Sections 161 and 439

Parties & Advocates

Appellant / Petitioner

Anil Kumar Samartha

Advocate G.N. Mohapatra, ;B.N. Mohapatra, ;A.K. Sahoo and ;S.K Mahapatra, Advs.

Respondent

State of Orissa

Advocate A.G.A.

Legal References

Acts: Indian Penal Code (IPC), 1860 - Sections 376(2) and 457; Code of Criminal Procedure (CrPC) , 1974 - Sections 161 and 439
Cases Referred: Biswajit Patnaik v. State). It
Reported In: 2002CriLJ1194

Excerpt

.....original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. .....has been lodged by the victim lady on 18-7-2001, stating that she had married one saheb badtia in the year 1996 and a son was born out of the marriage. thereafter she left her husband and stayed in her parents' house and was working in magnum factory as a labourer. she has also stated in the f.i.r. that since june she is staying in a rented house in lingaraj nagar and after closure of the factory she was unemployed and working as a maid-servant in the house of accused-bulu kar. at about 10.30 p.m. on 31-7-2001 one deba choudhary forcibly entered into her room and committed rape on her. thereafter, bulu kar in whose house she was serving as maidservant and two others in the age group of 25 to 26 years committed rape one after other and left the place.3. shri mohapatra, learned counsel for the petitioner submitted that the petitioner had not been named in the f.i.r. as one of the four persons who committed rape on the victim lady and the petitioner had been shown as to the informant before identification. reliance is placed by the learned counsel for the petitioner on three decisions reported in 1985 (2) olr 68 (ramachandra giri v. state); (1996) 2 ocr (sc) 164 (ajit singh v. state of haryana) and (1996) 10 ocr 234 : (1996 cri lj 2107) (daun alias biswajit patnaik v. state). it is further submitted by shri mohapatra that in view of the law laid down in all these decisions, identification by the informant cannot be believed and, therefore, it can safely be stated that there is no material against the petitioner so as to prove his complicity in the offence.4. learned additional government advocate referring to the case diary submitted that though the petitioner has not been named in the f.i.r. he has been named by the victim lady in her statement recorded under section 161, cr. p.c. and, therefore, it cannot be said that the petitioner is not involved in the offence.5. in the f.i.r. the informant has named two persons namely deba choudhary and bulu kar and has.....

Full Judgment

ORDER

L. Mohapatra, J.

1. The petitioner who is alleged to have involved himself in an offence under Section 376(2)(g) read with Section 457 of the Indian Penal Code has approached this Court in this application under Section 439 of the Code of Criminal Procedure for grant of bail.

2. F.I.R. has been lodged by the victim lady on 18-7-2001, stating that she had married one Saheb Badtia in the year 1996 and a son was born out of the marriage. Thereafter she left her husband and stayed in her parents' house and was working in Magnum factory as a labourer. She has also stated in the F.I.R. that since June she is staying in a rented house in Lingaraj Nagar and after closure of the factory she was unemployed and working as a maid-servant in the house of accused-Bulu Kar. At about 10.30 p.m. on 31-7-2001 one Deba Choudhary forcibly entered into her room and committed rape on her. Thereafter, Bulu Kar in whose house she was serving as maidservant and two others in the age group of 25 to 26 years committed rape one after other and left the place.

3. Shri Mohapatra, learned counsel for the petitioner submitted that the petitioner had not been named in the F.I.R. as one of the four persons who committed rape on the victim lady and the petitioner had been shown as to the informant before identification. Reliance is placed by the learned counsel for the petitioner on three decisions reported in 1985 (2) OLR 68 (Ramachandra Giri v. State); (1996) 2 OCR (SC) 164 (Ajit Singh v. State of Haryana) and (1996) 10 OCR 234 : (1996 Cri LJ 2107) (Daun alias Biswajit Patnaik v. State). It is further submitted by Shri Mohapatra that in view of the law laid down in all these decisions, identification by the informant cannot be believed and, therefore, it can safely be stated that there is no material against the petitioner so as to prove his complicity in the offence.

4. Learned Additional Government Advocate referring to the case diary submitted that though the petitioner has not been named in the F.I.R. he has been named by the victim lady in her statement recorded under Section 161, Cr. P.C. and, therefore, it cannot be said that the petitioner is not involved in the offence.

5. In the F.I.R. the informant has named two persons namely Deba Choudhary and Bulu Kar and has also stated that there were two other persons who committed rape on her between the age group of 25 to 26 years. In her statement recorded under Section 161, Cr. P.C. she has stated that while she along with police officers were searching for the accused persons they saw three of the accused persons standing near the Guest House at Kunjapatna who were identified as Deba Choudhary and Debasis Dash. The other person who has standing near the aforesaid two persons identified by the informant as one of the four accused persons who committed rape on her. On being questioned he disclosed his name as Anil Kumar Samartha, that is the petitioner. She has also in her statement stated about the manner in which the offence was committed.

From the entry dated 2-6-2001 in the case diary it appears that while the police vehicle was moving near Kunjapatna area along with the victim lady in search of accused persons, the victim lady identified three of the accused persons namely Choudhary, Debasis Das and the petitioner. Therefore, contention of the learned counsel for the petitioner that the petitioner was earlier shown to the informant stands on no basis.

6. While considering an application for grant of bail the Court is only required to see whether prima facie case exists or not. Scope of evaluating evidence at the stage for grant of bail is not available to the Court. All the decisions cited by the learned counsel for the petitioner relate to appreciation of evidence at appellate stage after conclusion of trial. After closure of evidence the Court consider the materials available for the purpose of arriving at a conclusion as to whether the accused is to be convicted or not. But while considering on application for bail at the stage of investigation the Court is only required to see whether prima facie case exists or not. While considering bail application the Court is also required to take into consideration the gravity of offence, antecedents of the accused, nature of participation of accused in commission of offence, etc. If prima facie material is available to show that the accused has actively participated in the commission of offence the Court may in its discretion refuse to grant bail. In the present case, at the time of lodging F.I.R. though the victim lady had seen all the four accused persons did not know two of them by name including the petitioner. While searching for the accused persons along with the police officers, she could identify the petitioner along with two other accused persons standing together and, therefore, there is no scope to disbelieve the victim lady.

7. In my view the materials available on record are enough to hold prima facie that the petitioner was involved in commission of offence. I, therefore, do not find any merit in the application and the same is dismissed.

Same Court & Year Orissa · 2001 Same Parties Anil Kumar Samartha vs State of Orissa Same Subject Criminal Same Judge L. Mohapatra, J. Acts & Sections Indian Penal Code (IPC), 1860 - Sections 376(2) and 457; Code...

Criminal