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2016 DIGILAW 417 (ORI)

Siba Prasad Gochhi v. State of Orissa

2016-06-03

S.K.SAHOO

body2016
JUDGMENT : S. K. SAHOO, J. “A criminal remains a criminal whether he uses a convict’s suit or a monarch’s crown.” -Victor Hugo All is not well for the dwellers of millennium city of Cuttack. That is what the underlying tone of this case record unearths. A group of mafias are operating in full swing and flourishing their criminal activities in a most organized manner. Normal people are scared to raise their timid voice against such unholy combinations. They start compromising themselves with Dadagiri. They are being compelled to accept the situation that things will not change for them towards better but they have to change themselves to accept the state of affairs as it is. They find some white collared criminals occupying very important posts in the society spreading tentacles of their misdeeds. Every individual is accountable for his actions. Delay in taking appropriate legal action against the perpetrators of the crime results in people losing faith in the system. It is only when the law enforcing agency with all strong determination decide to smash the devilish activities of the criminals, people in general feel a sigh of relief and start dreaming of a better future. The petitioner Siba Prasad Gochhi is an accused in Chauliaganj P.S. Case No. 27 of 2016 corresponding to G.R. Case No. 222 of 2016 pending in the Court of learned S.D.J.M.(Sadar), Cuttack registered under sections 387, 120-B, 34 of the Indian Penal Code and sections 25(1-AA) and 27 of the Arms Act, 1959 who was taken into custody 10.03.2016 and his application for bail has been rejected by the learned Sessions Judge, Cuttack in BLAPL No. 335 of 2016 vide order dated 28.03.2016. 2. Mr. Ajaya Kumar Das, Inspector in Charge, Chauliaganj Police Station drew up the First Information Report on 03.02.2016 to the effect that during investigation of Chauliaganj P.S. Case No. 12 of 2016 dated 18.01.2016, it revealed that Sushant Kumar Dhal Samant and Sushil Kumar Dhal Samant were collecting huge amount of money by means of tender fixing with different establishments and works such as RAMCEE, TANTIA, RD, R & B, Drainage Division, Water Resources (Irrigation and RWSS), Sand ghats and Mines etc. as well as extortion, Dadabati and by illegal mining with the help of their associates. as well as extortion, Dadabati and by illegal mining with the help of their associates. During search of the house of one of the principal associates of Dhal Samant brothers namely accused Bharat Bhusan Swain of Gandarpur on 01.02.2016, cash of Rs.12,44,000/-was seized as he failed to give any satisfactory account regarding the possession of the seized amount. It was ascertained that the money came from tender fixing activities and the associates of Dhal Samant brothers were collecting Dadabati from different businessmen, contractors, nursing home owners and real estate owners etc. under the money and muscle power of their boss. It is further stated in the First Information Report that due to such criminal activities, the society as well as general public were very much panic stricken and they could not venture to open their lips against the antisocials who use to terrorise the victims and achieve their goals i.e. collecting huge money by throwing bombs and using fire arms and ammunitions. It also transpired that Dhal Samant brothers were dealing with illegal fire arms and ammunitions and supplying the same to their associates to do some work procuring it from Munger (Bihar), Banaras, Kanpur (U.P.) and Kolkata. There was huge seizure of arms and ammunitions from the house of Dhal Samant brothers as well as their associates in connection with Chauliaganj P.S. Case No. 12 of 2016. The First Information Report was lodged against thirty nine named accused persons and others. 3. During course of investigation, it came to light that the petitioner along with others had formed an illegal contractors association as per the direction of Dhal Samant brothers and in the name of that association, they were not allowing any other contractors or bidders to apply for the tender at Barrage and Drainage Office, Gandarpur. If any person was applying for the tender, they were threatening him on the point of gun and also assaulting him to withdraw from tender process. They were collecting Dadabati @ 10% and more from the contractors who were getting the tender under their money and muscle power and giving protection to the contractors. They were paying commission to Dhal Samant brothers from Dadabati as a part of their loyalty and association with them. On return, Dhal Samant brothers were providing them with arms and ammunitions for their criminal activities i.e. for tender fixing and collection of Dadabati. They were paying commission to Dhal Samant brothers from Dadabati as a part of their loyalty and association with them. On return, Dhal Samant brothers were providing them with arms and ammunitions for their criminal activities i.e. for tender fixing and collection of Dadabati. Statements were collected during investigation to show that the petitioner and his associates were provided with fire arms and ammunitions and some fire arms and ammunitions were seized from the house of one of the associates of the petitioner. It was further revealed that the petitioner was an accused along with others in the murder case of one Baidhar Sahu which corresponds to Chauliaganj P.S. Case No. 19 of 2005 in which investigation is under progress. Similarly another case was registered at Chauliaganj Police Station as the petitioner and his associates made criminal conspiracy to capture the valuable land of one Hemanta Kumar Sahoo at Gandarpur and accordingly forcibly entered inside the land of that person and opened fire to his son Yubaraj Sahoo who got injured due to gunshot injury. It is also indicated in the case dairy that apart from Chauliaganj P.S. Case No. 27 of 2016 in which the petitioner is seeking for bail, the petitioner is also involved in Chauliaganj P.S. Case No. 19 of 2005 under sections 364/365/34 of the Indian Penal Code, Chauliaganj P.S. Case No. 146 of 2007 under sections 386/387/120-B/34 of the Indian Penal Code, Chauliaganj P.S. Case No. 12 of 2014 under sections 341/323/326/120-B/307/506/34 of the Indian Penal Code read with sections 25/27 of the Arms Act and Chauliaganj P.S. Case No. 58 of 2016 under sections 386/387/294/506/120-B/34 of the Indian Penal Code read with sections 25/27 of the Arms Act. 4. Mr. Sourya Sundar Das, learned Senior Advocate appearing for the petitioner contended that the petitioner is the Secretary of Cuttack Truck Owners Association, Vice President of Sikharpur-Gandarpur-Mahanadi Vihar Puja Committee and President of Gandarpur Sahi Committee and he is a respectable person of the locality. 4. Mr. Sourya Sundar Das, learned Senior Advocate appearing for the petitioner contended that the petitioner is the Secretary of Cuttack Truck Owners Association, Vice President of Sikharpur-Gandarpur-Mahanadi Vihar Puja Committee and President of Gandarpur Sahi Committee and he is a respectable person of the locality. He further contended that the petitioner has not been named as an accused in the First Information Report and there is neither any seizure of arms nor cash from his possession and there is also no documentary evidence relating to formation of any contractors’ association as alleged by the prosecution nor any cogent material that the petitioner was a member of any such association and the ingredients of offences under section 387 of the Indian Penal Code or sections 25(1-AA) and 27 of the Arms Act, 1959 are not attracted against the petitioner. He emphatically contended that on 7.3.2016 the Inspector in charge of Chauliaganj Police Station asked the petitioner to remain present in the police station where after the petitioner reached at the police station but without any basis, the police detained him in the police station for about three days and finally on 10.3.2016, the petitioner was forwarded to Court in this case. It is further contended that the petitioner has no connection with any kind of Government contracts/lease and just to gain cheap publicity, the Investigating Officer has falsely entangled him in the case. Mr. Das filed an affidavit of one Kusaleswar Nayak, who is the father-in-law of the petitioner stating therein that in Chauliaganj P.S. Case No.19 of 2005, the FIR was lodged against unknown persons and final report was submitted on 30.09.2013 having no clue but on 18.03.2016, the IIC of Chauliaganj Police Station requested learned S.D.J.M. (Sadar), Cuttack seeking permission to reopen the case on the ground that the informant Jagannath Sahoo disclosed the names of the petitioner and others behind missing of his younger brother and the petitioner has not been taken on remand in the said case. In the affidavit, it is further stated that in Chauliaganj P.S. Case No.146 of 2007, though it is stated in the FIR that one Siba was involved in the alleged collection of Puja Chanda from the shop owners of the locality but no action was taken against the petitioner and he was taken on remand in the said case only on 2.5.2016. It is further stated in the affidavit that in Chauliaganj P.S. Case No.12 of 2014, neither the name of the petitioner finds place in the body of the FIR nor he has been implicated by any of the witnesses as an accused during course of investigation. 5. Mr. Arupananda Das, learned Addl. Government Advocate on the other hand while rebutting the contentions raised by the learned counsel for the petitioner placed the statements of the witnesses like Umesh Prusty, Manoj Dalei and Kalu @ Sonu Rout and contended that from the statements of the witnesses available on record, there are sufficient materials regarding the involvement of the petitioner in the crime and the criminal background of the petitioner is another factor which goes against him. He further contended that the investigation of the case is under progress and many important aspects of the case are yet to be unearthed and most of the accused persons involved in the case are yet to be apprehended and at this stage, if the petitioner is enlarged on bail, there is likelihood of tampering with the prosecution evidence and therefore, the petitioner should not be enlarged on bail. 6. Considering the submissions raised by the learned counsels for the respective parties and going through the materials available on record, prima facie it appears that one illegal contractors association was formed by the petitioner and his associates. There are also materials to show the involvement of the accused persons including the petitioner in the tender fixing activities, use of arms to terrorise different persons not to submit tender papers. There are also prima facie materials against the petitioner to show that he is closely connected with Dhal Samant Brothers and collecting Dadabati as well as commission from the contractors who were getting tender works. There are also prima facie materials regarding the involvement of the petitioner in different cases including one under section 302 of the Indian Penal Code. It further appears that after the arrest of Dhal Samant Brothers, witnesses are coming forward to give statements before Police which indicate the involvement of the petitioner in different criminal activities. There are also prima facie materials regarding the involvement of the petitioner in different cases including one under section 302 of the Indian Penal Code. It further appears that after the arrest of Dhal Samant Brothers, witnesses are coming forward to give statements before Police which indicate the involvement of the petitioner in different criminal activities. The Inspector-in-charge has reported that the petitioner has no regards to the law of the land and people are afraid to report against him and his mere presence in the locality creates panic and havoc in the mind of general public and he is hazardous to the peace and tranquillity in the locality and he is so desperate and dangerous that his release on bail will create security concern in the community. In case of Neeru Yadav Vrs. State of U.P. reported in (2015) 62 Orissa Criminal Reports (SC) 771, Hon’ble Justice Dipak Misra, speaking for the Bench, observed as follows:- “13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilized society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society…… xx xx xx xx 15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner.” After bestowing my anxious consideration to weigh and analyse the prima facie materials available on record with utmost care and caution, nature and gravity of accusation, the chance of tampering with the evidence when the investigation is in full swing and particularly looking at the criminal proclivity of the petitioner, at this stage I am of the view that it would not be proper to grant bail to the petitioner. Accordingly, the bail application sans merit and hence stands rejected.