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2017 DIGILAW 410 (ORI)

Bapi @ Arindam Sarkhel v. State of Orissa

2017-04-17

D.P.CHOUDHURY

body2017
JUDGMENT : Dr. D.P. Choudhury, J. 1. This is an application under Section 439 Cr.P.C. filed by the petitioner for releasing him on bail who is allegedly involved for the offences under Sections 302/120-B of the I.P.C. read with Sections 25 (1) (b) and 27 of the Arms Act and Sections 3 and 4 of the Explosive Substances Act. 2. The conspectus of the prosecution case in brief is that on 26.10.2016 at about 9.00 A.M. while the deceased Mahendra Kumar Swain being the Branch Manager of Seaways Shipping and Logistics Limited, Paradeep wing was proceeding to his office, the unknown criminals opened indiscriminate firing and also hurled bombs which led to the death of Mahendra Swain. It is alleged, inter alia, that there was enmity between the Seaways Shipping and Logistics Limited, Paradeep and the Orissa Stevedores Limited. It is the case of the prosecution is that co-accused Mahimananda Mishra was the owner of Orissa Stevedores Limited and due to previous enmity said Mahimananda Mishra earlier to this occasion had threatened the brother of the deceased and the deceased Mahendra Kumar Swain to take away his life. The brother of the deceased lodged F.I.R. During course of investigation it came to light that present petitioner being a friend of co-accused Mahimananda Mishra, has engaged one co-accused Rakesh Choubey to take revenge by eliminating the deceased because of latter’s enmity with Mahimananda Mishra. The co-accused Rakesh Choubey and Manoj Gochhayat while confessing guilty before the police have also stated about the involvement of the present petitioner. Since he has got involvement prima facie with the commission of offence of murder of Shri Swain, who was arrested and forwarded to the Court. 3. Mr. J.K. Mishra, learned Senior Advocate appearing for the petitioner submitted that the petitioner was falsely implicated in this case because he was allegedly close friend of co-accused Mahimananda Mishra who has got enmity with the deceased Mahendra Swain. It is further submitted that the name of the petitioner does not find place in the F.I.R. and his name only finds place in the statement of the co-accused persons which are hardly admissible under law without any connected evidence to prove the crime. He further submitted that none of the witnesses examined have implicated the present petitioner with the commission of the offence. 4. Mr. He further submitted that none of the witnesses examined have implicated the present petitioner with the commission of the offence. 4. Mr. Mishra, learned Counsel for the petitioner submitted that due to political rivalry the present petitioner has been apprehended and there is no iota of material for the prosecution to pray for his detention in custody. It is also submitted on behalf of the petitioner that the Privy Council in their judgment reported in A.I.R. (36) 1949 Privy Council 257; Bhuboni Sahu v. The King observed that Section 30 of the Evidence Act was introduced by the Common Law of England, and this Section applies to confessions and not to statements which do not admit the guilt of confessing party and it is weak type. 5. Mr. Mishra also further submitted that in the judgment reported in AIR 1952 SC 159 ; Kashmira Singh v. The State of Madhya Pradesh Their Lordships interpreted the Section 30 of the Evidence Act to the extent that the confession of an accused person is not evidence in the ordinary sense of the term as defined in Section 3 of the Evidence Act and it cannot be made the foundation of a conviction and can only be used in support of other evidence. It is further reported in (2005) 30 OCR (SC) 327; Jayendra Saraswathi Swamigal v. State of Tamil Nadu where their Lordships observed that there must be evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators in the light of Section 10 of the Evidence Act. 6. Mr. Mishra further contended that in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav & another reported in 2004 (7) SCC 528 , the considerations which normally weigh with the Court in granting bail in non-bailable offences have been well explained by the Hon’ble Supreme Court by relying upon the decision in State v. Capt. Jagjit Singh, AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi admn.), AIR 1978 SC 179 , and they are the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witness being tampered with; the larger interest of the public or the State etc. According to him in AIR 1979 SC 1360 ; Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna, the Hon’ble Apex Court was pleased to observe the philosophy while considering the bail of an accused. 7. Mr. Mishra, learned Senior Advocate for the petitioner also cites a decision reported in 2015 Crl. LJ 3174; Indra Dalal v. State of Haryana where their Lordships discussed about conspiracy and it was held that conspiracy is not only a substantive crime, it also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. He further relied upon the decision in State of M.P. through C.B.I. etc. v. Paltan Mallah and Ors. etc. reported in 2005 (1) Supreme 372 where their Lordships observed that extra judicial confession by co-accused becomes relevant and admissible for corroborative purpose but in absence of any substantive evidence against the accused persons, extra judicial confession allegedly made by co-accused loses its significance. Relying upon such decision Mr. Mishra submitted that the only material against the present petitioner about his involvement as projected by the prosecution basing on the confession of the co-accused has not proved a prima facie case against the present petitioner. Moreover, he submitted that in the meantime investigation has been completed and the petitioner being a local person having no chance of his absconding for which lenient view may be taken to release the petitioner on bail as deemed fit and proper. 8. Mr. J. Katkia, learned Additional Government Advocate specially deployed to defend the State in this case submitted that there are enough materials against the present petitioner to prove the complicity of the commission of offence because the petitioner has a major role about conspiracy of killing the deceased by engaging co-accused Rakesh Choubey, the ‘supari’ killer. There is material to show that co-accused Rakesh Choubey was not only close to the present petitioner but also actually staying with the present petitioner in the Guest House at Paradeep at the time of murder on 26.10.2016. He further submitted that co-accused Rakesh Choubey has taken Rs.12/- lakhs from co-accused Mahimananda Mishra with the knowledge of the present petitioner in the office of the co-accused Mahimananda Mishra. He further submitted that co-accused Rakesh Choubey has taken Rs.12/- lakhs from co-accused Mahimananda Mishra with the knowledge of the present petitioner in the office of the co-accused Mahimananda Mishra. There is clear material to show that other co-accused persons have stated in their statements about the involvement of the present petitioner and the handwriting loose notes/diary seized from Rakesh Choubey proves the transaction of money between Rakesh Choubey and the present petitioner. There is material to show that the present petitioner and co-accused Mahimananda Mishra were present in the office of the latter two days before the murder, present petitioner is very close to the co-accused Mahimananda Mishra and used the Aeroplane of co-accused Mahimananda Mishra with free service and in many occasions the petitioner has travelled with co-accused Rakesh Choubey and Mahimananda Mishra together. Since the petitioner is a powerful person in the Paradeep town, in the event of release of the petitioner on bail, there is chance of tampering the prosecution witnesses. 9. Learned Additional Government Advocate has also cited the decisions reported in AIR 2001 SC 1699 ; Muraleedharan v. State of Kerala where their Lordships in the case of petition under Section 438 Cr.P.C. cautioned the judiciary to use discretion by the learned Sessions Judge. He also cited a decision reported in AIR 1978 SC 179 ; Gurucharan Singh and others v. State (Delhi Administration) where their Lordships held that the overriding considerations in granting bail which are common both in the case of Section 437 (1) and Section 439 (1) Cr.P.C., are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused; the likelihood of the accused fleeing from justice; chances of repeating the offences; chances of tampering with witnesses are grim prospect of possible conviction. 10. Learned Additional Government Advocate further cited the decision reported in (2004) 7 SCC 528 ; Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another, where relevant factors have been directed to be considered before grant of regular bail. Similarly, he also cited the decisions reported in (2005) 8 SCC 21 , State of U.P. through CBI v. Amarmani Tripathi; (2005) 2 SCC 13 , Jayendra Saraswathi Swamigal v. State of Tamilnadu and 2015 SCC OnLine SC 862, Neeru Yadav v. State of U.P. and another. Similarly, he also cited the decisions reported in (2005) 8 SCC 21 , State of U.P. through CBI v. Amarmani Tripathi; (2005) 2 SCC 13 , Jayendra Saraswathi Swamigal v. State of Tamilnadu and 2015 SCC OnLine SC 862, Neeru Yadav v. State of U.P. and another. Relying on such decisions, he submitted that while considering the case of the present petitioner, the parameters as deduced from the aforesaid decisions should be followed and he also submitted that there is a prima facie case made out against the present petitioner and in the event he is released on bail there is every chance of fleeing away from justice and charge-sheet is ready to be filed against him. Learned Additional Government Advocate also contended that the petitioner is involved in four other criminal cases. So, he vehemently opposed the bail of the present petitioner. Learned counsel for the informant supported the argument advanced by the State. DISCUSSION 11. The law on the consideration of bail under Section 439 Cr.P.C. has been well settled by catena of decisions. Some of the decisions are described below as touching such principle the present bail petition is required to be disposed of. 12. It is reported in AIR 1978 SC 429 (Gudikanti Narasimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh), where the Hon’ble Apex Court has cast duty on the Court to ensure ends of justice to play while considering the bail application and further considered that refusal of bail causes injury to right of personal liberty guaranteed by the Constitution. 13. It is also reported in AIR 1980 SC 785 (Niranjan Singh and another v. Prabhakar Rajaram Kharote and others) where their Lordships observed at para-3 in the following manner:- “Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself”. 14. With due respect to the decision, it appears that while considering bail petition it should not be detailed examination of the evidence. It should be gist of the material available on record to determine whether bail should be granted or not. 14. With due respect to the decision, it appears that while considering bail petition it should not be detailed examination of the evidence. It should be gist of the material available on record to determine whether bail should be granted or not. On the other hand, a prima facie case is needed but it is not the same as an exhaustive discussion on the merits in the order itself. 15. It is also reported in AIR 1964 SC 1184 (Haricharan Kurmi v. State of Bihar) where their Lordships observed at para-16 in the following manner:- “xxx As we have already indicated, it has been a recognized principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. xxx” 16. With due respect to the said decision, it appears the Larger Bench of the Hon’ble Apex Court have decided that confession of a co-accused cannot be recorded as substantive material because it is not evidence as defined under Section 3 of the Evidence Act. 17. It is also reported in AIR 1979 SC 1360 (Hussainara Khatoon and others v. Home Secretary, State of Bihar, Patna) where their Lordships observed about the parameters to find out if accused has chance from fleeing and same are to be weighed while considering the objection of the State in this case. 18. It is reported in (2004) 7 SCC 528 (Kalyan Chandra Sarkar v. Rajesh Ranjan alias Papu Yadav and another) where their Lordships also directed to consider the relevant factors before granting bail. Their Lordships at para-11 discussed below the parameters to grant bail: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Their Lordships at para-11 discussed below the parameters to grant bail: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay Vs. Sudarshan Singh; (2002) 3 SCC 598 and Puran Vs. Rambilas; (2001) 6 SCC 338 ).” 19. Also the Hon’ble Apex Court following the above decision has been pleased to observe in the decision reported in (2005) 8 SCC 21 ; State of U.P. through CBI v. Amarmani Tripathi where their Lordships have also observed the relevant consideration while allowing bail at paras 29 and 30 which are quoted below: “29. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , this Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tampered with. 30. In Kalyan Chandra Sarkar case, (2004) 7 SCC 528 , this Court reiterated that while granting bail discretion must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination of evidence and documentation of the merit of the case but there is a need to indicate reasons for prima facie conclusion, why bail was being granted particularly where the accused is charged of having committed serious offence.” 20. The above decisions have been also well observed in the decision reported in (2014) 16 SCC 508 (Neeru Yadav v. State of Uttar Pradesh and another) where their Lordships have observed at paras-10 and 11: “10. In Chaman Lal v. State of U.P.; (2004) 7 SCC 525 , the Court has laid down certain factors, namely, the nature of accusation, severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge, which are to be kept in mind. 11. In this context, we may profitably refer to the dictum in Prasanta Kumar Sarkar v. Ashis Chatterjee; (2010) 14 SCC 496 , wherein it has been held that normally this Court does not interfere with the order passed by the High Court when a bail application is allowed or declined, but the High Court has a duty to exercise its discretion cautiously and strictly. Regard being had to the basic principles laid down by this Court from time to time, the Court enumerated number of considerations and some of the considerations which are relevant for the present purpose are; whether there is likelihood of the offence being repeated and whether there is danger of justice being thwarted by grant of bail.” 21. Regard being had to the basic principles laid down by this Court from time to time, the Court enumerated number of considerations and some of the considerations which are relevant for the present purpose are; whether there is likelihood of the offence being repeated and whether there is danger of justice being thwarted by grant of bail.” 21. It is reported in (2010) 14 SCC 496 ; Prasanta Kumar Sarkar v. Ashis Chatterjee and another where their Lordships have observed at para-9 in the following manner: “9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced and (viii) danger, of course, of justice being thwarted by grant of bail.” (See State of U.P. v. Amarmani Tripathi; (2005) 8 SCC 21 , Prahlad Singh Bhati v. NCT of Delhi; (2001) 4 SCC 280 , and Ram Govind Upadhyay v. Sudarshan Singh; (2002) 3 SCC 598 ). 22. With due respect to the decision, their Lordships have also observed therein that the criminal antecedents of the accused is also to be considered while granting bail. 23. Now adverting to the facts and material on record it is to be judged if they throw the light with regard to the conduct of the present petitioner so as to find out a prima facie case against him. The prosecution alleged about role of the present petitioner basing on the statement of the co-accused Rakesh Choubey allegedly a ‘supari’ taker. The prosecution alleged about role of the present petitioner basing on the statement of the co-accused Rakesh Choubey allegedly a ‘supari’ taker. The statement of co-accused Rakesh Choubey has been recorded under Section 27 of the Evidence Act. During his statement he stated to have received Rs.12/- lakhs in advance from co-accused Mahima Mishra through the present petitioner and on the instruction of co-accused Mahima Mishra he made a plan to kill the deceased Mahendra Swain and accordingly executed the work by firing from the pistol and throwing the bomb. He stated before the Police that he would give discovery of the said Pistol and the bomb materials and accordingly led Police to his house and gave recovery of the same which were seized. During such statement he has also stated about the intimacy between the co-accused Mahima Mishra and the present petitioner. When co-accused Rakesh Choubey made statement under Section 27 of the Evidence Act the witnesses were there and they have also corroborated the leading to discovery made by co-accused Rakesh Choubey after making such disclosure statement. 24. It is well settled in law that the statement made by the accused under Section 27 of the Evidence Act with regard to recovery is admissible but not the entire statement of the accused. Hence, the statement with regard to recovery of the Pistol and the bomb materials can be considered against co-accused Rakesh Choubey but not against the petitioner. Moreover, rest of statement made under Section 27 of the Evidence Act cannot be utilized either against the maker or against any co-accused as same is inadmissible under Section 27 of the Evidence Act. 25. The statements of co-accused Manoj Gochhayat and Reyasat Hussain also similarly show that they have made disclosure statement under Section 27 of the Evidence Act about their participation with co-accused Rakesh Choubey to kill Mahendra Swain and led Police to give discovery of some cash and the motorcycle along with bullets and the Pistol utilized for committing offence and gave discovery of the same. The seizure list also shows that one Pistol and some life cartridges have been seized on production from the co-accused Reyasat Hussain and some arms and weapons with cash seized from the co-accused Manoj Gochhayat on production. The seizure list also shows that one Pistol and some life cartridges have been seized on production from the co-accused Reyasat Hussain and some arms and weapons with cash seized from the co-accused Manoj Gochhayat on production. Thus, their statements also do not legally point out the role of the present petitioner but leading discovery of the arms and weapons and other materials sufficiently point out their own involvement with the commission of offence. 26. The statements of one Rajkishore Swain, who happens to be the brother of the deceased, Mahesh Prasad Lenka, Kalpataru Mantri, Manoj Pradhan and Ranjan Kumar Swain disclose that there was enmity between the Stevedore Company of co-accused Mahima Mishra and the Company of the deceased and present petitioner was a friend of co-accused Mahima Mishra for which they suspected the role of the present petitioner for causing murder of the deceased. The statement of Chandan Nayak who happens to be the Bodyguard and driver of the deceased shows that he was carrying the deceased on the date of occurrence and one Harihar Rout who is also the Bodyguard of the deceased was accompanying them. According to their statements, one unknown person threw a bomb to their vehicle and they ran to the nearest house and subsequently found the deceased who followed them has also died due to gunshot injury at the spot. Their statements do not disclose about the involvement of the present petitioner. The rest of the witnesses examined are post-occurrence witnesses and some of the witnesses disclose about the intimacy between the present petitioner and co-accused Mahima Mishra. The statement of co-accused Mahima Mishra shows his intimacy with the present petitioner. The F.I.R. does not disclose about the involvement of the present petitioner. 27. From the aforesaid discussion, it is clear that the statement of co-accused Rakesh Choubey and other co-accused at no stretch of imagination leading to discovery of the weapon of offence can be utilized against the present petitioner as their statement is limited to leading to discovery being admissible under Section 27 of the Evidence Act. 27. From the aforesaid discussion, it is clear that the statement of co-accused Rakesh Choubey and other co-accused at no stretch of imagination leading to discovery of the weapon of offence can be utilized against the present petitioner as their statement is limited to leading to discovery being admissible under Section 27 of the Evidence Act. The statement of co-accused Mahima Mishra and other co-accused being the statement made under Section 30 of the Evidence Act is a weak piece of evidence as per the decision of the Hon’ble Apex Court reported in AIR 1952 SC 159 (supra) and A.I.R. (36) 1949 Privy Council 257; Bhuboni Sahu (supra) and their statements also do not disclose about involvement of the present petitioner although he has got intimacy with the present petitioner in his business. Since there is no eye-witness to the occurrence showing involvement of the present petitioner and the allegation of conspiracy which is yet to be proved against the present petitioner during trial and in view of inadmissible material as discussed above showing no circumstantial evidence, prima facie case is hardly to be found against him at present. 28. The petitioner has already filed the certified copy of the charge-sheet to show that the charge-sheet has already been filed. It is only contended by the learned Additional Government Advocate that since the present petitioner is an influential person in the area as he is a labour union leader, there is every possibility of influencing or threatening the witnesses. No material is produced to prove such plea. Learned Additional Government Advocate has not filed a single document to show his criminal antecedent except alleging about his involvement along with the co-accused Mahima Mishra in a dispute relating to Mancheswar P.S. case but not at Paradeep. 29. No material is produced to prove such plea. Learned Additional Government Advocate has not filed a single document to show his criminal antecedent except alleging about his involvement along with the co-accused Mahima Mishra in a dispute relating to Mancheswar P.S. case but not at Paradeep. 29. Regard being had to the facts and circumstances and nature of material against the present petitioner are hardly to find out his prima facie complicity with the commission of offence as discussed above, fact that he is a labour union leader having no chance of fleeing from justice, fact that charge-sheet has already been filed, fact that no material of criminal antecedent has been produced except the allegation, fact that there is mere apprehension of threatening without any material being produced by the prosecution and all the parameters being found to grant bail as per the decisions of the Hon’ble Apex Court as discussed, let the petitioner be released on bail on furnishing bail bond of Rs.1,00,000/- (Rupees one lakh) with two solvent sureties each for the like amount to the satisfaction of the learned J.M.F.C. (P), Kujang in G.R. Case No.964 of 2016 arising out of Paradeep P.S. Case No.180 of 2016 with the conditions that (i) he would not threaten or induce the prosecution witnesses and would not tamper with the prosecution evidence in any manner; (ii) he would appear before the court in seisin over the matter on each date of posting of the case without being represented; (iii) he would submit the Passport, if any, to the trial court; (iv) he would not commit any offence while on bail; (v) he would appear before the Investigating Officer of this case as and when required for the purpose of further investigation, if any. The BLAPL is disposed of accordingly.