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2019 DIGILAW 44 (ORI)

Siba Prasad Das v. State of Odisha

2019-01-17

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. Father of nation Mahatma Gandhi conceptualized 'Rama Rajya' as kingdom of God on earth. He said, "The withdrawal of British power does not mean Rama Rajya. How can it happen when we have all along been nursing violence in our hearts under the garb of non-violence?" Governments after governments and the intellectuals responsible for strengthening the four pillars of democracy have made heartfelt endeavour during the seventy two years of independence to fulfill the dreams of Gandhiji. Our nation has indubitably has several achievements to its credit. It has built a modern economy, remained a democracy and lifted millions out of poverty. In the midst of a vast ocean of material prosperity, some corrupt politicians, dishonest officials and businessmen by using money and muscle power with the help of criminals have tried to shatter such dreams for the sake of their everestian selfish desires of amassing huge wealth by taking recourse of illegal ways to silence their competitors forgetting that traffic lights would never be green always for them. The petitioners Siba Prasad Das and Manoj Gochhayat @ Pintu in BLAPL No. 1449 of 2017, petitioner Rakesh Choubey in BLAPL No. 4275 of 2017, petitioner Quadir Khan @ Faiz Ahmed @ Ashok Bihari @ Raju in BLAPL No. 5093 of 2017 and petitioner Mohammed Babul @ Md. Bablu in BLAPL No. 6830 of 2017 have knocked at the portals of this Court under section 439 Cr.P.C. seeking for bail in connection with G.R. Case No. 964 of 2016, arising out of Paradeep P.S. Case No.180 of 2016 pending in the Court of learned J.M.F.C.(P), Kujang for offences punishable under sections 302/120-B of the Indian Penal Code, sections 25(1-B)/27 of the Arms Act, 1959 and sections 3 and 4 of the Explosives Substances Act, 1908. The bail applications of the petitioners were rejected by the learned Sessions Judge, Jagatsinghpur. Since all the four bail applications arise out of same case, with the consent of the parties, those were heard analogously and disposed of by this common order. 2. On 26.10.2016 Sri Rajkishore Swain of village Boilo situated under Kissnnagar police station lodged the first information report before the Inspector in charge, Paradeep police station stating therein that his younger brother Mahendra Kumar Swain @ Babuli (hereafter 'the deceased') was serving as Branch Manager in M/s. Seaways Shipping & Logistics Ltd. (hereafter 'M/s. Seaways') since 2000. 2. On 26.10.2016 Sri Rajkishore Swain of village Boilo situated under Kissnnagar police station lodged the first information report before the Inspector in charge, Paradeep police station stating therein that his younger brother Mahendra Kumar Swain @ Babuli (hereafter 'the deceased') was serving as Branch Manager in M/s. Seaways Shipping & Logistics Ltd. (hereafter 'M/s. Seaways') since 2000. There was business rivalry between the company of the deceased and Mahimananda Mishra of Orissa Stevedores Ltd. (hereafter 'OSL') since two years and on many occasions, accused Mahimananda Mishra had threatened to kill the deceased. He had also sent some goondas to the office of the deceased who threatened the deceased and asked him to leave the company or else he would face dire consequence. The deceased narrated about such incidents of threat to the informant as well as to the other family members. There was a meeting few days prior to the occurrence for amicable settlement of the dispute in the office of Collector, Jagatsinghpur in presence of the Chairman of Paradeep Port which was published in media. It is further stated in the first information report that on 26.10.2016 at about 9.00 a.m. while the deceased was going to his office in a Scorpio vehicle with security guard Harihar Rout and driver Chandan Kumar, near Madhuban Chhak, Paradeep, two unknown persons threw bombs at the deceased and also fired two to three rounds of gun shots at him and decamped from the spot. The deceased succumbed to the injuries. The informant suspected that accused Mahimananda Mishra and some of the officers of OSL namely Basanta Kumar Bala, Subha Acharya and Debi Tripathy have committed the crime utilizing others. On the basis of such first information report, Paradeep P.S. Case No.180 of 2016 was registered under sections 302/120-B of the Indian Penal Code, sections 25(1-B)/27 of the Arms Act, 1959 and sections 3 and 4 of the Explosives Substances Act, 1908 against accused Mahimananda Mishra, Basanta Kumar Bala, Subha Acharya and Debi Tripathy. 3. The Inspector in charge of Paradeep police station himself took up the investigation of the case. The materials available on record indicate that when the deceased was going to his place of work in his Scropio vehicle with driver Chandan Nayak and body guard Harihar Rout, bombs were thrown by the accused persons on the vehicle, which caused damage to the front glass. The materials available on record indicate that when the deceased was going to his place of work in his Scropio vehicle with driver Chandan Nayak and body guard Harihar Rout, bombs were thrown by the accused persons on the vehicle, which caused damage to the front glass. The deceased, his driver and body guard in order to save their lives tried to run away from the spot. Gun shots were fired at the deceased who received bleeding injuries and fell down on the ground. The deceased was first taken to Atharabanki Hospital from the spot for treatment but on the advice of the doctors, he was shifted to Ashwini Hospital, Cuttack where he was declared dead. The dead body was then taken to S.C.B. Medical College and Hospital, Cuttack. During course of investigation, inquest was held over the body of the deceased Mahendra Swain and it was sent for autopsy to Department of F.M.T., S.C.B. Medical College and Hospital, Cuttack and the doctors conducting autopsy found bullet injuries and opined that the death was due to shock and hemorrhage as a result of the injuries to the neck which were antemortem in nature and sufficient to cause death in ordinary course of nature. During course of investigation, it came to light that due to business rivalry, accused Mahimananda Mishra, owner/CMD of OSL made conspiracy with co-accused persons named in the charge sheet and committed murder of the deceased. Ten accused persons were arrested in connection with the case and forwarded to Court. Scientific officials visited the spot on police requisition so also the bomb disposal squad. Pistols and ammunitions etc. were seized which were sent to S.F.S.L., Rasulgarh for examination. A letter written by the deceased addressing to I.I.C., Paradeep police station was found in his table drawer mentioning about life threat from accused Mahimananda Mishra and B.K. Bala. Some letters issued from M/s. Seaways addressed to S.P., Jagatsinghpur as well as I.I.C., Paradeep police station were also seized. Analysis of call detailed records (CDR) and software-defined radio system (SDR) of the cell phones of the accused persons transpired that there was very close interlink between the accused persons who made conspiracy between them. Some letters issued from M/s. Seaways addressed to S.P., Jagatsinghpur as well as I.I.C., Paradeep police station were also seized. Analysis of call detailed records (CDR) and software-defined radio system (SDR) of the cell phones of the accused persons transpired that there was very close interlink between the accused persons who made conspiracy between them. Keeping the investigation open, as some co-accused persons could not be arrested, after obtaining order from S.P., Jagatsinghpur, first charge sheet was submitted on 12.03.2017 under sections 302/120-B of the Indian Penal Code and sections 25(1-B)/27 of the Arms Act and sections 3 and 4 of the Explosives Substances Act against ten accused persons. Second charge sheet was submitted against seventeen accused persons including the petitioners on 14.07.2017 again keeping the investigation open. Final charge sheet was submitted on 31.10.2017 against seventeen accused persons including the petitioners under sections 302/120-B of the Indian Penal Code and sections 25(1-B)/27 of the Arms Act and sections 3 and 4 of the Explosives Substances Act showing some of them as absconders. 4. Mr. Subrata Panda, learned counsel appearing for the petitioners Siba Prasad Das and Manoj Gochhayat @ Pintu in BLAPL No.1449 of 2017 contended that the petitioners are in judicial custody since 18.11.2016 and they have neither been implicated in the first information report nor they have been named by any of the witnesses namely Chandan Nayak and Harihar Rout who were accompanying the deceased at the relevant point of time in the Scorpio vehicle. However, witness Ranjan Kumar Swain identified petitioner Manoj Gochhayat @ Pintu in the T.I. parade which was held on 06.12.2016 in Sub-Jail, Kujanga and both the petitioners were identified in the T.I. parade by witness Soumya Prakash Senapati which was held on 20.12.2016 in Sub-jail, Kujanga. According to him, since those two identifying witnesses, according to the prosecution case are not the eye witnesses and they state about some previous incident, the involvement of the petitioners in the incident cannot be said to have been prime facie established. He argued that the entire accusations against the petitioners are based on their confessional statements before police as well as the confession of the co-accused persons before police which are not admissible. The prosecution case that at the instance of the petitioner Manoj Gochhayat @ Pintu, one pistol, empty magazine, live ammunition etc. were seized on 17.11.2016 has been stage-managed by the investigating officer. The prosecution case that at the instance of the petitioner Manoj Gochhayat @ Pintu, one pistol, empty magazine, live ammunition etc. were seized on 17.11.2016 has been stage-managed by the investigating officer. The only material against the petitioner Siba Prasad Das is that he was an auto rickshaw driver who was waiting at Raghunathpur on the date of occurrence for the arrival of the co-accused persons who after committing the crime fled away to Cuttack in the auto rickshaw and the said auto rickshaw bearing registration No.OD-05-F-8126 which was used by the petitioner Siba Prasad Das for the escape of some of the accused persons was seized. It is strenuously argued that since there is no clinching material against the petitioners regarding their involvement in the alleged crime and there is no chance of their absconding, the bail application may be favorably considered. 5. Mr. Debasnan Das, learned counsel appearing for the petitioner Rakesh Choubey in BLAPL No. 4275 of 2017 submitted that the petitioner is in judicial custody since 18.11.2016 and neither the petitioner's name find place in the first information report nor there is any direct evidence against him relating to his involvement in the alleged crime. Though the test identification parade was conducted twice i.e. on 06.12.2016 and 20.12.2016 in Sub-Jail, Kujanga and the petitioner was by then in judicial custody in connection with this case but no step has been taken by the investigating officer for placing the petitioner in such T.I. parade to prima facie establish his complicity in the crime. He further submitted that basing on the confessional statements of the co-accused persons, the petitioner was taken into custody and it is stated that at the instance of the petitioner, one pistol and live ammunitions etc. were seized. There are no clinching materials against the petitioner regarding his involvement in the conspiracy with accused Mahimananda Mishra and one of the co-accused namely Md. Samim has already been released on bail by this Court in BLAPL No.6572 of 2017 vide order dated 15.12.2017 and the petitioner stands on the similar footing. Placing reliance on the decision of this Court in case of Srikant Kishore Mallick Vs. Samim has already been released on bail by this Court in BLAPL No.6572 of 2017 vide order dated 15.12.2017 and the petitioner stands on the similar footing. Placing reliance on the decision of this Court in case of Srikant Kishore Mallick Vs. State of Orissa reported in, (2015) 62 OCR 1, it was argued that the power to grant bail should not be exercised as if punishment before trial was being imposed and even where prima facie case is established, the approach of the Court in the matter of bail should not be that the accused should be detained by way of punishment. 6. Mr. Devashis Panda, learned counsel appearing for the petitioner Quadir Khan @ Faiz Ahmed @ Ashok Bihari @ Raju in BLAPL No.5093 of 2017 contended that the petitioner was taken on remand in this case on 22.03.2017 basing on the confessional statement of the co-accused persons and name of the petitioner neither finds place in the first information report nor any of the witnesses implicated him by name. He was not placed in the test identification parade to establish his complicity in the crime. Some mobile phones were seized from the rented house of the petitioner situated at 22 No. Nanda Ghose Road, Tilkhan in the district of Howrah and some ammunitions and bomb making powder etc. were also seized at the instance of the petitioner on 29.03.2017 after he was taken into police custody on remand. He argued that there is no clinching prima facie case against the petitioner and therefore, he may be released on bail. 7. Mr. Milan Kanungo, learned Senior Advocate appearing for the petitioner Mohammed Babul @ Bablu in BLAPL No. 6830 of 2017 contended that the petitioner is in judicial custody since 10.02.2017 and he was not named in the first information report nor by any witnesses but only in the confessional statement of the co-accused. He was not placed in the T.I. parade and has got no criminal antecedent and there was recovery of some iron nails, broken glasses and small chips at the instance of the petitioner which was seized on the sea beach of Paradeep on 15.02.2017 and therefore, the bail application of the petitioner may be favourably considered. 8. Mr. Dillp Kumar Mishra, learned Addl. 8. Mr. Dillp Kumar Mishra, learned Addl. Government Advocate on the other hand vehemently opposed the prayer for bail of all the petitioners and contended that there are enough material on record to show that there was business rivalry between accused Mahimananda Mishra and the deceased and on several occasions, the deceased was given threat with dire consequences by the goondas sent by accused Mahimananda Mishra which he disclosed before the informant, his family members and others. There was criminal conspiracy between the accused persons for committing murder and assistance of Supari Killers was taken to execute the devilish plan and ultimately in the broad day light, bombs were thrown on the vehicle of the deceased at a public place and when he tried to escape leaving the vehicle in order to save his life, bullets were fired at him which led to his death. On the basis of the statements of the accused persons recorded under section 27 of the Evidence Act, incriminating materials were found. He placed on a recent decision of the Hon'ble Supreme Court in case of Ranju Manjhi Vs. State of Bihar reported in, (2018) 72 OCR 160 (SC) wherein conviction of the accused persons in a case under section 396 of the Indian Penal Code was upheld mainly basing on the confessional statement of the accused before police and recoveries made on the basis of statements recorded under section 27 of the Evidence Act. He argued that accused Mahimananda Mishra is a powerful businessman and he has got number of criminal antecedents and even though he was granted bail by this Court but his bail order was cancelled by the Hon'ble Supreme Court in Criminal Appeal No.1175 of 2018 as per order dated 18.09.2018. The petitioners Quadir Khan and Mahammad Babul belong to West Bengal and petitioner Rakesh Choubey belong to Jharkhand and once they are enlarged on bail, there is every chance of their absconding and it would be difficult to procure their attendance at the time of trial. It was further submitted that there is likelihood of tampering with the prosecution evidence and gaining over the witnesses by using muscle power or money and some of the accused persons are still absconding and therefore, it would not be proper to release the petitioners on bail. 9. It was further submitted that there is likelihood of tampering with the prosecution evidence and gaining over the witnesses by using muscle power or money and some of the accused persons are still absconding and therefore, it would not be proper to release the petitioners on bail. 9. It is the settled principle of law that while adjudicating an application for bail, the Court should avoid detailed examination of the evidence and elaborate discussions on the merits of the case as it is likely to have a far reaching consequence on either side during trial. Apart from existence of prima facie case, it is also to be seen whether there is likelihood of absconding of the accused or tampering with the evidence. The nature of accusations, the nature of evidence in support thereof, the severity of punishment are also to be kept in mind. In case of Neeru Yadav Vs. State of U.P. reported in, (2015) 62 OCR 771, it is held that 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 civilised 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. 10. On a careful scrutiny of the materials produced before this Court, it appears that there are prima facie material on record to show that there was business rivalry between OSL and M/s. Seaways. Accused Mahimananda Mishra is the Managing Director of OSL whereas the deceased Mahendra Kumar Swain was the Deputy General Manager of M/s. Seaways. Further materials on record indicate that antisocial persons were set up by OSL who threatened the deceased on number of occasions to leave the M/s. Seaways Company and to stop stevedoring activities at Paradeep. The deceased disclosed about such continuous threat before his family members and others. Further materials on record indicate that antisocial persons were set up by OSL who threatened the deceased on number of occasions to leave the M/s. Seaways Company and to stop stevedoring activities at Paradeep. The deceased disclosed about such continuous threat before his family members and others. He was very much apprehensive on his life and written letters in that connection addressed to I.I.C., Paradeep police station and also S.P., Jagatsinghpur were also seized. Hand written letter of the deceased was seized from his table drawer which indicated that if anything happened to his life, accused Mahimananda Mishra and B.K. Bala would be responsible. Plan was chalked out to kill the deceased and there was criminal conspiracy and ultimately plan was executed. Petitioner Rakesh Choubey who is a man from Jharkhand and has got number of criminal antecedents was entrusted to execute the plan and an advance of rupees twelve lakhs was given to him at OSL office, Cuttack to arrange contract killers. The petitioner Rakesh Choubey contacted petitioner Quadir Khan and co-accused Muna Khan and they agreed to assist in the execution of plan. The petitioner Siba Prasad Das was carrying the petitioner Quadir Khan and Muna Khan in auto rickshaw to different places and subsequently petitioner Manoj Gochhayat @ Pintu joined in the execution of plan. The petitioners Quadir Khan, Manoj Gochhayat and accused Muna Khan were staying in a rented house at Tarinigada, keeping an eye over the movement of the deceased at Paradeep. Bombs were prepared by accused Mohd. Samim and Riyasat Hussain two days prior to the occurrence at an isolated place on the sea beach and those were kept near a tree beforehand at Madhuban which is the place of occurrence. The petitioner Manoj Gochhayat on the date of occurrence was near the house of the deceased and when the deceased left his house in the Scorpio vehicle with his driver and bodyguard, the petitioner passed message to the other accused persons whereafter the incident took place at Madhuban Chhak. The petitioner Mohammed Babul @ Md. Bablu and accused persons Riyasat Hussain, Rashid Hussain and Md. Saboo were present at Madhuban Chhak and attacked the deceased by throwing bombs and firing gun shots as a result of which the deceased died. The petitioner Mohammed Babul @ Md. Bablu and accused persons Riyasat Hussain, Rashid Hussain and Md. Saboo were present at Madhuban Chhak and attacked the deceased by throwing bombs and firing gun shots as a result of which the deceased died. The petitioner Siba Prasad Das had not come to Paradeep on the date of occurrence but as per previous plan, he was waiting at Raghunathpur with his Auto rickshaw for the arrival of the accused persons after commission of crime and he took them to Cuttack. The statements of Hemant Mohanty and Abdul Yusuf Khan indicate that after the occurrence, on 28.10.2016 the petitioner Rakesh Choubey paid huge money to the petitioner Quadir Khan near N.H. overbridge, Balasore. Therefore, there are prima facie materials against each of the petitioners regarding their involvement in the crime. The submission of learned counsel for the petitioners regarding non-mention of the names of the petitioners in the first information report cannot be a relevant factor at this stage to grant bail in as much as the informant is not an eye witness to the occurrence and he came to know about the occurrence while watching TV and also from his son over phone. The four accused persons who participated in the assault on the deceased at the scene of occurrence were outsiders and even the informant was also not aware as to how the accused persons had prepared to execute their plan to do away with the life of the deceased. Moreover, the non-mention of the names of the accused persons in the first information report cannot be a ground in every case to disbelieve the prosecution case. Law is well settled that first information report is not the encyclopedia or be all and end all of the prosecution case. It is not a verbatim summary of the prosecution case. Whether non-mentioning of some material facts would be fatal or not depend on the facts and circumstances of each case. Similarly, merely because the two companions of the deceased namely Chandan Nayak and Harihar Rout have not named any of the petitioners to be present at the spot is also not a relevant factor to be considered at this stage. Whether non-mentioning of some material facts would be fatal or not depend on the facts and circumstances of each case. Similarly, merely because the two companions of the deceased namely Chandan Nayak and Harihar Rout have not named any of the petitioners to be present at the spot is also not a relevant factor to be considered at this stage. In absence of any previous acquaintance with the four accused persons prior to the occurrence, the evidentiary value of their statements relating to non-mention of the names of the accused persons can be considered by the learned trial Court at the appropriate stage. The submission of the learned counsel for the petitioner Rakesh Choubey that similarly situated co-accused Md. Samim has been released on bail is not correct inasmuch as the only material against the said accused is relating to preparation of the bomb on the sea shore whereas the accusation against petitioner Rakesh Choubey is more serious in nature and he stated to have received the advance supari, arranged the Supari Killers and made payment to the petitioner Quadir Khan after the occurrence at Balasore. Two of the petitioners Siba Prasad Das and Manoj Gochhayat @ Pintu have been identified in the T. I. parade and some role in connection with the crime has been attributed to them. The investigating officer can explain during trial, if questioned, as to why in respect of other petitioners, no T.I. parade was conducted to prove some aspects of the case. The submission made by the learned counsels for the petitioners that the confessional statements of co-accused persons should be excluded from consideration while adjudicating bail applications is not tenable in view of the ratio decided by the Hon'ble Supreme Court in cases of Kalyan Chandra Sarkar Vs. Rakesh Ranjan @ Pappu Yadav reported in, (2004) 7 SCC 528 and State of U.P. Vs. Amarmani Tripathy reported in, (2005) 8 SCC 21 . Which part of the statements of some of the petitioners recorded under section 27 of the Evidence Act are to be admitted and what weight are to be attached to the recoveries made in pursuance to such statements are to adjudicated by the trial Court. Amarmani Tripathy reported in, (2005) 8 SCC 21 . Which part of the statements of some of the petitioners recorded under section 27 of the Evidence Act are to be admitted and what weight are to be attached to the recoveries made in pursuance to such statements are to adjudicated by the trial Court. The petitioners Quadir Khan and Mahammad Babul belong to West Bengal and petitioner Rakesh Choubey belong to Jharkhand and the apprehension of the learned counsel for the State that once they are released on bail, there is possibility of absconding and not attending the trial Court cannot be lightly brushed aside. It cannot be lost sight of the fact that there was criminal conspiracy for committing the crime and act of conspiracy takes place secretly and generally it is difficult to find direct evidence in that respect. Only the conspirators would know about the conspiracy and therefore, it is the duty of the Court while evaluating the materials on record, to rely upon the other materials which suggest conspiracy. The business rivalry between accused Mahimananda Mishra and the deceased, the previous threat given to the deceased on a number of occasions which he had disclosed before his family members and others are very relevant aspects of the prosecution case, which are to be taken note of by the learned trial Court. The Hon'ble Supreme Court while rejecting the bail application of accused Mahimananda Mishra observed that he is an influential person in his locality, in terms of both money and muscle power and there is reasonable apprehension that he might tamper with the evidence and might intimidate witnesses before or during the trial. 11. The Hon'ble Supreme Court while rejecting the bail application of accused Mahimananda Mishra observed that he is an influential person in his locality, in terms of both money and muscle power and there is reasonable apprehension that he might tamper with the evidence and might intimidate witnesses before or during the trial. 11. In view of the foregoing discussions, without detailed examination of evidence and elaborate discussion on merit of the case but considering the nature and seriousness of accusation against the petitioners, the criminal conspiracy made to silence a business competitor for all time to come, the pre-planned manner in which the ghastly crime was committed in the broad daylight in a public place hiring supari killers, its serious impact on the society, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence by using muscle power and money, chance of absconding of some of the petitioners who belong to States of Jharkhand and West Bengal to evade trial and availability of prima facie materials against the petitioners regarding their involvement in the commission of offences, I am of the humble view that it would not be proper to release the petitioners on bail. Accordingly, all the four bail applications being devoid of merits stand rejected. Before parting, I would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of disposing of the prayer for bail made by the petitioners. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the trial Court at the appropriate stage of the trial. Urgent certified copy of this order be granted on proper application.