Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1175 OF 2018
(Arising from SLP(Criminal) No. 5440/2017)
The State of Orissa ..Appellant
Versus
Mahimananda Mishra ..Respondent
WITH
CRIMINAL APPEAL NO.1176 OF 2018
(Arising from SLP(Criminal) No.6006/2017)
Rajkishor Swain ..Appellant
Versus
State of Orissa and another ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Signature Not Verified
Digitally signed by
ANITA MALHOTRA
Date: 2018.09.18
13:33:22 IST
Reason:
Leave granted in both the special leave petitions.
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2. The two instant appeals have been preferred by the State of
Orissa and the defacto informant in FIR No. 180/2016,
registered at Paradeep Police Station in Orissa State against the
order dated 16.05.2017 of the High Court of Orissa at Cuttack,
by which an application for bail filed by the respondent herein in
connection with the aforementioned first information has been
allowed.
3. The case of the prosecution in brief, as seen from the first
information report and the other connected material, is that on
26.10.2016 at about 09:00 a.m. while the deceased Mahendra
Swain was heading to his office in his vehicle accompanied by the
driver and his security guard, two unknown assailants hurled
bombs on the vehicle, and when the inmates of the vehicle tried
to escape, they opened indiscriminate firing on the deceased,
leading to his death. According to the first information, the
murder was committed at the behest of certain people including
the respondent herein namely Mahimananda Mishra. The
incident was mainly on account of business rivalry between the
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company of the deceased and the company of the respondent.
The deceased was the Branch Manager of Seaways Shipping and
Logistics Limited, Paradeep Branch. The respondentaccused is
having a company, by name, Orissa Stevedores Limited. It has
been alleged that the respondent had given death threats to the
deceased directly and through the brother of the deceased.
4. During the course of investigation, the police found that the
respondent went away to Thailand travelling via Chennai, Delhi
and Nepal, before he could be arrested. Only after a Look Out
Circular was issued, he was traced to Thailand and was deported
therefrom to India, after which he was arrested.
5. During the course of investigation, the police have recovered
certain weapons as well as the motorcycle used for commission of
the murder. According to the State, the investigation records so
far, prima facie, reveal that the respondent had paid certain
amount of money as advance amount for commission of the
murder. The State also relies upon a letter written by the
deceased to the Inspector, Paradeep Police Station, stating that
he fears for his life and the life of his family, inasmuch as the
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respondent may make an attempt to take their life. According to
the State, the said letter may be treated as a dying declaration of
the deceased.
6. The police have filed a charge sheet against the respondent
and others. However, four accused are absconding. Further
investigation is being proceeded with with the permission of the
Court.
7. Learned Advocates appearing on behalf of the State as well
as the defacto complainant, while taking us through the material
on record, submit that the respondent is the kingpin of the
conspiracy to murder the deceased and the murder has taken
place as per his directions and plan. The preliminary charge
sheet was filed for the offences punishable under Sections 302
and 120B of the Indian Penal Code, read with Sections 25(1)(B)
and 27 of the Arms Act, as also under Sections 3 and 4 of the
Explosive Substances Act. They further brought to the notice of
the Court that the respondent, being a powerful and rich person,
may go to any extent to influence the witnesses by intimidating
them. The very fact that he discreetly went outside India to avoid
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arrest would, prima facie, reveal that he is a person who can take
the law into his hands. He may even abscond in the future,
which may delay the process of justice. According to them, the
witnesses are already frightened and consequently may not go
before the Court to depose against the accused, in which event
justice may suffer.
Per contra, Shri Ranjit Kumar, learned Senior Advocate
appearing on behalf of the accused argued in support of the
judgment of the High Court. He contended that though the
respondent was released on bail in May 2018, absolutely no
allegations are forthcoming by the police that the respondent has
since tried to tamper with the evidence by intimidating the
witnesses. There is also no allegation of abscondence against the
respondent. Merely on apprehension of the police, without any
prima facie proof, the liberty of the respondent cannot be
curtailed. He further submitted that any additional condition
may be imposed on the respondent by this Court.
8. It is brought to the notice of the Court by the learned
Advocate for the State that though the impugned judgment of the
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High Court of Orissa granting the order of bail in favour of the
respondent was passed as far back as 16.05.2017, the
respondent was actually released from custody with effect from
May 2018, inasmuch as he was in custody in two other cases till
then.
9. The High Court proceeded to grant bail to the respondent on
the ground that there is no prima facie material against the
respondent to establish his involvement in the conspiracy to
murder the deceased, that the undated letter of the deceased
addressed to the police showing apprehension to his life cannot
be treated as a dying declaration; the material on record does not
indicate any motive on the part of the respondent to conspire
towards the commission of murder in question, and that the
confessions of the coaccused cannot be made used of against
the respondent at this stage, inasmuch as they are admissible
only to the extent that they lead to recoveries under Section 27 of
the Indian Evidence Act.
10. Since the investigation is yet to complete and trial is yet to
begin, it would not be proper for us to dwell upon the subject
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matter in detail at this stage, lest it may prejudice the case of
either of the parties during trial. However, , it is
prima facie
brought on record by the State that there was severe animosity
between the deceased and the respondent, as is evidenced by the
fact that at one point an intervention by the district
administration was necessitated to keep the peace. The
statement of the family members of the deceased discloses that
the respondent had given death threats to the deceased. A letter
of the deceased was seized from the house of the deceased during
the course of investigation which discloses that the deceased was
under the apprehension of his death by the respondent due to
business rivalry. The respondent fled to Thailand to avoid arrest
and was arrested only on deportation pursuant to the issuance of
a Look Out Circular, which probabilises the apprehension of the
police regarding future attempts of the accused to escape. A
recovery of weapon has been made pursuant to the statement
made by the coaccused. The respondent has serious criminal
antecedents, having five criminal cases registered against him,
out of which two cases involve charges under Section 307, IPC
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and three under the Explosive Substances Act. However, during
the course of arguments, it was brought to the notice of the Court
that in one matter, the respondent has been acquitted. Since the
respondent is a powerful and influential person in his locality,
the investigating officer apprehends that he may influence the
witnesses by intimidating them and if the respondent continues
to remain at large, his presence may influence the trial by
creating fear in the minds of the witnesses.
11. It is common knowledge that generally direct evidence may
not be available to prove conspiracy, inasmuch as the act of
conspiracy takes place secretly. Only the conspirators would be
knowing about the conspiracy. However, the Court, while
evaluating the material, may rely upon other material which
suggests conspiracy. Such material will be on record during the
course of trial. However, at this stage, prima facie , the Court
needs to take into consideration the overall material while
considering the prayer for bail.
12. Though this Court may not ordinarily interfere with the
orders of the High Court granting or rejecting bail to the accused,
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it is open for this Court to set aside the order of the High Court,
where it is apparent that the High Court has not exercised its
discretion judiciously and in accordance with the basic principles
governing the grant of bail. (See the judgment of this Court in
the case of Neeru Yadav vs. state of Uttar Pradesh , (2014) 16 SCC
508 and , (2010) 14
Prasanta Kumar Sarkar vs. Ashis Chatterjee
SCC 496). It is by now well settled that at the time of considering
an application for bail, the Court must take into account certain
factors such as the existence of a prima facie case against the
accused, the gravity of the allegations, position and status of the
accused, the likelihood of the accused fleeing from justice and
repeating the offence, the possibility of tampering with the
witnesses and obstructing the Courts as well as the criminal
antecedents of the accused. It is also well settled that the Court
must not go into deep into merits of the matter while considering
an application for bail. All that needs to be established from the
record is the existence of a prima facie case against the accused.
(See the judgment of this Court in the case of Anil Kumar Yadav
vs. State (NCT) of Delhi , (2018) 12 SCC 129.)
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13. Keeping in mind the aforementioned principles, we are of
the view that the High Court was not justified in going into the
evidence on record in such a depth which amounts to
ascertaining the probability of the conviction of the accused. On
the other hand, the High Court has failed to appreciate several
crucial factors that indicate that it was highly inappropriate to
grant bail in favour of the respondent.
14. Since the respondent is an influential person in his locality,
in terms of both money and muscle power, there is a reasonable
apprehension that he might tamper with or otherwise adversely
influence the investigation, which is still going on qua some of
the coaccused in the case, or that he might intimidate witnesses
before or during the trial. The High Court in observing that there
was no possibility of the respondent’s absconding in light of his
being a local businessman, not only completely overlooked his
past attempt to evade the process of law, but also overlooked the
implications of the clout enjoyed by him in the community.
15. Having regard to the totality of the facts and circumstances
of the case and for the reasons mentioned supra, the impugned
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judgment of the High Court granting an order of bail in favour of
the respondent herein is liable to be set aside. Accordingly, the
same is hereby set aside. The respondent Mahimananda Mishra,
S/o Late Rabindranath Mishra, R/o Odia Bazar, P.S. Dargha
Bazar, District Cuttack (Orissa), be taken into custody forthwith.
16. The instant appeals are accordingly allowed.
……..……………………………….J.
[L. NAGESWARA RAO]
NEW DELHI; ……..……………………………….J.
SEPTEMBER 18, 2018. [MOHAN M. SHANTANAGOUDAR
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