Allowed

Mahimananda Mishra v. State of Orissa

Orissa HC16 May 2017BLAPL/1006/2017

Case brief

AI extract

What is this about?

Bail was granted in a murder-conspiracy case. For deciding bail, the court found no prima facie conspiracy against the petitioner and limited reliance on co-accused disclosure statements and an undated apprehension letter. Release was subject to conditions, including passport surrender and restricted entry into Paradeep.

What did the court decide?

Conditional bail granted with two solvent sureties, passport surrender, court and investigation attendance, no witness tampering or further offences, and restricted entry into Paradeep.

Mahimananda Mishra Vs State of Orissa — Murder and Culpable Homicide | Orissa HC (2017)

¶1

HIGH COURT OF ORISSA, CUTTACK

¶2

BLAPL No.1006 of 2017

¶3

In the matter of an application under Section 439 of the Code of Criminal Procedure, 1973.

¶4

--------------Mahimananda Mishra … Petitioner -VersusState of Orissa … Opposite Party For Petitioner : Mr. K.T.S. Tulsi, Senior Advocate along with M/s. Gokulananda Mohapatra, A. Mohapatra, P. Acharya, P.K. Sahoo, B.N. Mohapatra and U.C. Pattnaik, Advocates For Opposite Party: Mr. J. Katikia Additional Government Advocate

¶5

P R E S E N T :

¶6

THE HON’BLE DR. JUSTICE D.P. CHOUDHURY

¶7

___________________________________________________ Date of hearing concluded: 16.05.2017 Date of Judgment: 16.05.2017 ___________________________________________________

¶8

Dr. D.P. Choudhury, J. In the decision Neeru Yadav v. State of Uttar

¶9

Pradesh and another , reported in 2015 SCC OnLine SC 862

¶10

Their Lordships have been pleased to quote the significant lines

¶11

from Benjamin Disraeli in the following manner:

¶12

“I repeat……… that all power is a trust-that we are

¶13

accountable for its exercise- that, from the people and for

¶14

the people, all springs, and all must exist.”

¶15

¶16

2. Keeping in mind of above advice, the Court should consider all the matters including the present one. Heard Mr. K.T.S. Tulsi, learned Senior Advocate for the petitioner and Mr. J. Katikia, learned Additional Government Advocate for the State. Hearing on bail was taken up on 8.5.2017, 11.5.2017, 15.5.2017 and 16.5.2017.

¶17

3. 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.

¶18

4. The factual matrix leading to the case of the prosecution 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 culprits opened indiscriminate firing and also hurled bombs which led to the death of Mahendra Swain. It is alleged, inter alia, that there was animosity between the Seaways Shipping and Logistics Limited, Paradeep and the Orissa Stevedores Limited which is owned by

¶19

the present petitioner. It is alleged by the prosecution that the present petitioner due to previous enmity with the deceased had

¶20

¶21

threatened the deceased and his brother to finish the deceased from his life.

¶22

5. After the said occurrence the brother of the deceased lodged F.I.R. During course of investigation it has come to light that the present petitioner has engaged one co-accused Rakesh Choubey through another co-accused Bapi Sarkhel to take revenge by eliminating the deceased because of their previous enmity. The co-accused Rakesh Choubey and Manoj Gochhayat while confessing guilt before the Police stated about the involvement of the present petitioner. Since the present petitioner has got great conspiracy to cause murder of the deceased and has got criminal antecedents, he was arrested and sent to custody.

¶23

6. Mr. K.T.S. Tulsi, learned Senior Advocate appearing for the petitioner commenced his argument by stating that there is no eye-witness and there is no witness to any circumstance against the petitioner. He further referred to the bail order against co-accused Bapi Sarkhel passed in BLAPL No.8380 of 2016 wherein the co-accused has been released on bail. According to him, the case of the present petitioner is on same footing for which on parity the petitioner is entitled to bail.

¶24

¶25

7. Mr. Tulsi, learned Senior Advocate for the petitioner submits that the learned Sessions Judge in the court below has rejected the bail on four grounds but none of the grounds has been substantiated by the prosecution. One of the grounds the prosecution alleges that there was business rivalry between the deceased and the present petitioner but he drew the attention of the Court to the statement of the witnesses Kalpataru and Amarendra who stated that the dispute with regard to discontentment of the labourer has been subsided at the instance of the Additional District Magistrate and thereby there is no enmity between the parties to suspect the role of the present petitioner.

¶26

8. Mr. Tulsi, learned counsel for the petitioner contended that the statement of co-accused Rakesh Choubey is very much pressed by the prosecution to prove the complicity of the present petitioner. But in BLAPL No.8380 of 2016 this Court has held that the statement of Rakesh Choubey being admissible towards recovery of the weapon but not the rest of the statement as rightly pointed out in paragraphs 24 and 25 of the judgment is equally not available against the present petitioner.

¶27

9. Similarly the statement of Harihar Rout and other Bodyguards have not stated to have witnessed as to who hurled

¶28

¶29

the bomb to take away the life of the deceased and most of the witnesses examined by the prosecution are after occurrence witnesses.

¶30

10. Mr. Tulsi, learned Senior Advocate for the petitioner further contended that the prosecution has mainly alleged about the conspiracy of the present petitioner to cause death of the deceased. One of the circumstance of the prosecution wants to show that Rs.12 lakhs was paid by the present petitioner to coaccused Rakesh Choubey but the statement of the Cashier, namely, Rabindra Dalai discloses that no money of such amount of Rs.12 lakhs has been withdrawn as he used to keep the cash of Rs.60,000/- to Rs.70,000/- in hand. When there is no transaction, the question of payment of Rs.12 lakhs as stated by co-accused should not be acceptable. He further submitted that the prosecution relies on a letter seized two days after the occurrence from the drawer of the deceased at his office and same has been arrayed as dying declaration of the deceased but same cannot be dying declaration admissible under Section 32 of the Evidence Act because the Hon’ble Apex Court in the case of

¶31

Jayendra Saraswathi Swamigal v. State of Tamilnadu;

¶32

reported in (2005) 2 SCC 13 rejected the contention of the prosecution of that case stating that the letters being not related

¶33

¶34

to cause of death cannot be made admissible. Learned counsel for the petitioner submits that since the said letter recovered from the house of the deceased is undated and same does not relate to cause of death cannot be admissible as dying declaration.

¶35

11. Mr. Tulsi, learned counsel for the petitioner asserted that in the instant case there is no question of any conspiracy inasmuch Section 10 of the Evidence Act has not been complied by the prosecution. Again he drew the attention of the Court to the case of Jayendra Saraswati Swamigal (supra) where the Hon’ble Apex Court has discussed about the decision in Mirza Akbar v. King Emperor, reported in AIR 1940 Privy Council 176 . Relying upon such decision, he submitted that since in this case the confession of the co-accused Rakesh Choubey and coaccused Manoj Gochhayat were recorded long after the murder when conspiracy had culminated, Section 10 of the Evidence Act cannot be pressed into service. He further submitted that the statement of co-accused is a weak piece of evidence and same is not an evidence as per Section 3 of the Evidence Act. He, therefore, submitted that any statement made under Section 30 of the Evidence Act by the co-accused cannot be utilized against the petitioner. In this regard, he relied upon the decisions

¶36

¶37

reported in Kashmira Singh v. The State of Madhya Pradesh reported in AIR 1952 SC 159 and Haricharan Kurmi v. State of Bihar , reported in AIR 1964 SC 1184 .

¶38

12. Learned counsel for the petitioner also relied on the judgments reported in (2014) 5 SCC 730, Muralidhar alias Gidda and another v. State of Karnataka; (2014) 2 SCC 1, Lalita Kumari v. Government of Uttar Pradesh and others; (2014) 6 SCC 745, Dhan Raj Alias Dhand v. State of Haryana; (2014) 5 SCC 568, Babubhai Bhimbhai Bokhiria v. State of Gujrat and others; (2005) 2 SCC 13, Jayendra Saraswathi Swamigal v. State of Tamilnadu; (2004) 10 SCC 657, Anter Singh v. State of Rajasthan; (2007) 6 SCC 32, Sujoy Sen Alias Sujoy Kumar Sen v. State of West Bengal and AIR 1939 Privy Council 282, Pakala Narayan Swami v. Emperor.

¶39

13. Mr. Tulsi, learned counsel for the petitioner while summing of the case of the petitioner submitted that there is no eye-witness to the occurrence as stated earlier and the statement of the wife of the deceased and other witnesses disclose that they are post-occurrence witnesses. Moreover, there is inadmissible material to prove the previous enmity and the conspiracy against the petitioner for which prima facie case

¶40

¶41

against the petitioner is far from truth. According to him, the charge-sheet has already been submitted and co-accused has already been released on bail for which the case of the petitioner should be considered liberally and as such he is entitled to bail with any condition as deemed fit and proper.

¶42

14. Per contra, Mr. J. Katikia, learned Additional Government Advocate while vehemently opposing the contention of the learned counsel for the petitioner submitted that the final charge-sheet has not been submitted although preliminary charge-sheet has been submitted and investigation is still in progress. According to him the case of co-accused Bapi Sarkhel should not be taken into consideration as he has already filed a Misc. Case to recall the order of bail in BLAPL No.8380 of 2016. Further he stated that the statement of witness Kalpataru Mantri specifically states about the dispute between the Company of the present petitioner and the Company of deceased and there was conspiracy between the present petitioner and his close friend co-accused Bapi Sarkhel to eliminate the deceased from life. He drew the attention of the Court to the statement of Rajkishore Swain, who is the brother of the deceased that he has come to know from his brother that deceased was receiving threatening

¶43

¶44

calls from the petitioner and always apprehending danger to his life at the instance of the petitioner.

¶45

15. Learned Additional Government Advocate for the State drew attention of the Court to the statement of co-accused Qadir Khan who stated that on the previous day of occurrence there was conspiracy meeting between the petitioner and his friend co-accused Bapi Sarkhel and accordingly he has also participated to the design of these accused persons to cause death of the deceased. According to him, the statement of witness Kanchan Gocchayat clearly shows about the extrajudicial confession of her son and co-accused Manoj Gochhayat who after the occurrence came to the house and threw five mobiles to the furnace so as to damage the same and on being asked Manoj informed that he has done so to wipe out the evidence as per the advice of the present petitioner. He drew the attention of the Court to the statements of co-accused Bablu, Susant Sethi, Rakesh Choubey, Reyasat and submit that they are all engaged by the present petitioner to cause murder of the deceased. He specifically submitted that co-accused Rakesh Choubey admitted to have received Rs.12 lakhs from the petitioner to kill the deceased.

¶46

¶47

16. Learned Additional Government Advocate for the

¶48

State drew attention of the Court to the decision of Jayendra Saraswati (supra) and submitted that the decision has been rendered in the case of bail and the decision therein cannot be the ratio to consider the case in hand. He specifically drew attention of the Court to paragraphs 13 and 18 to the effect that no final opinion has been given in case of Section 10 of the Evidence Act and they have specifically cautioned that final opinion on any of the issues of fact or law arising for decision should be taken only at the instance of the trial court. He, therefore, states that such decision cannot be pressed into service in favour of the petitioner. He submitted that in the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another, reported in (2004) 7 SCC 528 , it has been observed that at the time of bail the statement of the accused person should be also taken into consideration and admissibility of the same can only be considered at the time of trial. In course of hearing, he submitted that no co-accused was ever allowed to talk to the petitioner.

¶49

17. Mr. Katikia, learned Additional Government Advocate for the State submitted that in State of U.P. through CBI v. Amarmani Tripathi, reported in (2005) 8 SCC 21, the

¶50

¶51

parameters have been given to be considered while granting bail. Similarly in the case of Neeru Yadav v. State of Uttar Pradesh and another , reported in 2015 SCC OnLine SC 862 , at paragraphs-14 and 15 the Hon’ble Apex Court have held that in addition to other factors, the Court while considering bail should also consider the criminal antecedents of the accused. Since there are criminal cases of grave charge pending against the present petitioner, in view of the said decisions, the petitioner is not entitled to bail. He also drew the attention of the Court to the statement of the petitioner before Police and submitted that he is the close friend of co-accused Bapi Sarkhel and Bapi has introduced Rakesh Choubey with him to execute a work for which the statement of the present petitioner should also be considered while refusing bail. The statement of the wife of Mahima Mishra and son of Mahima Mishra should also be considered about the motive of the present petitioner. He drew the attention of the Court to the decision reported in AIR 1952

¶52

Himachal Pradesh 81; Ranjit Singh and another v. State , where dying declaration of present nature can be considered for its presumptive value. He drew the attention of the Court to the statement of the wife, son and daughter of the deceased who univocally stated about threaten by the petitioner to the

¶53

¶54

deceased and apprehended danger to his life at the instance of the petitioner. In toto he submitted that the petitioner having clear motive and conspiracy to kill the deceased and he having criminal antecedents against him with the fact that the further investigation is going ahead, he should not be granted bail.

¶55

18. Mr. Tulsi while responding to the submission of the learned Additional Government Advocate submitted that the ratio of Jayendra Saraswati Swamigal (supra) unless recalled by the State is binding under Article 141 of the Constitution of India. He reiterated that the case of the present petitioner is on the footing of the case for bail decided in the decision reported in Jayendra Saraswati Swamigal (supra) and there is clear analysis about the conspiracy angle in that case. Responding to the argument of learned Additional Government Advocate he submitted that the prosecution should be fair for not admitting inadmissible material and bail is only to secure the presence during trial but not to punish the accused.

¶56

19. Mr. Tulsi, learned counsel for the petitioner further relied on the decision of the Hon’ble Apex Court in Siddharam

¶57

Satlingappa Mhetre v. State of Maharashtra and others , reported in (2011) 1 SCC 694 wherein he laid emphasis on observation at paragraphs-110 and 114. According to him the

¶58

¶59

discretion to grant bail should be exercised properly and bail can be granted with several conditions but the Court should not curtail the personal liberty of the accused in routine manner.

¶60

20. Mr. Tulsi also drew attention of the Court to the case of State of U.P through CBI v. Amarmani Tripathy and Neeru Yadav v. State of U.P. and another , and submitted that in that case the Hon’ble Apex Court have been pleased to consider the principles in respect of the cases relating to cancellation of bail. But, here the case is to be viewed for grant of bail.

¶61

DISCUSSION

¶62

21. From the contention of the learned counsel for both the parties it appears that the parameters to consider the bail under Section 439 Cr.P.C. has been well settled by catena of decisions. It is 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:-

¶63

“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”.

¶64

¶65

22. With due respect to the said decision, it appears that while considering bail petition there should not be detailed examination of the evidence. But the gist of the material available on record to determine whether bail should be granted or not should be scrutinized. On the other hand, a prima facie case is needed to be found out but same is not required to dwell upon exhaustive discussion on the merits in the order itself.

¶66

23. It is also reported in AIR 1964 SC 1184 (Haricharan Kurmi v. State of Bihar) where their Lordships

¶67

observed at para-16 in the following manner:-

¶68

“ 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”

¶69

24. In the said decision, the Hon’ble Apex Court have

¶70

been pleased to observe that confession of a co-accused cannot be recorded as substantive material because it is not an evidence as defined under Section 3 of the Evidence Act. Learned counsel for the petitioner submitted that the statement of co-accused is also a weak piece of evidence and for that same should not be considered to find out a prima facie case. On the

¶71

other hand the learned Additional Government Advocate

¶72

¶73

submitted that the confession of co-accused should be assessed to find out a clue to the crime and as such it has to be given weightage. Submissions have to be tested with pinch of salt.

¶74

25. It is reported in (2004) 7 SCC 528 (Kalyan Chandra Sarkar v. Rajesh Ranjan alias Papu Yadav and

¶75

another) where their Lordships also directed to consider the relevant factors before granting bail and Their Lordships at para-

¶76

11 have observed in the following manner:

¶77

“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:

¶78

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

¶79

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

¶80

(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 ).”

¶81

26. With due regard to the said decision, it appears in

¶82

the case of consideration of bail in a serious offence there

¶83

¶84

requires reasons to be cited for consideration of bail otherwise the same order will suffer from non-application of mind.

¶85

27. The aforesaid decision has been also followed in the decision reported in (2005) 8 SCC 21; State of U.P. through CBI v. Amarmani Tripathi (supra) paras 29 and 30 of which are quoted below:

¶86

“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. 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.

¶87

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.”

¶88

28. With due regard to the aforesaid decision, learned counsel for the petitioner submitted that the decision has been

¶89

rendered in the wake up cancellation of bail but not for

¶90

¶91

consideration of bail and there is difference between the parameters while bail is considered and while bail is cancelled. However, after going through the said decision, it appears that the Hon’ble Apex Court have stated about the parameters to be gone through by the court while considering the bail application under Section 439 Cr.P.C.

¶92

29. 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

¶93

have observed at paras-10 and 11 in the following manner:

¶94

“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.

¶95

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.”

¶96

¶97

30. With due respect to the said decision, it appears that Their Lordships have directed to consider different aspects strictly and cautiously while considering the bail filed by the accused. With due approval Their Lordships followed the principles made 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:

¶98

“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:

¶99

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

¶100

(ii) nature and gravity of the accusation;

¶101

(iii) severity of the punishment in the event of conviction;

¶102

(iv) danger of the accused absconding or fleeing, if released on bail;

¶103

(v) character, behavior, means, position and standing of the accused;

¶104

(vi) likelihood of the offence being repeated;

¶105

(vii) reasonable apprehension of the witnesses being influenced and

¶106

(viii) danger, of course, of justice being thwarted by grant of bail.”

¶107

(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).

¶108

¶109

31. From the aforesaid decisions, it is culled out that the Court has to cautiously and strictly verify the basic principle as laid down by different principles of law enunciated by the Hon’ble Apex Court of course with due regard to the facts and circumstances of each case. In the case of Neeru Yadav (supra) the Hon’ble Apex Court has also been pleased to observe that criminal antecedents of the accused in the serious offence also has to be considered while granting or refusing bail.

¶110

32. It is also reported in 2017 (3) Supreme 325, Birupakhya Gouda and another v. State of Karnataka , where the Hon’ble Apex Court have been pleased to direct the Court to consider the bail application by taking into consideration the principles laid down by the Hon’ble Apex Court in the case of Chaman Lal v. State of U.P. (supra) and Prasanta Kumar Sarkar v. Ashis Chatterjee and another (supra ). In that case decision was rendered in a case of honor killing and in such heinous offence personal liberty under Article 21 of the Constitution would not be sole ground to grant bail and fine balance to be maintained. Hon’ble Apex Court have been pleased to further observe by following the observation made in

¶111

Siddharam Satlingappa Mhetre v. State of Maharashtra

¶112

and others (supra), that the Court while considering the bail

¶113

¶114

application should try to maintain fine balance between the personal liberty while adhering to the fundamental of criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the competent court and the gravity of crime alleged.

¶115

33. Touching the above principles, let the material in this case be discussed to find out whether the petitioner is entitled to bail or not. On going through the Case Diary it appears from the F.I.R. and other materials on record that eye-witness did not witness the presence of the petitioner at the time of occurrence and the petitioner has been allegedly involved in the criminal conspiracy to commit murder. So, the materials must be considered on the circumstances leading to his accusation. In absence of direct evidence, motive is to be judged as a material. Learned Additional Government Advocate has pressed into service the statement of the brother of the deceased namely Rajkishor Swain and other relatives to show that the deceased was very much apprehending danger to his life because of the dispute between the Company of the present petitioner and the Company in which he was working as General Manager. The statement of the witnesses of these persons clearly show that there was dispute between the parties due to deployment of

¶116

¶117

labourers but before the occurrence due to the intervention of the local administration, the matter has been subsided. So, much before the occurrence there was smooth sailing of the Company by the deceased.

¶118

34. However, the prosecution has pressed into service one letter stated to have been written by the deceased and same has been seized from his drawer at his office after the occurrence. Now the prosecution pressed the said letter to be admissible under Section 32 of the Evidence Act. The letter seized shows that it is undated and it has been addressed to the Inspector of Police, Paradeep and the said letter stated that he has apprehension mind that anything happens to him or to his life the petitioner would be responsible. But in the letter also he has clearly declared that he is clean and he has no enmity with anybody else. Since the letter is undated and he has no enmity with anybody else but he apprehends to the danger of his life at the instance of the present petitioner, the same cannot be said to be a dying declaration under Section 32 of the Evidence Act. He relied on decision referred in Babubhai Bhimbhai Bokhiria

¶119

v. State of Gujrat and others, reported in (2014) 5 SCC 568

¶120

where Their Lordships observed at paragraph-15 which is quoted

¶121

below:-

¶122

¶123

“15. In the present case, except the apprehension expressed by the deceased, the statement made by him does not relate to the cause of his death or to any circumstance of the transaction which resulted in his death. Once we hold so, the note does not satisfy the requirement of Section 32 of the Act.”

¶124

Thus, with due respect to the above decision, the apprehension of deceased as per the said undated letter cannot be taken as related to cause of death or any circumstance of transaction causing his death so as to bring it within ambit of Section 32 of the Evidence Act. Be that as it may, the motive being circumstantial evidence is not prima facie available from the letter seized or the statement of the witnesses recorded.

¶125

35. Prosecution dwells upon the statement of co-accused Rakesh Choubey. His statement has been recorded under Section 27 of the Evidence Act as available from the material produced by the prosecution. Learned Additional Government Advocate pressed into service of the statement of Rakesh Choubey where he has admitted to have received Rs.12 lakhs from the petitioner for causing murder of the deceased. So, the statement itself goes to show that same has been recorded in two occasions, i.e., on 17.11.2016 and on 20.11.2016. In the statement recorded on

¶126

17.11.2016 he has stated to have received Rs.12 lakhs at Cuttack from the present petitioner in presence of co-accused

¶127

¶128

Bapi Sarkhel. But in the statement dated 20.11.2016 he stated to have received Rs.12 lakhs as advance out of Rs.50 lakhs and it was instructed to him that he would get the rest of Rs.38 lakhs after the occurrence. Under both the statements he stated before the Police that he would give recovery of certain material like gun and other incriminating materials including Diary, photograph, bomb materials and gave recovery of same from the places where he has concealed. Those materials have been seized under two different seizure lists. Now question comes whether the entire statement under Section 27 of the Evidence Act would be taken into consideration as a whole or information as to recovery of the material to be taken into consideration. In this regard, the decision of the Privy Council can be taken into consideration. In the decision of Pulukuri Kottaya and others

¶129

v. Emperor, reported in AIR (34) 1947 Privy Council 67 where Their Lordships have observed in para-11:

¶130

“11. xxx The Court, whilst admitting that the weight of Indian authority was against them, nevertheless took the view that any information which served to connect the object discovered with the offence charged was admissible under Section 27. In that case the Court had to deal with a confession of murder made by a person in police custody, and the Court admitted the confession because in the last sentence (readily separable from the rest) there was an offer to produce two bottles, a rope, and a cloth gag, which, according to the confession, had been used in, or were

¶131

¶132

connected with, the commission of the murder, and the objects were in fact produced. The Court was impressed with the consideration that as the objects produced were not in themselves of an incriminating nature their production would be irrelevant unless they were shown to be connected with the murder, and there was no evidence so to connect them apart from the confession. Their Lordships are unable to accept this reasoning. The difficulty, however great, of proving that a fact discovered on information supplied by the accused is a relevant fact can afford no justification for reading into Section 27 something which is not there, and admitting in evidence a confession barred by Section 26. Except in cases in which the possession, or concealment, of an object constitutes the gist of the offence charged it can seldom happen that information relating to the discovery of a fact forms the foundation of the prosecution case. It is only one link in the chain of proof, and the other links must be forged in manner allowed by law.”

¶133

The aforesaid decision has been also followed by the

¶134

Hon’ble Apex Court in State of Maharashtra v. Damu , reported in AIR 2000 SC 1691 where the Hon’ble Apex Court held at paragraph-36 which is quoted below:-

¶135

“The basic idea embedded in Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information. Hence, the legislature permitted such information to be used as evidence by restricting the admissible portion to

¶136

¶137

the minimum. It is now well-settled that recovery of an object is not discovery of a fact as envisaged in the Section. xxx”

¶138

36. In view of the decision of the Privy Council and the Hon’ble Apex Court, the statement as to recovery of material can only be considered under Section 27 of the Evidence Act. Therefore, the statement of co-accused Rakesh Choubey is relevant to the recovery of incriminating material but not the rest of the statement. Apart from it, this statement cannot be utilized against any person except the maker as per the principles of law enunciated by the Hon’ble Apex Court from time to time. Therefore, the statement of Rakesh Choubey would be only considered to the effect that he gave recovery of the materials but not rest of the statements which can be utilized to show conspiracy of the present petitioner. Assuming that such statement is adduced during trial, result would be to the extent of its admissibility of fact of recovery of material but not otherwise. So, taking ‘supari’ from the petitioner to kill the deceased is not be considered against the petitioner at present basing on his statement. Statement of co-accused Susanta shows that meeting was convened at Cuttack but said statement is equally irrelevant because he had made such statement under Section 27 of the Evidence Act while giving recovery of the

¶139

¶140

material. He did not spell out about payment of Rs.12 lakhs even if he is stated to be the party to such meeting. However, his statement is to be utilized to be minimum as to recovery of the materials.

¶141

37. Statement of co-accused Manoj Gochhayat shows that he has been instructed by co-accused Rakesh to eliminate deceased and it appears he has no meeting with petitioner. His statement does not disclose about the crime hatched out by the petitioner. His statement is equally relevant as to the recovery of the incriminating materials. Similarly, rest of the co-accused persons only stated to have obeyed the instruction of co-accused Rakesh Choubey. They have not disclosed about the meeting with the petitioner.

¶142

38. Learned Additional Government Advocate stressed on the statement of Kanchan Gochhayat to show that her son Manoj made extra-judicial confession about involvement of the petitioner but Manoj did not state about any confession before his mother. Kanchan only stated that Manoj informed that he has been given money by co-accused Ashok and as per his instruction he damaged the mobile phones. So, her statement does not disclose about conspiracy of the petitioner.

¶143

¶144

39. About circumstance as to spending of money by the petitioner for such illegal act, the statement of witness Rabindra Dalai shows that he has not made drawal of such amount of cash and he used to keep Rs.60,000/-, Rs.70,000/- only in hand. On 16.5.2017, learned Additional Government Advocate submitted Bank Account Statement of petitioner which does not distinctly disclose about debit of such amount to be utilized for such purpose and there are many transactions showing debit and credit of money in his Account in the month of October which are related to his Company.

¶145

40. From the aforesaid material, it is not clearly ascertainable about incriminating circumstance of conspiracy hatched out by the petitioner by payment of ‘supari’ to coaccused Rakesh Choubey to kill the deceased. The statements of other witnesses only disclose about occurrence and some also reached at the spot after the occurrence.

¶146

41. Since it is allegation of criminal conspiracy against the petitioner, it will be fruitful to quote Section 10 of the Evidence Act:-

¶147

“ 10. Things said or done by conspirator in reference to common design.- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their

¶148

¶149

common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”

¶150

From the aforesaid provision of law, it is clear that

¶151

conspiracy can be arrived at between two or more persons and there may not be direct material available or eye-witness available to the conspiracy but it can be considered basing on circumstance available on the case. Here in this case, the decision of Jayendra Saraswathi Swamigal (supra) may be taken into consideration to find out whether the same is to be taken into consideration for the purpose of bail. It appears from the said judgment where Their Lordships observed at paragraphs 11 and 12:-

¶152

“11. Shri K.T.S. Tulsi, learned senior counsel, has, on the other hand, placed strong reliance on Section 10 of the Evidence Act and has submitted that this being a specific provision dealing with a case of conspiracy to commit an offence, the principle laid down in the authorities cited by Shri Nariman would not apply and anything said, done or written by any one of the accused is a relevant fact as against each of the person conspiring to commit a crime. In this connection he has referred to State of U.P. v. Buta Singh 1979 (1) SCC 31, State of Maharashtra v. Damu 2000 (6) SCC 269, Firozuddin Basheeruddin & Ors. V. State of Kerala 2001 (7) SCC 596, Prakash Dhawal Khairnar v. State of Maharashtra 2002 (2) SCC 35 and State of H.P. v. Satya Dev Sharma & Ors. 2002 (10) SCC 601 .

¶153

The opening words in Section 10 are "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence". If prima

¶154

¶155

facie evidence of the existence of a conspiracy is given and accepted, the evidence of acts and statements made by anyone of the conspirators in furtherance of the common object is admissible against all. Therefore, there should first be a prima facie evidence that the person was a party to the conspiracy before his acts or statements can be used against his co-conspirators. No worthwhile prima facie evidence apart from the alleged confessions have been brought to our notice to show that the petitioner along with A-2 and A-4 was party to a conspiracy. The involvement of the petitioner and A-2 and A-4 in the alleged conspiracy is sought to be established by the confessions themselves. The correct import of Section 10 was explained by the Judicial Committee of the Privy Council in Mirza Akbar v. King Emperor AIR 1940 PC 176 as under :

¶156

"The words of S.10 are not capable of being widely construed so as to include a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. The words "common intention" signify a common intention existing at the time when the thing was said, done or written by one of them. Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference."

¶157

42. With due respect to the said decision, it appears that the words of Section 10 are not capable of being widely construed so as to include a statement made by one conspirator

¶158

in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy, after it has been completed. Now the question of conspiracy is actually to be considered from the facts and circumstance of each case. In the

¶159

¶160

present case the question of conspiracy is to be considered after taking into consideration the discussion made hereinabove. As observed above, no admissible material is produced to show circumstances against the petitioner to be party with Rakesh Choubey to hatch a plot of murder of the deceased. Prima facie evidence of conspiracy is not otherwise produced.

¶161

43. Learned Additional Government Advocate relied upon the decision of State of U.P. through CBI v. Amarmani Tripathi (supra) and submitted that the statement of the coaccused is not to be rejected as same is to be tested at the time of trial. In that case, Hon’ble Apex Court have considered other aspect of case like evidence led during trial, confession of coaccused and other features. But in the instant case, neither of such necessary material is produced except the material as discussed above. It is reiterated that statement made under Section 27 of the Evidence Act in this regard cannot be considered for the reasons described.

¶162

44. Moreover, Section 30 of the Evidence Act relates to confession of co-accused and same cannot have same effect as information relates as to recovery of incriminating material at the instance of the accused. So, the contention of the learned Additional Government Advocate that they are to be also treated

¶163

¶164

as if under Section 30 of the Act is untenable. It is reported in AIR 1952 SC 159, Kashmira Singh v. The State of Madhya Pradesh and AIR 1964 SCC 1184, Haricharan Kurmi v. State of Bihar , where it is observed that statement of coaccused is a weak piece of evidence being not evidence under Section 3 of the Evidence Act. Moreover, statement of coaccused Rakesh Choubey, Susanta Sethi, Manoj Gochhayat and other co-accused cannot be treated as the statement under Section 30 of the Evidence Act being same under Section 27 of the Evidence Act, same can hardly be tested to find out prima facie case against the petitioner.

¶165

45. Learned Additional Government Advocate also relied

¶166

upon the case of Neeru Yadav (supra) where Their Lordships have been pleased to observe that if there are criminal antecedents against the accused in a heinous offence, same must be taken into consideration while considering the bail. In this case, the affidavit has been filed by the prosecution to show that there are five criminal cases pending against the petitioner. On the other hand, the counter affidavit has been filed by the petitioner stating that in Air Field P.S. Case No.135 of 2001 corresponding to G.R. Case No.2299 of 2001, he has been acquitted. In Colliery P.S. Case No.11 of 2011, he is on

¶167

¶168

anticipatory bail. In Mancheswar P.S. Case No.62 dated 27.2.2016 petitioner is stated to have filed petition to quash F.I.R. vide Criminal Misc. Case No.193 of 2017. In Madhupatna P.S. Case No.107 of 2013 he is in custody but in Balimi P.S. Case No.38 of 2006, he is on anticipatory bail.

¶169

46. Learned counsel for the petitioner relied on the judgment of Vinod Udadhyay v. State of U.P., (Special Leave to Appeal (Crl.) No.143/2016) where the Hon’ble Apex Court has been pleased to consider the bail in a case where there are 25 criminal cases registered against the petitioner and petitioner has been acquitted in 11 cases and rest of the cases he is on bail. Relying upon such decision, he submitted that in view of five cases where present petitioner is in custody in one case and in rest of the cases either acquitted or on anticipatory bail, the Court may view pendency of the criminal antecedent leniently so as to allow him to concession of bail.

¶170

47. Learned Additional Government Advocate pressed into service the decision in the case of State of U.P. through CBI v. Amarmani Tripathi, (supra). In the case of State of U.P. through CBI v. Amarmani Tripathi the Hon’ble Apex

¶171

Court have categorically directed that consideration of bail must be on the material available but not according to the

¶172

¶173

admissibility or inadmissibility of material produced. For better appreciation, paragraphs-13 and 22 of the said judgment is placed below:-

¶174

“13. Shri KTS Tulsi, learned Senior Counsel appearing for Madhumani similarly contended that if the confessional statement of Rohit is excluded, there is nothing to link Madhumani to the death of Madhumita. He pointed out that the entire material, even assuming to be true, only showed an illicit relationship between Amarmani and the deceased and expression of anger by Madhumani against such illicit relationship and nothing more. He submits that the expression of righteous indignation by a wife and verbal abuse of the girl trying to wreck her marital life, is not evidence of participation in any conspiracy to kill the deceased.

¶175

While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no pre-judging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of Respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that that should be excluded from consideration, for the purpose of bail is untenable. This Court had negatived a somewhat similar contention, in Kalyan Chandra Sarkar (supra) thus :

¶176

"19. The next argument of learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do

¶177

¶178

not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."

¶179

48. With due regard to the said judgment, it is found that in that case the High Court has not considered about the confessional statement of accused and other relevant facts but has been pleased to grant bail. Rather, it appears that the fact and circumstance of each case must be considered with proper prospective while considering the bail. In this case, there is allegation of criminal conspiracy against the present petitioner and it has been already discussed above that clinching material against the petitioner about motive, the confessional statement of the co-accused or the information so far relevant under Section 27 of the Act are far from proving a reasonable ground to belief the case against the petitioner or prima facie case against him to show his complicity with the crime, of course, pending trial of the case.

¶180

49. The prosecution has already submitted charge-sheet showing the petitioner as A-8 although it is stated that further investigation is pending to nab the other accused persons. Be that as it may, the learned Additional Government Advocate

¶181

¶182

further submitted that the petitioner is a very mighty person and in view of his influence in the locality, he should not be allowed to go on bail. Learned counsel for the petitioner submitted that where there is no clinching material to refuse bail, the question of his influence can be considered at the time of granting bail with any condition as deemed fit and proper. He also cited the decision reported in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (supra).

¶183

50. Considering all these arguments and materials available on record, regard being had to the facts and circumstances of the case as discussed above, prima facie case of criminal conspiracy of causing murder against the petitioner is yet to be found out, fact that the petitioner is a local businessman having no chance of his absconding or tampering with the prosecution witnesses and fact that charge-sheet has already been filed against him, let the petitioner be released on bail on furnishing bail bond of Rs.5,00,000/- (Rupees five lakhs) 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 appear before the court in seisin over the matter on each date of posting of the case; (ii) he

¶184

¶185

would not tamper with the prosecution witnesses directly or indirectly in any manner; (iii) he would not commit any offence while on bail; (iv) he would submit the Passport to the trial court; (v) he would appear before the Investigating Officer of this case as and when required for the purpose of further investigation, if any, pending; and (vi) he would not enter to Paradeep area till completion of further investigation, if any, pending except the dates when he is required to attend the Court.

¶186

51. Before parting, the Court 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 petitioner. 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 seized of the trial on the evidence adduced before it.

¶187

The BLAPL is disposed of accordingly.

¶188

……………………………. Dr. D.P. Choudhury, J.

¶189

ORISSA HIGH COURT: CUTTACK Dated 16^th May, 2017/Kar

Mahimananda Mishra v. State of Orissa

Case brief

What is this about?

What did the court decide?

Mahimananda Mishra v. State of Orissa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dasarathi Meher Vs State of Orissa

Siba Charan Paital Vs State of Odisha

Sidhe@Sidhesh Mukhi Vs State of Orissa

C.R.Enterprisers Vs Regulated Market

Biswaprakash Mishra Vs State and Ors.

Ujjal Ku.Kundu Vs Regulated Market