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.

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,  prima facie, it is

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 Prasanta Kumar Sarkar vs. Ashis Chatterjee, (2010) 14

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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