Case: The State of Orissa and Ors Vs. Mahimananda Mishra and Ors

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 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 co-accused 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 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 co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code 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, 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 v. State of Uttar Pradesh, (2014) 16 SCC 508 and Prasanta Kumar Sarkar v. 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 v. State (NCT) of Delhi, (2018) 12 SCC 129.) 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 co-accused 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 Respondents 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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 co-accused. The Respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involve charges Under Section 307, Indian Penal Code 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 witnesses12. Though this Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, 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 v. State of Uttar Pradesh, (2014) 16 SCC 508  and Prasanta Kumar Sarkar v. 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 v. State (NCT) of Delhi, (2018) 12 SCC 129.) 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 Respondent14. 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 co-accused 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 Respondents 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.