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

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 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 Respondent-Accused 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 deceased4. 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 arrested5. 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 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 deceased6. The police have filed a charge sheet against the Respondent and others. However, four Accused are absconding. Further investigation is being proceeded with the permission of the Court.

Reasoning: 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.