Orissa High Court
Kamal Lochan Behera vs State Of Orissa ... Opp. Party on 4 April, 2013
ORISSA HIGH COURT: CUTTACK
BLAPL No. 1166 of 2013
In the matter of an application under Section 439 of the Code of
Criminal Procedure, 1973.
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Kamal Lochan Behera ... Petitioner
-Versus-
State of Orissa ... Opp. party
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For Petitioner : M/s. S.S. Mohapatra,
S.K.Dash, A. Tripathy &
A.K. Mishra
For Opp. Party : Mr. R.R. Mohanty,
Addl. Standing Counsel
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PRESENT:
THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA
Date of Order: 04.04.2013
B.N.Mahapatra, J.This bail application has been filed under Section 439, Cr.P.C. by the applicant-Kamal Lochan Behera with a prayer to release him on bail on such conditions as this Court thinks just and proper in connection with S.C. No.86 of 2011, now pending in the Court of learned Additional Sessions Judge, Titilagarh corresponding to G.R. Case No.103 of 2011 arising out of Titilagarh P.S. Case No.37 of 2011.
2. The petitioner is alleged to have committed offences punishable under Sections 147/148/341/325/302/436/144/120- B/149, I.P.C. read with Section 7 of Criminal Law Amendment Act.
3. Prosecution case in a nutshell is that on 03.03.2011 at about 1.45 P.M. the complainant-Ashok Kumar Roul, Security Officer, Graphite 2 India Ltd., Powmex Steels Division lodged a written report alleging therein that on the same day at about 1.10 P.M., the DGM (O)-Mr. Radheshyam Rai along with VP (MKTG) Mr. Bichitrananda Panda, while going for lunch in the company hired vehicle bearing Registration No.OR-03-G-1877 (Mahindra Bolero) were detained by a group of people numbering approximately 10 to 12, who were armed with lethal weapons like Big stones, iron rod and lathis etc. All of a sudden they first assaulted the vehicle and damaged the wind shield and window glasses. Thereafter they assaulted Mr. Rai and caused severe injuries. They also threw petrol and other inflammable substance on Mr. Rai and set him on fire. In the meantime, Mr. B.N. Panda and the driver, who is the present petitioner-Mr. Kamal Lochan Behera were allowed to go away from the vehicle. As a result of this act, Mr. R.S. Rai was engulfed in burning flame and came out from other door and was seen burning on the road. Thereafter, he was shifted by the security staff to the main gate. The driver who is a local man has identified some of the miscreants namely, Mr. Venktesh Mishra, Secretary to DPIL Union (Dynamic Powmex Industrial Union), one Mr. Mohanty (Ranjan Naik), Mr. Kumar Bag, Mr. Hiralal Nag and other members of the Union, who had pitched their tent outside the main gate and were under suspension.
On receipt of the FIR, G.R. Case No.103 of 2011 was registered.
4. In the meantime, the case has been committed and the same is pending in the Court of learned Additional Sessions Judge, Titilagarh for trial. The accused persons have been charge-sheeted for alleged commission of offences under Sections 147/148/341/325/302/436/144/120-B/149, I.P.C. read with Section 7 of Criminal Law Amendment Act. 3
5. The Additional Sessions Judge, Titilagarh vide his order dated 12.12.2012 in S.C. No.86 of 2011 rejected the bail petition of the petitioner on the ground that on the fateful day accused Kumar Bag detained the vehicle of D.G.M. Radheshyam Rai by showing his hand and when accused Kamal Lochan Behera stopped the vehicle, all the accused persons including the present accused person surrounded the vehicle being armed with Lathi and Thenga and started damaging the vehicle and subsequently accused Tarun Bachha joined them and accused Mahatab Kharsel and Gobind Mohanty brought petrol and further accused Venktesh Mishra poured petrol on D.G.M., Mr. Rai sitting inside the vehicle and set him ablaze. Further, the bail petition of the petitioner and other accused persons was earlier rejected by the learned Additional Sessions Judge, Titilagarh on merit. The learned Judge did not consider the long detention of the accused persons in jail custody as a sole changed circumstance to enlarge the petitioner on bail, particularly, when they are entangled in such a barbaric crime of killing a person by putting him on flame.
6. Learned counsel for the petitioner submitted that the petitioner did not take any part in assaulting the deceased. He is a driver, escaped from the spot. There is no specific allegation against the petitioner. Therefore, he should be enlarged on bail.
7. Learned Additional Standing Counsel for the State submitted that the petitioner was a party to the criminal conspiracy hatched for killing Mr. Rai. The informant-Ashok Kumar Roul in his statement recorded under Section 161 implicates the present petitioner 4 stating that the petitioner knowing fully well that the accused are going to take revenge against the deceased intentionally stopped the vehicle with some ulterior motive and he could have rescued the DGM(O) by not stopping the vehicle. Further it reveals that after he stopped the vehicle, he ran away from the spot. One Bichitrananda Panda, who was there in the vehicle along with the deceased Mr. Rai in his statement recorded U/ s 161 stated that the accused Driver Kamal knowing fully well that the Labour Union is under strike has intentionally stopped the vehicle and he could have saved the life of Mr. Rai by not stopping the vehicle, he was part of the conspiracy and one of the prime accused. Similarly, Ashok Kumar Roul and Jayadev Biswal stated that the driver is responsible for the death of the deceased. It is further submitted that trial has started from 12.3.2013. Four witnesses have been examined so far. Out of 52 numbers of accused persons at present 17 accused persons are in judicial custody. On the basis of the instruction of I.I.C., Titilagarh Police Station dated 18.3.2013, Mr. Mohanty submitted that no accused person of this case has been granted bail either in any Sub- ordinate Court or in the High Court and the petitioner is the main accused responsible for murder of the deceased. It is vehemently argued that if the petitioner would be released on bail, he may influence the witnesses and hamper the prosecution case. Mr. Mohanty further submitted that so far as co-accused persons are concerned, they have filed applications U/s. 439, Cr.P.C. before this Court which were disposed of either by rejecting the bail petition or dismissing the bail petition as not pressed. The present petitioner earlier approached this 5 Court in BLAPL No. 17413 of 2011 under Sec. 439 Cr.P.C. which was dismissed as withdrawn. Placing reliance upon the decision of the Hon'ble Supreme Court in the case of State of Rajasthan, Through Secretary, Home Department vs. Abdul Mannan, (2011) 8 SCC 65, Mr. Mohanty submitted for rejection of the petition.
8. Heard learned counsel for the petitioner and learned Additional Standing Counsel for the State and perused the record.
9. It is alleged that on the fateful day, one of the accused, namely, Kumar Bag detained the vehicle of the D.G.M., Radheshyam Rai by showing his hand and when the accused Kamal Lochan Behera- petitioner stopped the vehicle, all the accused persons surrounded the vehicle being armed with Lathi and Thenga and started damaging the vehicle and subsequently accused Tarun Bachha joined them and accused Mahatab Kharsel and Gobind Mohanty brought petrol and further accused Venktesh Mishra poured petrol on D.G.M. (O) Mr. Rai and set him ablaze. Thus, it is alleged that the accused persons including the present petitioner were entangled in such a barbaric crime in killing a person by putting him on flame. The informant and other witnesses in their statements recorded U/s. 161, Cr.P.C. stated that the petitioner knowing fully well that the accused are going to take revenge against the deceased intentionally stopped the vehicle with ill motive and he could have rescued the D.G.M.(O) by not stopping the vehicle.
10. The Hon'ble Supreme Court in the case of Abdul Mannan (supra), held as under:
"38. Section 149 consists of two parts: the first part deals with the commission of an offence by 6 any member of an unlawful assembly in prosecution of the common object of that assembly; the second part deals with the commission of an offence by any member of an unlawful assembly in a situation where other members of that assembly know the likelihood of the offence being committed in prosecution of that object. In either case, every member of that assembly is guilty of the same offence, which other members have committed in prosecution of the common object."
11. The Hon'ble Supreme Court in the case of Suresh Chandra Bahri vs. State of Bihar, AIR 1994 SC 2420, held as under:
"96. In the above context we may refer to the provisions of S. 120-A of the Indian Penal Code which defines criminal conspiracy. It provides that when two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such agreement is designated a criminal conspiracy: provided that no agreement except an agreement to commit an offence shall amount to criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement pursuance thereof. Thus, a cursory look to the provisions contained in S. 120-A reveal that a criminal conspiracy envisages an agreement between two or more persons to commit an illegal act or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in S. 120-B read with the proviso to sub-sec. (2) of S. 120-A of the I.P.C., then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under S. 120-B and the proof of any overt act by the accused or by an one of them would not be necessary. The provisions in such a situation do not require that 7 each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in S. 120-B since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may frustrate and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of a criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.
12. The Kerala High Court in the case of R. Balakrishna Pillai vs. State, 1996 CRI.L.J.757, held as under:
"25.....It is to be remembered that conspiracy is always hatched in secrecy. The essence of the conspiracy being bare agreement between the conspirators, the same has to be proved in the manner allowed by law. While accepting the materials that may be let in to prove the case of conspiracy the reality of the situation has to be taken into account. Conspiracy as a whole is brought about in secrecy and the proof of the same, by adoption of evidence direct, it really an impossible feat in most of the cases, though in the rarest of rare occasion, the possibility of obtaining such evidence is there. As such the conspiracy may be proved in most of the cases, by process of inference or induction from relevant facts and circumstances. ..................The other contention of the petitioner that sometime during the period of conspiracy he was at Canada and hence he is not a member of the conspiracy cannot also be accepted. It is not necessary for a conspirator to be present during the entire period of conspiracy and if it is shown that he contributed his part for the furtherance of the conspiracy, it is sufficient to hold, that charges have to be framed against him."8
13. The Hon'ble Supreme Court in the case of Dipak Shubhashchandra Mehta v. CBI and another, (2012) 4 SCC 134, has held as under:
"32. 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 merits 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. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a non- bailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."
14. Keeping in mind the gravity of offence, materials available on record and the principles of law laid down by the Hon'ble Supreme Court, I am not inclined to accept the prayer for grant of bail to the petitioner. Accordingly, the Bail Petition is rejected.
15. In this case, the trial has already commenced. Four witnesses have been examined. The next date is fixed to 10.04.2013. The learned Trial Court is directed to dispose of the case as early as possible keeping in mind the provisions of Section 309, Cr.P.C. avoiding unnecessary adjournments.
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B.N.Mahapatra, J Orissa High Court, Cuttack Dated 4TH April, 2013/skj