Orissa High Court
ABLAPL/9040/2017 on 10 May, 2018
Author: D. Dash
Bench: D. Dash
ABLAPL No. 9040 OF 2017 11. 10.05.2018 The above application under section 438 of the Code of Criminal Procedure concern with G.R. Case 964 of 2016 arising out of Paradeep P.S. Case No. 180 of 2016, now pending in the court of learned J.M.F.C., Kujanga. 2. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State. 3. The petitioner has been implicated in G.R. Case No. 964 of 2016 arising out of Paradeep P.S. Case No. 180 of 2016 registered for alleged commission of offences punishable under sections 302/120-B of the Indian Penal Code read with section 25(1)(b)/27 of the Arms Act and Section 3 & 4 of the Explosive Substance Act which is now pending in the court of learned J.M.F.C., Kujanga in the District of Jagatsinghpur. The investigation in the aforesaid case has been completed. The charge-sheet has been filed with the accusation against this petitioner for alleged commission of offence under section 120-B read with section 302 of the Indian Penal Code. 4. Mr. B.P. Mohanty, learned counsel for the petitioner submits that save and except, the bald allegation made in the F.I.R. by its maker raising the suspicion with regard to the involvement of the Managing Director of Odisha Stevedores Limited (OSL) and his staff, which may include the petitioner, there is absolutely no other material implicating him with his direct involvement in the alleged commission of offence or in support of any role played even to any extent, either in any direct or remote manner in hatching the conspiracy. He submits that the investigation of the case by now has been completed and other than that // 2 // assertion in the F.I.R. in a casual manner and the statement of that witness recorded under section 161 of Cr.P.C. like that, no further material has surfaced. According to him, merely because of the fact that the petitioner was under the employment in the Company that to in Delhi office, whose Managing Director is alleged to be the king pin in doing away with the deceased serving in the so called are rival Company, this petitioner has been brought into the arena of commission of crime which according to him is only to see that he is harassed for no reason. He further submits that this petitioner in course of discharge of his duty in the company being under the obligation to carry out the orders of the Managing Director of the said company obviously was to carry out the orders. But no such material has surfaced to show that in carrying out any such activity in course of his employment; he had any such direct or even remote nexus with the commission of offence, in ultimately leading to the death of the deceased. He further submits that in this case, said Managing Director of OSL and his close associate who had been arrested together have already been released on bail by order of this Court in BLAPL No. 1006 of 2017 and BLAPL No. 1103 of 2017 vide order dated 16.05.2017 and 19.05.2017 respectively. He also submits that another accused, who is a close friend of the Managing Director OSL and has been alleged to have conspired with the Managing Director and others and as alleged to be present during discussion with the principal accused (alleged killer) has also been released on bail by order dated 17.04.2017 in BLAPL No. 8380 of 2016. It is submitted two other // 3 // employees attached to the offices of the Company situated in the State have been released on bail pursuant to the order dated 06.04.2018 passed by this Court in ABLAPL No. 16658 of 2016 According to him, no such allegation is made by the prosecution that during the period, this petitioner has ever even attempted to interfere with the investigation which by now is complete in all respect. It is contended that this petitioner has not been arraigned in the case even in the supplementary charge-sheet and this Court on going through the materials available on record upon being satisfied has protected him from his arrest and detention by order dated 13.06.2017 that no such coercive action shall be taken against the petitioner. He submits that despite the above, the apprehension of this petitioner as to his likely arrest and detention still remains in view of what are said to have been stated by co-accused namely, Sushanta Sethi as regards the role of this petitioner although the same has nothing to do with the alleged commission of offence and is normal in course of discharge of duty. 5. Mr. D.K. Mishra, learned counsel for the State submits that in view of submission of supplementary charge-sheet without arraigning the petitioner as an accused, the apprehension of the petitioner's arrest in the case and likely detention in custody has in fact vanished. He however does not dispute the factual aspects as regards release of the Managing Director of OSL and his associate arrested together on regular bail as well as his another close friend and two other employees. // 4 // 6. OSL, a company is engaged in stevedoring business in Paradeep since long. The deceased was then working as the Manager, Seaways Shipping and Logistics Limited (SSLL), a company coming to enter in the stevedoring business in Paradeep in the year, 2003, as the competitor of OSL. 7. It is alleged that the Managing Director of OSL, developed animosity with the deceased who was looking after the company affairs including the stevedoring business of Cargo handling of the company i.e. JSPL. It is further alleged that the Managing Director, OSL extended threat in different forms to the deceased for the aforesaid rivalry at different point of time. Because of the dispute between two companies, loading and unloading work of Cargo having been hampered, the same had been subsided at the intervention of the Collector of the district. 8. On this back ground, the allegations have been leveled that the Managing Director, OSL entering into a conspiracy with his close friend (already on bail), an associate who is also the Director (already on bail) and the employees, to eliminate the deceased, hired accused Rakesh Choubey and by engaging him for the purpose have achieved the illegal object of doing the deceased to death. 9. Perusal of the F.I.R. reveals that the maker has raised suspicion about this petitioner who is the employees of the OSL, joining hands with the Managing Director in the ultimate execution of death of Mahendra and was looking after everything from Delhi office and was also entertaining the hired killers and others. Neither any such prior incident with any role attributed to the petitioner in that light nor // 5 // any such activity of this petitioner within a reasonable period before the death are stated to infer that although he had done so as employee, yet he had the knowledge as to the illegal objective sought to be achieved. Materials though are available about the rivalry between the two Company, as regards threats said to have been extended to the deceased, no further material are there much less in assigning this petitioner with any role in that, either direct or remote. It is only there in a letter of the deceased addressed to the IIC, Paradeep P.S. that he was apprehending danger to life from the Managing Director, OSL. There comes no allegation that this petitioner has done any such objectionable act during the period so as to even infer his interference with the investigation. He being under interim protection for about a year by now, no allegation is made that he has abused the same. The question of his fleeing from justice is too remote as the petitioner has his mores in the society having family, and relations. The Managing Director of OSL, his associate and the friend having been alleged with some role to his credit are on bail and so also other employees of the Company. Its trite law that non-availability of direct material in a charge of conspiracy is of no such significance since the conspiracy is hatched in secrecy and existence of sufficient circumstantial evidence suffices the purpose to indict a person in the conspiracy. Adverting to the charge-sheet, it is seen that, the Investigating Officer though has not shown this petitioner as an accused and in the narration of the facts with // 6 // reference to the collected materials concerning the roles played by the charge-sheeted accused persons; nothing is stated against this petitioner. On the face of the nature and character of the evidence as collected and as discussed, and keeping in view all the other relevant factors concerning the case; in the absence of any other impediment, it is directed that in the event the petitioner is arrested in the above noted case, he shall be released on bail on such terms and conditions as deemed just and proper by the Arresting Officer. Accordingly, the ABLAPLs stand disposed of. Issue urgent certified copy as per rules. .......................... D. Dash, J.
Narayan