Orissa High Court
Prem Kumar Agarwal vs State Of Orissa ....... Opp. Party on 25 October, 2021
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3502 of 2021
Application under section 439 of the Code of Criminal Procedure,
1973 in connection with G.R. Case No. 189 of 2021 pending in
the Court of S.D.J.M., Panposh, Rourkela.
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Prem Kumar Agarwal ....... Petitioner
-Versus-
State of Orissa ....... Opp. Party
For Petitioner: - Mr. Devashis Panda
For Opp. Party: - Mr. Jyoti Prakash Patra
Addl. Standing Counsel
For Informant - Mr. Lalitendu Mishra
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S. K. SAHOO
.......................................................................................................................
Date of Order: 25.10.2021
........................................................................................................................
S.K. SAHOO, J. The petitioner Prem Kumar Agarwal has filed this
application under section 439 of Cr.P.C. seeking for bail in
connection with Rourkela Plantsite P.S. Case No.44 of 2021
corresponding to G.R. Case No.189 of 2021 pending in the Court
of learned S.D.J.M., Panposh, Rourkela in which charge sheet
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has been submitted against the petitioner for offences
punishable under sections 302/120-B/34 of the Indian Penal
Code.
The petitioner moved an application for bail in the
Court of learned 2nd Addl. Sessions Judge, Rourkela in BLAPL
No.138/32 of 2021 which was rejected vide order dated
16.04.2021.
2. The prosecution case, as per the first information
report lodged by one Mr. Kailash Kumar Agarwal is that on
10.02.2021 while he was in his house, he heard a loud sound
and he immediately ran towards the source and found his elder
brother Sajan Kumar Mittal (hereafter 'the deceased') was lying
seriously injured at the entrance of the ground floor of the house
with excessive amount of blood poured out of the backside of his
head. The informant along with his son Ayush and other
neighbours immediately shifted the deceased to Ispat General
Hospital, Rourkela where he was declared dead. According to the
informant, someone has killed the deceased.
3. Basing on such first information report, in absence of
I.I.C., Plantsite police station, S.I. H.S. Barik registered the case
under section 302 of the Indian Penal Code against unknown
persons and took up investigation of this case. Subsequently, the
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I.I.C. of Plantsite police station took up charge of investigation of
the case. During course of investigation, the Investigating Officer
visited the spot and recorded the statements of witnesses. The
scientific team visited the spot and they collected physical clue
from the spot. Inquest was held over the dead body of the
deceased and the dead body was sent to S.D. Hospital, Panposh,
Rourkela for autopsy. Biological exhibits as well as wearing
apparels of the deceased were seized. The P.M. Report of the
deceased indicated that there were injuries on the occipital
region and on dissection of the skull, fracture of occipital bone
and hematoma 6"x4" over the occipital region of the scalp was
noticed. The opinion regarding cause of death was kept reserved
pending chemical analysis of viscera. The queries on the post
mortem report of the deceased received from the doctor
indicated that the injuries sustained by the deceased on the
occipital region were ante mortem in nature which can cause
death in normal circumstances and the injuries can be possible
by hard and blunt object. Two numbers of CD containing the
video footages of the occurrence and the spot of the case
collected from the CCTV installed at the house of the deceased
and certificate under section 65B of the Evidence Act were
seized. Preserved viscera of the deceased were sent to S.F.S.L.,
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Bhubaneswar for chemical analysis and opinion. One Pulsar
motorcycle used by the culprits to flee away from the spot after
commission of murder was seized along with one country made
pistol, one iron hammer and a keypad mobile phone of co-
accused Rajat Biswakarma from his possession in presence of
witnesses. Mobile phones of all the accused persons including
SIM cards were seized from their possession observing all the
formalities of seizure. The petitioner was arrested on 14.03.2021
and the copy of sale deed dated 20.02.2020 executed between
Smt. Bijaya Pati and others with the partners of SHYAMPURIA
REALTECH LLP, copy of re-constitution of deed of SHYAMPURIA
REALTECH LLP along with a cell phone were seized from the
petitioner and the petitioner was forwarded to Court on
15.03.2021. First charge sheet was submitted against the
petitioner under sections 302/120-B/34 of the Indian Penal Code
on 06.07.2021 keeping the investigation open for receipt of
chemical examination report of viscera of the deceased.
Subsequently, the F.S.L. report was received from the Director,
S.F.S.L., Bhubaneswar and as per the report, no poisonous
compound, alcohol and drugs were detected in viscera. The final
opinion regarding cause of death of the deceased was obtained
from the Medical Officer who opined that the death was due to
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head injury and hematoma over occipital region of the brain and
the injuries were possible by hard and blunt object. Final charge
sheet was submitted on 04.08.2021 against seven accused
persons including the petitioner who was charge sheeted under
sections 302/120-B/34 of the Indian Penal Code.
4. Mr. Devashis Panda, learned counsel for the
petitioner submitted that the petitioner has not been named in
the F.I.R. but subsequently, in the 161 Cr.P.C. statements of the
witnesses, he has been falsely implicated. The whole story of the
prosecution is based upon surmises and conjectures and the
petitioner has been implicated with the aid of section 120-B of
the Indian Penal Code as a conspirator but the prosecution has
not been able to show any prior meeting of mind of the
petitioner with the co-accused persons to make out such offence.
It is further submitted that the petitioner was also implicated in
another case i.e. Plantsite P.S. Case No.339 of 2020 wherein the
dispute was between the Mittal Family and one Dilip Kumar
Sharma and counter case was filed by him which was registered
as Plantsite P.S. Case No.340 of 2020. The petitioner was in
partnership with one M/s SHYAMPURIA REALTECH LLP for buying
and selling property so also to construct on such property and
sale till 01.10.2020. The property was purchased in the name of
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Limited Liability Partnership firm and the LLP was represented by
designated partner Sri Sumeet Agarwal and the petitioner had
got no personal interest in the property except being a partner in
the firm. He further submitted that though the petitioner was
initially working as a partner but on 01.10.2020, he resigned
from the said partnership and become independent and relieved
himself from any liability in the aforesaid company. After the
petitioner resigned from the said partnership, one Suman
Agarwal, the wife of Sumeet Agarwal became the partner on the
very same day of the resignation of the petitioner. It is further
submitted that the petitioner had undergone coronary
angiography and two stents have been implanted in his coronary
arteries and the petitioner has been advised for complete
cardiology care. It is further submitted that the omnibus nature
of allegation has been leveled against the petitioner and he is
languishing in jail custody since long. The investigation of the
case has been completed and there is no chance of his
absconding or tampering of evidence and therefore, the bail
application of the petitioner may be favourably considered.
5. Mr. Jyoti Prakash Patra, learned Additional Standing
Counsel appearing for the State opposed the prayer for bail and
contended that prior to this case, the petitioner has been charge
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sheeted in another case which was registered as Plantsite P.S.
Case No.339 of 2020 regarding the disputed property. The son of
the deceased in his 161 Cr.P.C. statement has categorically
stated that prior to four days of the occurrence, the petitioner
had threatened his father (deceased) to kill him and Mr. Biren
Kumar Pati who is the original owner of that market complex in
his 161 Cr.P.C. statement submitted that the petitioner was
involved in the conspiracy to eliminate the deceased. He further
submitted that two culprits were identified in the CCTV footage
to have committed murder of the deceased and they are Rajesh
@ Raju Singh and Neel Paul @ Sarada @ Rajat Biswakarma and
they implicated one co-accused Aman Prasad who in turn in his
inculpatory statement implicated himself as well as the petitioner
to have given Supari to him to kill the deceased. It is contended
that at this stage, when the case has not even been committed
to the Court of Session, grant of bail to the petitioner would
cause hindrance in the smooth progress of trial and the
petitioner is very likely to tamper with the evidence by gaining
over witnesses and therefore, the bail application of the
petitioner should be rejected.
6. Mr. Lalitendu Mishra, learned counsel appearing for
the informant vehemently opposed the prayer for bail and
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contended that C.D.R (Call Detail Report) of the mobile phones
of the accused persons were collected during investigation which
showed that they made frequent calls among themselves. The
registered sale deed dated 20.02.2020 executed between the
vendors of the property and with the partners of the M/s.
SHYAMPURIA REALTECH LLP was seized from the possession of
the petitioner which shows that the petitioner had an interest on
the property and he engaged co-accused Dilip Sharma to vacate
the market complex at any cost and he resigned from the
partnership deliberately to show that nobody would raise
accusing finger at him in future. There are ample evidence to
establish the factum of criminal conspiracy and planning against
the petitioner. The mobile phone call details, seizure of sale deed
from his possession, statement of the son of the deceased to
have seen the petitioner standing near his house with some
other accused persons to show the house of the deceased are
very incriminating circumstances against him. He further
submitted that the co-accused Dilip Kumar Sharma is a person
who was engaged for vacating the land. The petitioner conspired
with Sumit Agarwal and Suman Agarwal and engaged accused
Dillip Kumar Sharma to vacate the market complex. Accused
Dilip Kumar Sharma engaged Supari killers namely Rajat
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Biswakarma, Suraj Kumar Jha @ Ravaan to kill the deceased.
The petitioner along with Sumit and Suman are the persons who
had intention to grab the property for which they took the help
of accused Dilip Kumar Sharma to kill the deceased. He further
submitted that there was motive behind the commission of crime
and the circumstantial evidence unerringly points towards the
guilt of the petitioner.
It is argued that the real culprits namely Sumit
Agarwal and Suman Agarwal are the beneficiaries and they had
the master mind behind of the crime and they conspired with the
petitioner to commit murder of the deceased at any cost, so that
they could grab the property in a lesser price and construct a
huge apartment for commercial purpose and in a pre-planned
manner, the crime was committed. The Investigating Officer
intentionally has not submitted charge sheet against Sumit
Agarwal and Suman Agarwal and given them clean chit and they
are moving scot free in the locality. Learned counsel for the
informant further submitted that the informant has filed one
CRLMP application vide CRLMP No.980 of 2021 before this Court
challenging perfunctory investigation which is subjudiced and
there is possibility of addition of more accused persons in the
case.
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Placing reliance on the ratio laid down in the cases of
Suresh Chandra Bahri -Vrs.- State of Bihar reported in
1995 Supreme Court Cases (Cri) 60 and Sudha Singh -Vrs.-
State of Uttar Pradesh reported in (2021) 83 Orissa
Criminal Reports (SC) 115, it is argued that it is a case of
contract killing out of sheer animosity and for obvious reasons
and there is grave and potential threat to the lives of family
members of the victims and the witnesses and release of bail of
the petitioner would cause serious prejudice to them and trial of
the case would be hampered.
7. Adverting to the contentions raised by the learned
counsel for the respective parties and on verification of the case
records, it is apparent that the F.I.R. was lodged against
unknown persons, but during course of investigation, materials
were collected to prima facie show that the petitioner had strong
motive behind the commission of crime. In the case of Suresh
Chandra Bahri (supra), it is held as follows:
"21. At the very outset, we may mention that
sometimes motive plays an important role and
becomes a compelling force to commit a crime
and therefore motive behind the crime is a
relevant factor for which evidence may be
adduced. A motive is something which prompts
a person to form an opinion or intention to do
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certain illegal act or even a legal act but with
illegal means with a view to achieve that
intention. In a case where there is clear proof of
motive for the commission of the crime, it
affords added support to the finding of the Court
that the accused was guilty of the offence
charged with..."
CCTV camera installed very close to the spot and
nearby areas were verified by the Investigating Officer and from
the footages, it was found that two unknown persons came in a
black colour Pulsar motorcycle without having any registration
number from the main road following the deceased and the
pillion rider of the motorcycle entered inside the house of the
deceased and attacked the deceased and fled away from the
spot. The rider was wearing helmet and the pillion rider was
wearing a dress having hood covering his head. The petitioner
was arrested and a copy of sale deed dated 20.02.2020 executed
between some persons with the partners of SHYAMPURIA
REALTECH LLP, copy of re-constitution deed of SHYAMPURIA
REALTECH LLP were seized from his possession. The mobile
phone of the petitioner was also seized from the possession of
the petitioner. The call detail report of the mobile numbers of the
petitioner and other accused persons were analyzed and it was
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ascertained that they had made frequent calls with each other
which proved the nexus between the accused persons.
The materials on record indicates that the petitioner
and Sumit Kumar Agarwal purchased Diwedi Market Complex
and thereafter the petitioner contacted with the co-accused Dilip
Kumar Sharma and entrusted him the job to vacate the shop
owners who had occupied Diwedi Market Complex and running
their business, to dismantle the shops and to start a new project.
Though co-accused Dilip Kumar Sharma could able to vacate few
shops from the market complex but the deceased and his
younger brother Pawan Mittal did not agree to vacate their shops
occupied in the said market complex. During dismantling, there
was protest by the petitioner and his brother, assault and
counter assault and cases were instituted at Plantsite police
station and charge sheets were submitted. The petitioner is an
accused in Plantsite P.S. Case No.339 dated 19.10.2020 under
sections 447/294/354/323/427/506/34 of the Indian Penal Code.
There are prima facie materials to show there was criminal
conspiracy between the accused persons to kill the deceased and
some contract killers were hired for such purpose. In the case of
Baliya @ Bal Kishan v. State of Madhya Pradesh reported
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in (2012) 9 Supreme Court cases 696, the Hon'ble Supreme
Court has held as follows:-
"17. The offence of criminal conspiracy has its
foundation in an agreement to commit an
offence or to achieve a lawful object through
unlawful means. Such a conspiracy would rarely
be hatched in the open and, therefore, direct
evidence to establish the same may not be
always forthcoming. Proof or otherwise of such
conspiracy is a matter of inference and the Court
drawing such inference much consider whether
the basic facts i.e. circumstances from which the
inference is to be drawn have been proved
beyond all reasonable doubt, and thereafter,
whether from such proved and established
circumstances no other conclusion except that
the accused had agreed to commit an offence
can be drawn. Naturally, in evaluating the
proved circumstances for the purposes of
drawing any inference adverse to the accused,
the benefit of any doubt that may creep in must
go to the accused."
The evidence on record indicates that on 09.02.2021
night, while the deceased after closing his shop and visiting the
local temple returned home, the accused persons Rajat
Biswakarma and Suraj Jha followed him in a black colour Pulsar
motorcycle. When the deceased parked his scooty inside his
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house verandah, at that time, accused Suraj Jha trespassed into
the verandah and assaulted the deceased with one iron hammer
on the backside of his head causing grievous injuries and then
the two accused persons escaped from the spot by Pulsar
motorcycle which was a stolen one. The deceased died while
undergoing treatment at Ispat General Hospital, Rourkela. The
medical evidence confirmed that the deceased died a homicidal
death. Thus the motive behind the commission of murder, CCTV
camera footage of the occurrence and the spot, the call detail
reports of the mobile phones of the petitioner and the co-
accused persons, the conspiracy to commit the crime, the
seizure of copy of sale deed of the property and reconstitution
deed of SHYAMPURIA REALTECH LLP from the possession of the
petitioner are very incriminating circumstances against the
petitioner. Whether the available materials on record would be
sufficient to establish the guilt of the petitioner in the
commission of murder of the deceased would be adjudicated by
the learned trial Court during trial of the case. Criminal cases are
also subjudiced between the parties relating to the property
dispute. There are prima facie materials on record to show the
hiring of Supari killers to kill the deceased.
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In the case of Sudha Singh (supra), while
cancelling a bail application of an accused involved in the
accusation of contract killing, it is observed as follows:
"8.......It is needless to point out that in cases of
this nature, it is important that Courts do not
enlarge an accused on bail with a blinkered
vision by just taking into account only the
parties before them and the incident in question.
It is necessary for Courts to consider the impact
that release of such persons on bail will have on
the witnesses yet to be examined and the
innocent members of the family of the victim
who might be the next victims.
xx xx xx xx xx
12. There is no doubt that liberty is important,
even that of a person charged with crime but it is
important for the Courts to recognize the
potential threat to the life and liberty of
victims/witnesses, if such accused is released on
bail."
Without detailed examination of evidence and
elaborate discussion on merit of the case but considering the
nature and seriousness of accusation and its impact on the
society, the manner in which the crime was allegedly committed,
the role played by the petitioner in the crime, the severity of
punishment in case of conviction, reasonable apprehension of
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tampering with the evidence and availability of prima facie
materials against the petitioner regarding his involvement in the
commission of offences and when the case is yet to be
committed to the Court of Session, I am not inclined to release
the petitioner on bail.
Accordingly, the BLAPL stands rejected. The
petitioner is at liberty to renew the prayer for bail after
examination of the material witnesses in the trial Court.
Before parting, I would like to place it on record by
way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose
of disposing of the prayer for bail made by the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done by the
trial Court at the appropriate stage of the trial.
Urgent certified copy of this order be granted on
proper application.
........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 25th October 2021/Pravakar Page 16 of 16