Orissa High Court
Trilochana Mishra vs State Of Odisha on 31 July, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 7106 Of 2016
An application under section 439 of the Code of Criminal
Procedure in connection with G.R. Case No. 258 of 2015 pending
in the Court of S.D.J.M., Chatrapur.
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Surendranath Mishra ........ Petitioner
-Versus-
State of Odisha ......... Opp. Party
BLAPL NO. 7107 Of 2016
Trilochana Mishra ......... Petitioner
-Versus-
State of Odisha ......... Opp. Party
For Petitioners: - Mr. Asok Mohanty
(Senior Advocate)
For Opp. party: - Mr. Janmejaya Katikia
(Addl. Govt. Advocate)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 20.07.2017 Date of order: 31.07.2017
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S.K.SAHOO, J.The petitioner Surendranath Mishra in BLAPL NO. 7106 Of 2016 is the father of the petitioner Trilochana Mishra in 2 BLAPL No. 7107 Of 2016. The petitioners earlier approached this Court for bail in BLAPL No. 7367 of 2015 and BLAPL NO. 7060 of 2015 respectively which were heard analogously and dismissed by a common order dated 25.05.2016. The petitioners moved the Hon'ble Supreme Court against the said order for bail vide S.L.P. (Crl.) Nos. 4540 of 2016 and 4541 of 2016 which were also dismissed vide order dated 20.06.2016 giving liberty to the petitioners to apply for bail at a later stage after completion of investigation with further observation that the same shall be considered without being influenced by the observations made in the impugned order.
2. There is no dispute that the First Information Report was lodged in this case by one Mochiram Sahoo on 03.09.2015 before Inspector in Charge, Chatrapur Police Station, on the basis of which Chatrapur P.S. Case No.119 of 2015 dated 03.09.2015 was registered under sections 420, 423, 467, 468, 471, 506, 120-B read with section 34 of the Indian Penal Code and the Inspector in charge himself took up investigation of the case. The Crime Branch assumed full control over investigation of the case as per the CID CB Office Order No.152/CID dated 04.09.2015 and the case was re-registered as CID, CB, Odisha, Cuttack P.S. Case No.28 of 2015 on dated 04.09.2015 for 3 offences punishable under sections 420, 423, 467, 468, 471, 506, 120-B read with section 34 of the Indian Penal Code and the petitioners were taken on remand in this case on 24.09.2015 and charge sheet was submitted on 20.01.2016 against the petitioners under sections 420, 423, 467, 468, 471, 406, 506, 120-B read with 34 of Indian Penal Code and further investigation was kept open under section 173(8) of Cr.P.C. for arrest of the absconding accused and to ascertain complicity of other persons, if any, collection of other evidence and to recover more proceeds of crime.
3. The bail applications of the petitioners were earlier rejected by this Court, inter alia, on the ground that there were prima facie materials regarding the involvement of the petitioners in the commission of crime and also considering the nature and gravity of the accusation, the criminal proclivity of the petitioners, chance of tampering with the evidence particularly when the investigation was under progress and many important facets of the case were to be unearthed.
In the meantime, after completion of investigation, final chargesheet was submitted against the petitioners under sections 420, 423, 467, 468, 471, 406, 506, 120-B read with 34 of Indian Penal Code on 30.12.2016.
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4. As per the final chargesheet, the petitioners hatched out a criminal conspiracy to cheat the informant Mochiram Sahu to garb his valuable land and accordingly, they managed to record it in the name of the Trust by preparing forged sale deed on 12.04.2013. The petitioners managed to prepare the deed as a sale deed in place of a gift deed falsely mentioning payment of Rs.26,84,570/- to the informant (seller) as consideration amount. Thus the petitioners prepared a false registered deed and mutated the said land using the false document as genuine. The Trust did not contribute anything towards the purchase or acquisition of land for branch Ashram and the disciples of Chatrapur and Berhampur area also did not arrange fund for the land. It is falsely mentioned in the deed that consideration amount of Rs.26,84,570/- has been paid to Mochiram Sahu earlier in the village in presence of deed witnesses, i.e., Binayak Sahu (the son of the informant) and G. Jawaharlal. On examination, these witnesses stated that they have no knowledge about payment of the consideration amount. The petitioners made Sri Binayak Sahu (son of the informant Mochiram Sahu) as a witness in the deed knowing full well that Binayak Sahu was mentally unsound and unfit to stand as a witness. It is further mentioned in the final chargesheet that the 5 petitioners misappropriated Rs.33,05,997/- of Shree Shree Shree Mahapurusha Achyutananda Trust by making false declaration in income tax returns of the year 2013-14 that it was the contribution of the Trust for purchase of land at branches. The bank statements of the informant Mochiram Sahu do not show the deposit of consideration money. The bank accounts of the Trust or the petitioners do not disclose withdrawal of such amount for payment of consideration amount to the informant, as falsely claimed by the petitioners. It is further mentioned in the final chargesheet that from the statements of witnesses and medical reports and prescriptions, it is evident that Binayak Sahu, the son of the informant Mochiram Sahu was mentally infirm and has not recovered contrary to the promise/assurance made by petitioner Surendranath Mishra. The petitioners fraudulently collected huge money and valuables from thousands of people by cheating by using so-called palm leaf POTHI of Mahapurusha Achyutananda. During investigation, cash amounting to Rs.29,93,910/-, gold ornaments weighing 533.240 grams and silver ornaments weighing 1984.98 grams were seized from the possession of the petitioners along with palm leaf POTHI used for cheating. It is further mentioned in the final chargesheet that total amount of Rs.2,78,71,473/- was found 6 deposited in different banks in 92 accounts in respect of the Trust and petitioner Surendranath Mishra and his family members. An amount of Rs.21,54,516/- was found deposited in 36 policies and three fixed deposits in LIC., Rs.35,28,300/- was found deposited in H.D.F.C. Standard Life Insurance, Rs.1,97,000/- in H.D.F.C. Mutual Fund and Rs.1,14,000/- in Birla Sun Life Mutual Fund. It is further mentioned in the final chargesheet that around 88 acres of land at different places were recorded in the names of Trust, the petitioners and their family members and there was reason to believe that those properties were the proceeds of crime. It is further mentioned in the final chargesheet that the petitioner Surendranath Mishra was the founder Trustee of Shree Shree Shree Mahapurusha Achyutananda Trust and the petitioner Trilochan Mishra was holding the office of Chairman-cum-Managing Trustee and all the activities of Trahi Achyuta Ashram and of Trust were managed by the petitioners. Trahi Achyuta Ashram was evaluated by a team of Assistant Engineer of R & B Department and the value of built up structure of the Ashram is Rs.20,44,43,000/-. It is further mentioned in the final chargesheet that the petitioners had no source of income and could not account for those movable and immovable properties and there was reason to believe that most 7 of those properties were acquired illegally by cheating the public including the informant of the case with an intention to misappropriate for personal gains. It is further mentioned in the chargesheet that the Joint Director, Enforcement Directorate, Bhubaneswar registered a case under section 3 of the Prevention of Money Laundering Act, 2002 against the petitioners and others and prima facie evidence under sections 120- B/420/423/467/468/471/406/506/34 of the Indian Penal Code was found against the petitioners.
5. Mr. Asok Mohanty, learned Senior Advocate appearing for the petitioners contended that the offences are triable by Magistrate and final chargesheet has been submitted and there is no chance of absconding of the petitioners who are in custody in connection with this case since 24.09.2015 and therefore, the bail application may be favourably considered.
Mr. Janmejaya Katikia, learned Addl. Government Advocate on the other hand contended that the petitioner Surendranath Mishra challenged the entire criminal proceeding in G.R. Case No.258 of 2015 pending in the Court of learned S.D.J.M., Chatrapur before this Court in CRLMC No.2344 of 2016 which was dismissed vide order dated 18.01.2017. He further submitted that the petitioners filed CRLMC No.1272 of 2016 and 8 1271 of 2016 along with others challenging the order passed by the learned S.D.J.M., Chatrapur in G.R. Case No.258 of 2015 for release of their different bank and postal accounts, which were frozen by the C.I.D. C.B., Cuttack which were also dismissed vide judgment and order dated 19.05.2017. It is further contended that the petitioner Surendranath Mishra is a very influential person who may bias and intimidate witnesses and tamper with the evidence, if released on bail and in fact the petitioners have started tampering with the evidence of the informant even remaining inside jail custody. He further submitted that there are number of cases pending against the petitioners i.e., Balipatna P.S. Case No.187 dated 30.08.2015 under sections 341/341/323/294/506/34 of I.P.C. read with section 3(1)(x) of SC & ST (PA) Act, Balipatna P.S. Case No.189 dated 31.08.2015 under sections 294/506/120-B/420/509/34 of I.P.C., Balipatna P.S. Case No.190 dated 31.08.2015 under sections 341/342/294/506/34 of I.P.C., Balipatna P.S. Case No.191 dated 31.08.2015 under section 25 of Arms Act and 34 of I.P.C., Balipatna P.S. Case No.196 dated 01.09.2015 under sections 365/506/34 of I.P.C., Chatrapur P.S. CaseNo.119 dated 03.09.2015 under sections 420/423/467/468/471/506/120-B/34 of I.P.C., Balipatna P.S. Case No.219 dated 01.10.2015 under 9 sections 342/347/323/466/467/468/294/506/420/34 of I.P.C. read with section 25 and 27 of Arms Act and therefore, in view of the criminal proclivity of the petitioners and absence of any change in the circumstances except submission of final chargesheet, there is nothing to reconsider the successive bail applications of the petitioners and accordingly, the bail applications should be rejected.
6. Bentham said, "Witnesses are the eyes and ears of justice". When the witnesses are not able to depose in the Court of law freely and correctly due to threat/intimidation/inducement by various means by use of muscle and money power by the accused, it shakes public confidence in the criminal justice delivery system. Therefore, at the time of grant of bail, apart from considering the nature and gravity of the accusation, it is also to be seen whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence.
During hearing of these bail applications, an affidavit was filed on behalf of the petitioners by one Biranchi Narayan Mishra, another son of petitioner Surendranath Mishra on 07.03.2017 and in the said affidavit, it is mentioned as follows:-
"2. That during the pendency of the aforesaid bail applications, the informant Mochiram Sahu 10 has amicably settled the matter for which he has filed an application under section 320 of Cr.P.C. before the learned Court of S.D.J.M., Chatrapur in G.R. Case No.258 of 2015 arising out of Chatrapur P.S. Case No.119 of 2015 converted to C.D.C.I.B. P.S. Case No.28 of 2015 under sections 420/423/467/468/471/506/120-B and 34 of IPC. A copy of the petition u/s. 320 of Cr.P.C. is annexed herewith and marked as Annexure-7.
3. That, the informant has filed an application before the learned Civil Judge (Sr. Div.), Chatrapur in C.S. No.15 of 2016 praying for production of Defendant No.1 i.e., Trilochan Mishra to sign and execute the compromise petition as the Jail Authority of Special Jail, Jharpada, Bhubaneswar where present petitioners are residing, are not cooperating to either execute special power of attorney or not allowing the petitioners to sign the compromise petition. A copy of the application filed by the informant before the Court of Civil Judge (Sr. Div.), Chatrapur is annexed herewith and marked as Annexure-8."
The copy of the affidavit was served on the learned counsel for State and when the matter was taken up for orders on 12.05.2017, the learned counsel for the petitioners relied 11 upon the affidavit filed on behalf of the petitioners. When the learned counsel for the State was asked about the compromise between the parties, he submitted that he had not obtained any instruction in that respect. This Court on the prayer of the learned counsel for the petitioners permitted to implead the informant as opposite party no.2 and issued notice to him. The matter was again taken up on 30.06.2017 for orders and the informant Mochiram Sahu was present in Court on that day. The Investigating Officer was also present. When the compromise petition filed before the learned S.D.J.M., Chatrapur in G.R. Case No.258 of 2015 as well as petition filed by the plaintiff (informant) before the Civil Judge (Senior Division), Chatrapur in C.S. No.15 of 2016 which were annexed to the affidavit filed on behalf of the petitioners were confronted to the informant, he made pre-varicating statements relating to the contents of such documents and accordingly, on the prayer of the learned counsel for the State, the learned S.D.J.M., Chatrapur was directed to record the 164 Cr.P.C. statement of the informant to ascertain the genuineness and truthfulness of the contents of the compromise petition filed before his Court as well as the petition which was filed before the learned Civil Judge (Senior Division), Chatrapur in Civil Suit No.15 of 2016. The Investigating Officer 12 was directed to produce the 164 Cr.P.C. statement of the informant on the next date. Subsequently the learned counsel for the State produced the certified copy of the 164 Cr.P.C. statement of the informant. On perusal of such statement, it is found that the same was recorded by the learned S.D.J.M., Chatrapur on 04.07.2017 in which the informant has stated that in order to return his lands, Dharani Jena, Subhakanta Jena, Biranchi Mishra and Rajendra Sahu who are the active members of Trahi Achyuta Ashram took his signatures and submitted the same in the Court. He further stated that subsequently he came to know that they have adopted fraudulent means and misguided him by way of filing a compromise petition in order to obtain bail order for Sura Baba and the other accused. He further stated that even though the signatures appearing in the documents belonged to him but he was not aware about the contents of the documents and that by cheating him, the compromise petition has been filed without his knowledge. He further stated that he was also unaware about the contents of the compromise petition which was filed before the learned Civil Judge (Sr. Div.), Chatrapur in C.S. No.15 of 2016 and without his knowledge, such petition has been filed. He further stated that there was no 13 compromise between him and the accused persons and there was no amicable settlement and he wants to prosecute the case.
7. Adverting to the contentions raised by the learned counsels for the respective parties and the lis pendens development and from the entire episode narrated above, it is crystal clear that even though the petitioners are inside jail custody, attempts are being made by their henchmen to tamper with the evidence, fabricating documents and filing false affidavit in Court to pave way for the bail of the petitioners. The reasonable apprehension of the prosecution that the entire episode has been stage managed at the instance of petitioner Surendranath Mishra cannot be ruled out. The petitioner Surendranath Mishra has thousands of followers as per the prosecution report and when remaining inside jail custody, attempts are being made by the petitioners to throttle the neck of justice by adopting unfair method, granting of bail to the petitioners in such circumstances would be just like giving death knell to the prosecution case. It cannot be lost sight of the fact that the petitioners have criminal proclivity and they have played with the religious feelings and sentiments of innocent persons in the name of bringing divine blessings for them. Therefore, without being influenced by the observations made in the earlier 14 rejection order but on going through the materials on record as per final charge sheet as well as the conduct of the petitioners in tampering with the evidence, I am of the humble view that in order to have a free and fair trial of the case and to uphold the majesty of the law, grant of bail to the petitioners would not be conducive in the interests of justice.
Accordingly, the bail applications filed by the petitioners Surendranath Mishra and Trilochan Mishra sans merit and hence stand rejected.
Urgent certified copy of this order be granted on proper application.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 31st July, 2017/Pravakar