Orissa High Court
Ramesh Chandra Jena vs State Of Orissa on 25 July, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3873 Of 2017
Application under section 439 of the Code of Criminal Procedure,
1973.
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Ramesh Chandra Jena ......... Petitioner
-Versus-
State of Orissa ......... Opposite Party
For petitioner: - Mr. Asok Mohanty
Senior Advocate
For State: - Mr. Dillip Kumar Mishra
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 Hearing and Order: 25.07.2017
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S. K. SAHOO, J.Heard Mr. Asok Mohanty, learned Senior Advocate for the petitioner and Mr. Dillip Kumar Mishra, learned Addl. Government Advocate for the State.
This is an application under Section 439 of Cr.P.C. for grant of bail to the petitioner Ramesh Chandra Jena in 2 connection with G.R. Case No.784 of 2016, arising out of Gosani Nuagaon P.S. Case No.51 of 2016 pending in the Court of learned S.D.J.M., Berhampur for offences punishable under sections 195-A, 506, 120-B read with section 34 of the Indian Penal Code.
The petitioner moved an application for bail before the learned 3rd Addl. Sessions Judge, Berhampur which was rejected on 04.05.2017.
Learned counsel for the petitioner contended that the petitioner who was an Ex-MLA has been implicated falsely in seventy cases including this case and out of those cases, the petitioner has been acquitted in eighteen cases and released on bail in forty eight cases and to that effect he has filed an affidavit. It is further contented by the learned counsel for the petitioner that in connection with this case, the petitioner was taken on remand on 17.09.2016 and charge sheet has already been submitted on 13.10.2016 under sections 195-A, 506, 120-B read with section 34 of the Indian Penal Code and that the co- accused persons namely, Kali Prasad Sahu and Ganesh Panigrahi have already been granted anticipatory bail by this Court in ABLAPL No.12618 of 2016 and another co-accused namely, Sankarsan Padhi @ Ami Padhi has been granted bail in BLAPL 3 No.7404 of 2015. He files copies of the bail orders which are taken on record.
Learned counsel further submitted that the informant Bitu Patra has stated that on 29.01.2013 one Shanti Mishra was murdered and he is a witness to the occurrence and in connection with that case, he was summoned by the learned Trial Court to tender his evidence on 15.07.2016 but on 14.07.2016 the co-accused persons Sankarsan Padhi @ Ami Padhi, Mrutunjaya Sabat, Ganesh Panigrahi and Kali Prasad Sahu threatened him not to depose in Court and they also threatened him to kill by bombing and all those co-accused persons stated that they have been instructed by "Bhaina" in that respect. The informant after receiving threat came to the Court on 15.07.2016 but the case was adjourned and his evidence was taken up on the next date i.e. on 16.07.2016 and since he was under threat, he could not depose correctly.
To counter such statement of the informant, it is contended by the learned counsel for the petitioner that at the time of lodging of the F.I.R., when the informant was allegedly threatened by co-accused persons, the petitioner was in jail custody in connection with other cases. He further submitted that the petitioner belongs to Congress (I) Party and therefore, 4 at the instance of the ruling party, he has been falsely entangled in a number of cases one after another. It is further contended that in the Shanti Mishra murder case, out of twenty nine charge sheet witnesses, nineteen witnesses have already been examined and rest ten witnesses are official witnesses and therefore, the release of the petitioner will no way hamper the trial of the said case. It is further contended that even though the informant has not supported the prosecution case while deposing in Shanti Mishra murder case, after the registration of this case as well as filing of charge sheet, no step has been taken by the prosecution to recall the witness for his further examination and when the co-accused persons who gave threat to the informant have already been released on bail, unless the bail application of the petitioner is favourably considered, he will be seriously prejudiced.
Learned counsel for the State on the other hand submitted that there are sufficient materials available on record to indicate that "Bhaina" is none else than the petitioner and even if he was in custody in connection with number of cases but his conduct in threatening the informant through other co- accused persons who are outside not to depose in the murder case of Shanti Mishra is nothing but an attempt to tamper with 5 the evidence and impede the process of the fair trial. Learned counsel for the State placed the statements of Samir Kumar Sahu, Santosh Kumar Padhi as well as Kanhu Charan Sahu and contended that the petitioner is a very highly influential person and if he is released from jail custody then he will not only tamper the evidence against him in other cases but also in the present case.
In the case of Panchanan Mishra -Vrs.- Digambar Mishra (2005) 30 Orissa Criminal Reports (SC) 546, it has been held that the Court must apply its mind and go into the merits and evidence on record and determine whether prima facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration. That a balance has to be drawn by the Court to protect fair trial and to secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in a heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically looses all its purpose and significance to the great prejudice and the interest of the prosecution. The Court summed up the principle that the ground to deny bail will be when by testing the balance of probabilities, it appears that the accused 6 has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. It was noticed by the Court that once a person is released on bail in serious criminal cases where the punishment is stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tempering with the prosecution witnesses, threatening the family members of the victim and also create problems of law and order.
In the case of Prahlad Singh Bhati -Vrs.- NCT, Delhi reported in (2001) 20 Orissa Criminal Reports (SC) 551, the Hon'ble Supreme Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, 7 circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with.
In Kalyan Chandra Sarkar -Vrs.- Rajesh Ranjan reported in 2004 Criminal Law Journal 1796, the Hon'ble Supreme Court held that while granting bail, discretion must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination of evidence and documentation of the merit of the case but there is a need to indicate reasons for prima facie conclusion why bail was being granted particularly where the accused is charged of having committed serious offence.
When an eye witness to the murder case resiles from his previous statement given either to the police or before the Magistrate on account of threat being given by the accused persons or by somebody else who is otherwise interested for the acquittal of the accused persons, it is nothing but a grave, blatant and atrocious miscarriage of justice.
Considering the submissions made by the learned counsels for the respective parties, the nature and gravity of the accusation against the petitioner, the criminal antecedents of the petitioner and prima facie material available on record to show the manner in which under the instruction of the petitioner, the 8 co-accused persons acted and threatened the informant and tried to tamper with his evidence and being succumbed to pressure and threat, the informant resiled from his earlier statement given to the police while deposing in Court in the Shanti Mishra murder case and the reasonable apprehension of the prosecution relating to the magnitude of influence the petitioner is likely to cause once he is released from jail custody by taking over the task of tampering with the evidence and manipulating/threatening witnesses in the evidence of different cases, even though the co- accused persons have been enlarged on bail, I am not inclined to release the petitioner on bail.
I am conscious of the fact that evidence in this case has yet not been led in the Court. Wherever I have observed relates to the materials collected during course of investigation and the findings recorded herein are for the purposes of adjudication of this bail application only. This may not be taken as an expression of opinion on the merits of the case. The learned Trial Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order.
Accordingly, the BLAPL stands rejected.
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Urgent certified copy of this order be granted on proper application.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th July, 2017/Sisir