A.S. Naidu, J.
1. The petitioners in all the aforesaid five Bail Applications have been arrayed as accused persons in Nayapali P.S. Case No. 115 of 2005 corresponding to G.R. Case No.1301 of 2005 pending before the SDJM, Bhubaneswar for alleged commission of offences under Sections 302, 120-B, 109 and 34 of the Indian Penal Code read with Sections 25 and 27 of the Arms Act.
2. A horrendous murder took place on 18th April, 2005 near Prachi Divisional Executive Engineer's office in the heart of Capital of Orissa in which two persons, namely, Rubu alias Subash Ch. Das and Dhiren Kumar Sethi, were chased by three unknown persons armed with revolvers/pistols in broad day light at about 12.45 p.m. and were shot dead. An FIR in that connection was filed by one Prakash Chandra Das, a brother of deceased Rubu alias Subash and the local police commenced investigation.
3. In course of investigation, police arrested two accused, namely, Gunu alias Babu Lenka and Dhadu alias Artatrana Pradhan and also seized a country-made revolver from them on the 22nd of April, 2005. On interrogation those two accused persons confessed their guilt and stated that they had murdered both the deceased due to their previous enmity. The investigating officer in furtherance of the investigation examined Laxmipriya Das, mother of deceased Rubu, one Dhadu Sethi father of deceased Dhiren, one Bismay Mohapatra and others. From their statements, police suspected the unseen hands of one Anil Chhotray in the alleged crime. On being satisfied that said Anil Chhotray was the mastermind behind the murder, police took steps for apprehending Anil Chhotray. It was learnt that he was staying at Jamshedpur at the relevant time and a special police team was deputed to Jamshedpur to apprehend Anil. The said special police team could carry out the assignment made to them and after complying with due formalities produced Anil Chhotray before the SDJM, Bhubaneswar on 17th July, 2005 and prayed to keep him on police remand.
4. Police also examined several other persons, namely, Saroj Kumar Sethi, brother of deceased Dhiren and one Ganesh Kumar Das whose statements implicated Anil Chhotray in the alleged crime. On 20th July, 2005 the investigating officer armed with fresh materials, interrogated Anil, who, it is stated, gave a picture of his criminal background with regard to several crimes being committed by him and the modus operandi adopted by him to fix up tenders in respect of different contract works by terrorizing the contractors. Police could smell a racket as to how by terrorizing contractors it could manage to get the work orders issued to the choicest contractors; thereby causing immense loss to the State exchequer. A number of instances of such overt acts committed by Anil Chhotray came to light in course of his interrogation. He also admitted that deceased Rubu and Dhiren were working as petty contractors under one Anil Mahallik, another contractor, and they did not succumb to the pressure and rather challenged his authority, thereby creating hurdles to his contractor-clients.
5. On receiving further information, police raided the house of Anil Chhotray at Mayur Jhalia and recovered a number of gold articles, cash of Rs. 1,07,000.00, various weapons of offence and three diaries reflecting different transactions made between him and his contractor clients for the purpose of 'tender-fixing' and the money received by him from the said contractors for the purpose.
6. While matter stood thus, realizing the gravity of the offence and its impact on society, the State Government decided to hand over investigation of the aforesaid murder case to Crime Branch. It appears that police had examined altogether fifty-three persons in connection with that case. After taking over charge, the Inspector of Crime Branch also examined a number of persons. He also on the basis of the materials collected, re-examined some of the witnesses earlier examined and confidentially enquired about the activities of the tender Mafias and the nexus between Anil Chhotray and other renowned contractors, including the petitioners.
7. While keeping the investigation alive, the investigating officer on being satisfied that a strong prima facie case was made out against Guna, Dhadu and Anil Chhotray, filed charge-sheet against them in the Court of the SDJM, Bhubaneswar on 19th August, 2005 and prayed to permit the prosecution to keep the investigation open in consonance with the provisions of Section 173(8) of the Code of Criminal Procedure. The learned SDJM on being satisfied granted such permission.
8. In course of further investigation, the investigating officer again sought permission of the SDJM to interrogate Anil Chhotray for the second time. The said Court permitted such interrogation at the jail and in presence of the jailor. On 21st September, 2005 the Inspector of Crime Branch interrogated Anil Chhotray who reiterated the statements made by him earlier before police and added that he had received huge amounts from various super-class contractors, whose names he had mentioned in his diary, to manage to get the tenders filed by them fixed. It further appears that he gave several instances with regard to amounts received by him from the present petitioners with regard to different tender works. He also stated that as Rubu and Dhiren had threatened the contractors who had direct link with Anil Chhotray, thereby becoming a threat to the monopoly. Anil Chhotray and other contractors had congregated at the Crown Hotel at Bhubaneswar to chalk out a plan to eliminate both Rubu and Dhiren and in furtherance of such plan, the aforesaid two persons were done to death. Being satisfied that there were enough materials to connect the petitioners with the crime, police arrested them on 15th of September, 2005.
Mr. Gangadhar Rath, learned Senior Advocate appearing for petitioner Rohit Kumar Das in BLAPL No.8400 of 2005, led the argument and forcefully contended that tender-fixing is not an offence by itself, but then if tender-fixing was the cause of the murders, it may be an offence that would be an offence. According to him there is absolutely no iota of evidence to connect the petitioners with the crime and the prosecution, in order to fulfil its vendetta, recorded statements of different persons four months after the date of the alleged murder. He strenuously led this Court through the statements of Nilednra Kumar Rout.Biranchi Narayan Das, Tapan Kumar Swain, Laxmipriya Das, Bibhuti Bhusan Balabantaray and one Niranjan, and submitted that their statements being absurd and improbable are not believable.
According to Mr. Rath, the trump-card of the prosecution case is the statement said to have been made by Nilendra Kumar Rout, who was a chance witness. Said Nilendra Kumar Rout, a contractor by profession, stated that towards latter part of March and/or first part of April, 2005 he had gone to meet contractor Krushna Kumar Agarwal, and as he was not present in his house he returned back. On his way back, near Crown Hotel, he found a number of vehicles belonging to different contractors being parked. Out of curiosity, he asked the driver of Pada Patra, one of the contractors, the reason of such congregation. The said driver told him that a meeting had been arranged in the said hotel in presence of Rohit Babu, and all the big contractors had assembled there along with Anil Chhotray to discuss and hatch conspiracy to eliminate Rubu and Dhiren whose existence was creating hindrance in contract works. He then saw the contractors, namely, Ashok Basa, Pada Patra (petitioner in BLAPL No.8459/05), Pramod Rath (petitioner in BLAPL No.8259/05), Dambarudhar Agarwal, Ashok Jalan (petitioner in BLAPL No.8330/05) and Surendra Sahu (petitioner in BLAPL No.8305/05) being accompanied by Rohit Das (petitioner in BLAPL No.8400/05) came to see off Anil Chhotray, all of them telling Anil that the matter of Rabu and Dhiren was entrusted to him (Anil Chhotray). In reply, Anil said 'Don't worry, shortly the work would be done.' After a few days he learnt that near Prachi Division Office Anil Chhotray and his henchmen had short dead Rubu and Dhiren both.
9. According to Mr. Rath, the aforesaid statement is highly improbable and cannot be relied upon. He also submitted that the statements of other witnesses recorded by the Crime Branch are also vague and do not prima facie implicate the petitioners in the alleged occurrence.
10. Placing reliance on Section 10 of the Evidence Act, Mr. Rath submitted that there is no reasonable evidence to believe that the petitioners had ever any conspiracy to commit the alleged murders. There is also no prima facie evidence to reveal that any of the petitioner was a party to the conspiracy to commit the alleged murders and when no such material, far less trust-worthy, is brought to the notice of the Court bail should be granted to the petitioners.
11. To fortify his submission, Mr. Rath relied upon the decision in the case of Jayendra Saraswati Swamigal v. State of Tamil Nadu reported in : 2005CriLJ883 , and submitted that the confession of Anil Chhotray and so also the statements of other witnesses having been recorded long after the alleged murders, in consonance with Section 10 of the Evidence Act the same should not be accepted.
12. Stressing his submission that the statement of the key-witness Nilendra Kumar Rout with regard to conspiracy is highly improbable, Mr. Rath submitted that under no circumstances can it be believed that all the petitioners came out of the hotel in question and in unison and chorus told Anil that the matter of Rubu and Dhiren was entrusted to him. According to Mr. Rath, such statements cannot be believed to have been made in public.
13. In substance, Mr. Rath submitted that the statement of Biranchi Narayan Das and Nilendra Kumar Rout and other persons recorded by Crime Branch after four months of the alleged occurrence have absolutely no nexus with the crime and in the garb of public interest innocent petitioners should not be kept behind the bar.
14. Mr. Dharanidhar Nayak, learned Counsel for petitioner Surendranath Sahoo petitioner in BLAPL No. 8304 of 2005, more or less reiterated the submissions of Mr. Rath and added that the statements recorded by Crime Branch after a lapse of four months from the date of the alfeged murders are most improbable and even otherwise the said statements are absurd and cannot be believed.
15. Mr. Nayak further submitted that there are a lot of discrepancies among the FIR story, the statements recorded by police and the statements recorded by the Crime Branch and the entire episode is managed from stage to stage so as to falsely implicate the petitioners who are respectable citizens and men of means, and it is a fit case where the petitioners should be released on bail.
16. Mr. Bibhudendra Misra, learned Senior Advocate appearing for petitioner Ashok Kumar Jaian in BLAPL No.8304 of 2005, while supporting the stand taken by other counsel, added that the case against Ashok Kumar Jalan is a little different from others, inasmuch as he belongs to Sambalpur and had not participated in any tender relating to contract works under Bhubaneswar or Cuttack Division except a work of construction of National Highway under Puri Division. The statements of Guna, Hadi and Anil Chhotray were strongly criticized by Mr. Misra and he submitted, rather emphatically, that his client is completely innocent and absolutely no mens rea or motive can be attributed to him and therefore he should be released on bail.
17. Mr. Jagannath Patnaik, learned Senior Advocate appearing for petitioner Padma Charan Patra in BLAPL No.8434 of 2005 laid stress on the fact that absolutely no motive or mens rea can be attributed to petitioner Padma Charan Patra. According to Mr. Patnaik prosecution has totally failed to prove any conspiracy by this petitioner. The statement of Nilendra is not only vague, but also otherwise improbable and absurd. This petitioner had absolutely no nexus with the alleged murders. Criticising the investigation conducted by Crime Branch, Mr. Patnaik submitted that the way the investigation was conducted throws a cloud of suspicion, inasmuch as the statements of five persons recorded on a single day, i.e. 21st August, 2005, and that too four months after the alleged occurrence sounds improbable. He submitted that these statements are also in a parrot like fashion, inasmuch as the synchrony of names and descriptions are more or less the same in all the statements. Relying upon the judgment of the Supreme Court in the case of 200 (1) SCC 247 (State of H.P. v. Lekhraj), he submitted that all the statements recorded by the Crime Branch are not acceptable. It was submitted by Mr. Patnaik that Padma Charan Patra is basically a car dealer and an industrialist having a Sponge Iron Factory and then a contractor. He had no enmity, nor any animosity or rivalry with any other contractor. Thus the prosecution has failed to attribute any motive to him. Mr. Patnaik further emphasized that there is absolutely no evidence satisfying the ingredients of Section 120-B of the Indian Penal Code. Even otherwise there was no reason for his conspiracy with others.
18. Mr. Satyabrata Pradhan, learned Addl. Standing Counsel for the State, on the other hand, strongly repudiated all the submissions advanced by the learned Counsel for the petitioners. According to him in course of investigation into the alleged incident of murder that occurred on 18th April, 2005, certain materials came before the police which threw light that the alleged incident was a calculated one involving several white colour criminals. On the basis of the statements made by the persons who were arrested, and others, and after seizure of the diary of Anil Chhotray from his house, police felt that the murder was a pre-meditated and calculated one and as per a conspiracy hatched by the persons having great reputation and status in Society. After coming to know such fact, the State Government decided to entrust the investigation to Crime Branch. Thereafter Crime Branch started investigation and further interrogated the persons who had been earlier examined by police on the basis of the diary and other materials seized from Anil. Further interrogation revealed that the murders in question were the outcome of tender-fixing.
19. 'Tender-Fixing' was used by all the counsel in course of their arguments on a number of occasions. Being curious, this Court wanted to know what did it mean. According to the State counsel some of the contractors including the petitioners were monopolizing contract works for which tenders were called by the State Government and the aforesaid persons by hook or crook used to manage to keep other competitors out of the arena of consideration. For achieving such oblique object, they used to utilize harden criminals like Anil Chhotray who were entrusted to threaten and frighten the other competitors either through phone calls or by sending rogues or hooligans for the purpose with fire-arms and other weapons and, if everything failed, by throwing bombs at their residential houses, office rooms, etc. In the process, tenders for each of the works advertised were filed only by the petitioners and their associates quoting the lowest price, by rotation, so that award of different works was being confined among them. The price quoted by the petitioners and their associates was always much more than the estimated price, but then as the same was the lowest among all the quotations received, the State Government was constrained to award the works even at higher price and in the process loss of crores and crores of money was being caused to the State exchequer.
20. But then, by efflux of time there was a threat to their monopoly by the two deceased persons who tried to build up their empire of criminal activities by introducing into the operation of tender-fixing. They tried to give protection to other contractors who were competitors with the petitioners and their associates. At that juncture of time and being threatened by the deceased persons, the petitioners and their associates, according to Mr. Pradhan, conspired with Anil Chhotray, the master criminal, and it was decided that the latter would eliminate the said two persons.
21. Mr. Pradhan placed once again all the statements recorded by the prosecution and submitted that investigation is still in progress and the chain further materials implicating the petitioners in the alleged crime of tender-fixing are likely to be traced out. He submitted that some more documents have been seized by the investigating agency from Jamshedpur wherefrom Anil Chhotray was arrested. as the said materials are not available to the prosecution till date there is delay in completing the investigation. It was further submitted by Mr. Pradhan that steps are being taken to procure all the materials seized from Jamshedpur and as soon as the same are available, expeditious steps would be taken by the prosecution to complete the investigation and submit chargesheet.
22. Mr. Pradhan relied upon a number of decisions with regard to the principles to be adopted by Court while considering a bail application. But then as there is no res integra with regard to the settled position of law, I refrain from relying upon all those decisions excepting the decision of the Supreme Court in the case of State through CBI v. Amarmani Tripathi reported in : 2005CriLJ4149 , wherein it has been stated as follows :
It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi : 2001CriLJ1730 and Gurcharan Singh v. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
22. The principles with regard to grant or refusal of bail are well settled. The Court considering the bail application should exercise its discretion in judicious manner, and not asa matter of course. Detailed examination of evidence at the stage of considering the bail application should be avoided to ensure that there is no pre-judging or prejudice. A brief examination would be sufficient about existence of a prima facie case or not. There is only a need to arrive at a prima facie satisfaction with regard to implication of the accused in the alleged offence. The Court should consider among other circumstances the following factors :-
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;
(b) Reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant;
(c) Prima facie satisfaction of the Court in support of the charge.
This view of mine finds support from the decision of the Supreme Court in the case of Kalyan Ch. Sarkar v. Rajesh Ranjan reported in : 2004CriLJ1796 .
In the case of Jayendra Saraswati (supra) the Supreme Court observed that the considerations which normally weigh with the Court while granting bail in non-bailable offence are :-
(a) nature and seriousness of the offence;
(b) character of the offence;
(c) circumstances which are peculiar to the accused;
(d) reasonable possibility of the presence of accused not being secured at the trial;
(e) reasonable apprehension of witnesses being tampered; and
(f) larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.
23. After closure of argument, the State Counsel submitted the entire Case Diary for perusal of this Court. It appears that the petitioners by and large are alleged to have hatched a conspiracy in furtherance of commission of murder. According to learned Counsel for the petitioners there is no iota of direct evidence against the petitioners and the statements recorded are most improbable, absurd and not believable.
24. It is apparent that a conspiracy is always hatched in secrecy and it may not be possible to adduce direct evidence with regard to the same. The offence can only be proved largely on analysis of the acts or illegal omissions or commissions committed by the conspirators in pursuance of a common design. The Supreme Court in the case of Kehar Singh v. State reported in : 1989CriLJ1 , observed as follows :
Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstanial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing unlawful design may be sufficient.
25. The investigation in the present case is still in progress and the materials so far collected may not be clinching to definitely throw some light on the allegations levelled against the petitioners. That apart, it is submitted by the prosecution that all the petitioners are wealthy and influential persons and, in fact, there are materials to reveal that even when they are in custody the prosecution witnesses are being threatened by their henchmen and a copy of FIR said to have been filed in that regard is available before this Court. Added to that, out of eight accused persons only five have been apprehended and three are still absconding.
26. In course of argument, learned Counsel for the petitioners submitted that the main architect of the occurrence namely, Anil Chhotray, basing upon whose confession the petitioners were apprehended has retracted from his confession. In support of such submission a document was produced before this Court. Learned Counsel for the State, however, forcefully submitted that the said document is a created one, inasmuch as the date on which the said retraction is stated to have been recorded, Anil Chhotray was in custody. The letter was prepared in a computer which facility was not available in jail and that the said letter was not forwarded through the jailor. Thus no credence can be attached to that.
27. Learned Counsel for the petitioners further submitted that taking into consideration all the materials available and the status of the petitioners, this Court may exercise its judicial discretion and enlarge the petitioners on bail, inasmuch as there is absolutely no apprehension of their absconding and this Court may also bind them with such terms and conditions as may be fixed.
28. In the elegant words of Benjamin Cardozo:
The Judge, when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in the social life. Wide enough in all conscience is the field of discretion that remains.
29. I have heard the learned Counsel for the petitioners and the learned Counsel for the State patiently. I have also perused the materials produced meticulously, noted the submissions carefully and considered the same diligently in the touch-stone of the decisions supra.
I have no hesitation to arrive at a conclusion that the offences alleged are of very serious nature. The circumstances and the character of evidence are peculiar and directly or remotely point a finger at the petitioners. Out of eight accused persons, three are still absconding and the reasonable apprehension of the State that there is possibility of the presence of the petitioners not being secured during trial cannot be totally ruled out. Some materials are also available leading to reasonable apprehension with regard to propensity of the petitioners to pressure and persuade others to act according to their dictates and there is also reasonable ground of apprehension that the petitioners may tamper with the evidence and manipulate/threat the witnesses. If the story of tender-fixing leading to murders is established, then definitely the crime is against larger interest of public or the State. That apart, investigation is still in progress and releasing the petitioners on bail at this stage would create hindrance in the smooth investigation.
In view of the aforesaid discussions, I am not inclined to release the petitioners on bail and reject their prayer. However, I direct the prosecution to conclude the investigation as early as possible and submit the final form within the time stipulated under the Code of Criminal Procedure. Liberty is also granted to the petitioners to move for bail thereafter before the Court below.
All the Bail Applications are accordingly dismissed.