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2008(2) Supreme 192
Supreme Court of india
S.B. Sinha & V.S. Sirpurkar, JJ.
Narayan Ghosh @ Nantu — Petitioner
versus
State of Orissa — Respondent
Appeal (crl.) 251 of 2008
Decided on : 04-02-2008
Facts of the case:-
1.Appellant accused two in number herein in instant case along with six other accused persons were facing prosecution for offences of Criminal conspiracy u/s 120B IPC, murder u/s 302/*34 IPC as also offences u\s 25 and 27 of Indian Arms Act. Prosecution case that 8 accused persons conspired and in pursuance of that conspiracy one “T” was murdered who was a Councilor of Baragaon Municipality. On Arrest of accused persons, Bails applications were filed by accused persons which was rejected by Sessions judge and High Court.
2.Present Appeal has been filed against said order of High Court.
Findings of the Court : -
The Court held not possible to release accused on bail at this stage. Admitted position that Sessions trial had almost come to an end, and there were only few more witnesses to be examined. Prosecution had expressed that appellants were politically influential and financially strong and were capable of influencing witnesses. It had also been expressed that appellants were residents of Banagaon District which was on Bangladesh border and, hence, there was every likelihood of their fleeing from judicial process. Admitted position that appellants were residents of Banagaon District which was a border District. Hence it could not be said that apprehension expressed by counsel for Prosecution was totally unfounded. Counsel, however, insisted that one should consider material and more particularly evidence regarding conspiracy. Not proper for us to discuss evidence threadbare as any expression would undoubtedly affect trial. It was admitted during debate that some witnesses who were witnesses for conspiracy were examined and had to be declared hostile. If that was so, that was all the more reason not to release appellants when trial was at a precarious stage. It would be for trial court to consider and appreciate evidence which comes before it in support of plea of conspiracy and to arrive at correct finding. High Court held not in error in refusing bail to appellants.
Result : Appeals dismissed.
judgment
V.S. Sirpurkar, J. —
1.Leave granted.
2.Being aggrieved by the refusal of bail by the High Court both the accused persons have come up before us by filing separate appeals.
3.The accused before us along with six other accused persons are facing the prosecution for the offences of criminal conspiracy under Section 120B IPC, murder under Section 302/34 IPC as also the offences under Section 25 and 27 of the Indian Arms Act. The case of the prosecution appears to be that the 8 accused persons conspired and in pursuance of that conspiracy one Tapas Mitra was murdered on the Puri Sea Beach. Immediate report with regard to the murder was lodged at the Puri Sea Beach Police Station by one Prashanta Bala to the effect that the informant along with some others, all of whom were the members of Baragaon Motor Association, about 250 members, had come to Puri and stayed in the hotels and deceased Tapas Mitra who was a Councilor of Baragaon Municipality was one of them. It was alleged that he was a member of the Trade Union and was an invited guest and was staying at Hotel Mayur and on 22.6.2006 at about 9.20 p.m. when the informant along with deceased Pallav Das, Tapas Ghosh and Swapan Seth were sitting on the sea beach in front of Hotel R.L., a man suddenly came on the spot and fired at Tapas Mitra, as a result of which Tapas Mitra sustained bleeding injuries. It was further averred that the persons present there tried to catch the assailant but he was able to escape. It was expressed specifically in the FIR that it was due to the political rivalry and previous enmity that Tapas Mitra was murdered. On the basis of the investigation some persons were arrested and a charge-sheet came to be filed against eight accused persons. However, after further investigation as per Section 173(8) Cr.P.C., the SDJM, Puri by his orders dated 2.1.2007 took cognizance of the offences under Section 302/34 IPC as also under Sections 25/27 of the Arms Act against the accused persons and as such they were arrested on 30th March, 2007 by Banagaon Police Station on the requisition of Puri Sea Beach Police Station.
4.To begin with, the appellants were released by Calcutta High Court on interim bail by order dated 5.4.2007 on certain conditions and they were further directed to surrender before the appropriate court, i.e., SDJM, Puri within two weeks from the date of their release. The appellants accordingly surrendered on 20.4.2007 and prayed for the bail. However, that prayer was rejected. The appellants, therefore, moved the Sessions Judge, Puri. Even the Sessions Judge dismissed their bail applications. They thereafter moved the High Court of Orissa. However, even the High Court seems to have dismissed their bail applications. The appellants have now come up before us.
5.We have heard Shri Uday Umesh Lalit and Shri Panigrahi, learned Senior Counsels appearing on behalf of both the appellants. It was urged that both the appellants have been falsely implicated on account of their alleged political differences. It is further stated that the theory of conspiracy has no legs to stand as there is absolutely no evidence to support the same. It is also pointed out that the three witnesses who were set up in support of the conspiracy were already examined before the Sessions Court and all of them did not support the theory, in the sense that they turned hostile. Learned counsel further urged that the only possible material against them would be the confessions of the co-accused and even assuming that such confessions are admissible under Section 10 of the Indian Evidence Act, they would be of no consequences since such confessions cannot be used as substantive evidence. It is then pointed out that otherwise there is absolutely no material implicating the appellants and, therefore, they are liable to be released on bail.
6.Shri Janaranjan Das, learned counsel for the prosecution vehemently opposed the appeals. It is pointed out that the trial has already commenced and
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