State of Orissa Vs. Rajendra Prasad Bharadia & Anr.
EmailAppeal: Criminal Appeal No. 341 of 1994
(Arising out of SLP (Criminal) Nos. 2812-13 of 1993)
(From the Judgment and Order dated 26.7.93 of the Orissa High Court in Crl. Misc. Case Nos. 1271 & 1283 of 1993)
(Arising out of SLP (Criminal) Nos. 2812-13 of 1993)
(From the Judgment and Order dated 26.7.93 of the Orissa High Court in Crl. Misc. Case Nos. 1271 & 1283 of 1993)
Petitioner: State of Orissa
Respondent: Rajendra Prasad Bharadia & Anr.
Apeal: Criminal Appeal No. 341 of 1994
(Arising out of SLP (Criminal) Nos. 2812-13 of 1993)
(From the Judgment and Order dated 26.7.93 of the Orissa High Court in Crl. Misc. Case Nos. 1271 & 1283 of 1993)
(Arising out of SLP (Criminal) Nos. 2812-13 of 1993)
(From the Judgment and Order dated 26.7.93 of the Orissa High Court in Crl. Misc. Case Nos. 1271 & 1283 of 1993)
Judges: J.S. VERMA & S.P. BHARUCHA, JJ.
Date of Judgment: May 13, 1994
Appearances:
Mr. U.R. Lalit, Senior Advocate and Mr. A.K. Panda, Advocate with him for the Appellant.
Mr. Rajinder Singh, Senior Advocate and Mr. S.K. Jain, Advocate with him for the complainant.
Mr. Ram Jethmalani, Senior Advocate Ms. Latha Krishnamoorthi and Mr. S.K. Gambhir, Advocates with him for the Respondent.
Head Note:
CRIMINAL LAW
Indian Penal Code, 1860:
Section 302-120B-365 S. 439 (2)- Cancellation of bail – Dying declaration of deceased and statements under section 164 Cr.P.C. – Cruelty and heinousness of Crime – Bail out not to have been given.
Held:
The cumulative effect of the dying declarations, the statements under Section 164 Cr. P.C. of the two security men, the fact that the deceased was set afire within the premises of the mill, the dispute as to the mill between the deceased Bina and her father and brother on the one hand and the respondents and Rohit Chandak on the other hand, and the cruelty and heinousness of the crime lead us to the conclusion that this is indeed a case where bail ought not to have been given to the respondents and where this court under Article 136 must intervene and set aside the judgment and order that does so. (Para 12)
The respondents shall surrender forth with whereupon their bail bonds shall stand cancelled. (Para 13)
We think that in the facts and circumstances of the case the Single Judge of the High Court had no adequate reason to release the respondents on bail.
Cases Reffered:
1. Gurbaksh Singh Sibbia and ors. v. State of Punjab, 1980 (2) SCC 565. (Para 11)
JUDGEMENT:
BHARUCHA, J.:
1. Leave granted.
2. This appeal, filed by the State of Orissa, impugns the judgment and order of the High Court of Orissa allowing the release of Rajendra Prasad Bharadia, the first respondent, and Purakh Chand Chandak, the second respondent, “on bail of Rs.50,000/- (fifty thousand) each with two local sureties each for the like amount to the satisfaction of the S.D.J.M., Cuttack, subject to the further conditions that they shall personally appear in court on each date on which the case is posted; they shall not leave Calcutta without Court’s permission excepting for appearing in the case till the trial is over; they shall report at Lal Bazar Police Station, Calcutta, every fortnight on Sunday and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court”.
3. The two respondents along with eight others are charged under section 302 read with section 34 of the Indian Penal Code in Chauliaganj P.S. Case No. 33 of 1993. The case was instituted on the First Information Report lodged by Bijoy Mohapatra on 17th February, 93, alleging that at about 7 p.m. on that day he had heard the cries of a woman from the premises of the Central Flour Mill at Naya Bazar and that on reaching that spot he had heard that Smt. Bina Jhawar, daughter of Kali Prasad Bharadia, had been assaulted by Rohit Chandak, his employees and others and that they had poured some liquid upon her and set her afire. The High Court noted that an earlier application for bail filed by the respondent Purakh Chand Chandak during the stage of investigations had been dismissed on 23rd April, 1993. The principal case against the respondents rested upon the dying declarations said to have been made by the deceased Bina. Considering the same and apposite judgments, the High Court stated:
“The tenor of her statements is that Rohit Chandak, the petitioners and several other persons physically assaulted her and poured some liquid on her body and Rohit Chandak set fire to her body due to which she sustained burn injuries. As the medical reports show, the deceased had sustained 90% burns on her body. Whether the dying declarations in the present case will be accepted as true and if so its evidentiary value and the weight to be attached to it can appropriately be considered at the trial of the case, but as the position stands at present the two petitioners have been named as assailants by the deceased in the dying declarations made by her from time to time. Therefore, it cannot be said that no prima facie case is made out against the petitioners. But this is not conclusive of the matter, as held by the Apex Court. The other relevant circumstances are to be considered.
The investigation is complete and charge sheet has been submitted. Through a number of persons had witnessed the incident and statements of many of them have been recorded under Section 161 Cr.P.C., none of the occurrence witnesses has directly implicated the petitioners in the incident relating to assault on the deceased and setting her body ablaze. They have, however, generally stated about presence of the petitioners on the mill premises during the other incident which is said to have taken place at about 3 p.m., about four hours before the incident in question in which the mother of the deceased was assaulted. The dying declaration made by the deceased which is concededly the only incriminating material against the petitioners have been made in presence of doctors in the Hospitals where the deceased received treatment, her lawyers and police officers. Therefore, the apprehension of risk of winning over such witnesses or tampering with their evidence is remote.”
Upon this basis the High Court passed the order aforementioned.
4. It may be noted for the completeness of the record that the brother of the deceased Bina, namely, Raghabendra Bharadia, had filed an application under section 439(2) of the Criminal Procedure Code for cancellation of the bail given as aforestated to the two respondents. The High Court by its judgment dated 2nd May, 1994, rejected that application. It found it difficult to summarily reject the plea of illness which had been taken by the respondent Rajendra Prasad Bharadia and his confinement to a nursing home in Calcutta which prevented him from appearing in the court of the SDJM, Cuttack on fixed dates. It also found that although a considerable amount of time had elapsed after the lodging of the reports that the two respondents and their supporters had made attempts to pressurise the applicant Raghabendra Bharadia and his family members to withdraw the criminal case, no further material had been produced to establish the credibility and genuineness of these reports. The District Superintendent of Police had filed an affidavit but did not refer to any other material in support of the aforementioned allegations. The respondent Purakh Chand Chandak had been released on bail by the Supreme Court in SLP No. 2201/93. There were, therefore, no cogent or overwhelming circumstances which compelled the High Court to pass an order of cancellation of bail.
5. It must be noted immediately that Special Leave Petition No. 2201/93 referred to by the High Court in its judgment dated 2nd May, 1994, was in relation to action instituted against the respondent Purakh Chand Chandak under sections 120B and 365 of the Indian Penal Code in which the High Court at Calcutta had found no reason to confirm the bail that had been granted to him earlier. The bail granted to the respondents Purak Chand Chandak by this court was, therefore, in relation to a transaction other than the one that we are here concerned with.
6. We have heard Mr. U.R. Lalit, learned counsel for the State of Orissa, Mr. Rajinder Singh, learned counsel for Raghabendra Bharadia, and Mr. Ram Jethmalani, learned counsel for the respondents.
7. Learned counsel arguing in support of the appeal drew our attention to the dying declarations made by the deceased Bina. Before we advert to them it is necessary to say that incident is alleged to have taken place within the premises of the Central Flour Mill at Naya Bazar. The deceased Bina, her father and brother on the one hand and the two respondents and Rohit Chandak, the son of the respondent Purakh Chand Chandak, on the other were partners of the said mill and there were disputes between them. The allegation is that on the afternoon of 17th February, 1993, Rohit Chandak, the respondents Purakh Chand Chandak and Rajendra Prasad Bharadia and others had assaulted the mother of the deceased Bina. At that time the deceased Bina was out. When she heard of the assault upon her mother and returned to the mill’s premises. She was attacked, doused with some liquid and set afire. Her first dying declaration was made at 7.30 p.m. on 17th February, 1993, itself and was recorded by Dr. D. Satpathy, Chief Medical Officer, SCB Medical College, Cuttack, in the presence of two advocates of the Orissa High Court who signed it as witnesses. In that dying declaration, the deceased Bina stated, “Purak Chand Chandak, Rohit Chandak, P. C. Chandak, C.L. Chandak, Rajendra Bharadia, Pradip Sodani and all workers, three durwan, milkmen, servants physically assaulted, poured some liquid and Rohit Chandak set fire with a match stick. They burnt me”. The same declaration was taken down by the advocate S.C. Lal, one of the witnesses aforementioned, and it is in the same terms. The deceased Bina was shifted from the Medical College Hospital, Cuttack, to the Safdarjang Hospital, New Delhi, on 19th February, 1993. Her dying declaration was recorded there by S.I. Budhi Prakash of Vinay Nagar Police Station, New Delhi in the following terms:
“The Flour Mill is a joint property of mine and Champalal Chandak. Besides there are other partners. This Mill was closed since 4th September, 1992. On 20.1.1993 as per decision, my father became the owner of the Mill. After this I remained here with my mother to look after the works. Rohit Chandak with mobilised goondas had threatened. He instituted false dacoity case. On 17.2.1993 I had gone out on some work. After my departure Champalal, Purakh Chand, Rohit Chandak, Pradip Sodani, Rajendra Prasad Bharadia came with 100 to 150 people, assaulted my mother and ousted her. When I got information, I sent man to P.S. but nobody turned up. I was assaulted during rush. Pradip Sodani poured some kind of inflammable substance on my body. I cannot say what kind of substance it was. Rohit set fire to me with a match stick. I started burning. After some time Police came and carried me to medical Hospital. Today my family members have brought me to this place. I give this statement in conscious state of mind which is correct.”
8. Learned counsel arguing in support of the appeal also drew our attention to the statements made under section 164 of the Cr.P.C. by the security men engaged by the deceased Bina. The statement of Pradip Kumar Das recorded on 6th March, 1993, stated that when he reached the mill’s premises at about 5.30 p.m. he saw a huge gathering at the main gate. When he wanted to enter the premises, he was restrained by some one speaking Hindi. He told that man that he wanted to meet Rohit Chandak but he was not allowed to go inside. At that time he heard a lady shouting “Mereko Bachao. Inilogne Mere Ko Jala Diya”. This shouting diverted the attention of the man who was detaining him and, taking advantage, he entered the premises and saw a lady running towards the gate almost naked. She was badly burnt. When she came close he identified her as being Bina Jhawar. She fell down near the main gate. At this point of time Rohit Chandak said “Usko Choda Mat, Aur Security Baloko Bhi Packado”. Hearing this, he and his colleague escaped and telephoned the police station from the nearest telephone booth. The statement of the colleague of Pradip Kumar Das, one Rabindra Kumar Nayak, was also recorded on 6th March, 1993, and is substantially in similar terms. Learned counsel arguing in support of the appeal submitted that the dying declarations of the deceased Bina and the aforesaid statements of the security men made a strong prima facie case against the respondents and indicated that they were guilty of a gruesome and heinous crime; they were part of an unlawful assembly bent upon killing the deceased Bina and no overt act on their part was necessary.
9. Mr. Jethmalani drew our attention to the First Information Report (to which we have already adverted) and stressed that the informant was no stranger, as he made himself out to be, but was much concerned on the side of the deceased Bina and her father and brother in the dispute with the respondents and Rohit Chandak. He submitted that the dying declarations of the deceased Bina were the only evidence against the respondents and that the dying declarations were in themselves weak evidence because, among other things, the deceased Bina had died only on 26th February, 1993, and that of cardiac arrest. The case against the respondents was not a clear or “open and shut” case and, even if it was, that was not conclusive. He also stressed that there was nothing to suggest that the respondents had misused the liberty given to them after July 1993. This was, therefore, in his submission, not a case in which this Court should intervene under Article 136.
10. The trial of the respondents and the eight other accused is still to commence. We must therefore refrain from expressing views which might be taken to be firm opinions one way or the other.
11. Ultimately, as has been said by the Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia and ors. v. State of Punjab, 1980-2 S.C.C. 565:
“……..the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
The learned single Judge of the High Court rightly came to the conclusion that it could not be said that no prime facie case was made out against the respondents. He then, however, found that there was no risk of winning over of witnesses or tampering with their evidence because the only incriminating material against the respondents had been made in the presence of doctors, lawyers and police officers. We think that this, in the facts and circumstances of the case, was not adequate reason to release the respondents on bail.
12. The cumulative effect of the dying declarations, the statements under section 164 Cr.P.C. of the two security men, the fact that the deceased was set afire within the premises of the mill, the dispute as to the mill between the deceased Bina and her father and brother on the one hand and the respondents and Rohit Chandak on the other hand, and the cruelty and heinousness of the Crime lead us to the conclusion that this is indeed a case where bail ought not to have been given to the respondents and where this Court under Article 136 must intervene and set aside the judgment and order that does so.
13. In the result, the appeals are dismissed. The judgment and order under appeal are set aside. The respondents shall surrender forthwith whereupon their bail bonds shall stand cancelled.
1. Leave granted.
2. This appeal, filed by the State of Orissa, impugns the judgment and order of the High Court of Orissa allowing the release of Rajendra Prasad Bharadia, the first respondent, and Purakh Chand Chandak, the second respondent, “on bail of Rs.50,000/- (fifty thousand) each with two local sureties each for the like amount to the satisfaction of the S.D.J.M., Cuttack, subject to the further conditions that they shall personally appear in court on each date on which the case is posted; they shall not leave Calcutta without Court’s permission excepting for appearing in the case till the trial is over; they shall report at Lal Bazar Police Station, Calcutta, every fortnight on Sunday and they shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court”.
3. The two respondents along with eight others are charged under section 302 read with section 34 of the Indian Penal Code in Chauliaganj P.S. Case No. 33 of 1993. The case was instituted on the First Information Report lodged by Bijoy Mohapatra on 17th February, 93, alleging that at about 7 p.m. on that day he had heard the cries of a woman from the premises of the Central Flour Mill at Naya Bazar and that on reaching that spot he had heard that Smt. Bina Jhawar, daughter of Kali Prasad Bharadia, had been assaulted by Rohit Chandak, his employees and others and that they had poured some liquid upon her and set her afire. The High Court noted that an earlier application for bail filed by the respondent Purakh Chand Chandak during the stage of investigations had been dismissed on 23rd April, 1993. The principal case against the respondents rested upon the dying declarations said to have been made by the deceased Bina. Considering the same and apposite judgments, the High Court stated:
“The tenor of her statements is that Rohit Chandak, the petitioners and several other persons physically assaulted her and poured some liquid on her body and Rohit Chandak set fire to her body due to which she sustained burn injuries. As the medical reports show, the deceased had sustained 90% burns on her body. Whether the dying declarations in the present case will be accepted as true and if so its evidentiary value and the weight to be attached to it can appropriately be considered at the trial of the case, but as the position stands at present the two petitioners have been named as assailants by the deceased in the dying declarations made by her from time to time. Therefore, it cannot be said that no prima facie case is made out against the petitioners. But this is not conclusive of the matter, as held by the Apex Court. The other relevant circumstances are to be considered.
The investigation is complete and charge sheet has been submitted. Through a number of persons had witnessed the incident and statements of many of them have been recorded under Section 161 Cr.P.C., none of the occurrence witnesses has directly implicated the petitioners in the incident relating to assault on the deceased and setting her body ablaze. They have, however, generally stated about presence of the petitioners on the mill premises during the other incident which is said to have taken place at about 3 p.m., about four hours before the incident in question in which the mother of the deceased was assaulted. The dying declaration made by the deceased which is concededly the only incriminating material against the petitioners have been made in presence of doctors in the Hospitals where the deceased received treatment, her lawyers and police officers. Therefore, the apprehension of risk of winning over such witnesses or tampering with their evidence is remote.”
Upon this basis the High Court passed the order aforementioned.
4. It may be noted for the completeness of the record that the brother of the deceased Bina, namely, Raghabendra Bharadia, had filed an application under section 439(2) of the Criminal Procedure Code for cancellation of the bail given as aforestated to the two respondents. The High Court by its judgment dated 2nd May, 1994, rejected that application. It found it difficult to summarily reject the plea of illness which had been taken by the respondent Rajendra Prasad Bharadia and his confinement to a nursing home in Calcutta which prevented him from appearing in the court of the SDJM, Cuttack on fixed dates. It also found that although a considerable amount of time had elapsed after the lodging of the reports that the two respondents and their supporters had made attempts to pressurise the applicant Raghabendra Bharadia and his family members to withdraw the criminal case, no further material had been produced to establish the credibility and genuineness of these reports. The District Superintendent of Police had filed an affidavit but did not refer to any other material in support of the aforementioned allegations. The respondent Purakh Chand Chandak had been released on bail by the Supreme Court in SLP No. 2201/93. There were, therefore, no cogent or overwhelming circumstances which compelled the High Court to pass an order of cancellation of bail.
5. It must be noted immediately that Special Leave Petition No. 2201/93 referred to by the High Court in its judgment dated 2nd May, 1994, was in relation to action instituted against the respondent Purakh Chand Chandak under sections 120B and 365 of the Indian Penal Code in which the High Court at Calcutta had found no reason to confirm the bail that had been granted to him earlier. The bail granted to the respondents Purak Chand Chandak by this court was, therefore, in relation to a transaction other than the one that we are here concerned with.
6. We have heard Mr. U.R. Lalit, learned counsel for the State of Orissa, Mr. Rajinder Singh, learned counsel for Raghabendra Bharadia, and Mr. Ram Jethmalani, learned counsel for the respondents.
7. Learned counsel arguing in support of the appeal drew our attention to the dying declarations made by the deceased Bina. Before we advert to them it is necessary to say that incident is alleged to have taken place within the premises of the Central Flour Mill at Naya Bazar. The deceased Bina, her father and brother on the one hand and the two respondents and Rohit Chandak, the son of the respondent Purakh Chand Chandak, on the other were partners of the said mill and there were disputes between them. The allegation is that on the afternoon of 17th February, 1993, Rohit Chandak, the respondents Purakh Chand Chandak and Rajendra Prasad Bharadia and others had assaulted the mother of the deceased Bina. At that time the deceased Bina was out. When she heard of the assault upon her mother and returned to the mill’s premises. She was attacked, doused with some liquid and set afire. Her first dying declaration was made at 7.30 p.m. on 17th February, 1993, itself and was recorded by Dr. D. Satpathy, Chief Medical Officer, SCB Medical College, Cuttack, in the presence of two advocates of the Orissa High Court who signed it as witnesses. In that dying declaration, the deceased Bina stated, “Purak Chand Chandak, Rohit Chandak, P. C. Chandak, C.L. Chandak, Rajendra Bharadia, Pradip Sodani and all workers, three durwan, milkmen, servants physically assaulted, poured some liquid and Rohit Chandak set fire with a match stick. They burnt me”. The same declaration was taken down by the advocate S.C. Lal, one of the witnesses aforementioned, and it is in the same terms. The deceased Bina was shifted from the Medical College Hospital, Cuttack, to the Safdarjang Hospital, New Delhi, on 19th February, 1993. Her dying declaration was recorded there by S.I. Budhi Prakash of Vinay Nagar Police Station, New Delhi in the following terms:
“The Flour Mill is a joint property of mine and Champalal Chandak. Besides there are other partners. This Mill was closed since 4th September, 1992. On 20.1.1993 as per decision, my father became the owner of the Mill. After this I remained here with my mother to look after the works. Rohit Chandak with mobilised goondas had threatened. He instituted false dacoity case. On 17.2.1993 I had gone out on some work. After my departure Champalal, Purakh Chand, Rohit Chandak, Pradip Sodani, Rajendra Prasad Bharadia came with 100 to 150 people, assaulted my mother and ousted her. When I got information, I sent man to P.S. but nobody turned up. I was assaulted during rush. Pradip Sodani poured some kind of inflammable substance on my body. I cannot say what kind of substance it was. Rohit set fire to me with a match stick. I started burning. After some time Police came and carried me to medical Hospital. Today my family members have brought me to this place. I give this statement in conscious state of mind which is correct.”
8. Learned counsel arguing in support of the appeal also drew our attention to the statements made under section 164 of the Cr.P.C. by the security men engaged by the deceased Bina. The statement of Pradip Kumar Das recorded on 6th March, 1993, stated that when he reached the mill’s premises at about 5.30 p.m. he saw a huge gathering at the main gate. When he wanted to enter the premises, he was restrained by some one speaking Hindi. He told that man that he wanted to meet Rohit Chandak but he was not allowed to go inside. At that time he heard a lady shouting “Mereko Bachao. Inilogne Mere Ko Jala Diya”. This shouting diverted the attention of the man who was detaining him and, taking advantage, he entered the premises and saw a lady running towards the gate almost naked. She was badly burnt. When she came close he identified her as being Bina Jhawar. She fell down near the main gate. At this point of time Rohit Chandak said “Usko Choda Mat, Aur Security Baloko Bhi Packado”. Hearing this, he and his colleague escaped and telephoned the police station from the nearest telephone booth. The statement of the colleague of Pradip Kumar Das, one Rabindra Kumar Nayak, was also recorded on 6th March, 1993, and is substantially in similar terms. Learned counsel arguing in support of the appeal submitted that the dying declarations of the deceased Bina and the aforesaid statements of the security men made a strong prima facie case against the respondents and indicated that they were guilty of a gruesome and heinous crime; they were part of an unlawful assembly bent upon killing the deceased Bina and no overt act on their part was necessary.
9. Mr. Jethmalani drew our attention to the First Information Report (to which we have already adverted) and stressed that the informant was no stranger, as he made himself out to be, but was much concerned on the side of the deceased Bina and her father and brother in the dispute with the respondents and Rohit Chandak. He submitted that the dying declarations of the deceased Bina were the only evidence against the respondents and that the dying declarations were in themselves weak evidence because, among other things, the deceased Bina had died only on 26th February, 1993, and that of cardiac arrest. The case against the respondents was not a clear or “open and shut” case and, even if it was, that was not conclusive. He also stressed that there was nothing to suggest that the respondents had misused the liberty given to them after July 1993. This was, therefore, in his submission, not a case in which this Court should intervene under Article 136.
10. The trial of the respondents and the eight other accused is still to commence. We must therefore refrain from expressing views which might be taken to be firm opinions one way or the other.
11. Ultimately, as has been said by the Constitution Bench of this Court in the case of Gurbaksh Singh Sibbia and ors. v. State of Punjab, 1980-2 S.C.C. 565:
“……..the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
The learned single Judge of the High Court rightly came to the conclusion that it could not be said that no prime facie case was made out against the respondents. He then, however, found that there was no risk of winning over of witnesses or tampering with their evidence because the only incriminating material against the respondents had been made in the presence of doctors, lawyers and police officers. We think that this, in the facts and circumstances of the case, was not adequate reason to release the respondents on bail.
12. The cumulative effect of the dying declarations, the statements under section 164 Cr.P.C. of the two security men, the fact that the deceased was set afire within the premises of the mill, the dispute as to the mill between the deceased Bina and her father and brother on the one hand and the respondents and Rohit Chandak on the other hand, and the cruelty and heinousness of the Crime lead us to the conclusion that this is indeed a case where bail ought not to have been given to the respondents and where this Court under Article 136 must intervene and set aside the judgment and order that does so.
13. In the result, the appeals are dismissed. The judgment and order under appeal are set aside. The respondents shall surrender forthwith whereupon their bail bonds shall stand cancelled.
