In this application under section 439 of Cr.P.C., 1973 the petitioner Siba Sankar Dash @ Pintu Dash has prayed for bail in connection with G.R. Case No.22 of 2017 (SC and ST) arising out of Golanthara P.S. Case No.182 of 2017 pending in the Court of learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur for commission of offences punishable under sections 341, 323, 294, 506, 420, 467, 468, 471, 120-B read with section 34 of the Indian Penal Code, 1860 sections 3(1)(r)(s)/3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended by Amendment Act, 2015 (hereafter 'SC and ST (POA) Act') and sections 25(1-B)(a)/27 of the Arms Act, 1959.

The petitioner moved an application for bail before the learned Sessions Judge-cum-Special Judge, Ganjam, Berhampur which was rejected on 20.07.2018.

2. The prosecution case, in short, as per the first information report submitted by one Ananta Das on 25.11.2017 is that the informant was maintaining his family by cultivating a piece of land under Kanisi Mouza. In the year 2009, the petitioner and his associates compelled the informant to sale that land and when he did not agree, he was threatened and abused in obscene languages. His thumb impressions were taken on blank papers on the point of gun and he was taken to the Sub-Registrar Office, Berhampur where his thumb impressions were taken in different papers forcibly and the original documents of the landed property were also taken away forcibly. He approached the petitioner on several occasion to return the original documents but in vain. On 01.08.2017 he got a certified copy of the Power of Attorney of his landed property from the Registrar Office and came to know that the entire landed property has been sold to one Gobinda Pradhan by preparing a fake Power of Attorney in the name of co-accused Pankaj Gouda in criminal conspiracy with co-accused B. Anil Kumar Subudhi and B. Ajit Kumar Subudhi. The accused persons forcibly occupied the entire landed properties of many innocent persons of the locality including the informant.

During course of investigation, the statements of witnesses were recorded. Requisitions were sent to Tahasildar, Kanisi for supply of caste particulars of the informant, victims and also of the accused persons. The certified copies of the Power of Attorney and sale deed documents were obtained on the requisition to SRO, Berhampur-II. It was revealed that the petitioner by entering into criminal conspiracy with other coaccused persons grabbed the lands of the informant and six other victims by manufacturing fake documents i.e. sale deeds by obtaining their signatures and thumb impressions giving threat to them on the point of pistol and paying a meager amount in throw away price by engaging antisocials. It was found that the informant and other six victims were the members of Scheduled Castes and out of ten accused persons, nine belonged to General Caste and one was Scheduled Caste. The land was demarcated and sketch map was supplied by Tahasildar, Kanishi. Finding prima facie case against the petitioner and nine others, charge sheet was submitted on 15.05.2018 under sections 341, 323, 294, 506, 420, 467, 468, 471, 120-B read with section 34 of the Indian Penal Code, 1860 sections 3(1)(r)(s)/3(2)(v) of the SC and ST (POA) Act and sections 25(1-B)(a)/27 of the Arms Act.

3. Mr. Ashok Das, learned counsel appearing for the petitioner contended that the petitioner is in judicial custody since 18.01.2018 and the incident relates to the year 2009 and it is a dispute of purely civil in nature which has been given a colour of a criminal case after eight years of the alleged occurrence just to harass the petitioner. By filing an affidavit of the wife of the petitioner, it was indicated that though twenty three cases were registered against the petitioner apart from this case but in all those cases, the petitioner has been released on bail. A memo containing the list of cases and the bail orders was filed along with such affidavit. It is further submitted that the petitioner is now in custody only in connection with this case and co-accused persons have been released on bail and there is no chance of absconding and therefore, the bail application of the petitioner may be favourably considered.

Mr. Janmejaya Katikia, learned Addl. Government Advocate on the other hand opposed the prayer for bail and filed an affidavit of the Inspector in-charge of Golanthara police station dated 27.02.2019 wherein it is mentioned that the petitioner is a habitual offender and he is an influential person of the locality and having estate business and he is in habit of grabbing landed properties of poor and innocent persons by cheating and conspiring with his gang members. It is further mentioned that the petitioner is involved in fifty two criminal cases under different police stations of Berhampur district and he was also booked under the National Security Act, 1980. Another affidavit of the Inspector incharge of Golanthara police station dated 14.03.2019 was filed wherein it is mentioned that altogether fifty three cases were instituted against the petitioner out of which he has been acquitted in thirteen cases and one case has been closed and the rest thirty eight cases are either under investigation or pending for trial and there are other two cases apart from this case in which the petitioner is yet to be released on bail. By giving specific case numbers in which bail has not been granted to the petitioner, it is contended that the affidavit filed by the wife of the petitioner does not reflect the correct state of affairs. The learned counsel for the State relied upon the decision of the Hon'ble Supreme Court in cases of State of Odisha v. Mahimananda Mishra reported in (2018) 72 Orissa Criminal Reports (SC) 295 and Neeru Yadav v. State of Uttar Pradesh reported in (2016) 15 Supreme Court Cases 422 [LQ/SC/2015/1300] .

Mr. A.K. Nanda, learned counsel appearing for the informant contended that since the petitioner was a hardened criminal, the informant and other victims were afraid of taking any legal step against them and when the informant came to know that some of the accused persons who are involved in other cases were concealing themselves apprehending police arrest, he could gather courage and presented the first information report and delay in such circumstances cannot be a factor to disbelieve the statements of the witnesses particularly when there are documentary evidence in support of the statements. It is further contended that in the event the petitioner is enlarged on bail, by using muscle power and money, he is likely to influence the witnesses and therefore, a free and fair trial cannot be held in such situation and as such, the petitioner does not deserve to be released on bail.

4. Adverting to the contentions raised by the learned counsel for the respective parties and on going through the case records, it appears that so far as the incident relating to the informant is concerned, it took place in the year 2009 whereas the first information report was lodged on 25.11.2017. The informant has given some explanation in the first information report itself regarding its delayed presentation. Delay in the lodging of the first information report often results in embellishment as well as introduction of a distorted version of what might have actually happened, but the facts of each case have to be examined to find out whether the delay in lodging the first information report is fatal for the prosecution case. One of the reasons given by the informant is that the petitioner is a hardened criminal and a powerful and influential person, both in terms of money and muscle power. The informant was threatened by the henchmen of the petitioner and forcibly his signatures and thumb impressions were taken in different documents for the purpose of transfer of his land. Whether such explanation would be acceptable or not, is the look out of the learned trial Court. At this stage, delay in lodging F.I.R. cannot be a factor to grant bail to the petitioner. It cannot be lost sight of the fact that the investigating officer has collected some documentary evidence in support of statements given by the informant and other victims. It is also too difficult to accept that the dispute is purely of civil in nature which has been given the colour of a criminal case. It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously, if prima facie essential ingredients of an offence or offences are disclosed from the complaint petition or first information report. In many criminal proceeding, there would be some element of civil nature. Therefore, it cannot be universally said that where there is civil litigation between the same parties, criminal proceeding cannot be initiated with regard to same subject. An unscrupulous litigant, apprehending criminal action against him, would be encouraged to frustrate the course of justice and law by filing civil suits with respect to the documents intended to be used against him after the initiation of criminal proceeding or in anticipation of such proceeding. This case is not one of such criminal case which is overwhelmingly and predominantly civil in character. There are enough criminal elements in the accusation and it cannot be said that the proceeding has been instituted at a belated stage just to cause great hardships, humiliation, inconvenience and harassment to the petitioner.

5. Law is well settled that while granting bail, the Court has to keep in mind the nature of accusation, 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, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with. (Ref: Prahlad Singh Bhati v. NCT, Delhi reported in (2001) 20 Orissa Criminal Reports (SC) 551).

6. 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. (Ref: Panchanan Mishra v.Digambar Mishra reported in (2005) 30 Orissa Criminal Reports (SC) 546).

7. Detailed examination of evidence and documentation of the merit of the case is not necessary 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 offences. While granting bail, discretion must be exercised in a judicious manner and not as a matter of course. (Ref: Kalyan Chandra Sarkar v. Rajesh Ranjan reported in 2004 Criminal Law Journal 1796) [LQ/SC/2004/345] .

8. The petitioner appears to be a hardened criminal involved in as many as fifty three criminal cases under different police stations of Berhampur district. His criminal history dates back to the year 1998. Even though two decades have passed in the meantime, he has not changed his criminal behaviour. He has been acquitted in some cases but thirty eight cases are still pending either for investigation or for trial. Some of the pending trial cases are under section 307 of the Indian Penal Code, 1860 sections 25 and 27 of the Arms Act, 1959 section 9B of the Explosives Act, 1884 and sections 3 and 4 of the Explosive Substances Act, 1908. There are some cases apart from this case in which the petitioner is yet to be released on bail. The petitioner appears to be a land mafia who along with his henchmen is indulged in creating terror in the mind of innocent persons in grabbing their valuable lands. Capturing the property of others forcibly by creating terror by applying brute force is not a simple case of dispossessing a person from his property. No person can be deprived of his property by third degree methods, such as terrorizing and manhandling the person concerned. In such a case, not only the person who has been dispossessed of his property but the society itself is taken to ransom by brute force. Such an act creates terror in the minds of the people and has the effect of shaking the social fabrics of the society. A person is under disability not only when he suffers from physical or legal infirmities, but also when he is unable to stand up and protect his right and property from invasion by or with the help of antisocial elements, mafias and terrorists. It is the duty of the Government to protect a person in distress, act impartially and carry out its legal obligations to safeguard the life, liberty and property of the citizen and restore the possession of his property to him. It is also the duty of the Court, when approached, to pass appropriate orders and issue necessary directions to the Government to protect the life, liberty and property of the citizens.

9. In case of Neeru Yadav (supra), it is held that the respondent no.2 is a history-sheeter and involved in heinous offences. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. It was further held that in a civilised society, a crime disturbs orderliness and it affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself and cannot cause harm to others and cannot be a nuisance to the collective and cannot be a terror to the society.

10. In case of Mahimananda Mishra (supra), while cancelling bail granted by this Court, it was held that the respondent has serious criminal antecedents, having five criminal cases registered against him, out of which two cases involved charges under section 307 I.P.C. and three under the Explosive Substances Act. Since the respondent is a powerful and influential person in his locality, the Investigating Officer apprehends that he may influence the witnesses by intimidating them and if the respondent continues to remain at large, his presence may influence the trial by creating fear in the minds of the witnesses. Since the respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case or that he might intimidate witnesses before or during the trial.

11. In view of the foregoing discussions and taking into account the nature and gravity of the accusation against the petitioner, the criminal antecedents against the petitioner, prima facie material available on record to show the manner in which the crime was committed and threat was given to the informant and other victims 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, I am not inclined to release the petitioner on bail.

12. Accordingly, the BLAPL application stands rejected.