Holding

Bail cannot be granted at this stage of the trial as the risk of witness tampering and flight outweighs the appellants' arguments.

Summary

The Supreme Court considered the appeals of Narayan Ghosh and Sankar Adeya, accused of murder, criminal conspiracy and offences under the Arms Act in the killing of councilor Tapas Mitra at Puri. After being released on interim bail by the Calcutta High Court, they surrendered and applied for regular bail, which was rejected by the Sessions Judge and the Orissa High Court. The appellants argued lack of evidence, hostile witnesses, and the ill health of one accused, while the prosecution highlighted the advanced stage of trial, the appellants' political influence, financial strength, and the risk of flight from a border district. The Court held that bail could not be granted at this precarious stage because of the danger of witness intimidation and possible escape, and affirmed the High Court’s decision, directing medical assistance for the ill appellant. The appeals were dismissed.

Issues considered

Whether bail should be granted to the accused at an advanced stage of a murder and conspiracy trial.
Whether the appellants pose a risk of influencing or intimidating witnesses.
Whether the appellants are likely to flee given their residence in a border district.
Whether the health condition of an accused warrants bail.
Whether confessions of co‑accused are admissible under Section 10 of the Evidence Act in a conspiracy case.

Legislation cited

Arms Acts. 25, s. 27
Code of Criminal Procedure, 1973s. 173(8), s. 439
Indian Evidence Act, 1872s. 10
Indian Penal Code, 1860s. 120B, s. 302, s. 34

Subjects

bailmurdercriminal conspiracywitness intimidationflight riskpolitical influencehealth of accusedArms ActIPCCriminal Procedure

Judgment

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'
(2008] 2 S.C.R. 370

A NARAYAN GHOSH @ NANTU ETC. -t
V.
STATE OF ORISSA
(Criminal Appeal No. 251 of 2008)
FEBRUARY 4, 2008
B
. [S.B. SINHA AND V.S. SIRPURKAR, JJ.]
-r
_1,
Code of Criminal Procedure, 1973: s. 439 - Bail - Charge
of ·murder - High Gourt rejected the bail applications -
c Correctness of - Held: Appellants were politically influential
and financially strong and hence capable of influencing the
witnesses - Moreover, they were residents of a District on lndo-
Bangladesh border and likely to flee from the judicial process
- Trial being at a precarious stage, High Court tightly rejected
their bail applications - Penal Code, 1860 - ss. 302134 -Arms
D
Act - SS. 25127.
Prosecution case was that the informant along with
250 persons, who all were members of Motor Association ~-
...
I

had come to Puri. Deceased who was a councilor of
E Municipality was one of them. He was a member of trade
union. On the fateful day, when informant, deceased and
few other persons were sitting on the sea beach, a man
came on the spot and fired at deceased and ran away. It .
was expressed in FIR that the deceased was murdered
F due to the political rivalry and previous enmity. On the
basis of investigation, some persons were arrested and +
charge sheet was filed against eight accused persons.
After further investigation as per s.173(8) Cr.P.C., the
ADJM, Puri took cognizance of offences under ss.302/34
IPC as also under ss.25/27 of Arms Act against accused
G
persons and as such they were arrested.
>.c
~
The accused-appellants were released by Calcutta
High Court on interim bail on certain conditions and they
were further directed to surrender before the SDJM, Puri.
H 370
NARAYAN GHOSH @ NANTU ETC. v. STATE OF 371
ORI SSA

The appellants accordingly surrendered and prayed for A
the bail. However, that prayer was rejected. The Sessions
Judge and High Court also dismissed the bail
applications. Hence these appeals.
The appellants contended that they were falsely
implicated on account of their alleged political differences; ,8
that there was absolutely no evidence to support the story
""_. of conspiracy; that the three witnesses who were set up
in support of the conspiracy were already examined
before the Sessions Court and all of them had turned
hostile; and that even otherwise there is absolutely no C
material implicati_ng the appellants.and, therefore, they are
liable to be released on bail. It was also pleaded on behalf
of the appellant 'S', that he was suffering from a serious
kidney disor.der and was in precarious health.
D
Dismissing the appeals, the Court
HELD: The appellants should not be released on bail
at this stage. It is an admitted position that the Sessions
trial had almost come to an .end, and there are only few
more witnesses to be examined. The prosecution has E
expressed that the appellants are politically influential and
· financialJy strong and are capable of influencing the
witnesses. It has also been expressed that the appellants
are residents of Banagaon District which is on the
Bangladesh border and, therefore, there is every F
likelihood of their fleeing from the judicial process. It was
admitted during the debate that some witnesses who were
the witnesses for conspiracy were examined and had to
be declared hostile. If that is so, that is all the more reason
not to release the appellants when the trial is at a G
precarious stage. It would be for the trial court to consider
~
-.- and appreciate the evidence which comes before it in
support of the plea of conspiracy and to arrive at the
correct finding. This court would not, at this stage,
comment upon the nature of the evidence one way or the H
f
372 SUPREME COURT REPORTS [2008] 2 S.C.R.

A other. In that view of the matter, the High Court was not in
-+-
error in refusing the bail to the appellants. However, in
view of the plea regarding the health of appellant 'S', the
directio'n is passed to make available to him all the timely
medical help. [Paras 9-12] [375-G-H; 376-A, D; 377-E-G]
'
B Jayendra Saraswathi Swamigal v. State of Tamil Nadu
(2005) 3 sec 13 - referred to. 'I(
. ;.
CRIMINALAPPELLATEJURISDl~Tl_ON: CriminalAppeal
No. 251 of 2008.
c From the final Judgment and order dated 4.9.2007 of the
High Court of Orissa at Cuttack in BLAPL No. 4487/2007.
WITH
Criminal Appeal No. 252 of 2008.
D
Basudev Panigarh, Uday Umesh Lalit, Deepak Kumar
Jena, Minakshi Jena, Humanu Sahu, Bijan Kumar Ghosh,
-~
Dipankar Burman, S.K. Poddar and Anurag Pandey for the
Appellant.
E Janaranjan Das and Swetaketu Mishra for the Respondent.
The Judgment of the Court was 'delivered by
V.S. SIRPURKAR, J. 1. Leave granted.
2. Being aggrieved by the refusal of bail by the High Court
F 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
G 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 I..
H I
\
~-
i

•
NARAYAN GHOSH@ NANTU ETC. v. STATE OF 373
ORISSA [V.S. SIRPURKAR, J.]
-!. ~
at the Puri Sea Beach Police Station by one Prashanta Bala to A
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 B
member of the lrade 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 Oas, 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 c
-( 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
D
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 tqok
cognizance of the offences under Section 302/34 IPC as also
un_der Sections 25/27 of the Arms Act against the accused E
persons and as such they were arrested on 30th March, 2007
by Banagaon Police Station on the requisition of Puri Sea Beach
mi( Police Station.
, T · 4. To begin with, the appellants were released by Calcutta F
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.
G

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.
H

_t_
:r·
- l)

374 SUPREME COURT REPORTS [2008] 2 S.C.R.
\.....

A 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
B stand .as there is absolutely no evidence to support the same. It ,.
is also pqinted out that the three witnesses who were set up in I.
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
c 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 I
D
implicating the appellants and, therefore, they are liable to be
released on bail.
6. Shri Janaranjan Das, learned counsel for the prosecution
.,,.. ...k
vehemently opposed the appeals. It is pointed out that the trial
E has already commenced and has substantially proceeded
inasmuch as a large number of witnesses have already been
examined. It is also expressed that at this stage of the trial it
would not be proper to release the accused on bail as such
release was likely to affect adversely the evidence of the
F proposed witnesses in the sense that there was every likelihood ....
of the witnesses being intimidated because of the release of '
the appellants on bail.
7. Shri Lalit also supported his arguments by suggesting
'
that the appellant ~anker Adeya was suffering from a serious )-
j
G kidney disorder and was in precarious health and pressed the
ground of health in support of plea of bail. Learned counsel also
further pointed out that there are some inherent defects in the
· prosecution story inasmuch as though Sanker Adeya was in
..,, --
~

t--
Bangladesh from 19.5.2006 to 30.5.2006 yet it was suggested
H by prosecution witness Swapan Mondal that he had met Sankar

't
Jo:::
NARAYAN GHOSH @ NANTU ETC. v. STATE OF 375
ORISSA [V.S. SIRPURKAR, J.]

Adeya and Naryana Ghosh at Tarapith temple and had a feast A
where the conspiracy for the murder was hatched. Learned
counsel also pointed out that the statement of witnesses like
Nirmaf Biswas and Ashok Das @ Putke were recorded late
and after the arrest of the appellant Sankar Adeya. All this,
according to the learned counsel, went on to suggest that the B
appellants were actually innocent and were unnecessarily
implicated. ·
8. Shri Janaranjan Das, learned counsel appearing for the ,
prosecution pointed outthat the prosecution has the material to
show that as many as six accused persons, namely, Satyajit C
Lehar, Tarun Kumar Bhowmik @ Raja, Samir Durlav, Bapi Roy,
Rajen Biswas and Samir Das had boarded a vehicle Tata Sumo
from Chakdaha in the evening of 18.6.2006 and came to the
Siromani Mondal at Gaganpur where they halted· and next
morning all these six persons along with three others, namely, D
Buro @ Akas, Kala, etc. left for Puri and arrived there on
19.6.2006 and stayed in Hotel Kingfisher. Next day they were
joined by Kaka and Munna who had arrived by Puri Express. All
these persons, helped by two other persons to identify Tapash
Mitra·@ Tofan Mitra, firstly attempted to murder him in the i=
afternoon but failed. However, in the evening on information that
Tapas Mitra had gone to Puri Sea Beach, the accused persons
located Tapas Mitra who was sitting there. Accused Raju, Bapi
Roy and Akas @ Buro went and sat behind Tapas Mitra and
one of them fired at Tapas Mitra, resulting in his death. The F
accused thereafter fled from the scene of occurrence. It was
then contended that Bapi Roy had confessed about the
conspiracy. It has also come out that both the appellants were
friends and they had common grudge against Tapas Mitra.
9. Considering everything, we are of the clear opinion that ~
it will not be possible to release the accused on bail at this stage.
It is an admitted position that the Sessions trial had almost come
to an end, and there are only few more witnesses to be examined.
The prosecution has expressed that the appellants are politically
influential and financially strong and are capable of influencing H
y
I

376 SUPREM~ COURT REPORTS [2008] 2 S.C.R.

A the witnesses. It has also been expressed that the appellants -t-
are residents of Banagaon District which is on the Bangladesh
border and, therefore, there is every likelihood of their fleeing
from the judicial process.
10. It is an admitted position that the appellants Sankar .
B Adeya and Narayan Ghosh are the residents of Banagaon
District which is a border District. Therefore, it cannot be said
that the apprehension expressed by the learned counsel for the
·Prosecution is totally unfounded. Learned couns~I. however,
~·

A --
insisted that we should consider the material and more
c particularly the evidence regarding the conspiracy. We do not
· think that it would be proper for us to discuss the evidence
threadbare as any expression of ours would undoubtedly affect '·
the trial. It was admitted during the debate that some witnesses
who were the witnesses for conspiracy were examined and had
D to be declared hostile. If that is so, that is all the more reason for
. us not to re.lease the appellants when the trial is at a precarious
sta.ge.
~
11. Much debate was devoted about the non admissibility
of the confessions of the co-accused which were likely to be '
E relied upon by the prosecution. Reference was made to the.
reported judgments more particularly of Jayendra S.araswathi
Swamigal v. State of Tamil Nadu [(2005) 3 SCC 13]. It was
urged, relying on that decision, that'there was no reasonable
ground to believe that two or more persons in this case had f.,.
F conspired together to commit an offence and if there was no
+
prima facie evidence of the existence of conspiracy, then there \
was no question of any evidence of the acts and statements · '
made by any of the accused in furtherance of the common object
being admissible at all. Learned counsel strenuously argued
G that there was no prima facie evidence to show that the two
appellants were party to the conspiracy and had conspired ,,.-~

together between themselves or with any other accused persons. ~

It was pointed out from the reported decision that it was only
when the conspiracy was being hatched, whatever was said
H could become admissible. Our attention was invited to. the
·-...(_
I

NARAYAN GHOSH@ NANTU ETC. v. STATE OF 377
ORISSA [V.S. SIRPURKAR, J.]

following observations: A
"The words .of Section 10 are not capable of being widely
construed so as to include a statement made by one
conspirator in the absence of the other with reference to
past acts done in the actual course of carrying out the
conspiracy, after it has been completed. The words : 8
'common intention' signify a common intention existing at
the time when the thing was said, one or written by one of
them. Things said, done or written while the conspiracy '
was on foot are relevant as evidence of the common
intention, once reasonable ground has been shown to C
believe in its existence. But it would be a very different
matter to hold that any narrative or statement or confession
made to a third party after the common intention or
conspiracy was no longer operating and had ceased to ,
exist is admissible against the other party. There is then D
no common intention to the conspirators to which the

- .. statement can have reference."
There is no dispute about the principles stated in the ruling,
however, we do not think that it would be proper for us to discuss
at this juncture about prima facie finding. In our opinion it would · E
be for the trial court to consider and appreciate the evidence
which comes before it in support of the plea of conspiracy and
to arrive at the correct finding. We will not, at this stage, comment
upon the nature of the evidence one way or the other. In that
view of the matter we do not think that the High Court was in F
error in refusing the bail to the appellants.
12. However, in view of th~ plea regarding the health of
Sankar Adeya, we direct that all the timely medical help shall be
made available to him. we· also further direct that the trial shall G
be completed without any unnecessary delay and as far as
possible within four months from today. With these ob~ervations,
we dismiss both the appeals.
D.G. Appeals dismissed.
H