Research › Search › Judgment

Orissa High Court · body

2004 DIGILAW 248 (ORI)

PRAFULLA CHANDRA MISHRA v. STATE OF ORISSA

2004-06-07

L.MOHAPATRA

body2004
JUDGMENT : L. Mohapatra, J. - Both the above applications have been filed u/s 439(1)(b) of the Criminal Procedure Code read with Section 440 of the Code for modification of the order dated 6.4.2000 passed by the learned Special C.J.M. (Vigilance), Bhubaneswar in two cases and for further direction to release the cash security. 2. From the record it appears that the petitioner is an accused in V.G.R. Case No. 9 of 2003 and V.G.R. Case No. 35 of 2003 pending in the Court of the learned Special C.J.M. (Vigilance), Bhubaneswar. In both the cases the petitioner having been taken to custody had moved this Court for grant of bail vide BLAPL No. 2979 of 2004 and BLAPL No. 2804 of 2004. Both the applications were disposed of on 6.4.2004 directing the learned trial Court to release the petitioner on bail on such terms and conditions as the trial Court may deem just and proper. Pursuant to the aforesaid order passed in both the bail applications by this Court the petitioner was released by the learned Special C.J.M. (Vigilance), Bhubaneswar on 6.4.2004 on the following conditions: (i) The petitioner shall deposit cash security of Rupees one lakh; (ii) The petitioner shall not influence and terrorise the prosecution witness while on bail; (iii) The petitioner shall appear before the I.O. once in a week till submission of Final Form; (iv) The petitioner shall not leave the State save and except with the leave of the I.O.; (v) The petitioner shall not dispose of any movable and immovable property without leave of the I.O. Apart from the above conditions it was also directed that the petitioner shall furnish bond of Rupees fifty thousand with two sureties each for the like amount. The aforesaid conditions have been imposed in both the cases. 3. Challenging the two conditions namely furnishing of cash security of rupees one lakh in each case and appearance before the I.O. once every week till submission of Final Form, the present two applications have been filed for modification of the order dated 6.4.2004. The aforesaid conditions have been imposed in both the cases. 3. Challenging the two conditions namely furnishing of cash security of rupees one lakh in each case and appearance before the I.O. once every week till submission of Final Form, the present two applications have been filed for modification of the order dated 6.4.2004. Learned Counsel appearing for the petitioner in both the cases submits that this Court in the case of Pintu ' Sajeev Chaksrabarti v. State of Orissa, reported in (2004) 28 OCR 381 : 2004(1) OLR 558 referring to an earlier decision of the Apex Court held that imposition of cash security should be avoided as far as practicable and only in exceptional cases, the Court may consider imposition of cash security. It was further contended that the petitioner being a Senior IAS. Officer and there being no scope for running away from justice, there was no reason on the part of the learned Special C.J.M. (Vigilance) to either impose a condition for furnishing of cash security or directing him to appear before the I.O. once every week till submission of Final Form. Reliance was also placed by the Learned Counsel for the petitioner on a decision of the Apex Court report in Moti Ram and Others Vs. State of Madhya Pradesh, . 4. Shri. O.K. Mohapatra, learned Standing Counsel for the Vigilance Department opposes prayer on the ground that the petitioner having famished cash security and availed bail cannot now challenge imposition of such condition and referring to Section 440 of the Criminal Procedure Code it was contended by Sri Mohapatra that the High Court can only reduce the amount and cannot set aside the conditions imposed by the learned Special C.J.M. (Vigilance). So far as other conditions with regard to appearance before the I.O. is concerned, Shri. Mohapatra conceded that such a condition was not be required to put by the Court and appearance of the accused before the I.O. once every month shall be sufficient for the purpose of investigation. 5. So far as first condition with regard to imposition of cash security in concerned, reference may be to the decision of this Court in the case of Pintu ' Sanjeev Chaksrabarti v. State of Orissa (supra). Relying on a decision of the Apex Court in the case of Keshab Narayan Banerjee and Another Vs. 5. So far as first condition with regard to imposition of cash security in concerned, reference may be to the decision of this Court in the case of Pintu ' Sanjeev Chaksrabarti v. State of Orissa (supra). Relying on a decision of the Apex Court in the case of Keshab Narayan Banerjee and Another Vs. The State of Bihar this Court held that while granting bail the Court should be careful to see that imposition of cash security will not amount to denial of bail. The Court further held that while granting bail the Court should, as far as practicable, avoid directing deposit of cash security as a condition precedent for bail. Only in exceptional cases, where the Court thinks it proper to impose a condition for furnishing cash security, such order may be passed. The observations made by the Court in the-aforesaid decision not only get support from the observations made by the Apex Court in the case referred to in the said decision but also from another decision in the case of Moti Ram and Others Vs. State of Madhya Pradesh. In the aforesaid decision the Apex Court referring to the report of the Gujarat Committee observed that there are several considerations which deter an accused from running away from justice and risk of financial loss is only one of them and that too not a major once. It was further observed that the Committee that a large majority of those who are brought before the Courts in criminal cases are so poor that they would find it difficult to furnish bail even in a small amount. This part of the report was given emphasis by the Apex Court in another decision reported in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . 6. Coming to the present case there is dispute that the petitioner is a Senior IAS. Officer now stated to be under suspension. In view of the position held by the petitioner, it can never be said that there is any chance of fleeing away from justice. Since there is hardly any scope for the petitioner to run away from justice being a senior IAS. Officer now stated to be under suspension. In view of the position held by the petitioner, it can never be said that there is any chance of fleeing away from justice. Since there is hardly any scope for the petitioner to run away from justice being a senior IAS. Officer of the State, was there any justification on the part of the learned Special C.J.M. (Vigilance), Bhubaneswar to impose a condition for furnishing cash security Merely because there is an allegation that the petitioner is involved in corruption, same cannot be a ground for imposition of cash security which, in my view, is punitive in nature. It may be possible on the part of the accused to afford cash security but that does not necessarily mean that even if the accused is capable of furnishing ash security, such a condition must be imposed. The only consideration for imposition of cash security is to see that the accused does nor run away from the Court and where there is hardly any chance of accused running away from Court, there is no necessity of imposing a condition for furnishing cash security. From the impugned order, it appears that though the learned Special C.J.M. (Vigilance), released the petitioner on bail on 6.4.2004 he could not avail the bail on that date and cash could be deposited only on the next day. Therefore, it cannot also be said that the petitioner had enough cash with him to deposit otherwise he could have deposited on the same day and got released on bail immediately. 7. So far as the contention of the Learned Counsel for the Vigilance Department is concerned, it appear from Section 440 of Criminal Procedure Code that the High Court may direct that the bail amount required by the police officer or the Magistrate be reduced. Though I have held that there was no necessity on the part of the learned Special C.J.M. (Vigilance) to impose condition of furnishing cash security in view of circumstances, the petitioner having already furnished cash security, I direct that the cash security be reduced from rupees one lakh to rupees ten thousand in each case. 8. So far as appearance before the I.O. is concerned, as agreed by the Learned Counsel for the parties, the petitioner instead of appearing once every week shall appear once every month till submission of Final Form. 9. 8. So far as appearance before the I.O. is concerned, as agreed by the Learned Counsel for the parties, the petitioner instead of appearing once every week shall appear once every month till submission of Final Form. 9. Both the applications are disposed of. 10. Urgent certified copy of the order be granted on proper application. 11. A free copy of the order be handed over to Sri Mohapatra, Learned Counsel appearing for the Vigilance Department.