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2007 DIGILAW 605 (ORI)

Chittaranjan Mallick v. State of Orissa

2007-08-03

M.M.DAS

body2007
ORDER M. M. DAS, J. : Several Vigilance Cases have been instituted against the present petitioner. Allegations in all the cases, except one, are for commission of alleged offence punishable under Sections 120-B/420/467/468/472 IPC read with Section 13(2) and 13(i)(d) of the Prevention of Corruption Act, 1988. 2. The prosecution alleges that the then Managing Director of Orissa Rural Housing Development Corporation (for short, ‘the Corporation’) in conspiracy with the other subordinate officials of the said Corporation and private builders sanctioned and disbursed loan amounting to crores of rupees by bifurcating the said money into small individual loans limited to Rs.5,00,000/-. It is further alleged that in such method, as the money, which is meant for the rural poor people, was advanced to private builders who have also admittedly become chronic defaulters in repaying the said loans and, as such, the Corporation has sus¬tained huge loss. The petitioner admittedly was working as the Cashier on contractual basis in the said Corporation. It has been alleged against him that he was physically keeping the blank cheques as well as the cheques signed by the Managing Director, Shri Vinod Kumar, I.A.S. in his custody and he was physically handing over the cheques to the beneficiary builders with unusual delay. The particulars of the aforementioned cases are as detailed below:- In each of the above cases, the petitioner previously ap¬proached this Court under Section 438 Cr.P.C. for grant of antic¬ipatory bail in BLAPL Nos.1396, 1397, 1141, 1142 and 1399 of 2007. By order dated 28.3.2007, this Court declined to grant anticipatory bail to the petitioner. The petitioner again ap¬proached this Court in BLAPL Nos. 3414, 3415, 3416, 3418 and 3420 of 2007 for grant of anticipatory bail. The said bail applica¬tions were disposed of by this Court by a common order dated 23.4.2007 observing, inter alia, that no anticipatory bail order can be granted as the same has been rejected once and further observing that in the event, the petitioner surrenders and moves for bail pursuant to the order passed in the earlier bail appli¬cations, the Court shall, as far as practicable, maintain parity. The learned counsel for the petitioner in the said cases, later submitted that as the petitioner has been directed to surrender and move for bail, he may also be given permission to move the higher forum in the event his bail applications are rejected. The learned counsel for the petitioner in the said cases, later submitted that as the petitioner has been directed to surrender and move for bail, he may also be given permission to move the higher forum in the event his bail applications are rejected. Considering such submission, this Court further directed that the bail applications of the petitioner will be disposed of by the trial Court in the first hour so that in the event of rejection, the petitioner can move the higher forum on the same day. The records, if necessary, shall be transmitted to the higher forum at the cost of the petitioner. An application for modification of the above order was filed in each of the bail applications, on consideration of which, this Court on finding that the learned counsel for the petitioner is not in a position to specify the date on which the petitioner intends to surrender directed that, the date of surrender shall be intimated to the learned counsel for the Vigilance Department prior to surrendering so that the case diary can be made available to the concerned Court. 3. While considering the anticipatory bail applications of the petitioner, this Court rejected the same for the first time on 28.3.2007 holding as follows : “Considering the stage at which investigation is and the allegations made in the F.I.R., I am of the view and the Court should not exercise its discretion in granting anticipatory bail to the petitioner. I, accordingly, dismiss the application and direct the petitioner to surrender and move for bail.” 4. It is no doubt true that in some of the other applica¬tions filed under Section 438 Cr.P.C. by the petitioner, where similar allegations were made, this Court has granted anticipato¬ry bail to the petitioner. However, on rejection of the prayer for anticipatory bail of the petitioner in the aforementioned cases and the observation made that if the petitioner surrenders and moves for bail, the said bail application shall be disposed of during the first hour of the day, it is alleged by Mr. Mohapa¬tra, learned counsel for the Vigilance Department that the peti¬tioner neither surrendered before the Court below nor co-operated with the investigation. Consequently, the prosecution moved the learned Special C.J.M., Bhubaneswar on 20.4.2007 for issuance of N.B.W. against the accused which was allowed. The said accused could not be apprehended and absconded. Mohapa¬tra, learned counsel for the Vigilance Department that the peti¬tioner neither surrendered before the Court below nor co-operated with the investigation. Consequently, the prosecution moved the learned Special C.J.M., Bhubaneswar on 20.4.2007 for issuance of N.B.W. against the accused which was allowed. The said accused could not be apprehended and absconded. On 6.6.2007, the prosecu¬tion moved the Court below for issuance of proclamation and attachment under Sections 82 and 83 of the Cr.P.C. which was allowed. It was only then the accused surrendered on 2.7.2007. Mr. Mohapatra vehemently argued that even previously when the accused was granted interim protection by this Court for co-operating with the investigation, he did not do so and, as a matter of fact, refused to give his specimen handwritings and answered to the queries made by the Investigating Officer in an evasive manner and even refused to give answer to some of the said queries. He also submitted that after the petitioner surren¬dered, the learned Special C.J.M. remanded the petitioner to police custody for three days for interrogation. It has been candidly stated by Mr. Mohapatra that the then Managing Director of the Corporation, namely, Shri Vinod Kumar, IAS is also an accused in the cases under investigation along with the then F.A. and C.A.O. who has retired in the meantime. Mr. Mohapatra con¬tended that the petitioner is one of the prime accused in the case as at the instance of the petitioner, the Managing Director, Shri Vinod Kumar, I.A.S. was signing the cheques. Mr. Mohapatra further contended that Bhubaneswar Vigilance P.S. Case No.15 of 2004 has also been initiated against the petitioner on allegation of holding dis-proportionate assets to the known source of his income. According to him, the petitioner was employer in the Corporation on contractual basis with a meager consolidated salary but is found in possession of assets like buildings, mines, crusher units and vehicles including luxury cars standing either in his name or in the name of his family members, rela¬tives and associates and his story is one of “Rags to Riches” akin to the Arabian Tales. He, therefore, submitted that from the above facts, it can be presumed that the petitioner is involved in the ORHDC SCAM. He, therefore, submitted that from the above facts, it can be presumed that the petitioner is involved in the ORHDC SCAM. This Court, however, considering the above submissions and the fact that the petitioner has been granted bail in the said dis-proportionate assets case, prima facie finds that basing on the above allegations, no presumption can be drawn that the petition¬er for the above reasons can be held to be involved in the ORHDC SCAM unless such case is prima facie made out against the peti¬tioner in the instant cases. 5. Mr. Sanjit Mohanty, learned senior counsel appearing for the petitioner, on the contrary, submitted that pursuant to the orders passed by this Court in the previous bail applications, the petitioner surrendered before the learned Spe¬cial C.J.M., Vigilance, Bhubaneswar on 2.7.2007 and filed appli¬cations praying for his release on bail, the said Court rejected the prayer of the petitioner on the same day and the petitioner moved applications for bail before the learned Special Judge, Vigilance, Bhubaneswar under Section 439 Cr.P.C. on the same day. The said application being rejected vide order dated 3.7.2007, the petitioner has filed the instant applications. He further submitted that in the entire exercise of sanctioning and disburs¬ing of loans, the petitioner has no role to play nor he was work¬ing in the loan Section. According to Mr. Mohanty, the petitioner had no occasion to deal with the loan files in question at any point of time and there is no material brought out during inves¬tigation to show the involvement of the petitioner in either sanctioning or disbursing the loans in question. The only allega¬tion made by the prosecution against the petitioner is that he physically handed over the cheques to the beneficiaries/loanees and handing over the cheques already signed by the Managing Director of the Corporation cannot amount to an offence. 6. Considering the allegations made against the petitioner and the submissions of Mr. Mohapatra, learned counsel for the Vigilance Department as well as the learned counsel for the petitioner, this Court is of the view that at this stage of the case, it would be inappropriate to appreciate/assess the merits of the allegations made against the petitioner which are to be gone into at the trial in the event a charge sheet is filed. 7. It has been submitted by Mr. 7. It has been submitted by Mr. Mohapatra that the other co-accused persons, namely, the then Managing Director as well as F.A. and C.A.O. of the Corporation have not been taken to custody as the cases are under investigation and they have fully cooper¬ated with the Investigating Officer. 8. From the above submissions, it, therefore, appears that due to non-cooperation of the petitioner with the Investigating Officer, the prosecution has taken all necessary steps for forc¬ing the petitioner to surrender before the Court below. Admitted¬ly, the petitioner was remanded to police custody for interroga¬tion for three days. 9. Mr. Mohapatra further submits that due to the offences committed by the petitioner along with other accused persons, the Corporation having sustained heavy financial loss, the petitioner is not entitled to be released on bail. He also submitted that the Supreme Court in the case of State represented by the C.B.I. v. Anil Sharma, AIR 1997 S.C. 3806 has held that custodial inter¬rogation is more effective and apprehensions about the conduct of the accused is important and, further, the availability of the accused for interrogation is not a ground to grant bail. With regard to economic offences, Mr. Mohapatra relied upon the deci¬sion in the case of Narinderjit Singh Sahni and another v. Union of India and others, (2002)2 SCC 210 . It also appears from the above decision of the Supreme Court that the Supreme Court took note of the observation of the High Court in the impugned order that unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant. On the above observation of the High Court, the Supreme Court held that “the said observations are more germane while considering an applica¬tion for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest.” (Emphasis supplied) 10. On the above observation of the High Court, the Supreme Court held that “the said observations are more germane while considering an applica¬tion for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest.” (Emphasis supplied) 10. In the case of State v. Anil Sharma (supra), the Su¬preme Court while considering an appeal filed by the C.B.I. against the order passed under Section 438 Cr.P.C. accepting the contention advanced on behalf of the C.B.I. held that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 Cr.P.C. 11. It is, therefore, clear that the Supreme Court was in seisin over an order passed by the High Court under Section 438 Cr.P.C. and categorically distinguishing the facts to be consid¬ered in an application under Section 438 Cr.P.C. and on an appli¬cation under Section 439 Cr.P.C. filed as above. The instant applicants are under Section 439 Cr.P.C. and, therefore, in my considered view, the observations and conclusions in the afore¬said decision will have no application to the facts of the present case. 12. In the case of Enforcement Officer, Ted. Bombay v. Bher Chand Tikaji Bora and another, (2000) 18 OCR (S.C.) 109, the Supreme Court was also considering the order of anticipatory bail granted by the Bombay High Court and relying upon the decision in the case of Dukhishyam Benupani, Assistant Director, Enforce¬ment Directorate (FERA) v. Arun Kumar Bajoria (1998) SCC (CRL) 261 observed that the white colour criminal like the respondent against whom allegation is that he has violated the provisions of the Foreign Exchange Regulation Act, is a menace to the society and, therefore, unless, he alleges and establishes in the materi¬als that he is being unnecessarily harassed by the Investigating Agency, the Court would not be justified in invoking the juris¬diction under Section 438 Cr.P.C. and granting anticipatory bail. The Supreme Court further observed that “in the facts and circum¬stances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking the jurisdiction under Section 438 Cr.P.C. and granting anticipatory bail to the re¬spondent.” 13. The Supreme Court further observed that “in the facts and circum¬stances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking the jurisdiction under Section 438 Cr.P.C. and granting anticipatory bail to the re¬spondent.” 13. For the reasons already stated above, the aforementioned decisions rendered by the Supreme Court cannot also be made applicable to the facts of the present case, as, firstly that was a case for anticipatory bail which was under consideration of the Supreme Court and, secondly, the offence alleged to have been committed was under FERA, whereas the facts of the present case are totally different and these bail applica¬tions under Section 439 Cr.P.C. do not relate to grant of antici¬patory bail. 14. In the case of Narinderjit Singh Sahni and another (supra), the Supreme Court was dealing with a batch of writ petitions under Articles 32 of the Constitution where infraction of Article 21 of the Constitution was allegedly by the petitioner and the petitioner therein prayed for grant of an order for bail in the nature as prescribed under Section 438 Cr.P.C. Several other points were raised in the said case before the Supreme Court. 15. Considering the facts of the said case which related to several alleged offences, the Supreme Court while holding that the petition under Article 32 of the Constitution is maintain¬able, came to the conclusion that the petitioners are not entitled to any relief by reason of insufficiency of available materials on record as regards the issue of infraction Article 21. In my considered view, the said decision is of no assistance to the learned counsel for the Vigilance Department in the facts of the present case. 16. I have perused the materials available in the case diary produced by Mr. Mohapatra on the direction of this Court. From the statement of the accused Bijay Kumar Mohapatra, the then F.A. and C.A.O. of the Corporation recorded under Section 161 Cr.P.C., it appears that the said B.K. Mohapatra, has categori¬cally stated that at the instance of the petitioner, the Managing Director was signing the cheques and the petitioner was physical¬ly handing over the cheques to the beneficiary builders with unusual delay obviously with ulterior motive. The petitioner was not doing any official duty during official hours and was hobnob¬bing with the prospective loanees and performing the role of the liason agent of the Managing Director. The petitioner was not doing any official duty during official hours and was hobnob¬bing with the prospective loanees and performing the role of the liason agent of the Managing Director. 17. The F.I.Rs in this case were lodged by the Deputy Superintendent of Police, Vigilance Cell before the Superintend¬ent of Police, Vigilance, Bhubaneswar Division. It appears from the allegation made in the F.I.Rs that it was alleged that the Managing Director in connivance with his subordinate public servants including the petitioner entered into a criminal con¬spiracy with each of the loanees and infurtherance of the same swindled away the amounts disbursed in favour of the loanees by ordinarily limiting each loan to a tune of Rs.5,00,000/- which was the jurisdiction of the Managing Director and in this proc¬ess, lakhs of rupees meant for rural poor were directed to be paid to urban builders jointly by the public servants of the Corporation by abusing their official position. 18. Considering the materials available in the case diary including the statement recorded under Section 161 Cr.P.C. of the above named Bijay Kumar Mohapatra, I am satisfied that there is no prima facie material with regard to allegation of the conspir¬acy between the Managing Director and the present petitioner. It also prima facie appears that the present petitioner could not have sanctioned or disbursed the loans if the same would not have been sanctioned by the Managing Director. 19. Considering the above materials and the fact that the petitioner is in custody since 2.7.2007 and has been interrogated for three days while in custody and further in similar other cases, the petitioner has been granted anticipatory bail, I do not find any reason as to why the petitioner should not be en¬larged on bail with stringent conditions. 20. I, therefore, while allowing these applications, direct that the petitioner shall be released on bail on furnishing a bond of Rs.50,000/- (Rupees fifty thousand) with two sureties each for the like amount to the satisfaction of the learned Special Chief Judicial Magistrate, (Vigilance), Bhubaneswar in Vigilance G.R. Case Nos.49, 54, 56, 57 and 60 of 2006 arising out of Bhubaneswar Vigilance P.S. Case Nos. 49, 54, 56, 57 and 60 of 2006 respectively subject to the following further conditions :- (1) The petitioner shall appear before the Investigating Officer for further interrogation/investigation, as and when required. 49, 54, 56, 57 and 60 of 2006 respectively subject to the following further conditions :- (1) The petitioner shall appear before the Investigating Officer for further interrogation/investigation, as and when required. (2) If it is required by the I.O., the petitioner shall give his specimen hand writing to him for comparison with the disputed hand writings. (3) While on bail, the petitioner shall not move out of the territory of Bhubaneswar city without giving prior intimation to the I.O. with regard to the place of visit. However, on no ac¬count, the petitioner shall go out of the territory of the State of Orissa. (4) In the event, a charge sheet is filed, on receiving summons from the Court below, he shall appear before the said Court on each of the dates to which the case is posted. Violation of any of the conditions imposed above shall entail cancellation of this bail order. All the BLAPLs are accordingly disposed of. BLAPLs disposed of.