SRI SOUMENDRA NANDAN DASMOHAPATRA v. STATE OF ORISSA
2009-10-14
SANJU PANDA
body2009
DigiLaw.ai
JUDGMENT : S. Panda, J. - These two bail applications having common facts were heard together and are being disposed of y this common order. 2. These applications have been filed by the Petitioners u/s 438 Code of Criminal Procedure on 21.7.2009 for grant of anticipatory bail. 3. The Petitioners apprehend that they may be arrested in connection with the enquiry made by the Deputy Director of Mines along with the Vigilance Officials, Tahasildar, Barbil and Forest Range Officers regarding alleged transgression by the Petitioners beyond the demarcated leasehold area. The authorities also seized the documents on 18.7.2009 from the Petitioners in respect of the lease deed between the Government of Orissa and the Petitioners, sale register maintained by the Petitioners from September, 2002 to 30th May, 2009, ore despatch book maintained from 1.4.2006 to 4.6.2009 and Income Tax file. The Petitioners obtained an interim order on 29.7.2009 and time was granted to the counsel for the Vigilance to obtain instruction and the interim order was extended till the next date of hearing. Thereafter, the matter was heard on 16.9.2009, 7.10.2009, 8.10.2009 and finally heard on 12.10.2009. 4. Learned counsel for the Petitioners submitted that in the meantime the Vigilance authorities have filed the F.I.R. on 10.8.2009 alleging the offences committed by the Petitioners under Sections 13(2)/13(1)(d) of the P.C. Act, 1998 read with Section 120-B, IPC. He also filed an affidavit on 5.10.2009 submitting the further facts and some documents to prove that the Petitioners were never involved in any illegal mining as alleged nor had they played any role in the mining scam which was under investigation. He also stated that the Petitioner in BLAPL No. 10946 of 2009 is a physically handicapped person with deteriorating health condition. 5. Learned counsel for the Petitioners also raised a contention that though the interim order was granted in favour of the Petitioners on 29.7.2009, the Vigilance authorities entered forcibly to the residence of the Petitioners and threatened the staff with dire consequences of arrest. The Petitioners are cooperating with the enquiry and investigation throughout and they have been falsely implicated in this case with mala fide intention. Learned counsel for the Petitioners referred to documents and the decision of this Court W.P.(C) No. 7998 of 2008 (Sri S.N. Dasmohapatra and Anr.
The Petitioners are cooperating with the enquiry and investigation throughout and they have been falsely implicated in this case with mala fide intention. Learned counsel for the Petitioners referred to documents and the decision of this Court W.P.(C) No. 7998 of 2008 (Sri S.N. Dasmohapatra and Anr. v. State of Orissa and Ors.) disposed of on 24.12.2008 declaring the action of the Mining Officer, Joda Circle, Keonjhar on 4.6.2008 in respect of illegal mining outside the leasehold area as illegal and directing the opposite parties therein to release the seized articles which show that the Petitioners have not done any illegal mining beyond their leasehold area and they are not involved in any mining scam. 6. However, since this Court only considering an application u/s 438 Code of Criminal Procedure at this stage it is not necessary to refer to all those documents and the said decision of this Court. The learned Counsel for the Petitioners has cited the decision reported in Shyam Sundar Jhanwar and Others Vs. State of Orissa, wherein this Court held that mere "Fear" is not belief and vague apprehension is not enough. The 'reason to believe' that a person may be arrested for a non-bailable offence on the ground on which such belief is based, must be capable of being examined by the Court objectively because it is then alone that the Court can determine whether the applicant has reason to believe that he may be so arrested and Court can grant relief. In the present case since the Vigilance authorities have seized the documents and filed F.I.R. the Petitioners apprehends arrest and needs protection. 7. Learned Additional Standing Counsel for the Vigilance Department submitted that the Vigilance authorities enquired into the matter regarding the illegal mining and during the enquiry, on 18.7.2009, a joint physical verification was made by the Vigilance Department in presence of the Joint Director, Geology, Bhubaneswar, Deputy Director Mines, Koira, Tahasildar, Barbil and Forest Range Officer. The mining area was demarcated and it was found that large scale excavation and extraction of manganese ore have been made in the mining lease area of M/s. R.B. Thakur adjacent to the mining lease area of the present Petitioners and in a stretch of Government land (Forest land) in between the proposed mining leases.
The mining area was demarcated and it was found that large scale excavation and extraction of manganese ore have been made in the mining lease area of M/s. R.B. Thakur adjacent to the mining lease area of the present Petitioners and in a stretch of Government land (Forest land) in between the proposed mining leases. In the said joint verification, it was also found that the safety zone pillar and surface right pillars were not taken place in the safety zone area extending from. Pillar No. 5 to Pillar No. 9, north-east portion of the lease hold area and Pillar-'R' of M/s. R.B. Thakur Ltd. was removed so as to extent the illegal mining into the freehold area as well as the proposed M.L. area of M/s. R.B. Thakur Ltd. and it was further found that illegal working in the aforementioned area is rich in deposit of manganese. On the basis of those documents, the matter was investigated and F.I.R. has been lodged on 10.8.2009. Therefore for further investigation, they searched for the Petitioners on 18.9.2009, 19.9.2009 and 23.9.2009. However, it is submitted, the Petitioners were not available for further investigation and they have not cooperated with the vigilance authorities. He cited the decisions reported in (2008) 41 OCR (SC) 1006 (Parvinderjit Singh and Anr. v. State (U.T. Chandigarh) and Anr.) and Adri Dharan Das Vs. State of West Bengal, wherein it has been held by the apex Court that blanket order should not be generally passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity and an order u/s 438 Code of Criminal Procedure is neither a passport to the commission of crime nor a shield against any or all kind of accusations likely or unlikely but it is a device to secure individuals' liberty. 8. Perused the case diary and other documents filed by the prosecution. After going through the records and the facts stated in the above paragraphs and in the circumstances of the case, this Court is of the view that the interim order dated 29.7.2009 need not be extended. 9. In the decision reported in AIR 2007 SCW 1896 (D.K. Ganesh Babu v. P.T. Manokaran), the apex Court has held as follows:- Ordinarily, arrest is a part of the process of investigation intended to secure several purposes.
9. In the decision reported in AIR 2007 SCW 1896 (D.K. Ganesh Babu v. P.T. Manokaran), the apex Court has held as follows:- Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application u/s 438 of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application u/s 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done u/s 438 of the Code. Considering the above position of law and the facts and circumstances of the case, this Court is not inclined to grant anticipatory bail to the Petitioners. The said prayer is accordingly rejected. Both the bail applications are accordingly dismissed.