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2019 DIGILAW 177 (ORI)

Swetanga Pattanaik v. State of Odisha

2019-03-06

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The petitioner Swetanga Pattanaik has filed this application under section 439 of Code of Criminal Procedure, 1973 seeking for bail in connection with E.O.W., Bhubaneswar P.S. Case No.23 of 2015 corresponding to C.T. Case No.16 of 2015 pending on the file of Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack for offences punishable under sections 420, 467, 468, 471, 406 read with section 120-B of the Indian Penal Code and section 6 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter 'O.P.I.D. Act') and sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (hereafter 1978 Act'). 2. The criminal investigative machinery was set into motion on 27.03.2015 with the lodging of the first information report by one Dipak Kumar Baral, Agent and the depositors of Ashirbad Multi Purpose Co-Operative Ltd. before the Inspector in charge of Olatpur Police Station in relation to commission of cognisable offences by the petitioner and others. It is the case of the prosecution as per the first information report that a Chit Fund Organisation namely Ashirbad was functioning since 2009 by opening branch offices in the State of Odisha at Adaspur, Jagatsinghpur, Banamalipur, Bhubaneswar, Khurda, Tangi, Bhapur, Gopalpur, Dasapalla, Badamba-Narasinhpur, Ganjam, Nuapatna, Berhampur and Jajpur and it has got different sections like Ashirbad Goat Rearing India Ltd., Ashirbad Future Care, Ashirbad Multitech Infra Con Pvt. Ltd., Ashirbad Multi Purpose Co-Operative Ltd. and it was collecting huge amounts from the depositors by circulating different alluring schemes through its agents. It is mentioned that Ashirbad Organization has collected more than two crore's rupees from three thousand six hundred depositors of Adaspur branch. The collection of money was stopped since May 2013. The depositors were not getting back their dues in respect of their pass books and bonds even after the maturity period. When the depositors and the agents came to the Head Office, they found the office locked. The Directors of the Organisation were not responding to the phone calls of the agents and depositors and threatening them for which they were harassed. It is stated that the petitioner is the Director of Ashirbad Multi Purpose Cooperative Ltd. 3. When the depositors and the agents came to the Head Office, they found the office locked. The Directors of the Organisation were not responding to the phone calls of the agents and depositors and threatening them for which they were harassed. It is stated that the petitioner is the Director of Ashirbad Multi Purpose Cooperative Ltd. 3. On receipt of the first information report, Olatpur P.S. Case No. 26 of 2015 was registered under sections 420, 406, 120-B of Indian Penal Code and section 18 of the O.P.I.D. Act against the petitioner and four others namely Rashmi Ranjan Paikray, Niroj Kumar Das, Subash Srichandan and Sukant Mohapatra. While the investigation was under progress, as per the direction of this Court passed in CRLMP No.1060 of 2015, E.O.W., CID, CB, Bhubaneswar assumed the charge of investigation of the case and re-registered the case as E.O.W., Bhubaneswar P.S. Case No.23 of 2015 on 23.11.2015 and Iti Das, Inspector of Police, E.O.W., Crime Branch, Bhubaneswar took over the charge of investigation. During course of investigation, the informant and other witnesses were examined and incriminating documents from different offices were seized. Certificates, bonds, pass books and money receipt slips were seized from the investors. Registers maintained by the Directors were also seized. On verification of different documents and records, the Investigating Officer found that the petitioner was acting as Chief Executive of M/s. Ashirbad Multi Purpose Co-operative Ltd. The petitioner along with other Directors collected cash from the investors and issued bonds and certificates to the investors under the signatures of the petitioner on behalf of Ashirbad Multi Purpose Co-operative Ltd., Ashirbad Goat Rearing India Ltd. and Ashirbad Multitech Infra Con Ltd. The Investigating Officer verified documents from Registrar of Companies, Cuttack and found that the petitioner and others were the Directors of M/s. Ashirbad Multitech Infra Con Ltd. and M/s. Ashirbad Goat Rearing India Ltd. The petitioner and other Directors of M/s. Ashirbad Group of Companies collected huge amount of money from the depositors which was more than Rs. 9,23,84,621/- with assurance to repay the same with high rate of interest. They were inducing the public through brochures and other methods. Hefty commission was being paid to the agents for encouraging them to collect more and more deposits. 9,23,84,621/- with assurance to repay the same with high rate of interest. They were inducing the public through brochures and other methods. Hefty commission was being paid to the agents for encouraging them to collect more and more deposits. The companies were not authorised by Reserve Bank of India to collect public deposit and not even listed in any of the Stock Exchange of India. It was found that the petitioner and other Directors collected huge money from more than six thousand investors under different schemes floated by the company by preparing forged and fabricated documents such as certificates, bonds etc. and using such documents as genuine. The Directors closed down the Corporate Office as well as Branch Offices functioning in Bhubaneswar and different places in the year 2014 and absconded. Investigation further revealed that the company was paying interest to the old depositors out of the deposits collected from the new depositors and thereby involved in money circulation activities even though the company was not registered as non-banking financial company under Reserve Bank of India. The companies were paying higher rate of interest than that of Nationalised Banks and other Financial Institutions. The companies had no commensurate business activities to make such huge interest payment to the depositors and were running money circulation schemes illegally. The accused persons defaulted to return the principal amount of deposit as well as payment of interest on such deposit and also failed to render service for which the deposit was made. The Investigating Officer found prima facie case under sections 467, 468, 471, 420, 406 read with section 120-B of the Indian Penal Code, 1860 section 6 of the O.P.I.D. Act and sections 4, 5 and 6 of the 1978 Act against the petitioner and other co-accused persons. The petitioner was arrested on 03.01.2016 and forwarded to Court and on completion of investigation, charge sheet was submitted on 06.12.2016. 4. The petitioner moved an application for bail before the learned Presiding Officer, Designated Court, O.P.I.D. Act, Cuttack which was rejected on 10.10.2017. 5. Mr. Jayadeba Behera, learned counsel for the petitioner contended that the petitioner is in jail custody since 03.01.2016 and in the meantime, trial has already commenced and out of 128 charge sheet witnesses, four witnesses have so far been examined in the trial Court. 5. Mr. Jayadeba Behera, learned counsel for the petitioner contended that the petitioner is in jail custody since 03.01.2016 and in the meantime, trial has already commenced and out of 128 charge sheet witnesses, four witnesses have so far been examined in the trial Court. He further contended that the snail speed with which the trial is progressing, it might take a few years to complete the trial. He further contended that some of the Co-accused persons, namely, Rashmi Ranjan Paikray, Sukanta Kumar Mohapatra, Subash Chandra Srichandan have already been released on bail by this Court and the petitioner stands on the similar footing and therefore, on the ground of parity and equity, the bail application of the petitioner may be favourably considered. Mr. Bibekananda Bhuyan, learned Special Counsel appearing for the State of Orissa vehemently opposed the bail application and submitted that the first bail application of the petitioner was rejected in BLAPL No.1097 of 2016 vide order dated 03.06.2016, his second bail application in BLAPL No.4709 of 2016 was withdrawn on 04.10.2016 and there is no such change in the fact situation or in law except the fact that trial has already commenced. It is submitted that the petitioner was the Director of all the three companies i.e. M/s. Ashirbad Goat Rearing India Ltd., M/s. Ashirbad Multitech Infra Con. Pvt. Ltd. and M/s. Ashirbad Multi Purpose Co-operative Ltd. and he is the authorised signatory of M/s. Ashirbad Multi Purpose Co-operative Ltd. A sum of Rs.17,30,000/-(rupees seventeen lakh's thirty thousand only) was transferred to the personal account of the petitioner from the account of M/s. Ashirbad Multi Purpose Cooperative Ltd. and the Directors of M/s. Ashirbad Multitech Infra Con. Pvt. Ltd. have withdrawn cash of Rs. 14,00,000/- (rupees fourteen lakh's only) from the account of the company and the bank account statements of Ashirbad Group of Companies/Society indicate nil cash. He submitted that the petitioner's case stands on a different footing and it is an economic offence and therefore, in the larger interest of society and State, he should not be released on bail. 6. This is the third successive bail application of the petitioner. The bail application was rejected for the first time in BLAPL No.1097 of 2016 on 03.06.2016 and the second bail application was withdrawn in BLAPL No.4709 of 2016 on 04.10.2016. 6. This is the third successive bail application of the petitioner. The bail application was rejected for the first time in BLAPL No.1097 of 2016 on 03.06.2016 and the second bail application was withdrawn in BLAPL No.4709 of 2016 on 04.10.2016. Final charge sheet was submitted on 06.12.2016 and in the meantime trial has commenced and some witnesses have been examined. Therefore, I am not inclined to accept the contention advanced by the learned counsel for the State that there is no change in the fact situation. Successive bail application is maintainable if there is a change in the fact situation or in law. The Hon'ble Apex Court in case of Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav reported in (2005) 30 Orissa Criminal Reports (SC) 455 held as follows:- "17. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non bailable offences are entitled for bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case, there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. 18. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so. 18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceedings, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a Co-ordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issue which had been canvassed earlier would not be permitted to be re-agitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting. 19. The decisions given by a superior forum, undoubtedly, is binding on the subordinate forum on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused, who has been denied bail earlier, can move a subsequent application. This is the limited area in which an accused, who has been denied bail earlier, can move a subsequent application. Therefore, we are not in agreement with the argument of learned counsel for the accused that in view the guarantee conferred on a person under Article 21 of the Constitution of India, it is open to the aggrieved person to make successive bail application even on a ground already rejected by courts earlier including the Apex Court of the country." In case of Deepak Gupta vs. State of Orissa (Vig.) reported in (2017) 68 Orissa Criminal Reports 437, it is held that the settled principle of law is that successive application for grant of bail to an accused is permissible under the changed circumstances which must be substantial one and which has got a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Without the change in the circumstances, the subsequent bail application would be deemed to be seeking review of the earlier rejection order which is not permissible under criminal law. 7. This application is moved mainly on the ground of release of Co-accused persons on bail and delayed disposal of the trial. Out of the three Co-accused persons, Rashmi Ranjan Paikray has been granted bail in BLAPL No. 3646 of 2015 vide order dated 09.09.2015 since no final form was submitted within a period of sixty days from the date of first remand to custody keeping in view the provision enumerated in clause (ii) of proviso (a) to sub-section (2) of section 167 of Cr.P.C., 1973 and as at that point of time, the case was one under sections 420, 406 read with section 120-B of the Indian Penal Code and section 6 of the O.P.I.D. Act and in none of the offences, the punishment exceeded ten years. Co-accused Sukanta Kumar Mohapatra was released on bail in BLAPL No. 7020 of 2017 taking into account the fact that he was in custody for a long period and he is a permanent resident of village Laxmisagar, Bhubaneswar and there is no reasonable chance of absconding and there was no allegation on behalf of State that he will tamper with the prosecution evidence. Co-accused Subash Chandra Srichandan was released on bail in BLAPL No. 9425 of 2017 on the ground that two Co-accused persons have been released on bail. Co-accused Subash Chandra Srichandan was released on bail in BLAPL No. 9425 of 2017 on the ground that two Co-accused persons have been released on bail. In case of Preeti Bhatia vs. Republic of India reported in (2015) 61 Orissa Criminal Reports (SC) 131, it is held that parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the Co-accused, where another Co-accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the Co-accused whose bail had been earlier rejected is allowed and Co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the Co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience. The accusation against the petitioner relates to commission of economic offences which are considered to be grave offences and are to be viewed seriously. The accusation against the petitioner relates to commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences use to have deep-rooted conspiracy and it involves huge loss of public fund. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications. (Ref:- Y.S. Jagan Mohan Reddy vs. C.B.I. reported in (2013) 55 Orissa Criminal Reports (SC) 825, State of Gujarat vs. Mohan Lal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321 and Nimmagadda Prasad vs. C.B.I. reported in (2013) 7 SCC 466 ). With due respect, it appears that the above principles have not been taken into account while granting bail to co-accused Sukanta Kumar Mohapatra, on the other hand his bail was allowed taking into account his period of detention, his place of abode and on the ground of no reasonable chance of absconding and tampering with the prosecution evidence. The co-accused Rashmi Ranjan Paikray has been granted bail on a completely different ground. The Co-accused Subash Chandra Srichandan has been granted bail only on the ground that the aforesaid two Co-accused persons i.e. Sukanta Kumar Mohapatra and Rashmi Ranjan Paikray have been released on bail. In my humble opinion, such orders of bail to the Co-accused persons can never form the basis for a claim of parity for the petitioner. 8. In case of Kalyan Chandra Sarkar (supra), it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. 8. In case of Kalyan Chandra Sarkar (supra), it was clearly held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. In case of Rajesh Ranjan Yadav vs. C.B.I. reported in (2007) 36 Orissa Criminal Reports (SC) 183, it is held that it is true that Article 21 of the Constitution of India is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society. In case of Ash Mohammad vs. Shiv Raj Singh reported in (2012) 9 SCC 446 , it is held as follows:- "17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by Rule of Law has to be regulated and such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom". 18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires. Not for nothing J. Oerter stated: "Personal liberty is the right to act without interference within the limits of the law." 19. Thus analysed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardised, for the rational collective does not countenance an anti-social or anti-collective act. xx xx xx xx xx 30. xx xx xx xx xx 30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the Court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter, we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused." Section 45-IA of the Reserve Bank of India Act, 1934 states that no non-banking financial company shall commence or carry on business of a non-banking financial institution without obtaining a certificate of registration from the Reserve Bank of India and without having a net owned fund of twenty-five lakh rupees or such other amount, not exceeding two hundred lakh rupees, as the bank may, by notification in the Official Gazette, specify. The requirements for registration with the Reserve Bank of India and the procedure for making application for registration have also been provided therein. As found out during investigation, Ashirbad Group of Companies was not registered as non-banking financial company under Reserve Bank of India. 9. The requirements for registration with the Reserve Bank of India and the procedure for making application for registration have also been provided therein. As found out during investigation, Ashirbad Group of Companies was not registered as non-banking financial company under Reserve Bank of India. 9. Adverting to the contentions raised by the learned counsel for the respective parties and looking at the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, even though the period of incarceration of the petitioner is more than three years but the manner in which Ashirbad Group of Companies without being authorised by the Reserve Bank of India or being enlisted in any Stock Exchange of India have collected more than nine crore's of rupees from more than six thousand depositors throughout Orissa by floating different alluring schemes giving assurance to provide higher rate of interest than that of prevailing bank rates, failure of the companies to refund the principal amount of deposit as well as payment of interest on such deposit and thereby cheating the innocent persons of their hard earned money, the manner in which the company was indulged in money circulation activities without being registered as non-banking financial company with Reserve Bank of India, strong prima facie case available against the petitioner to show his involvement in the economic offence, nature and gravity of accusation, likelihood of tampering with the evidence and above all in the larger interest of society, I am not inclined to release the petitioner on bail. 10. However, taking into account the period of detention of the petitioner in judicial custody, the learned trial Court shall do well to expedite the trial keeping in view the provision under section 309 of Cr.P.C., 1973 without granting unnecessary and flimsy adjournments to either of the parties. 11. Accordingly, the bail application sans merit and hence stands rejected.