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2019 DIGILAW 508 (ORI)

Deepak Gupta v. State Of Orissa

2019-08-07

S.K.SAHOO

body2019
JUDGMENT : S.K. Sahoo, J. The petitioner Deepak Gupta who is in judicial custody since 05.09.2013 and facing trial on being charged under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (hereafter 1988 Act') and sections 420, 468, 409, 379, 411 read with section 120-B of the Indian Penal Code in the Court of learned Special Judge (Vigilance), Keonjhar in T.R. Case No. 01 of 2014 (V.G.R. Case No.05 of 2013) which arises out of Balasore Vigilance P.S. Case No. 30 of 2013, has approached this Court for bail for the fifth time after his earlier four unsuccessful attempts before this Court and twice before the Hon'ble Supreme Court. 2. The accusation against the petitioner in a nut shell is that he was the Director of M/s. Snehapusph Marketing Private Ltd. as well as of M/s. Deepak Steel and Power Ltd. A registered Power of Attorney was executed on 29.12.2003 by Sri B.K. Mohanty mining lease holder of Uliburu Iron Ore Mines in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner for conducting mining operation in the ML area of B.K. Mohanty located at Uliburu village over an area of 56.94 Ha. Another Power of Attorney was also executed by co-accused Sri Jagdish Mishra in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner on 17.04.2004 to manage his mines. After becoming the Power of Attorney holder of Sri B.K. Mohanty and getting the Power of Attorney from Sri Jagdish Mishra, the petitioner having full knowledge about the Uliburu iron ore mines area, started excavating iron ore from the lapsed mining lease of Sri Jagdish Mishra which is adjacent to the ML area of Sri B.K. Mohanty and Uliburu reserve forest. During the period from 2004 to 2009, the petitioner stated to have dishonestly and fraudulently misappropriated Rs.1523,59,48,527.48 paisa by conducting illegal mining of iron ore in the lapsed ML area of Sri Jagdish Mishra and Uliburu Reserve Forest by entering into criminal conspiracy with the public servants of Mining Department, Forest Department and Revenue Department and thereby obtained pecuniary advantage to himself and causing equivalent loss to the Government exchequer. Though the petitioner in connivance with other co-accused persons illegally excavated a quantity of 65,25,741.438 MT of iron ore amounting to Rs.1520,39,64,049.60 but they had declared production of only 47,48,826 MT and thus suppressed the production of 17,76,915.438 MT during the period 2004 to 2009. The first charge sheet was submitted on 31.12.2013 and the final charge sheet was submitted on 24.06.2014. The charge against the petitioner in the trial Court was framed on 05.06.2017. 3. The last bail application of the petitioner in BLAPL No.926 of 2017 was rejected on 24.08.2017 taking into account that the crime has been committed in a cool, calculated and organized manner causing loss to the tune of more than one thousand five hundred crores to the Government exchequer and that a strong prima facie case is available against the petitioner showing his involvement in the economic offence and further taking into account, inter alia, the severity of punishment in case of conviction and reasonable apprehension of tampering with the evidence. The petitioner approached the Hon'ble Supreme Court against the order dated 24.08.2017 passed by this Court in BLAPL No.926 of 2017 by filing Special Leave to Appeal (Crl.) No.2169 of 2018 and the Special Leave Petition was withdrawn to approach the trial Court for the reason that the petitioner is suffering incarceration for the last five years and accordingly, the Special Leave Petition was dismissed as withdrawn on 10.07.2018. The petitioner then moved the learned trial Court for bail which was rejected on 03.12.2018. 4. Mr. Santosh Kumar Mund, learned counsel appearing for the petitioner argued that merely because the Special Leave Petition was dismissed as withdrawn before the Hon'ble Supreme Court, it cannot be said that the order of this Court as well as the orders passed by the learned trial Court till 10.07.2018 got merged in the order of the Supreme Court and that it is not open to this Court to reconsider the prayer for bail. He relied upon the decisions of the Hon'ble Supreme Court in cases of Kunhayammed & others Vrs. State of Kerala & another, 2000 (6) SCC 359 , Indian Oil Corporation Ltd. Vrs. State of Bihar, 1986 (4) SCC 146 and Rani Dudeja Vrs. State of Haryana, 2017 (13) SCC 555 . He relied upon the decisions of the Hon'ble Supreme Court in cases of Kunhayammed & others Vrs. State of Kerala & another, 2000 (6) SCC 359 , Indian Oil Corporation Ltd. Vrs. State of Bihar, 1986 (4) SCC 146 and Rani Dudeja Vrs. State of Haryana, 2017 (13) SCC 555 . Relying on the provision under section 436-A of Cr.P.C., it was argued that except the offence under section 409 of the Indian Penal Code, all other offences under which the petitioner has been charged in the trial Court carries maximum imprisonment for seven years or less. So far as 409 of the Indian Penal Code is concerned, the ingredients of the offence are not made out as no money has been misappropriated and this Court is to be prima facie satisfied while considering the application for bail that there are materials to support such charge. The learned counsel relied upon the decision of the Hon'ble Supreme Court in the case of Sanjaya Chandra Vrs. Central Bureau of Investigation, 2012 (1) SCC 40 . Placing reliance in the case of Hussain and another Vrs. Union of India, 2017 (5) SCC 702 , it was argued that the sentence likely to be imposed for the offence under section 409 of the Indian Penal Code cannot be more than three years as the same is triable by a Magistrate, First Class. It is contended that no part of delay in the progress of the case in the trial Court can be attributed to the petitioner after 11.07.2016. It was argued that for the purpose of trial, the Special Judge follows the warrant procedure meant for the trial by a Court of Magistrate. Section 437(6) of the Code provides that in a case triable by a Magistrate, if the trial is not concluded within sixty days of the first date fixed for taking evidence, the accused shall be admitted to bail, unless the Magistrate otherwise directs and as the petitioner has already completed a period of detention of more than 600 days since the first date fixed for taking of evidence, the benefit of section 437(6) of the Code should be extended to the petitioner. It was further argued that the progress of the trial is so slow that it amounts to denial of the right to speedy trial guaranteed under Article 21 of the Constitution and as stated by the learned Senior Advocate appearing for the State of Odisha, out of 178 charge sheet witnesses, the prosecution intends to examine 147 witnesses and 85,000 documents are required to be sorted out and proved during trial and therefore, there is no prospect of completion of the trial in the near future and only sixteen witnesses have been examined so far in spite of the direction of this Court in BLAPL No.854 of 2015 to the learned trial Court to take all possible step to proceed with the trial on day to day basis. Learned counsel placed reliance in the cases of R.P. Upadhyay Vrs. State of A.P. and others, 1996 (3) SCC 422 , Shaheen Welfare Association Vrs. Union of India, 1996 AIR(SC) 2957 and Byrraju Ramaa Raju Vrs. State, 2012 (1) SCC 576 . It is submitted that denial of bail would amount to unjustified and unwarranted pre-trial punishment. While concluding his argument, Mr. Mund stressed upon the fact that the charge sheet dated 31.12.2013 reveals that the assets belonging to the petitioner and his family members to the tune of Rs.386 crores have been attached under the provisions of the Criminal Law Amendment Ordinance, 1944 and that the CEC appointed by the Hon'ble Supreme Court enquired into the mining scam and found the value of illegal mining in respect of Sri B.K. Mohanty was to the tune of Rs.384 crores and since as against such amount, the properties of Rs.386 crores have been attached, there would be no prejudice being caused to the prosecution if the petitioner would be admitted to bail as there is no chance of absconding. Mr. Mr. N.C. Panigrahi, learned Senior Advocate appearing for the State of Orissa (Vigilance) vehemently opposed the prayer for bail and contended that since the bail applications of the petitioner have been rejected four times by this Court on merit and twice by the Hon'ble Supreme Court which were filed against the last two rejection orders of this Court, in the absence of any new or fresh ground, it is not open to this Court to reconsider the same material and to take a different view inasmuch as grant of bail to the petitioner would be virtually review of the earlier orders which is not permissible in law. He argued that the petitioner has virtually repeated the same grounds including the ground of delay upon which the decisions have already been taken in the last two bail orders. He placed reliance in the case of State of Maharastra Vrs. Buddhikota Subha Rao, 1989 AIR(SC) 2292. He argued that even the learned trial Court in its order dated 08.07.2019 has held that the accused persons are trying to delay the proceeding by filing frivolous memo. It is contended that the family members of the petitioner such as his father, mother, wife and brother who are accused in the case are absconding since 2013 and they have not appeared in Court even on a single day and there is every likelihood of the petitioner absconding once he is released on bail. He emphasized that even when the petitioner was under treatment at S.C.B. Medical College and Hospital, Cuttack during his custody period, it was found that he was not present in the hospital but in some hotel for which action was taken against the erring hospital staff. He argued that the petitioner being a highly influential and rich person, he is likely to tamper with the evidence once he is enlarged on bail. It is argued that in economic offences, the Hon'ble Supreme Court and this Court have been insisting for deposit of proportionate amount compared to the nature of crime committed and money misappropriated before releasing the accused on bail, provided all other conditions are satistied. The learned counsel placed reliance in the case of State of Gujarat Vrs. Mohanlal Jitamalji Porwal, 1987 AIR(SC) 1321. Mr. The learned counsel placed reliance in the case of State of Gujarat Vrs. Mohanlal Jitamalji Porwal, 1987 AIR(SC) 1321. Mr. Mund, learned counsel for the petitioner in his reply stated that principle of res-judicata or estoppel does not apply to criminal jurisprudence and there is no bar for an accused to make successive bail applications and re-urge the questions which might have been urged earlier and negatived by the Court and in other words, the rule of finality does not apply to bail petitions. He argued that Nimmagada Prasad (supra) is a case where at the stage of investigation, the Hon'ble Supreme Court rejected the bail application and directed the C.B.I. to complete the investigation and file charge sheet preferably within a period of four months and as a matter of fact, after submission of charge sheet, the said accused along with Shri Jagan Mohan Reddy renewed the prayer for bail which was allowed. It is submitted that the Hon'ble Supreme Court is in seisin over the matter in the case of Common Cause Vrs. Union of India, 2017 (9) SCC 499 and directed recovery of the amount of illegal mining assessed by the CEC i.e. Rs.384 crores and odd in respect of Uliburu Iron Ore Mines and recovery proceeding has already started. All the bank accounts and properties of the petitioner and his family members to the tune of Rs.386 crores have been attached since 2013 and thereby virtually shutting down all the business activities of the entire family of the petitioner. He reiterated that since the petitioner has already remained in judicial custody for the period for which he might be sentenced in case of conviction, it would be just and proper on the part of this Court to release the petitioner on bail. 5. Let me first consider the effect of Special Leave Petition filed by the petitioner being dismissed as withdrawn before the Hon'ble Supreme Court on 10.07.2018 which was filed against the order of this Court dated 24.08.2017 passed in BLAPL No.926 of 2017. In the case of Kunhayammed (supra), it is held as follows:- "18. In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order the applicant approaches the High Court by moving a petition for review. In the case of Kunhayammed (supra), it is held as follows:- "18. In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order. xxx xxx xxx xxx xxx 27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is a non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of judicial discipline, this Court being the apex court of the country. No Court or tribunal or parties would have the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question (sic) open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court. xxx xxx xxx xxx xxx 34. The doctrine of merger and the right of review are concepts which are closely interlinked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed - there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercises a power of review or deals with a review application on merits - in a case where the High Court's order had not merged with an order passed by this Court after grant of special leave - the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it. xxx xxx xxx xxx xxx 40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (v) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the apex court of the country and so on. The expression often employed by this Court while disposing of such petitions are - "heard and dismissed", "dismissed", "dismissed as barred by time" and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest to the maintainability of the petition. The Court may apply its mind to the merit worthiness of the petitioner's prayer seeking leave to file an appeal and having formed an opinion may say "dismissed on merits". Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Such an order may be passed even ex-parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger. xxx xxx xxx xxx xxx 42. "To merge" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in laws defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068) 43......To sum up our conclusions are: xxx xxx xxx xxx xxx (iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed. In the case of Indian Oil Corporation Ltd. (supra), it is held as follows:- "6. We are clearly of opinion that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition without dismissing it on the preliminary ground. As observed by this Court in Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust and Anr., 1978 AIR(SC) 1283, the effect of a nonspeaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issue must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere guesswork." In the case of State of Punjab Vrs. Davinder Pal Singh Bhullar, 2011 (14) SCC 770 , it is held as follows:- "77. xxx xxx xxx xxx xxx The issue as to whether the dismissal of the special leave petition by this Court in limine, i.e., by a non-speaking order would amount to affirmation or confirmation or approval of the order impugned before this Court, has been considered time and again. Thus, the issue is no more res integra. A large number of judicial pronouncements made by this Court leave no manner of doubt that the dismissal of the Special Leave Petition in limine does not mean that the reasoning of the judgment of the High Court against which the Special Leave Petition had been filed before this Court stands affirmed or the judgment and order impugned merges with such order of this Court on dismissal of the petition. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. It simply means that this Court did not consider the case worth examining for a reason, which may be other than merit of the case. An order rejecting the Special Leave Petition at the threshold without detailed reasons, therefore, does not constitute any declaration of law or a binding precedent." In view of the settled principle of law as decided by the Hon'ble Supreme Court, merely because the Special Leave Petition was dismissed as withdrawn on 10.07.2018, as the learned counsel for the petitioner wanted to withdraw the petition to approach the trial Court, for the reason that the petitioner is suffering incarceration for the last five years, I am of the humble view that this Court is not debarred from considering the bail application of the petitioner nor this bail application can be thrown out at the threshold on the ground of dismissal of the Special Leave Petition. In fact, after withdrawing the application for bail in the Hon'ble Supreme Court, the petitioner moved for bail in the learned trial Court which was rejected on 03.12.2018. Now the question remains, which aspects are to be kept in mind while adjudicating this successive bail application? While rejecting the earlier application for bail of the petitioner in BLAPL No. 926 of 2017, I have held 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. In the case of Rani Dudeja (supra), it is held the principle of res judicata cannot operate in an application for bail. In the case of Kalyan Chandra Sarkar and Ors. Vrs. Rajesh Ranjan, 2005 (30) OCR 455 (SC), it is held as follows: "18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. Vrs. Rajesh Ranjan, 2005 (30) OCR 455 (SC), it is held as follows: "18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, 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 coordinate 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 issues 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 of 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 applications even on a ground already rejected by Courts earlier including the Apex Court of the country." Therefore, even though the principle of res judicata is not applicable while considering the successive bail application, the Court has to see whether there is any substantial change in circumstances either in the fact situation or in law having a direct impact on the earlier decision and it is to be kept in mind that the issues and grounds which have been canvassed earlier would not be ordinarily permitted to be re-agitated. If some important aspects of the case could not be placed earlier inadvertently and the Court feels that such aspects have a direct bearing on the result of the case, in the interest of justice the Court can consider the same in the subsequent application. In the case of Buddhikota Subha Rao (supra), the Hon'ble Supreme Court held that once the application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being any change in the fact-situation. It was held that the change must be a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. 6. The bail application before the learned trial Court was moved mainly relying upon the provisions under sections 436-A and 437(6) of Cr.P.C. and similar grounds were taken by the learned counsel for the petitioner while moving this application for bail. The learned counsel submitted that the petitioner is facing trial for the commission of offences under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 and sections 420, 468, 409, 379, 411 read with section 120-B of the Indian Penal Code and except for the offence under section 409 of the Indian Penal Code, all other offences under which the petitioner has been charged in the trial Court carries maximum imprisonment for seven years or less. He argued that section 409 of the Indian Penal Code prescribes punishment for an accused with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and he shall also be liable to fine. It is contended that the ingredients of the offence under section 409 of the Indian Penal Code are not made out as no money has been misappropriated and in view of the ratio laid down in case of Sanjaya Chandra (supra), this Court has to be prima facie satisfied even while considering the bail application as to whether there are materials in support of the charge under section 409 of the Indian Penal Code or not. He placed reliance in the case of Hussain (supra) wherein it is held that as a supplement to section 436-A of Cr.P.C., but consistent with the spirit thereof, if an undertrial has completed period of custody in excess of the sentence likely to be awarded if conviction is recorded, such under trial must be released on personal bond. He argued that for an offence under section 409 of the Indian Penal Code which is triable by any Magistrate of the first class, the sentence likely to be awarded if conviction is recorded is for a period of three years which the petitioner has already undergone. Section 436-A of Cr.P.C. states that if a person, during the period of investigation or trial has undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for that offence, he shall be released by the Court on his personal bond with or without sureties. It is argued that not only the petitioner has undergone the sentence likely to be awarded if the conviction is recorded under section 409 of the Indian Penal Code but also he has already undergone detention for a period extending upto one-half of the maximum period of imprisonment specified for the other offences and therefore, the petitioner is deserved to be released on bail. Per contra, the learned counsel for the opposite party argued that the contentions were earlier raised by the petitioner's counsel in BLAPL No.854 of 2015 that the ingredients of the offence under section 409 of the Indian Penal Code are not attracted against the petitioner which was dealt by this Court and against the rejection of the bail order, the petitioner approached the Hon'ble Supreme Court by filing Special Leave Petition which was dismissed as per order dated 02.05.2016 and therefore, such ground cannot be re-agitated in this bail application. It is contended that since life imprisonment has been prescribed for the offence under section 409 of the Indian Penal Code, in view of the huge loss caused to the Government exchequer to the tune of more than one thousand five hundred crores for illegal and unauthorized excavation of iron ore, the punishment in case of conviction may be severe and not just three years as contended by the learned counsel for the petitioner. Coming to the submission made by the learned counsel for the petitioner that the ingredients of the offence under section 409 of the Indian Penal Code are not attracted, I find that such a point was raised during hearing of the earlier bail application of the petitioner in BLAPL No. 854 of 2015 and this Court while rejecting the bail application, held that there are serious allegations against the public servants who were to safeguard the valuable properties of the State and being dominion over the property in the capacity of public servants, have failed to discharge their statutory duty and entered into criminal conspiracy with the petitioner and others and facilitated dishonest use and disposal of the property and therefore committed criminal breach of trust. It was further held that the involvement of the petitioner in the deep rooted conspiracy in the economic offences involving huge loss to Government exchequer is prima facie apparent. It was further held that the involvement of the petitioner in the deep rooted conspiracy in the economic offences involving huge loss to Government exchequer is prima facie apparent. Keeping in view the ratio laid down in the case of Kalyan Chandra Sarkar (supra), since the issue relating to non-availability of the ingredients of the offence under section 409 of the Indian Penal Code had been canvassed in the earlier bail application and dealt with by this Court and a separate petition has been filed challenging the order of framing charge which is subjudiced, therefore, permitting it to be re-agitated would lead to a speculation and uncertainty in the administration of justice and any finding thereon is likely to cause prejudice to either of the parties. The provision under section 436-A of Cr.P.C. is applicable to a person who has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence under the law. Maximum period of imprisonment for life has been prescribed for the offence under section 409 of the Indian Penal Code. As per section 45 of the Indian Penal Code, the word 'life' denotes the life of a human being, unless the contrary appears from the context. Section 57 of the Indian Penal Code provides that in calculating the fractions of terms of punishment, the imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. In the case of Shraddananda Vrs. State of Karnataka, 2008 AIR(SC) 3040, it is held that section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. In the case of Subash Chander Vrs. Krishan Lal and Ors., 2001 (4) SCC 458 , the Hon'ble Supreme Court held that life imprisonment means imprisonment for the whole of the remaining period of the convicted person's natural life unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence. Similar was the view taken by the Hon'ble Supreme Court in the case of Shri Bhagwan Vrs. State of Rajasthan, 2001 (6) SCC 296 . In the case of Mohd. Munna Vrs. Similar was the view taken by the Hon'ble Supreme Court in the case of Shri Bhagwan Vrs. State of Rajasthan, 2001 (6) SCC 296 . In the case of Mohd. Munna Vrs. Union of India and Ors., 2005 (7) SCC 417 , the Hon'ble Supreme Court held that the life imprisonment means imprisonment for whole of the remaining period of the convicted person's natural life. There is no provision either in the Indian Penal Code or in the Code of Criminal Procedure, whereby life imprisonment could be treated as either 14 years or 20 years without there being of formal remission by the appropriate Government. In the case of Sangeet and Anr. Vrs. State of Haryana, 2013 (2) SCC 452 , the Hon'ble Supreme Court held that a prisoner serving a life sentence has no indefeasible right to be released on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life subject to any remission granted by the appropriate Government under Section 432 Code of Criminal Procedure. In the case of Duryodhan Rout Vrs. State of Orissa, 2014 AIR(SC) 3345, it is held that a sentence of imprisonment for life means a sentence for entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under the provisions of the Code of Criminal Procedure. At this juncture, it cannot be speculated as to what sentence is likely to be awarded, if conviction is recorded under section 409 of the Indian Penal Code particularly in view of the huge loss caused to the Government exchequer for illegal and unauthorized excavation of iron ore. Therefore, even though the petitioner is in judicial custody for about six years, I am of the humble view that the provision under section 436-A of Cr.P.C. is not applicable in the present case. 7. Therefore, even though the petitioner is in judicial custody for about six years, I am of the humble view that the provision under section 436-A of Cr.P.C. is not applicable in the present case. 7. Coming to the next contention raised by the learned counsel for the petitioner for grant of bail in view of the provision under section 437 (6) of Cr.P.C., the section reads as follows:- "Sec.437(6):- If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs." To attract the provision under sub-section (6) of section 437 Cr.P.C., it is the requirement of law that the case must be triable by a Magistrate and at least one of the offences under which the accused is facing trial should be non-bailable. In such a case, if the trial is not concluded within a period of sixty days from the first date fixed for taking evidence in the case and the accused is in custody during the whole of the said period then the Magistrate on application being filed by the accused for bail can release him on bail to his satisfaction. However if in spite of the accused being remained in custody for such period, the Magistrate is of the view that the accused should not be released on bail, he has to record his reasons in that respect. There is no dispute that taking into account the nature of offences which are triable by Magistrate, the legislature in its wisdom has thought of conclusion of such trial without any unreasonable delay. There may be several contingencies for not concluding the trial by the Magistrate within a period of sixty days from the first date fixed for taking evidence and in some cases the accused himself may be responsible for that. There may be several contingencies for not concluding the trial by the Magistrate within a period of sixty days from the first date fixed for taking evidence and in some cases the accused himself may be responsible for that. For example, if after the commencement of trial, the accused approaches the higher Court challenging some order passed by the learned Magistrate and obtains an order of stay or the accused deliberately takes time for cross-examining the prosecution witnesses or adducing his defence evidence then there is possibility of non-completion of trial within the aforesaid period of sixty days. Being responsible for delay in disposal of the trial, the accused cannot take benefit of this provision and demand his right for being released on bail. There may be number of chargesheet witnesses in a case or the Presiding Officer may in some cases be not available after the first date fixed for taking evidence or there may be huge pendency of such types of cases in a particular Court. In some such cases, the Magistrate may refuse to exercise his discretion in favour of the accused if he feels that release of the accused on bail will have a serious adverse impact on the society. Therefore, it is the duty of the Magistrate not to grant unnecessary adjournment in such cases and make every endeavour to conclude the trial as expeditiously as possible keeping in view the intention of the legislature in making such a provision. Even otherwise also if the trial is not concluded within a period of sixty days from the first date fixed for taking evidence in the case then also if the Magistrate feels that the release of the accused would not be in the interest of justice or that the accused is a habitual offender or an absconder then he can assign those reasons for not releasing him on bail. In trial of warrant cases by Magistrate, after framing of charge under section 240 Cr.P.C, the date is fixed for taking evidence in the case and obviously the period of sixty days has to be counted from that date. In trial of warrant cases by Magistrate, after framing of charge under section 240 Cr.P.C, the date is fixed for taking evidence in the case and obviously the period of sixty days has to be counted from that date. Similarly in cases instituted otherwise than on police report, after framing of the charge under section 246(1) Cr.P.C, if the accused wishes to cross-examine any of the prosecution witnesses already examined before framing of charge, the Magistrate shall fix the date and the period of sixty days has to be counted from that date. Therefore, no straight jacket formula can be laid down as to in which Magistrate triable non-bailable offence case, the accused shall be released on bail in case he is in custody during the whole period of sixty days from the date fixed for taking evidence in the case. It depends on the facts and circumstances of each case. The right of the accused under section 437(6) of the Code is not an absolute right. The very fact that the discretion has been left to the Magistrate to direct otherwise than to release the accused on bail after recording the reasons in writing substantiate that the provision is not mandatory. The inbuilt exception has to be exercised with due care striking a balance between the rights of the accused and the rights of the society as a whole. In case of Nehul Prakashbhai Shah & Ors. Vrs. State of Gujarat, 2012 (3) GLR 685 passed in Criminal Reference No.2 of 2011 decided on 06.07.2012 by a Division Bench of Gujarat High Court, the following questions were referred for answer:- (i) Whether in a case triable by the learned Magistrate particularly of a person accused of any non-bailable offence not concluded within a period of sixty days from the first date fixed for taking evidence in the case and such person is in custody during the whole of the said period, such person gets an absolute indefeasible right to be released on bail to the satisfaction of the learned Magistrate unless for the reasons to be recorded in writing by the learned Magistrate to direct otherwise? (ii) Whether the provisions of sec. 437(6) of the Code is mandatory or not? (ii) Whether the provisions of sec. 437(6) of the Code is mandatory or not? (iii) Whether the learned Magistrate has an option to refuse bail upon his satisfaction by recording reasons in writing and in such an eventuality, what could be the parameters, factors, grounds and circumstances to be considered by the learned Magistrate vis-a-vis the application preferred by the accused claiming absolute right in such circumstances as mentioned in sub-sec. (6) of sec. 437 of the Code? (iv) Whether the above factors, parameters, circumstances and grounds for seeking bail by the accused as well as the ground to be considered by the learned Magistrate for his satisfaction are to be similar to that of sub-secs. (1), (2) of sec. 437 of the Code or other than that or no straight-jacket formula can be laid? (v) Whether the parameters contained in sec. 167(2)(a)(i)(ii) of the Code (default bail) found in Chapter XII pertaining to 'information to the police and their powers to investigate' can be imported for exercising powers for seeking bail under sec. 437(6) found in Chapter XXXIII pertaining to the provisions as to 'bail and bonds'? (vi) Whether a decision in principle on which it is decided is binding to the Co-ordinate Bench of equal strength when such decision of the earlier Bench is a principle of law laid down and/or a 'statement of law' in the context of the subject-matter? (vii) Whether the accused has a fundamental right under Art. 21 of the Constitution of India for a speedy trial can it be pressed into service vis-a-vis right of the accused accruing under sec. 437(6) of the Code. The Division Bench while answering the question wise held as follows:- Q.1. An accused involved in a non-bailable offence triable by Magisterial Court whose trial is not concluded within a period of sixty days from the first date fixed for taking evidence in that case, and who has been in custody during the whole of the said period, does not get an absolute or indefeasible right to be released on bail to the satisfaction of the Magistrate. The Magistrate has discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection. Q.2. The provisions contained in sec. 437(6) of the Code are not mandatory. Q.3. The Magistrate has option/discretion to refuse bail by assigning reasons there for. The Magistrate has discretion to direct otherwise (refuse bail) by recording in writing the reasons for such rejection. Q.2. The provisions contained in sec. 437(6) of the Code are not mandatory. Q.3. The Magistrate has option/discretion to refuse bail by assigning reasons there for. The parameters, factors, circumstances and grounds to be considered by Magistrate vis-a-vis such application preferred by the accused under sec. 437(6) of the Code may be: 1. Whether the reasons for being unable to conclude trial within sixty days from the first date fixed of taking evidence, are attributable to the accused? 2. Whether there are any chances of the accused tampering with evidence or causing prejudice to the case of the prosecution in any other manner? 3. Whether there are any chances of abscondance of the accused on being bailed out? 4. Whether accused was not in custody during the whole of the said period? If the answer to any one of the above referred fact situations or similar fact situations is in affirmative than that would work as a fetter on the right that accrues to the accused under first part of sub-sec. (6) of sec. 437 of the Code. The right accrues to him only if he is in custody during the whole of the said period as can be seen from the language employed in sub-sec. (6) of sec. 437 of the Code by the legislature. It would also be relevant to take into consideration the punishment prescribed for the offence for which the accused is being tried in comparison to the time that the trial is likely to take, regard being had to the factors like volume of evidence, number of witnesses, workload on the Court, availability of prosecutor, number of accused being tried with accused and their availability for trial, etc. The factors which are quoted above by this Court are only illustrative and not exhaustive. Q.4. The factors, parameters, circumstances and grounds for seeking bail by the accused as well as grounds to be considered by the learned Magistrate for his satisfaction would not be identical or similar to sub-sec. (1) and sub-sec. (2) of the sec. 437 of the Code, but may be relevant and overlapping each other depending upon facts and there cannot be any straightjacket formula. But, we may add that the reasons for rejection of applications under sec. (1) and sub-sec. (2) of the sec. 437 of the Code, but may be relevant and overlapping each other depending upon facts and there cannot be any straightjacket formula. But, we may add that the reasons for rejection of applications under sec. 437(6) need to be more weighty than the routine grounds of rejection. Q.5. The parameters relevant for deciding application under sec. 167(2)(a)(i)(ii) of the Code (default bail), cannot be imported for exercise of power under sec. 437(6) of the Code. Q.6. A decision in principle rendered by a Coordinate Bench of equal strength would bind another Co-ordinate Bench as it lays down a principle of law and not a statement of law in context of subject-matter. Q.7. The legislature, while enacting sec. 437(6) of the Code, has not given an absolute, indefeasible or unfettered right of bail. But right of bail is given with a rider investing the Magistrate with discretion to refuse bail by recording reasons there for. Therefore, the right of accused for a speedy trial, though, constitutional and aimed at liberty of accused, is not put on that high a pedestal that it becomes absolute. It is a right given with reasonable restrictions. This is the only way the provisions of sec. 437(6) of the Code and Art. 21 of the Constitution of India can be harmonised and have to read and interpreted accordingly. In case of Robert Lendi Vrs. The Collector of Customs and another, 1986 (3) Crimes(HC) 54, a Division Bench of Delhi High Court held as follows:- "15. This brings us back to sub-section (6) of sec. 437. The object of sub-section (6) of sec. 437 is that if the trial of non-bailable offences in the Court of Magistrate is not concluded within sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. 16. The expression "from the first date fixed for taking evidence in the case", cannot be read in isolation of the expression "if the trial of a person accused of any non-bailable offence is not concluded within a period of the sixty days". Both these expressions have to be read together and in harmony. 16. The expression "from the first date fixed for taking evidence in the case", cannot be read in isolation of the expression "if the trial of a person accused of any non-bailable offence is not concluded within a period of the sixty days". Both these expressions have to be read together and in harmony. A plain reading of the provision would clearly go to show that the period of sixty days will start from the date fixed for taking evidence in the case in which the accused has been charged and has pleaded not guilty to the charge, and has asked for being tried. In other words the time spent on recording the precharge evidence which is usually recorded in complaint cases before the charge is framed, will not be counted for purposes of sub-section (6) of sec. 437 Cr.P.C. In our view, therefore, Mr. Mehta's line of reasoning is not correct and it does not commend to us. 17. The next question that arises for consideration is whether while refusing bail under sub-section (6) of sec. 437 of the Code the Magistrate can only refuse bail on the limited reasoning germane to the cause of delay and whether the bail can be refused on the general grounds recognised as good for refusal to grant bail. Undoubtedly, the object of sub-section (6) of sec. 437 of the Code is to eradicate delay in trial. To us, it appears that it is equally important that the ends of justice do not suffer. The procedural laws are essentially meant to safeguard the interest of justice. The twin objects namely to eradicate the delay in trial and to achieve and ends of justice are necessarily to be harmonized. It is in that the context one has to find out whether the discretion exercised by the Magistrate in withholding bail after sixty days, has been properly and judicially exercised. We find nothing in the provision to support the assertion of Mr. Mehta that the reasons for the declining the bail under this provision should be only those which are germane to the cause of delay. There is no reason to give such a restricted meaning to the provision. The expression used in the provision is "unless for the reasons to be recorded in writing, the Magistrate otherwise directs". Mehta that the reasons for the declining the bail under this provision should be only those which are germane to the cause of delay. There is no reason to give such a restricted meaning to the provision. The expression used in the provision is "unless for the reasons to be recorded in writing, the Magistrate otherwise directs". A plain reading of the expression shows that the Legislature has put no fetters on the powers of the Magistrate that under this provision bail can only be refused for reasons germane to the cause of delay. If that were so, the Legislature would have certainly made it clear. To us it appears that the considerations for refusing bail under this provision can be the reasons which are generally invoked and understood in law as the grounds for refusing bail. All that is required of the Magistrate is that should he decide to decline to grant bail, he must record his reasons in writing. There are no fetters placed on the exercise of this discretion. 18. It was next urged by Mr. Mehta that the even if a distinction is recognised between the 'Enquiry' and 'Trial', the petitioner was entitled to grant of bail, as the first date fixed for taking evidence in the case was 17th of February 1986 and that since sixty days' period has expired, the petitioner should be released on bail. We have given our anxious consideration to the contention of Mr. Mehta. The learned A.C.M.M. has refused bail on the ground that the case against the petitioner is a serious one involving smuggling of gold and since the petitioner is a foreigner and has no fixed residence in India, there is likelihood of this jumping the bail. We do not find anything wrong in the reasons given by the learned Magistrate for refusing to grant bail. We may, however, additionally state that on a perusal of the copy of the order sheet, right from 17-2-1986 onwards, it is abundantly clear that the delay in the trial of the case against the petitioner has mostly been caused due to the conduct of the defense. In that view of the matter and in the light of the reasons given by the learned A.C.M.M. for refusing bail, we are of the opinion that the petitioner cannot be granted bail. 19. In that view of the matter and in the light of the reasons given by the learned A.C.M.M. for refusing bail, we are of the opinion that the petitioner cannot be granted bail. 19. In conclusion we may state that there is a sharp distinction recognised by the Code of Criminal Procedure between the Enquiry and Trial. Under sub-section (6) of sec. 437 of the Code, the first date fixed for taking evidence in the case, would be the date fixed for recording of evidence, after the accused is charge-sheeted and the prosecution is given notice of the date on which the evidence of the prosecution is to be recorded. We are further of the view that the reasons for refusing bail under this provision need not be restricted to reasons which are germane to the cause of delay. We see no such fetters on the powers of the Magistrate and the only requirement of law is that should the Magistrate refuse to grant bail, he must record his reasons for so doing in writing. The reference is accordingly answered." The learned trial Court has held that the petitioner is facing trial before a Special Judge appointed under section 3 of the Prevention of Corruption Act, 1988 and as per sub-section (3) of section 5 of the said Act, the Court of the Special Judge is deemed to be a Sessions Judge while exercising his power under the provision of Cr.P.C. and the trial of an offence by Special Judge, which also can be tried by a Magistrate does not deem to be a trial before a Magistrate. In the case of State of Tamil Nadu Vrs. Krishnaswami Naidu and Anr., 1979 AIR(SC) 1255, a question was raised whether the Special Judge has the power of remand. The Hon'ble Supreme Court, by referring to Section 3(32) of the General Clauses Act, 1897 defining a Magistrate, held that Magistrate will include a Special Judge. Therefore, a Special Judge shall be a Magistrate for the purposes of section 167 of the Code even though the word 'Special Judge' is not mentioned in section 167. In the case of Bangaru Laxman Vrs. State (through CBI) and Ors., 2012 AIR(SC) 873, it is held as follows:- "41. Therefore, a Special Judge shall be a Magistrate for the purposes of section 167 of the Code even though the word 'Special Judge' is not mentioned in section 167. In the case of Bangaru Laxman Vrs. State (through CBI) and Ors., 2012 AIR(SC) 873, it is held as follows:- "41. It is therefore clear that, on the ratio of V. Krishnaswami (supra), the Special Judge has been given a very important magisterial function, namely the power of remand. Compared to that, the power to grant pardon is an ancillary power. Therefore, under the scheme of the Code, read with section 5(2) of the PC Act, and in light of the consistent view of this Court, a Special Judge will include a Magistrate. On the same parity of reasoning a Special Judge, unless specifically denied, will have the power to grant pardon. Here there is no question of specific denial, rather section 5(2) of the P.C. Act clearly confers this power subject to the deeming clause, the limited purpose of which has been discussed above. 42. Thus, on a harmonious reading of section 5(2) of the P.C. Act with the provisions of section 306, specially section 306(2)(a) of the Code and section 26 of the P.C. Act, this Court is of the opinion that the Special Judge under the P.C. Act, while trying offences, has the dual power of the Session Judge as well as that of a Magistrate. Such a Special Judge conducts the proceedings under the Court both prior to the filing of charge sheet as well as after the filing of charge sheet, for holding the trial." The offence under the 1988 Act is triable by a Special Judge appointed under section 3 of the Act. Section 5(1) of the 1988 Act provides that a Special Judge in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, for the trial of warrant cases by the Magistrates. Trial of warrant cases by the Magistrates is provided under Chapter XIX of Cr.P.C. Section 5(3) of the 1988 Act states that the provisions of Cr.P.C., save as provided in sub-section (1) or sub-section (2), so far they are not inconsistent with the 1988 Act, shall apply to the proceedings before a Special Judge and for purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session. In case, the Special Judge is held not to have the dual capacity and powers both of the Magistrate and the Court of Session, depending upon the stage of the case, there will be a complete hiatus. It is only in the event of inconsistency with the provisions of Cr.P.C. that the provisions of the 1988 Act would prevail. Merely because the Special Judge has the dual capacity and powers both of the Magistrate and the Court of Session and while trying the accused persons for the commission of offences punishable under the 1988 Act, he shall follow the procedure prescribed by the Cr.P.C., for the trial of warrant cases by the Magistrates as envisaged under chapter XIX of Cr.P.C., it cannot be said that the present case which is pending before the learned trial Court is triable by Magistrate and the case also cannot be deemed to be a trial before a Magistrate. The provision of section 437(6) of the Code shall be applicable to a case triable by the Court of a Magistrate and such provision does not apply to the proceedings before Special Judge in trying cases under the 1988 Act. Therefore, the learned trial Court has rightly turned down the applicability of section 437(6) of the Code for grant of bail. 8. Coming to the detention period of the petitioner and delayed trial as highlighted by the learned counsel for the petitioner, it is not in dispute that Article 21 of the Constitution of India guarantees for speed trial and an under trial prisoner cannot be detained in jail custody for an indefinite period. The Court while exercising its discretionary jurisdiction while considering the application for bail has to maintain a balance between the valuable right of liberty of an individual and the interest of the society in general. While considering the bail application of an accused who is involved in the grave economic offences, the Court has to view it seriously as it involves deep rooted conspiracies and huge loss of public funds and affects the economy of the country as a whole and thereby poses serious threat to the financial health of the country. While considering the bail application of an accused who is involved in the grave economic offences, the Court has to view it seriously as it involves deep rooted conspiracies and huge loss of public funds and affects the economy of the country as a whole and thereby poses serious threat to the financial health of the country. Reliance was placed by the learned counsel for the petitioner in the case of R.P. Upadhyay (supra) wherein time limit of two years of custody was taken for grant of bail involving the offence under section 307 of the Indian Penal Code. In the case of Shaheen Welfare Association (supra), time limit of five years detention in custody was applied to the prisoners involved in offences under section 3 and 4 of TADA whose trial was not likely to be completed in the next six months time. In the case of Byrraju Ramaa Raju (supra), bail was granted as the accused persons had already spent two years and eight months in jail and the case involved corporate fraud of such massive proportion that it had not only shaken the commercial world in the country but abroad as well. Learned counsel for the State on the other hand placed reliance in the case of State of Gujarat Vrs. Mohanlal Jitamalji Porwal, 1987 AIR(SC) 1321, wherein it is held as follows:- 5......The mere fact that six years had elapsed, for which time-lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day......The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest." While rejecting the earlier bail application of the petitioner in BLAPL No.926 of 2017 as per order dated 24.08.2017, after verifying the order sheet of the learned trial Court, it was observed that the accused persons including the petitioner are playing hide and seek with the Court just to delay the progress of the trial and more particularly, the petitioner was keen to see that trial is not progressed for about a year which would give him an additional ground to apply for bail in view of the observation made in BLAPL No.854 of 2015. It was further held that the learned trial Court cannot be blamed for the delay and the deliberate delay caused by the accused persons including the petitioner cannot be a ground to grant bail to the petitioner and that delay in progress of the trial in the factual scenario has not created an additional ground for grant of bail. The order sheet and the evidence copy of the witnesses produced by the learned counsel for the petitioner indicate that till 24.08.2017 (when the last bail application was rejected), only one prosecution witness was examined in part. The examination-in-chief of P.W.1 was completed on 04.09.2017 but the cross-examination was deferred on the petition filed by the petitioner and other accused persons till the examination of M. Radhakrishna, D.S.P., Vigilance, Cuttack who was the team leader. Thereafter, the case was posted to 05.09.2017, 18.09.2017, 25.09.2017, 10.10.2017, 24.10.2017, 06.11.2017, 18.11.2017, 01.12.2017, 14.12.2017 and 15.12.2017 but not a single prosecution witness was examined. On 16.12.2017 P.W.2 was examined in part and the case was adjourned and on the next dates i.e. 26.12.2017, 08.01.2018, 09.01.2018, 18.01.2018 and on 19.01.2018, the prosecution did not produce P.W.2 for his further examination. Thereafter, the case was posted to 05.09.2017, 18.09.2017, 25.09.2017, 10.10.2017, 24.10.2017, 06.11.2017, 18.11.2017, 01.12.2017, 14.12.2017 and 15.12.2017 but not a single prosecution witness was examined. On 16.12.2017 P.W.2 was examined in part and the case was adjourned and on the next dates i.e. 26.12.2017, 08.01.2018, 09.01.2018, 18.01.2018 and on 19.01.2018, the prosecution did not produce P.W.2 for his further examination. On 31.01.2018 even though one witness M. Radhakrishna was produced but on the prayer of Special P.P., the hearing was adjourned. On the next date i.e. on 01.02.2018 P.W.2 was produced and his examination-in-chief was completed and P.W.3 M. Radhakrishna was examined in part and as the said witness was not allowed to refresh his memory by looking at the documents, the State challenged the order dated 01.02.2018 before this Court in CRLMC No.977 of 2018 and while issuing notice, this Court vide order dated 10.04.2018 in M.C. No.650 of 2018 directed the trial to proceed but further examination of P.W.3 was kept in abeyance. The case then suffered adjournments on 13.02.2018, 27.02.2018, 12.03.2018, 22.03.2018, 04.04.2018 and 17.04.2018 without examination of a single prosecution witness. P.W.4 was examined on 30.04.2018 and P.W.5 was examined on 11.05.2018. No prosecution witness was present on 24.05.2018 and 05.06.2018. On 03.07.2018 P.W.7 was examined. No prosecution witness was present on 17.07.2018 and 31.07.2018. P.W.8 was examined in part but on 21.08.2018 he remained absent. On 03.09.2018, 12.09.2018, 25.09.2018, 09.10.2018, 12.10.2018, 05.11.2018 due to cease work call given by the Bar Association, no witness could be examined. On 17.11.2018 the Presiding Officer was absent and on 01.12.2018 P.W.8 was examined further and on 03.12.2018 his evidence was completed. On 15.12.2018 and 26.12.2018 P.W.9 was examined. P.W.10 was examined on 10.01.2019 and P.W.11 was examined on 24.01.2019. P.W.12 was examined on 08.02.2019 in part and on 21.02.2019 he did not appear for his further examination and on 07.03.2019 recording of his evidence was completed. On 20.03.2019 no witness was present. On 02.04.2019 P.W.13 was examined so also P.W.14 was examined in part. No witness remained present on 16.04.2019. P.W.15 was examined on 30.04.2019 and P.W.16 was examined on 14.05.2019. On 27.05.2019 and 10.06.2019 no witness remained present. On 24.06.2019 P.W.14 was cross-examined in part and it was deferred. On 08.07.2019 and 22.07.2019 no witness was present. On 02.04.2019 P.W.13 was examined so also P.W.14 was examined in part. No witness remained present on 16.04.2019. P.W.15 was examined on 30.04.2019 and P.W.16 was examined on 14.05.2019. On 27.05.2019 and 10.06.2019 no witness remained present. On 24.06.2019 P.W.14 was cross-examined in part and it was deferred. On 08.07.2019 and 22.07.2019 no witness was present. In the order dated 08.07.2019, the learned trial Court while rejecting the memo filed by the co-accused Jagannath Mishra for a direction to the prosecution to supply the visible and exact copy of the map (Ext. 95), it was observed that it is a year old case of the year 2013 and one of the accused is UTP and in order to delay the proceeding, the memo has been filed. The said order has got nothing to do with the petitioner. The evidence of the witnesses produced indicates that after completion of examination-in-chief, the witnesses were cross-examined by different sets of lawyers and it runs to several pages. On a conspectus of the order sheet, it is evident that after rejection of the bail order of the petitioner on 24.08.2017, the learned trial Court used to post the trial of the case on two or three dates each month and issued summons after summons but only sixteen witnesses so far could be examined and the evidence of some of the witnesses has remained incomplete for some reason or other. The delay has been caused after 24.08.2017 mainly due to laches of the prosecution in not producing the witnesses and on some occasion on account of cease work call given by the Bar Association. Though some witnesses have been examined and cross-examined for days together but no fault can be attributed to either of the parties for that. The learned trial Court seems to have not verified the status of the summons issued to the witnesses and has taken no coercive step to ensure the attendance of the witnesses who did not appear on receipt of summons. While rejecting the bail application on 28.03.2016, this Court directed the learned trial Court to take all possible steps to proceed with the trial on dayto-day basis. While rejecting the bail application on 28.03.2016, this Court directed the learned trial Court to take all possible steps to proceed with the trial on dayto-day basis. The learned trial Court has also not adhered to the provision under section 309 of Cr.P.C. and the prosecution has mostly contributed to the delay in the trial of the case after rejection of the last bail application of the petitioner perhaps forgetting that the delay might hamper the result and the justice which it is expecting due to loss of more than one thousand five hundred crores to the Government exchequer. The learned counsel for the State on instruction submitted that out of 178 charge sheet witnesses, the prosecution is likely to examine 147 witnesses. Since within a span of almost two years after rejection of the last bail application on 24.08.2017 by this Court, the prosecution has examined only sixteen witnesses i.e. on an average of eight witnesses per year in the sixty two dates the case was posted, nobody knows how many years it would take for the prosecution to conclude the examination of the rest of the witnesses and thereafter how much time would be consumed to conclude the trial and pronounce the judgment. Everything moves in the sphere of uncertainty and the sufferer is not only the accused but also the State of Odisha and the people who are eagerly awaiting to see the verdict in this multi-crores mining scam. I am satisfied that in the last two years, at least the accused persons have not played truancy with the criminal trial or corroded the sanctity of the proceeding rather the prosecution has made the trial a farcical one. The learned trial Court has also remained like a silent spectator to the lackadaisical attitude of the prosecution in ensuring the attendance of the witnesses on different dates and thereby causing mockery of the trial. It seems that the right of speedy trial which is a fundamental right under Article 21 of the Constitution of India and denial of this right corrode the public confidence in the justice delivery system, has not been properly taken care of either by the prosecution or by the learned trial Court. In the case of Hussain (supra), it is held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. In the case of Hussain (supra), it is held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. The Court further held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases. In the case in hand, the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and the petitioner has remained in custody for about six years and since at least for the last two years, the petitioner has not contributed to the delay, the detention has virtually became pre-trial punishment to him. 9. In view of the foregoing discussions, since the nature of accusation against the petitioner is very serious one and it relates to the commission of grave economic offences and on account of the crime committed in a cool, calculated and organized manner in connivance with mining, forest, revenue officials and mining lease holders, the Government exchequer has sustained huge loss to the tune of more than one thousand five hundred crores and a strong prima facie case is available against the petitioner, while not inclining to release the petitioner on bail in absence of any substantial change of circumstances after rejection of the last bail application by this Court except a further detention of about two years with slow progress of the trial, I direct the learned trial Court to expedite trial keeping in view the provision under section 309 of Cr.P.C., to take effective step to ensure the attendance of witnesses and if the trial is not progressed substantially with the examination of material witnesses by December 2019, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in accordance with law. Accordingly, the bail application is disposed of. A copy of the order be communicated forthwith to the learned trial Court for information and necessary action.