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2020 DIGILAW 133 (ORI)

Deepak Gupta v. State of Orissa

2020-06-26

S.K.SAHOO

body2020
JUDGMENT : S.K. Sahoo, J. I.A. No. 268 of 2020 1. Heard Mr. Santosh Kumar Mund, learned counsel for the petitioner and Mr. N.C. Panigrahi, learned Senior Advocate appearing for the State of Orissa (Vigilance). 2. 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 Penal Code, 1860 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 prayed for interim bail in I.A. No. 268 of 2020. 3. The petitioner has approached this Court for the sixth time in BLAPL No. 1042 of 2020 after his earlier five unsuccessful attempts before this Court and twice before the Hon'ble Supreme Court. 4. The bail application of the petitioner was rejected by this Court last time in BLAPL No. 1053 of 2019 vide order dated 07.08.2019 with following observations: “…..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. 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.” xxxxxxxx “…..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.” xxxxxxxx “…..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. 5. The order of this Court was received by the learned trial Court on 22.08.2019. The petitioner moved an application for bail before the learned trial Court after December 2019 mainly on the ground that there was no substantial progress of trial and only few witnesses were examined by the prosecution. The application came to be rejected on 28.01.2020. 6. Mr. Mund, learned counsel for the petitioner, strenuously contended that after receipt of the order of this Court on 22.08.2019 by the learned trial Court, the trial of the case was posted on twelve dates by end of December 2019 and during that period, the evidence of only eight witnesses could be completed. 6. Mr. Mund, learned counsel for the petitioner, strenuously contended that after receipt of the order of this Court on 22.08.2019 by the learned trial Court, the trial of the case was posted on twelve dates by end of December 2019 and during that period, the evidence of only eight witnesses could be completed. The case was posted to different dates not keeping in view the provision under section 309 of Cr.P.C. in spite of observation of this Court in the last bail rejection order. He further submitted that two more witnesses were examined on 04.01.2020 and therefore, since the prosecution intended to examine 147 witnesses out of 178 charge sheet witnesses as submitted by the learned counsel for the State during the hearing of the last bail application of the petitioner before this Court and after framing of charge since 05.06.2017, only twenty five witnesses have been examined so far during a span of three years and the hearing of the main bail application would take a little more time and in the present scenario arising out of the COVID-19 pandemic, it would be difficult to conduct such hearing on video conferencing, the petitioner's interim bail application be favourably considered. 7. Mr. Panigrahi, learned Senior Advocate appearing for the State of Orissa (Vigilance) though agreed for the hearing of the interim application first but vehemently opposed the prayer for interim bail and contended that there has been substantial progress of the trial after receipt of the order of this Court by the learned trial Court passed in the last bail application and the learned trial Court has posted the case to twelve dates by December 2019 and since the said Court is also dealing with other cases, no fault can be found either with the Court or with the prosecution for non-conducting the trial on day-to-day basis. He emphasised that witnesses are being cross-examined by different set of lawyers appearing for different accused persons for days together for which there is delayed progress of trial. While concluding his submission, he further emphasised that there is every likelihood of the petitioner influencing/intimidating witnesses/tampering with evidence, in the event of his release even on interim bail and therefore, the prayer made in the interim application does not deserve any consideration. 8. While concluding his submission, he further emphasised that there is every likelihood of the petitioner influencing/intimidating witnesses/tampering with evidence, in the event of his release even on interim bail and therefore, the prayer made in the interim application does not deserve any consideration. 8. The short point that arises for consideration is whether relief of interim bail can be granted to the petitioner in view of the previous order of this Court dated 07.08.2019 passed in BLAPL No. 1053 of 2019. Some of the important factual aspects which are relevant for consideration of this application are as follows:— (i) The petitioner is in judicial custody since 05.09.2013 in connection with this case which is more than six years nine months; (ii) The charge was framed on 05.06.2017 and the first witness for the prosecution was examined on 22.08.2017; (iii) The prosecution intends to examine 147 witnesses out of 178 charge sheet witnesses as was submitted by the learned counsel for the State on instruction which has been reflected in the last bail rejection order; (iv) Direction was given to 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 the petitioner was given liberty to move for interim bail in the trial Court if the trial is not progressed substantially with the examination of material witnesses by December 2019; (v) The order of this Court passed in the last bail application was received by the learned trial Court on 22.08.2019; (vi) During the period from 22.08.2019 till end of December 2019, the evidence of only eight prosecution witnesses could be completed and till date, only twenty five charge sheet witnesses have been examined. 9. Section 309 of Cr.P.C. provides, inter alia, that in every inquiry or trial, the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. It is further provided that no adjournments shall be granted at the request of a party, except where the circumstances are beyond the control of that party. 10. It is further provided that no adjournments shall be granted at the request of a party, except where the circumstances are beyond the control of that party. 10. A five-judge Constitution Bench of the Hon'ble Supreme Court in the case of Kartar Singh v. State of Punjab reported in (1994) 3 SCC 569 held that the constitutional guarantee of speedy trial is properly reflected in section 309 of the Code of Criminal Procedure. 11. In the case of Vinod Kumar v. State of Punjab reported in (2015) 3 SCC 220 , keeping in view the provision under section 309 of Cr.P.C., it is held as follows:— “57. Before parting with the case, we are constrained to reiterate what we have said in the beginning. We have expressed our agony and anguish for the manner in which trials in respect of serious offences relating to corruption are being conducted by the trial courts. 57.1. Adjournments are sought on the drop of a hat by the counsel, even though the witness is present in court, contrary to all principles of holding a trial. That apart, after the examination-in-chief of a witness is over, adjournment is sought for cross-examination and the disquieting feature is that the trial courts grant time. The law requires special reasons to be recorded for grant of time but the same is not taken note of. xxxxxxxx 57.3. There is no cavil over the proposition that there has to be a fair and proper trial but the duty of the court while conducting the trial is to be guided by the mandate of the law, the conceptual fairness and above all bearing in mind its sacrosanct duty to arrive at the truth on the basis of the material brought on record. If an accused for his benefit takes the trial on the path of total mockery, it cannot be countenanced. The Court has a sacred duty to see that the trial is conducted as per law. If adjournments are granted in this manner, it would tantamount to violation of the rule of law and eventually turn such trials to a farce. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. 57.4. It is legally impermissible and jurisprudentially abominable. The trial courts are expected in law to follow the command of the procedure relating to trial and not yield to the request of the counsel to grant adjournment for non-acceptable reasons. 57.4. In fact, it is not all appreciable to call a witness for cross-examination after such a long span of time. It is imperative if the examination-in-chief is over, the cross-examination should be completed on the same day. If the examination of a witness continues till late hours, the trial can be adjourned to the next day for cross-examination. It is inconceivable in law that the cross-examination should be deferred for such a long time. It is anathema to the concept of proper and fair trial. 57.5. The duty of the court is to see that not only the interest of the accused as per law is protected but also the societal and collective interest is safeguarded. It is distressing to note that despite series of judgments of this Court, the habit of granting adjournment, really an ailment, continues. How long shall we say, “Awake! Arise!”. There is a constant discomfort. Therefore, we think it appropriate that the copies of the judgment be sent to the learned Chief Justices of all the High Courts for circulating the same among the learned trial Judges with a command to follow the principles relating to trial in a requisite manner and not to defer the cross-examination of a witness at their pleasure or at the leisure of the defence counsel, for it eventually makes the trial an apology for trial and compels the whole society to suffer chicanery. Let it be remembered that law cannot allowed to be lonely; a destitute.” 12. On a conspectus of the certified copy of the order sheet of the learned trial Court filed by the learned counsel for the petitioner, it reveals that after the order of this Court passed in the last bail application was received by the learned trial Court on 22.08.2019, till end of December 2019, the case was posted for trial on twelve dates i.e. 05.09.2019, 19.09.2019, 03.10.2019, 17.10.2019, 30.10.2019, 31.10.2019, 01.11.2019, 15.11.2019, 16.11.2019, 29.11.2019, 13.12.2019 and 16.12.2019. 13. 13. On 05.09.2019, P.W.14 who was earlier cross-examined in part was present and he was further cross-examined by the learned counsel for one of the accused and it was deferred to 19.09.2019 for further cross-examination on a time seeking petition being filed by the said counsel. On 19.09.2019, cross-examination of P.W.14 was completed and he was discharged. On that very day, P.W.17 was examined, cross-examined and discharged. On 03.10.2019, P.W.18 was examined, cross-examined in part and her further cross-examination was deferred due to want of time. On 17.10.2019, no witness was present. On 30.10.2019, P.W.19 was examined, cross-examined in part and his further cross-examination was deferred on time seeking petitions filed by the learned counsel for two accused. On 31.10.2019, P.W.20 was examined, cross-examined in part and her further cross-examination was deferred on time seeking petitions filed by the learned counsel for two accused. On 01.11.2019, P.W.21 was examined, cross-examined and discharged. On 15.11.2019, further cross-examination of P.W.18 continued and she was discharged. On 16.11.2019, P.W.22 and P.W.23 were examined, cross-examined and discharged. On 29.11.2019, further cross-examination of P.W.20 continued and she was discharged. On 13.12.2019, further cross-examination of P.W.19 continued and he was discharged. On 16.12.2019 no witness was present. 14. On 04.01.2020, P.W.24 and P.W.25 were examined, cross-examined and discharged. 15. Thus the posting of the dates of trial after receipt of the order of this Court clearly reveal that the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observations of this Court passed in BLAPL No. 1053 of 2019 in the order dated 07.08.2019 and also in BLAPL No. 854 of 2015 in which this Court observed that the learned trial Court shall take all possible step to proceed with the trial on day-today basis. If the learned trial Court is also dealing with other cases for which it was not possible on its part to give more time to this particular case, the case could have been taken up during a particular time slot on each date keeping in view the mandate of section 309 of the Code. If the learned trial Court is also dealing with other cases for which it was not possible on its part to give more time to this particular case, the case could have been taken up during a particular time slot on each date keeping in view the mandate of section 309 of the Code. If any defence counsel after cross-examining a prosecution witness for some time filed a petition for time to defer the cross-examination, the learned trial Court should not have been so liberal in adjourning the case giving long dates without realizing the inconvenience likely to be faced by the official witnesses in attending the Court again and again. No special reasons have been assigned by the learned trial Court in adjourning the case to long dates in spite of the earlier orders of this Court. None of the parties has approached the Hon'ble Supreme Court against the order of this Court passed in BLAPL No. 1053 of 2019 and thus the observations made therein attained finality and become binding on the trial Court. After receipt of the order of this Court by the learned trial Court on 22.08.2019, the counsel for the petitioner who is appearing for him has not sought for any adjournment. Therefore, the petitioner is no way responsible for the delayed trial. It cannot be lost sight of the fact that since last week of March 2020, there is no progress of trial in any Court in the State on account of situation arising out of the COVID-19 pandemic and only urgent matters are being taken up. 16. In view of the foregoing discussions, particularly keeping in view the period of detention of the petitioner for more than six years nine months in judicial custody and snail speed at which the trial of the case has proceeded so far, I am of the humble view that the petitioner has made out a case for grant of interim bail. Accordingly, the interim bail application is allowed. Let the petitioner be released on interim bail for a period of one month from the date of release on following conditions:— (i) He shall furnish cash security of Rs. 1,00,00,000/- (rupees one crore) in the shape of fixed deposit STDRs obtained from any nationalized bank and also furnish bail bond of Rs. Accordingly, the interim bail application is allowed. Let the petitioner be released on interim bail for a period of one month from the date of release on following conditions:— (i) He shall furnish cash security of Rs. 1,00,00,000/- (rupees one crore) in the shape of fixed deposit STDRs obtained from any nationalized bank and also furnish bail bond of Rs. 2,00,00,000/- (rupees two crores) with two local solvent sureties each for the like amount to the satisfaction of the learned trial Court with further terms and conditions as the learned Court may deem just and proper; (ii) He shall not leave the territorial jurisdiction of the trial Court without its prior permission; (iii) The petitioner shall, further, disclose his place of residence where he will be residing after his release on interim bail and also, disclose his phone numbers and e-mail address to the Vigilance Department. (iv) The petitioner shall not try to tamper with the prosecution evidence in any manner nor shall he make any threat or inducement to any witness acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court. (v) The petitioner shall surrender the passport, if possessed by him, before the trial Court. If he does not possess the passport, he shall file an affidavit before the trial Court to that effect. (vi) He shall personally appear before the trial Court on the date fixed for trial. (vii) He shall surrender before the trial Court on completion of the interim bail period. 17. Accordingly, the I.A. is disposed of. 18. A copy of the order be handed over to the learned counsel for the State of Orissa (Vigilance) and also be communicated forthwith to the learned trial Court for information and necessary action.