Pradeep Kumar Sethy vs State Of Odisha
2021 Latest Caselaw 12938 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                   BLAPL Nos.2023 of 2020 and 1830 of 2021


            Pradeep Kumar Sethy                   ....           Petitioner
                                        Mr. Millan Kanungo, Sr. Adv.

                                       -versus-

            State of Odisha                        ....             Opp. Party


                                       Mr. Manoj Kumar Mohanty, ASC


                      CORAM:
                      JUSTICE S.K. PANIGRAHI
                                   ORDER

Order No. 17.12.2021

15. 1. Both the matters are taken up through hybrid mode.

2. Heard learned counsel for the Petitioner and learned counsel for the State.

BLAPL No.2023 of 2020

3. The Petitioner being in custody in connection with Sahadevkhunta Police Station Case No.144 of 2013 corresponding to C.T. Case No.1041 of 2013 pending before the court of learned S.D.J.M., Balasore registered for the alleged commission of offences under Sections 420, 406, 409 and 34 of the I.P.C. read with Sections 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978,

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has filed this petition under Section 439 of the Cr.P.C. for his release on bail.

4.The prosecution story, in brief, is that the informant and others had invested their hard earned money in the Artha Tatwa Group of Company under different schemes. Thereafter, the office of the finance company was closed and vanished from the locality due to which they are unable to get back their deposits for the last 10 months. Having found no other alternative, the informant and others went to the head office in Bhubaneshwar, but the said Head office was also closed. It has also been alleged therein that the petitioner along with other Directors assaulted them by engaging local hooligans. With no other options left, the informant and others decided to lodge the written report at the police station.

BLAPL No.1830 of 2021

5. The Petitioner being in custody in connection with Chatrapur Police Station Case No.68 of 2013 corresponding to G.R. Case No.135 of 2013 pending before the court of learned S.D.J.M., Chatrapur registered for the alleged commission of offences under Sections 120B, 420, 468, 471 and 34 of the I.P.C. read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978, has filed this petition under Section 439 of the Cr.P.C. for his release on bail.

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6. The prosecution story, in brief, is that on 01.12.2010, the informant deposited a sum of Rs.1,00,000/- in the local branch of the company, but the local branch did not refund the deposited amount to him. As a result, the informant lodged the FIR at the police station against the Petitioner who is the Managing Director of Artha Tatwa Group.

7. Considering both the BLAPLs share the similar cause of action and facts pertaining to the Petitioner, both the cases have been clubbed together and heard analogously.

8. Learned counsel for the Petitioner submitted that on being authorized under the law, the Artha Tatwa being a Co-operative Bank opened its branch in different parts of Odisha and collected money from people on different schemes and also sanctioned loans and advances to public. However, when cases started getting registered against the company for the alleged failure to refund their money, the investigating agency started freezing and seizing different accounts of the Company without considering its authority to accept deposit from the investors. He further submitted that different assets of the Company which has already been seized by different investigating agencies are sufficient to meet the payment liability of the depositors. Moreover, since the company is registered and governed by a statute, if the investors fail to get back their money, the remedy lies in the Act i.e. Multi-State Co-operative Societies Act, 2002. Furthermore, there is a process of

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liquidation in the said Act which enables the official liquidator appointed by the Government to take over the assets of the company and by disposing of these assets, the shareholders and depositors can get their lost money back. In that circumstance, no criminal case should have been registered against the company and its Directors and Members of Management.

9. Additionally, he submitted that though the charge sheet has been submitted since 13.09.2013, however, till date the trial has not yet been commenced and the Petitioner is unnecessarily languishing in custody from the date of remand. In the meantime, as per the direction of the Hon'ble Apex Court, the C.B.I has already taken over the investigation and now in the original case, the Petitioner was convicted by the learned A.C.J.M-cum-C.B.I, Bhubaneswar and has completed his conviction period in the month of May, 2020. It is pertinent to mention here that the C.B.I submitted the charge sheet in that case against the present Petitioner and other Directors with regard to all the misappropriation alleged to have been committed by the company within the territorial jurisdiction of this Hon'ble Court, In fact, in the self-same cause of action, further detention of the Petitioner is not required. Moreover, some of the co-accused persons have already been released on bail vide BLAPL No.12031 of 2013. The Petitioner also stands in the similar footing as the other co-accused who have already been released on bail.

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10. Learned counsel for the State has vehemently opposed the Petitioner's prayer for bail stating that the Petitioner's commission of crime is not of ordinary nature rather it is against the very economic threat of the nation.

11. Section 428 of Cr.P.C. provides that: -

"Period of detention undergone by the accused to be set off against the sentence of imprisonment-

Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him."

12. The Hon'ble Apex Court in the case of Maliyakkal Abdul Azeez -vs- Assistant Collector Kerala1 explained the importance of Section 428 of Cr.P.C. This provision was brought on the statute book for the first time in 1973. It was incorporated in the light of the proposal put forward by the Joint Select Committee of Parliament. It was also noticed by the Committee that in many cases the accused persons are kept in prison for a very long period as under-trial prisoners and in some cases the period spent in jail by under-trial prisoners far

(2003) 2 SCC 439.

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exceeded the sentence of imprisonment ultimately awarded. It was also noticed by the Committee with concern that large number of prisoners in the over-crowded jails of the country were under-trial prisoners. In fact, such provision was introduced to remedy the sorry state of affairs, by providing for setting off the period of detention as under-trial prisoners against the sentence of imprisonment imposed on them. Views of the Committee were expressed in following words:

"The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil."

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13. Additionally, it is also pertinent to peruse Section 436A of the Criminal Procedure Code, 1973 which came into effect from June 2006. Section 436A reads as:

"Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties;

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties;

Provided further that no such person shall in any case be detained during the period of investigation inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law."

14. Section 436A was upheld by the Hon'ble Supreme Court in Bhim Singh v. UOI2, "5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436A and large number of under-trial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the under- trial prisoners do not continue to be detained in prison beyond the maximum period provided under section 436A.

6. We, accordingly, direct that jurisdictional Magistrate/Chief Judicial Magistrate/Sessions Judge

(2015) 13 SCC 605

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shall hold one sitting in a week in each jail/prison for two months commencing from 1st October, 2014 for the purposes of effective implementation of 436A of the Code of Criminal Procedure. In its sittings in jail, the above judicial officers shall identify the under-trial prisoners who have completed half period of the maximum period or maximum period of imprisonment provided for the said offence under the law and after complying with the procedure prescribed Under Section 436A pass an appropriate order in jail itself for release of such under-trial prisoners who fulfill the requirement of Section 436A for their release immediately. Such jurisdictional Magistrate/Chief Judicial Magistrate/ Sessions Judge shall submit the report of each of such sitting to the Registrar General of the High Court and at the end of two months, the Registrar General of each High Court shall submit the report to the Secretary General of this Court without any delay. ..."

15. The Hon'ble Supreme Court in Sanjay Chandra v. CBI3, held that:

"42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.

43. There are seventeen accused persons.

Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the Appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the Appellants is a serious one in terms of alleged huge loss to the State

(2012) 1 SCC 40

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exchequer, that, by itself, should not deter us from enlarging the Appellants on bail when there is no serious contention of the Respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet."

16. It is also important at this juncture to examine the principle of speedy trial. The right to speedy trial flows from Article 21 of the Constitution of India. Right to speedy trial is a fundamental right guaranteed by the Sixth Amendment of the U.S. Constitution (1791) and this right has its roots in the English legal system. The first articulation of the right appears to have been made in Magna Carta (1215) wherein it was stated, "we will sell to no man, we will not deny or defer to any man either justice or right."

17. In Barker v. Wingo4, the US Supreme Court held that the quashing of criminal proceedings was the only appropriate remedy for the protection of the right to speedy trial clause. Responding to the judicial regime, the US Congress enacted "The Speedy Trial Act, 1974" which provides for a tighter, fixed schedule that regulates the accusation period. This Act establishes time limits for completing various stages of criminal prosecution. The information or indictment must be filed within thirty days from the date of arrest or service of summons. The trial must commence within seventy days from the date when

407 US 514 (1972)

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the defendant appears before an officer of the court in which charges are pending.

18. In India, there are no constitutional or statutory provisions like the Sixth Amendment or Speedy Trial Act, 1974. Justice P.N. Bhagwati observed in Hussainara Khatoon (I) v. State of Bihar5, that unlike the American Constitution, speedy trial is not specifically enumerated as a fundamental right in India; it is implicit in a broad sweep and content of Article 21 of the Indian Constitution as interpreted in Maneka Gandhi v. Union of India6, where it was held that such procedure which does not ensure a reasonable quick trial cannot be regarded as a reasonable, just and fair procedure. The Hon'ble Supreme Court added that:

"there can, therefore, be no doubt that speedy trial, and by speedy trial we mean a reasonably expeditious trial, is an integral and essential part of fundamental right to life and liberty enshrined in Article 21".

The learned Judge also pointed out the integral connection between Articles 14 and 21 in the following words:

"Article 14 strikes at arbitrariness in state action and ensures fairness and equality of treatment. The principles of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right, just and fair and not

(1980) 1 SCC 81

(1978) 1 SCC 248

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arbitrary, fanciful or oppressive, otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied."

19. The concern for a speedy trial is not merely an inherited mandate from the American jurisprudence but equally is the inarticulate premise underlying our Code of Criminal Procedure, 1973. It was pointed out by the Hon'ble High Court of Patna in Madheshwardhari Singh v. State of Bihar7 that both as regards the investigation and also with regard to trial, the need for speed is underwritten in express terms or by unequivocal necessary implication and indeed, permeated the whole gamut of the code in the said context.

20. Certain provisions of the Cr.P.C. impose a statutory obligation upon the courts to proceed the trial "expeditiously" so that the case could be disposed of without inordinate delay. The procedures under criminal law for dispensing justice commence from registration of the FIR to investigation, police report, bail, inquiry and trial, etc. Under Section 309 Cr.P.C, every inquiry or trial, should be held "expeditiously" and when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses have been examined. Interpreting the provisions of the Constitution, the court stressed that expeditious trial is a rule and adjournment is an exception.

21. The speedy trial of offences is a desirable goal because long delay can defeat justice. There is a common proverb - 'delay

AIR 1986 Pat 324

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defeats justice'. Hence, it is said that speedy justice is of the essence of an organised society and the cases should be decided as early as possible. However, the basic norms which ensure 'justice' cannot be overlooked in achieving the goal of speedy justice because there is a common proverb that 'justice hurried, justice buried'. In other words, one has to balance the consideration of speed and justice.

22. A.R. Antulay v. R.S. Nayak8 is a case of cardinal importance in this area. The Hon'ble Supreme Court has held that the right to speedy trial flowing from article 21 is available to accused at all stages, namely, the stage of (i) investigation; (ii) inquiry; (iii) trial-appeal; (iv) revision; and (v) retrial. The right to speedy trial has received a permanent constitutional status due to liberal interpretation of article 21. Speedy trial of course means speedy, quick or expeditious trial, but a delayed trial is not necessarily an unfair trial.

23. The noteworthy feature of the judicial policy is that very few foreign precedents have been quoted in this area. It may be due to the fact that in the US Constitution, the right has been expressly guaranteed. The US courts have criticized delay in strong words, e.g., (i) 'choatic affairs'; (ii) 'gross indifference'; (iii) 'lack of concern'; (iv) 'shake the faith in rule of law'; (v) 'shocking state of affairs'; (vi) betrayal with concern for human values'; (vii) callousness and indifference of system; (viii) 'totally unjustified deprivation', etc. Clearly, the

(1988) 2 SCC 602

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judicial attempt is to discourage 'systemic delays', and the delays caused by prosecution and police.

24. "Is life so dear, or peace so sweet, as to be purchased at the price of change and slavery? Forbid it, Almighty God ! I know not what course others may take, but as for me, give me liberty, or give me death !"

The aforesaid quotation of Patrick Henry has been well observed in the decision of the Hon'ble Apex Court in Rashmi Rekha Thatoi v. State of Orissa9. Liberty is a call of the day, without which life is meaningless.

25. The Hon'ble Apex Court in Sanjay Chandra v. Central Bureau of Investigation10, held as under:

"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at

(2012) 5 SCC 690

(2012) 1 SCC 40

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liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

26. In Manoranjana Sinh Alias Gupta v. CBI11, the Hon'ble Apex Court has held as under:

"This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant

(2017) 5 SCC 218

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considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."

27. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee12, has laid down the following principles to be kept in mind, while deciding the petition for bail:

"(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

28. Reliance can also be placed on judgment passed by the Hon'ble Apex Court in Umarmia Alias Mamumia v. State of Gujarat13, relevant para whereof has been reproduced herein below:

"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the

(2010) 14 SCC 496

(2017) 2 SCC 731

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right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569)."

29. Hon'ble Apex Court in Dataram Singh v. State of Uttar Pradesh14, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus

(2018) 3 SCC 22

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has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also

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necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Criminal Procedure Code, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Criminal Procedure Code, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons."

30. In State of Kerala v. Raneef15, the Hon'ble Supreme Court was of opinion that:

"In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. ..."

(2011) 1 SCC 784

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In the case of Bhim Singh v. Union of India (supra), the Hon'ble Supreme Court passed directions for the immediate implementation of Section 436A of Cr.P.C. to ensure that undertrial prisoners do not continue to be detained in prison beyond the maximum period provided under the said section of CrPC. The Court also iterated the necessity for an effective implementation of Section 436A and fast tracking of the criminal justice system is necessary. This is to ensure that no undertrial prisoners shall remain in prison beyond half of the maximum sentence prescribed for that offence.

31. From the discussions, it comes to the surface that all enquiries, investigations are over but trial has not yet commenced. It is a matter of concern that the Petitioner has been in detention for more than 8 years, however, there is no sign of any trial yet. The longevity of detention of under trial prisoners without commencement of trial defeats the principles of Indian criminal justice system.

32. Moreover, in the present case, property amounting to Rs.400 crores has been attached by the authorities in regards to the allegation of Rs.201 crores.

33. Considering the submissions made, facts and circumstances of the cases and the cases cited hereinabove, it is directed that the Petitioner be released on bail in the aforesaid

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cases with some stringent terms and conditions as deemed just and proper by the learned courts in seisin over the matter with further conditions that:

i. the Petitioner shall appear before the learned trial courts on each date of posting of the cases;

ii. he shall not indulge in similar activities in future and; iii. he shall not tamper with the evidence of the prosecution witnesses in any manner.

34. Violation of any of the conditions shall entail cancellation of the bail. It is made clear that any of the observations made hereinabove with respect to the facts of the cases, shall not come in the way or prejudicially affect the fair trial of the present cases.

35. Both the BLAPLs are accordingly disposed of. The Petitioner be released from custody forthwith, if his custody is not wanted in connection with any other case.

36. Urgent certified copy of this order be granted on proper application.

( S.K. Panigrahi) Judge BJ