Orissa High Court
Brahmananda @ Ankit Kumar Barik vs State Of Odisha on 7 January, 2021
HIGH COURT OF ORISSA: CUTTACK
BLAPL No.5486 of 2020
In the matter of an application under Section 439 of the Code of Criminal
Procedure.
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Brahmananda @ Ankit Kumar Barik ...... Petitioner
Versus
State of Odisha ...... Opposite party
For Petitioner -- Mr.S.P.Dash, Advocate
For Opp. Party -- Mrs.S.Sahoo, A.S.C.
JUDGMENT
PRESENT:
THE HON'BLE SHRI JUSTICE B.P.ROUTRAY
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Date of Hearing: 25.11.2020 : Date of Judgment:07.01.2021
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B.P.ROUTRAY. J. The petitioner has prayed to release him on bail in connection
with Keonjhar Sadar P.S.Case No.166 of 2019 corresponding to G.R.Case
No.781 of 2019 pending in the court of the learned S.D.J.M., Keonjhar.
The offences alleged in this case are under Sections
468/471/420/34 of the Indian Penal Code on the allegation that the
petitioner being the C.E.O. of a company, named Vatsalya Empire could
manage to cheat the innocent villagers in collecting lakhs of rupees giving
false assurance of providing monthly stipend and livestock to them.
2. It is submitted on behalf of the petitioner that, he has been
arrested on 3.7.2019 and in the meantime twenty-six witnesses have
been examined in course of trial. The petitioner thrust upon the provision
of sub-section 6 of Section 437 of the Cr.P.C. by submitting that despite
completion of sixty days from the date of examination of the first witness,
the trial is yet to be completed and since the trial could not be completed
within the said period of sixty days, he is bound to be released on bail,
being in custody for the whole period from 3.7.2019 till date.
3. On the contrary, learned counsel for the State submits that
the allegations leveled against the petitioner is relating to
misappropriation of lakhs of rupees, which he had collectively taken
along with other accused persons from the innocent villagers with false
assurance to them for providing monthly stipend and goats. It is also
submitted by the learned counsel for the State that the provision
contemplated under Section 437(6) of the Cr.P.C. does not lay any
mandate in favour of the accused petitioner for his release on bail in
default to complete the trial within the period of sixty days from the first
date of examination of witness. It is also submitted that the mandate of
the legislation is not to release the accused in every case irrespective of
the facts considered. Therefore, the learned court below has rightly
rejected the prayer for bail of the petitioner considering the prevailing
situations of continued lockdown.
4. Perusal of case record reveals that the petitioner is inside
custody since 3.7.2019 in connection with the aforesaid case. The
petitioner had earlier approached this Court in BLAPL No.6698 of 2019
for his release on bail, which was filed on 31.7.2019 and disposed of by
order of this Court on 20.2.2020 rejecting his prayer for bail. But
presently the petitioner renews his prayer for bail resting upon the
provision under Section 437(6) of the Cr.P.C.. Though the petitioner has
stressed upon the provision of Section 437(6) of the Cr.P.C., still he did
not choose to file the copy of the petition filed before the learned S.D.J.M.,
nor the order passed by the learned S.D.J.M. in that regard. The
petitioner only files the copy of the order passed by the Sessions court
dated 9.6.2020. The said order of the learned Addl. Sessions Judge,
Keonjhar reveals that the petitioner is inside custody since 3.7.2019 and
the date of examination of first witness is dated 26.7.2019 and the date of
examination of last witness as yet i.e. P.W.6, on 24.2.2020.
5. As the submission of the petitioner is concentrated on the
provision under Section 437 (6) of the Cr.P.C., the focal point for
consideration is that, whether the accused has the indefeasible right to be
released on bail under Section 437(6) of the Cr.P.C., in case the trial is
not completed within the period of sixty days as stated therein ?
6. It is relevant to reproduce Section 437(6) of the Cr.P.C here.
The said provision reads as follows:
"437. When bail may be taken in case of non-bailable
offence.-
xxx xxx xxx
(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."
7. A careful perusal of the above quoted provision gives an
impression of imperative nature of the said provision with discretion to
the court in a case triable by the Magistrate to refuse for bail for the
reasons to be recorded in writing. This provision is seen to be linked with
right of speedy trial of the accused as a part of fundamental right
guaranteed under Article 21 of the Constitution of India. The last part of
the provision speaks that the Court can also reject the prayer for bail, if
reasons are there. This means the provision as a whole is not mandatory
but directory in nature, because the court has the discretion to refuse the
bail also. The provision is objected to speed up the trial without
unnecessary delay. It is understood that the trial is to be concluded
within a period of sixty days from the first date fixed for taking the
evidence and in case the trial is not completed within the said period of
sixty days, then the accused shall be released on bail provided that there
are no reasons to be recorded for refusal of bail. To read it otherwise,
unless the accused is refused to bail for reasons to be recorded, he
should be released on bail.
8. Now the question comes for what reason the bail of the
accused is to be refused ?
The first obvious answer is, if the delay is not attributable to
the accused. Besides this, the other reasonable grounds would be, the
nature of allegation, the proclivity of the accused to commit crime, which
can be judged from his criminal antecedents, or any other justifiable
reason to refuse the bail. But nothing is there to preclude the accused
from his entitlement to apply for bail in case the trial is not completed
within that specified period of sixty days.
9. Therefore, upon thorough analysis of the provision, it can
safely be said that the same is not mandatory, but directory in nature
and when the accused applies for grant of bail under Section 437(6) of the
Cr.P.C., the court is to consider the nature of allegation, whether the
delay is attributable to the accused, the criminal antecedents of the
accused, if any, or any other justifiable reason to refuse the bail.
10. Now switching back to the facts of the present case, it reveals
from the order of the learned Addl. Sessions Judge that the prayer of the
accused to grant him bail has been refused mainly on the ground of
lockdown situation prevailed due to COVID-19 Pandemic. It is seen that
the trial could not be proceeded further after examination of P.W.26 i.e.,
on 24.2.2020 due to outbreak of novel Corona virus and the consequent
lockdown situation. But what is notable to see is, the prescribed period of
sixty days has already been crossed by 24.2.2020 since the first date of
examination of P.W.1 was 26.7.2019 and the period of sixty days as such
completed on 26.9.2019. Thus the reasons attributed to lockdown
situation for COVID-19 does not seem correct prior to 24.2.2020. The
accused-petitioner does not raise any submission to attribute such delay
in trial to the prosecution nor do the State counsel submits anything to
say the reason of delay in trial attributable to the defence. Since the
petitioner has not produced any material to show the delay on the
conduct of either party, what is inferred from the circumstances that, the
delay perhaps due to long list of witnesses of the prosecution. When
twenty six witnesses have been examined between the period from
26.7.2019 to 24.2.2020, it cannot also be said that the court has not
proceeded in examination of prosecution witnesses without adequate
expeditiousness. But one thing is clear that here the delay is neither
attributable to the prosecution nor to the accused nor to the court.
11. From the nature of allegation, it appears that the petitioner
has misappropriated lakhs of rupees from different villagers on false
assurance to provide them monthly stipend and goats. There is no
reported criminal antecedent against the petitioner and he is inside
custody since 3.7.2019.
12. Thus, considering all such circumstances, in my considered
opinion, there is no justifiable reason to refuse the bail to the petitioner,
he is entitled to in terms of the provision contained in Section 437(6) of
the Cr.P.C. Accordingly, it is directed to release the petitioner on bail in
the aforesaid case for Rs.30,000/-(thirty thousand) with two sureties each
for the like amount to the satisfaction of the learned S.D.J.M., Keonjhar
with further condition that, one of such sureties shall be his relative and
he shall furnish property security free from all encumbrances worth of
Rs.5,00,000/-(five lakhs) and he shall not be involved in any other offence
while on bail. It is clarified that the property security has been
conditioned keeping in view the nature of allegations regarding financial
fraud.
The BLAPL is disposed of accordingly.
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B.P.ROUTRAY. J.
Orissa High Court, Cuttack.
The 7th January, 2021/CRB
