Orissa High Court
Maheswar Barik vs State Of Odisha on 24 January, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6336 of 2021
Maheswar Barik .... Petitioner
Mr. S.K. Mohanty, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
BLAPL No.6338 of 2021
Rajanikanta Panigrahi .... Petitioner
Mr. B.S. Dasparida, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
BLAPL No.6339 of 2021
Mangalmaya Mishra .... Petitioner
Mr. B.S. Dasparida, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
BLAPL No.6340 of 2021
Rajesh Kumar Sethi .... Petitioner
Mr. B.S. Dasparida, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
// 2 //
BLAPL No.6364 of 2021
Sukanta Kumar Das .... Petitioner
Mr. M. Kanungo, Sr. Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
BLAPL No.6391 of 2021
Subrat Kumar Panigrahi .... Petitioner
Mr. S.K. Panda, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
BLAPL No.6806 of 2021
Srinibas Ghadai .... Petitioner
Mr. D.R. Nanda, Advocate
-versus-
State of Odisha .... Opp. Party
Mr. S.K. Nayak,
Additional Government Advocate.
CORAM:
JUSTICE A.K. MOHAPATRA
Date of hearing : 04.01.2022 Date of Order: 24.01.2022
ORDER
Order No.
05. 1. This matter is taken up through Hybrid Arrangement (Video
Conferencing/Physical Mode).
// 3 //
2. Being aggrieved by rejection of their respective bail
applications and consequent restriction imposed on the personal
liberty of the petitioners by a common rejection order dtd. 2.08.2021
passed by the 2nd Addl. Sessions Judge, Bhubaneswar in C.T. Case
No.3524 of 2021, the above noted bail applications have been filed
by the above named accused petitioners. Since the facts involved are
similar which arises out of a common FIR, all the above noted Bail
Applications were heard together and is being disposed by the
following common order.
3. In the above noted Bail Applications, the accused-Petitioners
are in custody since 28.06.2021 in connection C.T. Case No.3524 of
2021 arising out of Sahid Nagar P.S. Case No.258 dated 28.06.2021
for commission of offences punishable under Sections
419/420/465/467/468/471/120-B, I.P.C. and Sections 66-C/66-D of
the Information Technology Act.
4. The prosecution case, in a nutshell, is that the Inspector of
Police, namely, Jatindra Nath Sethy Cyber Cell, Bhubaneswar while
investigating Sahid Nagar P.S. Case No.21 dated 11.01.2021,
registered under Sections 419/420, I.P.C. r/w Sections 66-C/66-D of
the Information Technology Act, was required to analyse the CDR
details of the mobile number of the accused in that case for the month
of December, 2020 and January, 2021. He discovered that the said
Mobile belong to Vodafone-Idea service provider of Uttar Pradesh
(U.P.) Circle having IMEI No.354985990936960. The accused using
the said mobile phone contacted one Itishree Kanungo, the victim in
P.S. Case No.21 of 2021, and she was defrauded of a sum of
Rs.2,58,999/-(Rupees Two Lakhs fifty-eight thousand nine hundred
ninety-nine).
// 4 //
5. Further during search of the mobile number of the accused in
that case, it came to light that seven numbers of Vodafone Idea sim
cards bearing Mobile numbers 7381258850, 7066421923,
9776007703, 9776235429, 7064450531, 7873101318, 7064459053
had been used by the accused. During investigation, it was further
found that all the sim cards belong to Odisha Circle Vodafone-Idea
service provider. The CDR analysis further reveals that all those sim
cards had been activated at different locations of the State of Odisha,
namely, Baripada, Basudevpur (Bhadrak), Barpali (Bargarh)
Kshetarajpur (Sambalpur), Bhadrak Town and Madhuban (Baripada).
6. It was further ascertained during investigation that all the
above numbers came to a particular place on different dates having
cell I.D. Number 405732001805392 (of Vodafone-Idea) of Bhadrak
Town and used at the same place by the users in nine numbers of
different handsets having different IMEI No.s. Thereafter, suddenly
those sim cards having the above referred mobile numbers were,
probably, transported to Delhi and used at New Delhi having the
same cell ID of the accused and having the same IMEI numbers of
the handset which was used in Sahid Nagar P.S. Case No.21 of 2021
to cheat the victims.
7. It was further alleged that more than 100 sim cards of
Vodafone-Idea had been used in different handset after being
activated at different locations in Bhadrak and Balasore districts of
Odisha in the month of February, 2021. After obtaining CDR and CA
of the handsets of the above noted mobile numbers and on careful
analysis it was found 31 numbers of sim cards of Vodafone-Idea had
been activated at a single point of sale (POS) in the name of different
customers through the accused petitioners. Out of the aforesaid 31
// 5 //
sim cards, 19 sim cards having different mobile numbers had been
transported out of the State of Odisha. Such facts created a strong
suspicion in the mind of the I.O. that a organized gang is operating in
the State of Odisha and the gang is involved in the process of
activating multiple sim cards of different mobile service providers
using/impersonating names of different customers and by arranging
forged documents without the knowledge of those customers. It is
further alleged that those pre-activated sim cards where being
transported out of the State of Odisha and the investigating officer
apprehends that these pre-activated sim cards were being used in
different cyber related crimes to cheat people of their money.
8. On the basis of the entry on 27.06.2021 vide Sahid Nagar P.S.
GDE No.4 dated 27.06.2021, the informant Police Officer proceeded
to Basudevpur, Bhadrak and with the help of local police nabbed the
accused Petitioners.
9. So far as accused petitioner Maheswar Barik is concerned, it is
alleged that he was the Director, Sales Executive of Vodafone-Idea
service provider. Accused Rajanikanta Panigrahi was the Territorial
Sales Executive of the said Company. It is alleged that on being
asked both the above named accused demonstrated before the police
as to how they were activating the sim cards using forged documents
and photos of different customers. On further enquiry by the police,
the link of the other co-accused persons surfaced and their
involvement in the present crime came to light.
10. The prosecution has alleged that the accused persons named in
the F.I.R. along with other culprits hatched a criminal conspiracy and
formed a gang in an organized manner to cheat people by using
forged and tampered documents and photos of genuine customers by
// 6 //
illegally preparing pre-activated sim cards. Such pre-activated sim
cards were being sold to various customers within the State as well as
outside the State. In course of enquiry, the police had also recovered
and seized a huge numbers of pre-activated sim cards of Vodafone-
Idea, BSNL, Airtel and Jio mobile service providers. Further 110
numbers of mobile handsets, in working condition, were also seized
on production by the accused persons. Accordingly, Sahid Nagar P.S.
Case No.258 dated 28.06.2021 was registered under Sections
419/420/465/467/468/ 471/120-B, I.P.C. and Sections 66-C/66-D of
the Information Technology Act.
11. Heard learned counsels for the petitioners in different bail
applications and Mr. S.K. Nayak, learned Additional Government
Advocate for the State. Perused the case record, F.I.R. and other
relevant papers produced by Mr. S.K. Nayak, learned Additional
Government Advocate in a sealed packet.
12. The argument advanced by the learned counsels appearing for
the Petitioners in the above noted bail applications were almost
similar. It was submitted that the accused-petitioners have been
falsely implicated in this case and they have no role in the
commission of the alleged offences. It is further submitted by them
that the investigation of the case has substantially progressed and
preliminary charge-sheet has already been filed keeping the
investigation open. It is also submitted by the learned counsel for the
Petitioners that the Petitioners belong to the locality and there are no
criminal antecedents against the Petitioners. Further submission of
the Petitioners counsels is that the accused persons are in custody for
more than six months and that since final charge-sheet has not been
submitted by the police and in view of the restricted functioning of
// 7 //
the court due to outbreak of COVID-19 Pandemic, the trial is not
likely to commence soon and even if the same is commenced, it is
not known how long the trial will take. They further submit that the
accused petitioners are local youth and self employed. They are
earning their livelihood to sustain their respective families.
13. So far as accused petitioner Srinibas Ghadai, Petitioner in
BLAPL No.6806 of 2021, is concerned, it is submitted that he is a
local businessman of Bhadrak Town and runs his own shop to earn
his livelihood to sustain himself and his family. So far as accused
Susant Kumar Das, the petitioner in BLAPL No.6364 of 2021, is
concerned, it is submitted by Mr. Millan Kanungo, learned Sr.
Advocate that the accused-Petitioner is working as a cashier in
Bhadrak Autonomous College, Bhadrak and that the Petitioner has no
knowledge about the commission of alleged crime and that he has
been falsely implicated in the present case. It is further submitted by
Mr. Kanungo, learned Sr. Advocate that since the accused-Petitioner
is an employee of Bhadrak Autonomous College, Bhadrak, there is
no chance of absconding. He further submits that on being released
on bail, the Petitioner shall co-operate with the investigation and
appear before the trial court on each and every date without fail. Mr.
Kanungo further submits that the Petitioner is willing to abide by any
terms and conditions that will be imposed by this Court in the event
the petitioner is released on bail by this court.
14. So far accused Rajanikant Panigrahi is concerned, i.e.
Petitioner in BLAPL No.6338 of 2021, it is submitted by Mr. B. S.
Das, learned counsel for accused Rajanikant that the accused-
Petitioner was appointed as a territorial sales executive under Aditya
Birla company dealing with Idea Sales Services limited and his duty
// 8 //
was only to see maintenance of tower erected by the company and to
supervise the wholesale and retail sale of sim cards to promote
business prospects of the company. He further submits that there is
no scope of absconding or tampering with the evidence.
15. Learned counsels appearing for the Petitioners took almost a
common stand that the Petitioners are not involved in the present
crime and that they are the sole earning members of their family and
their further detention in custody would cause hardship to the entire
family. It is further submitted by learned counsel appearing for the
Petitioners that the Petitioners are in custody for more than six
months and by now the investigation has substantially progressed and
that the I.O. has filed preliminary charge-sheet in the meantime
although further investigation in the case is going on. The Petitioners
are ready and willing to abide by any terms and conditions that will
be imposed by this Court in the event they are released on bail.
16. Mr. S.K. Nayak, learned Additional Government Advocate
appearing for the State in all the aforesaid bail applications strongly
opposes the prayer of the Petitioners for their release on bail. The
contention of Mr. Nayak is that pursuant to a well planned criminal
conspiracy, the Petitioners are found to be involved in large scale
forgery of documents and photographs of customers and such forged
documents have been used to prepare pre-activated sim cards. Mr.
Nayak expresses his apprehension that a detailed and final
investigation would reveal all these pre-activated sim cards have
been used in criminal activities like cheating, forgery etc. etc. He
further submits that if these pre-activated sim cards fall into the
hands of anti-national elements active in the country including the
Maoists and terrorist groups, the same would pose grave threat and
// 9 //
danger to the safety and security of the citizens of this country
including dignitaries, celebrities, leaders, eminent persons and
VVIPs. He further opposes the grant of bail on the ground that the
investigation of the case has not been finally concluded yet. Learned
Additional Government Advocate draws the attention of the Court to
the fact that the cyber crime in the country is on the rise in the last
couple of years. Therefore, the Court should not show any leniency
in the matter and further bail should not be granted to the accused
persons involved in the present crime. He further submits that if the
Petitioners are released on bail at this stage, that would create
hindrance in the process of smooth and early conclusion of the
investigation of the case. He also expresses his concern that accused-
Petitioners after being released on bail might not cooperate with the
investigation and eventually the same would lead to delay in
conclusion of the trial and it may so happen that the Petitioners might
absconded.
17. The Hon'ble Supreme Court of India on numerous occasions
encountered the issue of the principles to be followed by Courts
while exercising the discretion in considering the bail applications
filed by the accused. Further, time and again, it has been stated that
bail is the rule and committal to jail is an exception. It has also been
observed in many judgments that refusal of bail is a restriction on the
personal liberty of the individual guaranteed under Article 21 of the
Constitution. In the case of State of Rajasthan v. Balchand :
reported in (1977) 4 SCC 308, the Hon'ble Supreme Court of India
while speaking through V.R. Krishna Iyer J. has opined, in paragraph
2 and 3 of the judgment, as follows;
"2. The basic rule may perhaps be tersely put as bail,
not jail, except where there are circumstances
suggestive of fleeing from justice or thwarting the
// 10 //
course of justice or creating other troubles in the shape
of repeating offences or intimidating witnesses and the
like, by the Petitioner who seeks enlargement on bail
from the Court. We do not intend to be exhaustive but
only illustrative.
3. It is true that the gravity of the offence involved is
likely to induce the Petitioner to avoid the course of
justice and must weigh with us when considering the
question of jail. So also the heinousness of the crime.
Even so, the record of the Petitioner in this case is that,
while he has been on bail throughout in the trial court
and he was released after the judgment of the High
Court, there is nothing to suggest that he has abused
the trust placed in him by the court; his social
circumstances also are not so unfavourable in the sense
of his being a desperate character or unsocial element
who is likely to betray the confidence that the court
may place in him to turn up to take justice at the hands
of the court. He is stated to be a young man of 27 years
with a family to maintain. The circumstances and the
social milieu do not militate against the Petitioner
being granted bail at this stage. At the same time any
possibility of the absconsion or evasion or other abuse
can be taken care of by a direction that the Petitioner
will report himself before the police station at Baren
once every fortnight."
18. The principles, which the Courts must consider while granting
or declining bail, have been culled out by the Supreme Court of India
in the case of Prahlad Singh Bhati v. NCT, Delhi : reported in
(2001) 4 SCC 280, thus;
"The jurisdiction to grant bail has to be exercised on
the basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary
manner. While granting the bail, the court has to keep
in mind the nature of accusations, the nature of the
evidence in support thereof, the severity of the
punishment which conviction will entail, the character,
behaviour, means and standing of the accused,
circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the
// 11 //
accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of
the public or State and similar other considerations. It
has also to be kept in mind that for the purposes of
granting the bail the legislature has used the words
"reasonable grounds for believing" instead of "the
evidence" which means the court dealing with the
grant of bail can only satisfy it itself as to whether
there is a genuine case against the accused and that the
prosecution will be able to produce prima facie
evidence in support of the charge. It is not expected, at
this stage, to have the evidence establishing the guilt of
the accused beyond reasonable doubt.
19. In State of U.P. vrs.Amarmani Tripathi : reported in (2005) 8
SCC 21, the Supreme Court of India has held as under:
"18. It is well settled that the matters to be considered
in an application for bail are (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 charge; (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
tampered with; and (viii) danger, of course, of justice
being thwarted by grant of bail (see Prahlad Singh
Bhati v. NCT, Delhi and Gurcharan Singh v. State
(Delhi Admn.). While a vague allegation that the
accused may tamper with the evidence or witnesses
may not be a ground to refuse bail, if the accused is of
such character that his mere presence at large would
intimidate the witnesses or if there is material to show
that he will use his liberty to subvert justice or tamper
with the evidence, then bail will be refused. We may
also refer to the following principles relating to grant
or refusal of bail stated in Kalyan Chandra Sarkar v.
Rajesh Ranjan: (SCC pp. 535-36, para 11);
11. The law in regard to grant or refusal of bail is very
well settled. The court granting bail should exercise its
discretion in a judicious manner and not as a matter of
// 12 //
course. Though at the stage of granting bail a detailed
examination of evidence and elaborate documentation
of the merit of the case need not be undertaken, there is
a need to indicate in such orders reasons for prima
facie concluding why bail was being granted
particularly where the accused is charged of having
committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It
is also necessary for the court granting bail to consider
among other circumstances, the following factors also
before granting bail; they are:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of
the charge. (See Ram Govind Upadhyay v. Sudarshan
Singh and Puran v. Rambilas.)
22. While a detailed examination of the evidence is to
be avoided while considering the question of bail, to
ensure that there is no prejudging and no prejudice, a
brief examination to be satisfied about the existence or
otherwise of a prima facie case is necessary."
20. In Sanjay Chandra vrs. CBI : reported in (2012)1 SCC 40,
the Supreme Court of India while considering bail application of the
accused involved in an economic offence has held as under;
"14. In bail applications, generally, it has been laid
down from the earliest times that 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.
From the earliest times, it was appreciated that
// 13 //
detention in custody pending completion of trial could
be a cause of great hardship. From time to time,
necessity demands that some un-convicted 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 this country, 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 liberty, save in the
most extraordinary circumstances. Apart from the
question of prevention being the object of a 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 un-convicted person for
the purpose of giving him a taste of imprisonment as a
lesson.
26. When the under trial 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. 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 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
// 14 //
custody, that too, after the completion of the
investigation and filing of the charge-sheet. This Court,
in the case of State of Kerala v. Raneef : reported in
(2011) 1 SCC 784, has stated:
15. 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. In the present case the
Respondent has already spent 66 days in custody (as
stated in Para 2 of his counter-affidavit), and we see no
reason why he should be denied bail. A doctor
incarcerated for a long period may end up like Dr.
Manette in Charles Dicken's novel A Tale of Two
Cities, who forgot his profession and even his name in
the Bastille."
21. In Arnab Manoranjan Goswami vs. The State of
Maharashtra and Ors. : reported in (2021) 2 SCC 427 the Hon'ble
Supreme Court of India while considering the grant of bail by Court
in exercise of the writ jurisdiction had the occasion to examine the
leading judgments of the Supreme Court of India laying down the
principles for grant of bail to an accused. While summing up the
principles, Dr. D.Y. Chandrachud, J. considered the judgments in the
matters of (1) Prahlad Singh Bhati v. NCT, Delhi : (2001) 4 SCC
280; (2) Ram Govind Upadhyay v. Sudarshan Singh : (2002) 3
SCC 598; (3) State of UP v. Amarmani Tripathi : (2005) 8 SCC 21;
(4) Prasanta Kumar Sarkar v. Ashis Chatterjee : (2010) 14 SCC
496; (5) Sanjay Chandra v. CBI : (2012) 1 SCC 40; and (6) P.
Chidambaram v. Central Bureau of Investigation Criminal Appeal
// 15 //
No. 1605 of 2019 decided on 22 October 2019 and laid down the
following principle/guidelines;
(i) The nature of the alleged offence, the nature of the
accusation and the severity of the punishment in the
case of a conviction;
(ii) Whether there exists a reasonable apprehension of
the Accused tampering with the witnesses or being a
threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the
Accused at the trial or the likelihood of the Accused
fleeing from justice;
(iv) The antecedents of and circumstances which are
peculiar to the Accused;
(v) Whether prima facie the ingredients of the offence
are made out, on the basis of the allegations as they
stand, in the FIR; and
(vi) The significant interests of the public or the State
and other similar considerations.
Further, in paragraph 63 of the aforesaid judgment it has been held
as follows;
63. More than four decades ago, in a celebrated
judgment in State of Rajasthan, Jaipur v. Balchand
MANU/SC/0152/1977 : (1977) 4 SCC 308, Justice
Krishna Iyer pithily reminded us that the basic Rule of
our criminal justice system is 'bail, not jail'13. The
High Courts and Courts in the district judiciary of
India must enforce this principle in practice, and not
forego that duty, leaving this Court to intervene at all
times. We must in particular also emphasise the role of
the district judiciary, which provides the first point of
interface to the citizen. Our district judiciary is
wrongly referred to as the 'subordinate judiciary'. It
may be subordinate in hierarchy but it is not
subordinate in terms of its importance in the lives of
citizens or in terms of the duty to render justice to
them. High Courts get burdened when courts of first
instance decline to grant anticipatory bail or bail in
deserving cases. This continues in the Supreme Court
// 16 //
as well, when High Courts do not grant bail or
anticipatory bail in cases falling within the parameters
of the law. The consequence for those who suffer
incarceration are serious. Common citizens without the
means or resources to move the High Courts or this
Court languish as under trials. Courts must be alive to
the situation as it prevails on the ground - in the jails
and police stations where human dignity has no
protector. As judges, we would do well to remind
ourselves that it is through the instrumentality of bail
that our criminal justice system's primordial interest in
preserving the presumption of innocence finds its most
eloquent expression. The remedy of bail is the "solemn
expression of the humaneness of the justice system"14.
Tasked as we are with the primary responsibility of
preserving the liberty of all citizens, we cannot
countenance an approach that has the consequence of
applying this basic Rule in an inverted form. We have
given expression to our anguish in a case where a
citizen has approached this Court. We have done so in
order to reiterate principles which must govern
countless other faces whose voices should not go
unheard.
22. In a very recent judgment of the Hon'ble Supreme Court of
India in the matter of Satender Kumar Antil vs. Central Bureau of
Investigation and Ors. : reported in (2021) 10 SCC 773, based on
the suggestions received, various offences have been categorized and
Guidelines have been laid down for grant of bail, without fettering
the discretion of the Courts concerned and keeping in mind the
Statutory provisions. The relevant paragraphs have been extracted
here in below;
"3. We are inclined to accept the Guidelines and make
them a part of the Order of the Court for the benefit of
the Courts below. The Guidelines are as under:
Categories/Types of Offences:
(A) Offences punishable with imprisonment of 7 years
or less not falling in Category B & D.
(B) Offences punishable with Death, Imprisonment
// 17 //
for Life, or imprisonment for more than 7 years.
(C) Offences punishable under Special Acts
containing stringent provisions for bail like NDPS
(Section 37), PMLA (Section 45), UAPA [Section 43-
D(5)], Companies Act, 212(6), etc.
(D) Economic offences not covered by Special Acts.
Requisite Conditions:
(1) Not arrested during investigation.
(2) Cooperated throughout in the investigation
including appearing before Investigating Officer
whenever called.
(No need to forward such an Accused along with the
Charge-sheet (Siddharth v. State of U.P. : 2021 (3)
MWN (Cr.) 1 (SC))
Category A:
After filing of Charge-sheet/Complaint taking of
cognizance-
(a) Ordinary summons at the 1st instance/including
permitting appearance through Lawyer.
(b) If such an Accused does not appear despite service
of Summons, then Bailable Warrant for physical
appearance may be issued.
(c) NBW on failure to failure to appear despite
issuance of Bailable Warrant.
(d) NBW may be cancelled or converted into a
Bailable Warrant/Summons without insisting physical
appearance of Accused, if such an Application is
moved on behalf of the Accused before execution of
the NBW on an undertaking of the Accused to appear
physically on the next date/s of hearing.
(e) Bail Applications of such Accused on appearance
may be decided w/o the Accused being taken] in
physical custody or by granting Interim Bail till the
Bail Application is decided.
Category B/D:
On appearance of the Accused in Court pursuant to
process issued bail application to be decided on merits.
// 18 //
Category C:
Same as Category B & D with the additional condition
of compliance of the provisions of Bail under NDPS,
Section 37, Section 45 of PMLA, Section 212(6) of
Companies Act Section 43-D(5) of UAPA, POSCO,
etc.
4. Needless to say that the Category A deals with both
Police cases and Complaint cases.
5. The Trial Courts and the High Courts will keep in
mind the aforesaid Guidelines while considering Bail
Applications. The caveat which has been put by
learned ASG is that where the Accused have not
cooperated in the investigation nor appeared before the
Investigating Officers, nor answered summons when
the Court feels that Judicial custody of the Accused is
necessary for the completion of the trial, where further
investigation including a possible recovery is needed,
the aforesaid approach cannot give them benefit,
something we agree with.
6. We may also notice an aspect submitted by Mr.
Luthra that while issuing Notice to consider bail, the
Trial Court is not precluded from granting Interim Bail
taking into consideration the conduct of the Accused
during the investigation which has not warranted
arrest. On this aspect also we would give our
imprimatur and naturally the Bail Application to be
ultimately considered, would be guided by the
Statutory provisions.
7. The suggestions of learned ASG which we have
adopted have categorized a separate set of offences as
"Economic Offences" not covered by the Special Acts.
In this behalf, suffice to say on the submission of Mr.
Luthra that this Court in Sanjay Chandra v. CBI, :
2012 (1) MWN (Cr.) 161 (SC) : 2012 (1) SCC 40, has
observed in Para 39 that in determining whether to
grant bail both aspects have to be taken into account:
(a) seriousness of the charge, and
(b) severity of punishment.
Thus, it is not as if Economic Offences are completely
taken out of the aforesaid Guidelines but do form a
// 19 //
different nature of offences and thus, the seriousness of
the charge has to be taken into account but
simultaneously, the severity of the punishment
imposed by the statute would also be a factor."
23. Having heard learned counsel appearing for the respective
Petitioners and Mr. S.K. Nayak, learned Additional Government
Advocate for the prosecution and after going through the materials
placed before this Court including the case diary, F.I.R. and other
relevant papers after examining the factual background of the case
with the touchstone of the principles/guidelines enunciated by the
Hon'ble Supreme Court of India in the above referred judgments, this
Court is inclined to release the Petitioners on bail for the following
reasons:-
I. The accused-Petitioners are in custody since
28.06.2021 i.e. for more than six months;
II. The investigation of the case has progressed
substantially and preliminary charge-sheet has
been filed in this case;
III. The allegation of the alleged cheating/forgery has
not been established/quantified till date although
the investigation is still going on and it is not
known how long the investigation of the case is
going to continue;
IV. The Petitioners are all youth of the locality either
engaged in their business activity or employed by
different institutions/companies;
V. On being specifically asked, the prosecution was
not able to give any details regarding any criminal
// 20 //
antecedents of the petitioners, although learned
counsels for the Petitioner submitted that the
Petitioners have no criminal antecedents against
their names;
VI. The nature of allegation and the offences involved
particularly, the offence under Sections 66-C and
66-D of the information technology act are
punishable for a maximum period of three years
and so far other alleged sections are concerned,
the maximum imprisonment provided is upto 7
years;
VII. The apprehension of the learned Additional
Government Advocate that the Petitioner on being
released on bail, the Petitioners may not co-
operate with the investigation of the case. Such
apprehension can very well be taken care of by
grant bail subject to the conditions that they shall
appear before the concerned police station as well
as before the trial court on each date fixed;
VIII. Apart from the general allegation no specific
allegation or incriminating materials were
produced to prima facie establish any specific role
played by any one of the Petitioners in the alleged
crime; and
IX. Further, the investigation of the case with regard
to misuse of sim cards outside the State in
ordinary course would take longer time and as
// 21 //
such, keeping the accused persons in custody may
not be in the interest of justice.
24. Let the Petitioners be released on bail by furnishing bail bond
of Rs.50,000/- (Rupees fifty thousand) each with two solvent sureties
each for the like amount to the satisfaction of the learned court in
seisin over the matter subject to conditions that :-
(i) The Petitioner shall not tamper with the evidence
particularly evidence available on web portal and
in electronic modes;
(ii) The Petitioners shall not influence or threaten any
prosecution witnesses in this case and shall stay
away from such witnesses;
(iii) The Petitioners shall submit their travel
documents including their passports, in case any
one doesn't have a passport, an affidavit to that
effect be filed in the trial court and without
prior/specific permission of the court in seisin
over the matter, the petitioners shall not go out of
the State;
(iv) The Petitioner shall cooperate with the
investigation as and when their presence is
required by the Investigating Agency, they shall
make themselves available before the
Investigating Officer with prior notice;
(v) The Petitioners shall appear before the concerned
Police Station under whose jurisdiction they are
residing, at least once in every week preferably on
// 22 //
'Sunday' in between 10.00 A.M. to 1.00 P.M. till
submission of final charge-sheet;
(vi) Any other conditions as would deem fit and
proper by the court in seisin over the matter shall
be imposed by the said court;
(vii) Violation of any of the terms and conditions,
stated hereinabove, shall entail cancellation of bail
granted by this Court; and
(viii) Observations made in these bail applications are
confined to these bail applications only and the
trial court shall not be influenced by such
observation during trial and shall proceed on the
basis of evidence and materials to be produced
before the said court and decide the case on its
own merit.
The Bail Applications are accordingly allowed.
25. As the restrictions due to resurgence of COVID -19 situation are
continuing, learned counsel for the parties may utilize a print out of the
order available in the High Court's website, at par with certified copy,
subject to attestation by the concerned Advocate, in the manner
prescribed vide Court's Notice No.4587, dated 25th March, 2020 as
modified by Court's Notice No.4798, dated 15th April, 2021 and Office
Order dated 7th January, 2022.
( A.K. Mohapatra)
Judge
Jagabandhu
