Shiva Kumar Swain @ Siba vs State Of Orissa
2023 Latest Caselaw 8987 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                   BLAPL No.3245 of 2023

  (In the matter of application under Section 439 of the
  Code of Criminal Procedure).

  Shiva Kumar Swain @ Siba            ....         Petitioner
  Kumar Swain
                     -versus-

  State of Orissa                     ... Opposite Party
                                      .


  For Petitioner          :   Mr. K.P. Mishra,
                              Sr. Advocate


  For Opposite Party      :   Mrs. S.R. Sahoo, ASC
                              Mr. R.N. Das Mohapatra,
                              Advocate (Informant)

      CORAM:
                    JUSTICE G. SATAPATHY

               DATE OF JUDGMENT:10.08.2023


G. Satapathy, J.

1. This is an application U/S. 439 of Cr.P.C. by

the Petitioner for grant of bail in connection with

Badambadi P.S. Case No. 352 of 2021 corresponding

to G.R. Case No.1596 of 2021 pending in the Court

of learned J.M.F.C.(City), Cuttack for commission of

offence U/Ss.420/ 506/ 34 of the IPC, but

subsequently charge-sheeted for offence U/Ss.420/

406/409/120-B/34 of IPC, on the allegation that the

petitioner being Chief Executive Officer of Jai

Jhadeswar Co-operative Society Ltd had allured the

informant and cheated him by misappropriating the

deposit made by him in the Society for a sum of

Rs.25,25,000/- including interest.

2. In the course of hearing of bail application,

Mr.K.P. Mishra, learned Senior Counsel appearing for

the petitioner has submitted that there is of course

allegation against the petitioner for cheating and

misappropriating the money deposited by the

informant, but the petitioner is innocent of the

offence and he has not committed any offence nor

misappropriated the money of the informant. It is

further submitted by him that the petitioner

although was the Chief Executive Officer of the Co-

operative Society, but there were other office

bearers of the Co-operative Society and the

petitioner was not alone the in charge of the affairs

of Co-operative Society and in case, any

misappropriation of the money deposited by the

informant had been done, the same might have

been done by some other employee of the Society,

but not the petitioner. It is also alternatively

submitted that the petitioner being the CEO of the

society has every intention to settle the dispute of

the informant, but the same can be done once the

petitioner is released on bail inasmuch as there are

fifteen members engaged in the management and

affairs of the Co-operative Society who had also

availed loan from the Society and the amount

deposited by the informant can be settled by way of

funds kept in the Society. In summing up his

argument, Mr. Mishra, has highlighted the date of

detention of the petitioner since last one year and

prayed to grant bail to the petitioner in this case.

3. On the other hand, Mrs.S.R. Sahoo, learned

ASC, however, seriously opposes the bail application

of the petitioner and she inter alia has submitted

that the petitioner is not only involved in this case,

but has been involved in other four cases of similar

nature and, thereby, the petitioner should not be

granted bail.

4. Mr.R.N. Das Mohapatra, learned counsel for

the informant, however, has vociferously objected

the bail application of the petitioner by submitting

inter alia that the petitioner had cheated the

informant and misappropriated his deposits by

transferring some lakhs of rupees from the account

of the Society to the personal accounts of the

petitioner and his family members and in the

process, the petitioner had cheated and

misappropriated the amount of innocent depositors

along with co-accused persons. Mr. Das Mohapatra

accordingly has prayed to reject the bail application

of the petitioner.

5. On being queried by the Court, learned

counsel for the parties by referring to the affidavit

filed by the IIC, Badambadi P.S. in CRLMP No. 750

of 2022 apprised that cash of rupees more than one

crore deposited in the name of accused persons at

different banks has been freezed by the I.O. It is

also not disputed that the petitioner is in custody

since 25.06.2022 and subsequently remanded in this

case. Admittedly, the petitioner was the Chief

Executive Officer of the Co-operative Society and

there were also other office bearers in the said Co-

operative Society, but malpractices and irregularities

were alleged in the functioning in the Society during

annual inspection of the Society in the year 2016-

17. It was also alleged against the petitioner for

withholding information to the administrator and

higher authorities and in the year 2019 the Registrar

Co-operative Society had moved the EOW to do the

needful, but subsequently this case was initiated on

the FIR of the informant. This Court is also informed

by the petitioner by producing the certified copy of

order sheet dated 02.08.2023 of learned

J.M.F.C.(City), Cutack that now the case stands

posted for production of accused person and the trial

therefore, would obviously take some time to

commence, but there is also no guarantee about its

early completion. In such situation, this Court is

reminded by the observation made by the Apex

Court long back in Hussainara Khatoon vs Home

Secretary, State Of Bihar; (1980) 1 SCC 81

wherein the right to speedy trial of offenders facing

criminal charge was acknowledged to be "implicit in

the broad sweep and content of Article 21". It was

also held therein that:

"Now obviously procedure prescribed by law for depriving a person of liberty cannot

be "reasonable, fair or just" unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to live and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21."

6. Time and again, it is reiterated by different

constitutional Courts in India that the object of bail

is neither punitive nor preventive, but to secure the

appearance of the accused person at his trial by

taking reasonable amount of bail from him.

Deprivation of personal liberty must be considered

as punishment, unless it is required to ensure that

an accused person will stand his trial when called

upon. The effect of granting bail is not to set the

accused at liberty, but to release him from the

custody of law and to transfer him to the custody of

his surety (sureties), who is/are bound to produce

him to appear at his trial at a specified time and

place.

7. On coming back to the " triple/tripod test",

which is normally applied for deciding bail

application, it appears on scrutiny of materials

placed on record that the petitioner does not appear

to be a flight risk and charge sheet having already

filed in this case forecloses the apprehension of

tampering of evidence and lastly, the informant

having engaged counsels to protect his interest in

the bail application, there appears no reasonable

apprehension influencing of witnesses. One of the

most important consideration for grant of bail is

securing the attendance of the accused at his trial

and the same can be done by imposing appropriate

condition.

8. True it is, an accused is presumed to be

innocent in law, unless proven to be guilty beyond

all reasonable doubt, which is a human right and

flows from Article 21 of the Constitution, which is

why the bail jurisprudence persuades the Courts in

India to follow the principle; "grant of bail is the

rule, but refusal is the exception".

9. Keeping in view the aforesaid principles of bail

jurisprudence and the most precious fundamental

right of personal liberty as guaranteed under Article

21 of the Constitution of India, especially when the

trial in this case is yet to commence even after near

about one year custody of the petitioner and taking

into consideration the discussion made in the

preceding paragraphs, this Court on consideration of

the rival submissions and the materials placed on

record feels it proper to grant bail to the petitioner

with some stringent conditions.

10. Hence, the bail application of the

petitioner stands allowed and he be released on bail

on furnishing bail bonds in the sum of Rs.1,00,000/-

(Rupees One lakh) with two local solvent sureties,

out of which one must be his family member or

blood relative, each solvent to the amount to the

satisfaction of the learned Court in seisin of the

case, with following additional conditions:-

(i) the petitioner shall not commit any offence while on bail,

(ii) the petitioner shall appear before the Court in seisin of the case on each and every date of posting without fail unless his attendance is dispensed with. In case the Petitioner fails without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law,

(iii) the petitioner shall not leave the jurisdiction of the trial Court without prior permission till disposal of the case,

(iv) the petitioner shall report attendance before the Jurisdictional Police Station once in a fortnight preferably on a Sunday in between 10 A.M. to 12 Noon for six(06) months from the actual date of release from the custody and

(v) the petitioner shall inform the Court as well as the IO as to his place of residence during the trial by providing his mobile number(s), residential address, e-mail, if any, and other documents in support of proof of residence.

(vi) in case the petitioner misuses the liberty of bail and in order to secure his presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioner fails to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against him for offence U/S.174-A of the IPC in accordance with law.

The I.I.C. of Jurisdictional Police Station shall

not detain the petitioner unnecessarily after recording

his attendance beyond the time as stipulated.

It is clarified that the Court in seisin of the

case will be at liberty to cancel the bail of the

petitioner without further reference to this Court, if

any of the above conditions are violated or a case

for cancellation of bail is otherwise made out. In the

wake of aforesaid, the subsequent involvement of

the petitioner for any offence in future on prima

facie accusations may be treated as a ground for

cancellation of bail.

11 Accordingly, the BLAPL stands disposed of.

(G. Satapathy) Judge

Orissa High Court, Cuttack, Dated the 10th of August, 2023/Kishore

Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 10-Aug-2023 16:25:10