Orissa High Court

An Application Under Section 439 Of The ... vs State Of Odisha ...... Opp. Party on 5 March, 2025

Author: Savitri Ratho

Bench: Savitri Ratho

                      IN THE HIGH COURT OF ORISSA AT CUTTACK
                                    BLAPL No. 11529 of 2024

         An application under Section 439 of the Code of Criminal Procedure,
         1973
         Kaifi Khan                           ......                   Petitioner
                                            -versus-
         State of Odisha                     ......                     Opp. Party

         For Petitioner               :                       Mr. Smruti Ranjan Rout,
                                                              Advocate

         For Opp. Party               :                       Smt. Siva Mohanty,
                                                              ASC
                CORAM:
                HONOURABLE MISS JUSTICE SAVITRI RATHO

                                          JUDGMENT

05.03.2025 Savitri Ratho, J. This is the fourth application of the petitioner under Section

439 of Cr.P.C. in connection with Mangalabag P.S. Case No.114 of

2023 corresponding to G.R Case No.334 of 2023, pending in the Court

of the learned J.M.F.C., Cuttack where the petitioner is facing trial

alongwith other co accused for commission of offences punishable

under Sections 419, 420, 403, 120 (B), 34 of IPC.

EARLIER BAIL APPLICATIONS

2. The first bail application of the petitioner i.e. BLAPL No.

14705 of 2023 was disposed of on 17.01.2024 granting the petitioner

liberty to file a fresh application for bail after returning the amount of

Rs.11,00,000/- to the informant. His second application i.e. BLAPL

No. 2809 of 2024 had been dismissed on 02.05.2024 granting the

petitioner liberty to approach the learned court below for bail, if he was

so advised. His third application i.e. BLAPL No. 5169 of 2024 had

been dismissed on 23.05.2024 granting him liberty to move for bail

afresh after completion of further investigation or if there is undue in

completion of further investigation.

3. The petitioner thereafter moved the learned court below for

bail and the learned 2nd Additional Sessions Judge, Cuttack has rejected

his prayer in BLAPL No. 614 of 2024 vide order dated 16.05.2024

observing that the petitioner has similar criminal antecedents and has

not complied with the order of this Court.

PROSECUTION ALLEGATIONS

4. The prosecution allegation in brief are that the petitioner-

Kaifi Khan and his associates have cheated the informant of a total

amount of Rs.62 lakhs having taken various amounts on different

occasions. The informant had obtained most of the money by taking

gold loan from Muthoot Finance by handing over 17 tolas of gold .

Except for Rs 12,50,000/- the rest of the amount had been paid through

account transfer. When she tried to ask him for return of some of the

money, he avoided her calls and she found that he had used the money

to buy expensive cars and sports bike. During course of investigation,

raid was conducted in the house of the petitioner and incriminating

articles along with duplicate diamond, gold like metal, lots of metal

lockets, several documents pertaining to bank accounts, cheque books,

bonds, mobile phones as well as different precious brands of wrist

watch, two luxurious cars along with one royal Enfield Bullet and cash

of Rs.2,76,410/- were seized from the possession of the petitioner.

5. Chargesheet dated 24.06.2023 had been submitted against

the present petitioner-Kaifi Khan, one Sk. Ismail and Amir Khan under

Sections 419, 420, 403, 120 (B), 34 of IPC keeping the investigation

open for collection of bank statements, arrest of other accused persons,

recovery of cheated amount, examination of more witnesses as well as

further evidence in this case. Thereafter chargesheet dated 22.12.2023

was submitted against the present petitioner-Kaifi Khan, Sk. Israel,

Amir Khan, Samir Khan and Md. Sakil for commission of offences

punishable under Sections 419, 420, 403, 120 (B), 506, 34 of IPC

keeping investigation open for collection of more evidence, arrest of

other accused persons . During further investigation one Sk. Aspak @

Mohammad Aspak was arrested.

STATUS REPORT

6. In the status report dated 21.01.2025 of the learned J.M.F.C.,

Cuttack in G.R. Case No. 334 of 2023 corresponding to Mangalabag

P.S. Case No. 114 of 2023 , it is stated that on 07.01.2025 charge sheet

witness Joseph Ekka (Seizure witness) was examined, cross examined

and discharged. The petition filed under Section 311 Cr.P.C by the

learned APP for recalling the informant Sharmila Sen was allowed on

10.12.2024 and she was present in the Court on 07.01.2025 but the

learned defence counsel denied to cross-examine her as he had not

received the copies of documents which was filed by the learned . The

petition filed by the defence counsel for supplying the copies of the

documents had been allowed on 16.01.2025. Summons had been

issued to the chargesheet witnesses - Amit Kumar Mallik and S.

Babula for their appearance on 28.01.2025 to adduce the evidence and

the case was posted to 28.01.2025 for evidence.

SUBMISSION ON BEHALF OF THE PETITIONER

7. I have heard Mr. Smruti Ranjan Rout, learned counsel for

the petitioner , Ms Bini Mishra learned counsel appearing on behalf of

the informant and Ms Siva Mohanty learned counsel appearing on

behalf of the State .

8. Mr. Rout, learned counsel for the petitioner submitted that

the petitioner is in custody since 27.04.2023. While rejecting the prayer

for bail of the petitioner in BLAPL No. 5169 of 2024 dated 23.05.2024,

he had been granted liberty to move for bail afresh after completion of

investigation. Referring to the provision in Section 436 (A) of Cr.P.C.,

he submits that as the petitioner has stayed in custody for almost 2 years

and the learned Magistrate can impose sentence maximum upto 3 years,

the petitioner should have been released on bail by the learned trial

Court. He also submitted that as per the provisions of Section 437 (6) of

the Cr.P.C. if the trial is not completed within two months of the

examination of the first witness, the accused should be released on bail.

He has also submitted that although it is stated that the petitioner has

five criminal antecedents, he has been granted bail in all the five cases.

In support of his submission, he relies on the following decisions : -

i) Javed Gulam Nabi Shaikh vrs. State of Maharashtra and Another

(Criminal Appeal No. 2787 of 2024 decided on 3rd July, 2024) ,

ii) BLAPL No. 5798 of 2024 and 5813 of 2024 Laxmi Narayan Das ve

State of Odisha decided on 07.11.2024: 2025 (1) OLR 106

SUBMISSIONOF THE COUNSEL FOR THE INFORMANT

9. Ms. Bini Mishra, learned counsel appearing on behalf of the

informant vehemently opposed the prayer for bail stating that the

petitioner cannot avail the benefit under Section 437 (6) of the Cr.P.C.

as the same is not mandatory and delay in trial can also be attributed to

the petitioner as the petitioner has not examined the witness who had

been recalled under Section 311 of Cr.P.C. She submitted that the

petitioner should not be released on bail or granted the benefit of Section

436 (A) of the Cr.P.C. which is discretionary in nature and not

mandatory. Her further submission was that in view of the provisions

under Section 325 of the Cr.P.C., the learned Magistrate First Class has

the option to forward the case to the learned Chief Judicial Magistrate,

so it cannot be accepted that the petitioner should be released on bail as

he has remained in custody for more than one and half years. In view of

the nature of allegations against the petitioner, as he is a habitual

offender having five similar criminal antecedents, he does not deserve to

be released on bail. In support of her submissions , she has relied on the

following decisions in support of her submissions :-

i) The decision of the Bombay High Court at Aurangabad in the

case of Latabai WD/O Bhimsingh Jadhav vrs. State of

Maharashtra ( Bail Application No. 1547 of 2024 decided on

23.09.2024)

ii) The decision of the Madhya Pradesh High Court at Indore in

Misc. Crll Case No. 58222 of 2022 decided on 26th June, 2023 in

Raju @ Rajesh S/o Heeralal Goswami vrs. The State of Madhya

Pradesh through Police Station-Gandhi Sagar, District

Mandsaur (M.P.).

SUBMISSION OF THE STATE COUNSEL

10. Ms. Siva Mohanty, learned Additional Standing Counsel, has

vehemently opposed the prayer for bail submitting that the petitioner

being a habitual offender should not be released on bail. She further

submits that the petitioner is in the habit of cheating people for which

five other cases are pending against him.

REVEVANT STATUTORY PROVISIONS

Section - 436 A Maximum period for which an undertrial prisoner

can be detained.--

"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.

Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.]"

Section 437 .When bail may be taken in case of non-bailable offence.

....

(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."

CASE LAW

11. In the case of Javed Gulam Nabi Shaikh (Supra), the

Hon'ble Supreme Court has held as follows:

" 8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.

9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.

10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:

"What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] : "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."

11. The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment."

In the case of in Mahipal vs. Rajesh Kumar: (2020) 2 SCC

118, the Supreme Court has held as follows:-

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of

the accused are important. No straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.........."

In the case of Laxmi Narayan Das (Supra), the two accused

persons were accused of committing offences punishable under

Sections - 417, 419, 420, 467, 468, 294, 506 & 120-B of the IPC, 1860

for taking Rs Four lakhs each from the informant and his friends for

providing them with jobs . One of the accused had agreed to deposit

Rs 3 lakhs . This court granted them bail , while directing one accused

to deposit Rs 3 lakhs which was to be kept in fixed deposit .

In the case of Latabai ( supra) , the accused was alleged

to have committed offences under Section - Sections 120-B, 182,

193, 419, 420, 468 read with Section 34 of the IPC. The High Court

turned down the contention that the petitioner should be released on

bail as the trial had not been concluded within sixty days of

examination of the first witness , holding that the word shall used in

the Section 437 (6) was discretionary and not mandatory .The

relevant portions of the judgment are extracted below :

"13. Where the trial is not concluded within 60 days as prescribed under Section 437(6) of Cr.P.C. that does not give a right to bail for default. The term "shall" in the said section is discretionary. The Court should exercise such powers judiciously and consider other circumstances as provided under Section 437 of the Code of Criminal Procedure.

14. Both Courts have recorded the reasons for declining to exercise the powers under Section 437(6) of the Cr.P.C. Though the trial has been little bit delayed, and the Trial Court was expecting a speedy trial, the reasons for not exercising the discretion recorded by both Courts appears to be correct, legal and proper. The applicant has no good past. Hence, apprehension of her absconding is also justifiable."

In the case of Raju @ Rajesh S/o Heeralal Goswami (supra),

the accused was facing trial for commission of offences punishable

under Section - 420 and 201 of the I.P.C on the allegation of cheating

four complainants and others of Rs 9.71 lakhs . After examination of

two witnesses out of eighteen witnesses , the accused had filed an

application for releasing him on bail under Section 437 ( 6) of the

Cr.P.C . It had been rejected by the Magistrate holding that provisions of

Section - 437( 6) of the Cr.P.C are not mandatory and considering the

gravity of the offence . He had challenged the same by filing an

application under Section 482 of the Cr.P.C . While dismissing the

application , the High Court held as follows :-

" Undoubtedly, under Section 437(6) of Cr.P.C. the accused does not get absolute right to seek bail. Hence, the provisions does not confer any indefeasible right as is provided under Section 167(2) of Cr.P.C. While deciding the application under Section 437(6) of Cr.P.C., the Court has to keep in mind that the object behind such a provision is to speed up the trial particularly when the accused is in detention. However, the Magistrate is expected to keep in mind the gravity of the offence, quantum of punishment, the manner in which the accused is involved in the offence, whether the default is attributable to the accused in prison, likelihood of his jumping bail or any other special circumstances due to which the Magistrate considers it expedient not to exercise discretionary powers under Section 437(6) of Cr.P.C. Thus, in the end, it can be concluded that the right conferred under Section 437(6) of Cr.P.C. is not absolute, however, nonetheless, it is a right which cannot be defeated easily and both the courts below have not committed any grave error in rejecting the application filed by the petitioner in this regard."

In the case of Bhim Singh v. Union of India : (2015) 13 SCC

605 (2019), the Supreme Court after considering the plight of the under

trial prisoners who were detained in jail for long periods without facing

trial , issued various directions after observing as follows :-

"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'

This Court in the case of Santosh Kumar Roul vs State of

Orissa: 2019 SCC OnLine Ori 248 : (2019) 128 CLT 689, has held as

follows :-

..."13. In the case of Rama Chandra Hansdah (supra), it is held that even a single day delay in release of an undertrial prisoner who is entitled to be released as per section 436-A of Cr.P.C. would amount to serious violation of his right to life under Article 21 of the Constitution of India and every endeavour is to be made by the authorities to prevent breach of Article 21 of the Constitution of India by implementation of section 436-A of Cr.P.C. It is also the settled principle of law that speedy trial is a fundamental right implicit in the broad sweep and content of Article 21 of the Constitution of India and if a person is deprived of his liberty under a procedure which is not reasonable, fair, or just, such deprivation would be violative of his fundamental right under Article 21 of the

Constitution of India. Section 436-A Cr.P.C. is a benevolent provision which is incorporated by the legislature with a view to ameliorate the conditions of the under trials who are languishing in jail for a long period of time having undergone more than half of the sentence which the offence carries. The said provision cannot be interpreted in a manner so as to deprive the benefit of such beneficial legislation to the under trial"

In the case of Pradeep Kumar Sethy vs State of Orissa : 2022

(I) OLR-1063 , this Court relying on the decisions of Bhim Singh

(supra) and Santosh Kumar Roul (supra) , allowed the prayer for bail

of the accused observing as follows :

"13. It is of course necessary to note that Section -436 A Cr.P.C also provides that the Court, may for reasons to be recorded in writing and after hearing the Public Prosecutor , order for the continued detention of the accused for a period longer than one-half of the maximum sentence or release him on bail instead of personal bond with or without sureties .

14. After considering the submissions of the learned counsels, , the mandate of Section 436 A of the Cr. P.C , the maximum sentence prescribed for the offences under which chargesheet has been filed, the period spent by the petitioner in custody the view of the Supreme Court in the case of Bhim Singh ( supra) , and the fact that nothing has been brought to the notice of the Court that trial has been delayed at the instance of the petitioner , but without going into the merits of the

prosecution allegations, I am inclined to allow this application and release the petitioner on bail .

ANALYSIS AND CONCLUSION

12. From a reading of the words "unless for reasons to be recorded

in writing, the Magistrate otherwise directs", in Section - 436 ( 7) of the

Cr.P.C, it is apparent that the provision is not mandatory as the

Magistrate has the discretion not to release the accused on bail , but

recording of reasons for not doing so is mandatory. The decisions

referred to above are also in the same light .

13. But Section - 436 A of the Cr.P.C , is a beneficial provision and

protects the right of the accused to speedy trial under Article 21 of the

Constitution of India. That apart, as has been held in the case of

Gudikanti Narasimhulu (supra) and reiterated in a number of decisions

of the Supreme Court that the object of bail is to ensure that the

attendance of the accused is to be secured during trial and bail is not to

be withheld as a punishment. While deciding the application, it is of

course necessary to keep in mind other factors like nature and gravity of

the offence, the severity of the punishment and the materials showing the

involvement of the accused.

14. In view of the above discussion , considering the period spent by

the petitioner in custody, the punishments prescribed for the offences he

is facing trial for and the amount involved, I am inclined to allow the

prayer for bail, but subject to stringent conditions .

15. The petitioner-Kaifi Khan shall be released on bail on such

terms and conditions as the learned court in seisin over the matter in G.R

Case No.334 of 2023 may consider fit and proper, after verifying that he

has only the criminal antecedents as mentioned above, in which he has

been granted bail, as well as the following conditions:

(i) He will furnish cash security of Rs Fifteen lakhs.The amount

will be kept in fixed deposit in a nationalised bank (and renewed if

required ) and will abide by the result and decision in the trial .

(ii) He will not indulge in any criminal activity.

(iii) He will not leave Khurda District and Cuttack District, without

permission of the learned trial Court.

(iv) He will remain personally present in the learned trial court on

each date fixed for trial and co-operate for early disposal of the trial.

(v) He will appear before the Mangalabag Police on every alternate

Sunday between 5.00 pm to 6.00 pm unless permitted by the learned

trial court, to leave the State.

16. In the event of violation of any of these conditions or any

other condition that may be imposed by the learned Court in seisin over

the matter, this order is liable to be recalled and / or the bail granted to

the petitioner cancelled.

17. Observations in this order have been made for purpose of

deciding the bail application and are prima facie views and should not

influence the learned trial court, which is to try the case strictly on the

basis of evidence led in the case.

18. The BLAPL is accordingly allowed.

19. Urgent certified copy of this order be granted on proper

application.

20. Copy of this order be supplied to Smt. Siva Mohanty,