Orissa High Court

Akhila Prasad Mishra vs State Of Odisha .... Opposite Party on 13 May, 2025

Author: G. Satapathy

Bench: G. Satapathy

     IN THE HIGH COURT OF ORISSA AT CUTTACK
                   BLAPL No.234 of 2025

  (In the matter of an application Under Section 483 of
  BNSS)

   Akhila Prasad Mishra            ....            Petitioner

                           -versus-
   State of Odisha                ....       Opposite Party


   For Petitioner         : Mr. D.P.Nanda, Sr.
                            Advocate along with
                            Mr.B.Nayak, Advocate

   For Opposite Party     : Mr. A.K.Apat, Addl. PP
                            Dr.Menaka Guruswamy,
                            Sr.Advocate along with
                            Mr.S.Mohapatra,
                            Advocate(Informant)

       CORAM:
                   JUSTICE G. SATAPATHY

    DATE OF HEARING & JUDGMENT:13.05.2025(ORAL)

G. Satapathy, J.

1. This is a bail application U/S.483 of the

BNSS by the petitioner for grant of bail in connection

with Talcher PS Case No.641 of 2024 arising out of

GR Case No. 1198 of 2024 pending in the Court of

learned SDJM, Talcher being charge sheeted for

commission of offences punishable U/Ss.

408/506/34 of IPC r/w Sections 66(C)/66(D) of

Information Technology Act, on the allegation of

siphoning away a sum of Rs. 87,79,231/- (Rupees

Eighty Seven Lakhs Seventy Nine Thousand Two

Hundred Thirty One) of the Informant.

2. In the course of hearing, Mr. Durga Prasad

Nanda, learned Senior Counsel who enters

appearance along with Mr. Biswajit Nayak, learned

counsel for the Petitioner by filing an appearance

memo, which is taken on record, submits that the

Petitioner has been detained in custody since

08.08.2024, but in the meanwhile, substantial time

has already been over, however, the custodial

interrogation of the Petitioner has not been sought

for by the Investigating Agency and thereby, there

is hardly any question of custodial interrogation of

the petitioner in this case and the offences with

which the Petitioner is charge sheeted being purely

revealing contractual dispute between the Petitioner

and the Informant, there is hardly any requirement

of keeping the Petitioner in custody and all the

documents concerning this case having already been

seized, the Petitioner may kindly be enlarged on

bail.

2.1 On the contrary, Mr. A.K. Apat, learned

Addl. Public Prosecutor, however, vociferously

opposes the bail application of the Petitioner by

contending interalia that not only the Petitioner is

involved in financial dispute, but also his conduct in

siphoning away the money of his employer itself

shows that the offences with which he is being

charge sheeted are prima facie made out and he

thereby, does not deserve to be released on bail.

Mr. Apat, accordingly, prays to reject the bail

application of the Petitioner.

2.2. In opposing the bail application of the

petitioner, Dr. Menaka Guruswamy, learned Senior

Counsel appearing virtually being assisted by Mr. S.

Mohapatra, learned counsel for the Informant

submits that the order granting bail of the co-

accused has been challenged before the Apex Court

in SLP in which the State submitted that the

misappropriation amount would go up to Rs. 2

Crores, but in the CRLMC filed by the informant for

proper investigation and transfer of the investigation

to EOW reveals that the misappropriation amount

would go up to Rs. 7 Crores and some odd amount

and the Petitioner having misappropriated such huge

amount does not deserve any leniency. Further, Dr.

Menaka Guruswamy submits that the investigation

done by the State Investigating Agency is not only

remiss, but also amiss and the State has not been

able to conduct proper investigation in the matter to

unearth the amount of misappropriation which would

like to go up to Rs. 7 Crores and some odds. It is

also submitted that in the event of transfer of

investigation to EOW, there is fair chance that the

EOW may seek for custodial interrogation of the

petitioner and thereby, it would not be proper to

release the Petitioner on bail, especially when

CRLMC is pending before this Court for a direction in

the matter of transfer of investigation to EOW. Dr.

Menaka Guruswamy, learned Sr. Counsel

accordingly, prays to reject the bail application of

the Petitioner.

3. After having considered the rival

submissions upon perusal of record, there appears

allegation against the Petitioner for misappropriation

of the money of the complainant/Informant, but

quantum and tune is still in dispute between the

parties. Although the preliminary charge sheet

submitted by the Investigating Agency reveals about

misappropriation of around Rs. 87 Lakhs and some

odds by the petitioner, but as per the submission of

the parties, it appears that the State has gone to the

extent of saying that such misappropriation amount

may rise to Rs. 2 Crores. However, it is claimed on

behalf of the Informant that such misappropriation

amount would go up to Rs. 7 Crores or more.

Whatever it may be, but the Petitioner was

admittedly the Accountant of the Informant and it is

alleged that during his absence for treatment, the

petitioner has misappropriated his money, however,

the jural relationship between the parties cannot be

disputed at this stage.

4. Admittedly, bail proceeding are not

recovery proceeding and this Court does not wish to

pass any comment on the amount of

misappropriation as alleged against the petitioner,

but there is allegation against the Petitioner for

misappropriation, however, such allegation needs to

be proved before the Court of law, however, the

quantum and allegation are question of facts which

can be decided in a trial after full-fledged evidence is

placed before the trial Court, but at this stage

expecting custodial interrogation of the petitioner by

the Economic Offence Wing (in short, the "EOW") of

the police, pending disposal of CRLMC No. 201 of

2025 which is filed by the informant for a direction

to transfer the investigation to EOW is only

speculative in nature, which cannot prevail over the

liberty of a person as guaranteed by the Article 21 of

the Constitution of India, however, such

assertion/claim for transfer of investigation to EOW

may not be found substantiated from the materials

placed on record. No doubt, there is scope for the

Informant to pray for transfer of investigation and

there might be possibility of transfer of

investigation, but in such event, there is also

possibility that the EOW personnel may not seek for

custodial interrogation of the petitioner, however,

custodial detention always plays a significant role for

consideration of bail. Moreover, the factors that are

required to be considered in bail application are (i)

the nature of accusation, (ii) strength, character and

supporting materials collected by the Investigating

Agency, (iii) criminal antecedent, (iv) reasonable

apprehension of tampering with witnesses or

apprehension of threat to the complainant or the

witnesses, (v) reasonable possibility of securing the

presence of accused at the time of trial or the

likelihood of his abscondance, (vi) character,

behavior and standing of the accused and the

circumstance which are peculiar to the accused and

(vii) the flight risk of the accused and such other

factors/materials which are relevant for the purpose

considering the bail application of the accused. In

this case, there is hardly any material to indicate

that the Petitioner is involved in any other criminal

cases and he poses flight risk or his attendance

cannot be secured at the trial. Further, the

investigation has already been completed and

preliminary charge sheet has already been placed in

this case, but till date, the Investigating Agency has

allegedly found misappropriation amount to the tune

of Rs. 87 Lakhs and some odds. Additionally, it is

not in dispute that the petitioner has not misused

the concession granted to him by way of interim

bail. At this stage, keeping the detention of the

Petitioner further would not be in the interest of

justice. Besides, the principle that "bail is the rule

and jail is the exception" and legal position

regarding presumption of innocence being a facet of

Article 21 of the Constitution of India and, therefore,

keeping the petitioner in confinement for an

indefinite period on the expectation of EOW

investigation would be against the right to liberty of

the petitioner as guaranteed under Article 21 of the

Constitution of India. Further, the offences with

which the petitioner has been charge sheeted are

triable by Magistrate First Class and grant of bail

being the discretionary power of the Court which

needs to be exercised judicially, but keeping the

petitioner in confinement for an indefinite period

without the charge being proved against him is not

in the interest of justice.

5. In view of the aforesaid facts and

discussions made hereinabove and on a conspectus

of materials placed on record and taking into

consideration the release of co-accused Tapaswini

Mohapatra on bail in BLAPL No. 11875 of 2024 and

regard being had to the pre-trial detention of the

petitioner since 08.08.2024 with submission of

charge sheet in the meanwhile and lastly, keeping in

view the mandate of law laid down by Apex Court in

Satendra Kumar Antil Vrs. CBI & another;

(2022) 10 SCC 51, this Court without expressing

any view on merits admits the petitioner to bail.

6. Hence, the prayer for bail application of the

petitioner stands allowed and he be allowed to go on

bail on furnishing an unencumbered property surety

of Rs.10,00,000/- (Rupees Ten Lakhs), in addition to

bail bonds in the sum of Rs.2,00,000/- (Rupees Two

Lakhs) with two solvent sureties for the like amount

to the satisfaction of the learned Court in seisin of

the case, on such terms and conditions as deem fit

and proper by it with following conditions:-

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

(ii) the petitioner in the course of trial shall attend the trial Court on each 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.269 of BNS,2023 in accordance with law,

(iii) the petitioner shall not leave the territorial jurisdiction of the trial Court without prior permission till disposal of the case by intimating his

present address of stay to the concerned Court,

(iv) the Petitioner shall inform the Court as well as the Investigating Agency 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 his residence. The Petitioner shall not change his address of residence without intimating to the Court and Investigating Agency,

(v) In case the Petitioner misuse the liberty of bail and in order to secure his presence, proclamation U/S.84 of BNSS, 2023 is issued and the Petitioner fail 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.209 of BNS, 2023 in accordance with law,

(vi) the Petitioner shall appear before the Investigating Agency as and when required and shall cooperate with the further investigation in the present case,

(vii) the Petitioner shall surrender his passport, if any, in the Court in seisin of the case till conclusion of trial, unless he is permitted to take back such passport to use for specific purpose during the pendency of the case and in case, the petitioner is not having any passport, he will file an

affidavit before the trial Court indicating the same.

The IO 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 in future for any

grave/similar offence on prima facie accusations

may be treated as a ground for cancellation of bail