The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 172 OF 2024 Anshuman Samantaray …. Petitioner(s) Mr. M. R. Shamshad, Advocate -versus- State of Odisha and others …. Opposite Party(s) Mr. P. K. Maharaj, ASC CORAM: JUSTICE SIBO SANKAR MISHRA
Decision
ORDER 18.03.2024 I.A. No.608 of 2024 Heard. This I.A. has been filed by the Petitioner for extension of Order No. 02. 1. 2. time and modification of the order dated 06.02.2024. 3. Vide order dated 06.02.2024, this Court while partially allowing the petition moved by the present Petitioner, passed the following order:- <1The petitioner has invoked the jurisdiction of this Court under Section-482 Cr.P.C., inter alia, seeking the following reliefs: (a) Quash the FIR No.657/2019 dated 15.12.2019 U/S. 420 IPC, Police Station, IIC Nayapalli U/Ss. 419/ 420/ 467/ 468/ 471/ 34/120-B IPC and stay of the consequent proceedings arising therefrom. (b) Quash the NBW order issued by the learned trial Court. Page 1 of 9 the (c) Stay the arrest of the petitioner and accordingly concerned direct senior SHO/Investigating Officer/ other officials not to adopt any coercive means to pressurize the petitioner(s) which may be prejudiced to his legal interests. (d) Direct the SHO/Investigating Officer/other senior officials not to pressurize or coerce the petitioner(s) or its employees under the garb of investigation. (e) Exempt the petitioner(s) to physically appear before the I.O. for investigation. (f) Exempt the petitioner from filing certified copies of the order & documents. And for this act of kindness, the petitioner shall remain duty bound ever pray.= 2. At the instance of the opposite party no.2, an F.I.R. came to be registered against the petitioner. The opposite party no.2 alleged that earlier she had obtained loan from the Oriental Bank, Unit-3, Bhubaneswar, by mortgaging the subject property. Liability to the bank was discharged, the mortgage property was redeemed and the original documents were also returned to her husband. However, subsequently she discovered that liability of Rs.4,49,16,648.50 (Rupees four crores forty nine lakhs sixteen thousand six hundred forty eight and fifty paise) is showing outstanding against the same property in subject in the Punjab National Bank. When she enquired through her son, it came to light that the present petitioner has shown the husband of the informant as a guarantor to obtain loan from Punjab National Bank. The property in subject has been made collateral. On the gravamen of these allegations, the prosecution has been launched against the petitioner. 3. Learned counsel for the petitioner submits that in the sanction letter issued by the Bank under Annexure-1, the property description against which the charge has been created indicates that the subject property is not included. Earlier the husband of the informant had filed application before the Debt Recovery Tribunal, Cuttack Bench, Cuttack in S.A. No.65 of 2015, inter alia, stated as follows: Page 2 of 9 <(iii) It is humbly submitted here that the applicant did not know the defendants at all. The applicant was never stood guarantor against the loan at any point of time. The applicant never executed any agreement in favour of the respondent, bank for the purpose of the loan in respect of the suit land. The original documents i.e. R.O.R. and the applicant. other documents However the applicant was suffering from old-aged and illness since 2001 seriously and bedridden till date and he was unable to go to bank for execution of the necessary papers for the purpose of loan………= is with 4. Subsequently the informant herself filed the writ petition before this Court and she has averred in the writ petition as follows: in late husband <3. That petitioner’s and Laxmidhar Choudhury has been leased out an area of 35’ feet x 60’ feet in Plot No.N/6, 498, in New Capital, Bhubaneswar, Puri in year of 1975. During settlement operation the authorities prepared R.O.R. favour of Laxmidhar Choudhury in Khata No 1249 and Plot No.2165 area Ac.0.048 decimals. Laxmidhar Choudhury has availed a loan of Rs.20,00,000/- from Oriental through Bhubaneswar Development Bank Authority in the year 1988 mortgaging the said property. After repayment of loan he has obtained No Dues Certificate/Clearance from the Oriental Bank. The property mentioned above is the property involved in this case and hereinafter referred to as <The Property=. The title deeds of the aforesaid property were returned to him through Regd. Post. While peacefully enjoying the property all on a sudden on 10.11.2015 he received a notice from Punjab National Bank through the opposite party Nos.1 & 2 purported to have been issued U/S. 13(4) of SARFAESI Act, 2002 for taking possession of his aforesaid property and sale in auction mentioning it as secured asset and Laxmidhar as a guarantor in connection with loan granted in it Page 3 of 9 favour of M/s. Comet International (O.P. No.3), which has been classified as NPA and the recovery process has been initiated due to non- payment of loan dues. The said notice has also been published in newspaper on dtd. 08.11.2015. Since Laxmidhar was ill and bed ridden he intimated the matter to Zonal Manager, Punjab National Bank seeking appropriate legal action, intimating that fraud has been committed. But the Bank Authorities instead of cooperating him and investigating into the matter taking steps for sale of his property. Finding no way out he has constrained to file S.A. No.65/2015 seeking relief that he is not liable to pay the dues on the ground that fraud has been committed in executing the Agreement of Guarantee for sanction and disbursement of loan. Copies of application along with annexures in S.A. No.65/2015 are filed herewith and marked as ANNEXURE-1 Series.= The said writ petition was withdrawn by her. The stand taken by the informant runs contrary to the allegation made in the F.I.R. 5. When the matter stood thus, the informant lodged the instant F.I.R., inter alia, alleging that the property in subject has been introduced subsequently as collateral for the purpose of the loan granted in favour of the present petitioner. 6. Learned counsel for the petitioner further submits that although the complainant alleges that the bank has added the property in subject as collateral subsequently, but the bank has not made out any grievance against the petitioner. 7. Mr. Maharaj, learned Additional Standing Counsel appearing for the State points out that the petitioner has made various attempts before this Court seeking for grant of bail and he further submits that the petitioner has deliberately concealed the fact that he has approached this Court thrice by filing ABLAPL No.1386 of 2023, CRLMC No.27 of 2024 and CRLREV No.673 of 2023. He has also taken me to the order dated 10.10.2023 passed by the coordinate Bench in ABLAPL No.1386 of 2023, operating part of the order reads as under: 5 “I.A. No.789 of 2023 Page 4 of 9 in taken 1. This is an application for modification of order dated 31st March, 2023. the the grounds 2. Considering application, in paragraph-7 of the order dated 31st March, 2023 passed by this Court in ABLAPL No.1386 of 2023 the words <the co- accused released on bail= be deleted and two weeks’ further time from today is extended, as a last chance, for the petitioner to surrender before the court below as per the order dated 31st March, 2023 but subject to payment of cost of Rs.1,000/- (rupees one thousand) to the Advocates’ Welfare Fund of Orissa High Court Bar Association and producing the money receipt thereof before the concerned Court. It is made clear that other conditions in the said order remain unchanged. The I.A. is disposed of.= the invoked the reason, he has Therefore, Mr. Maharaj submits that no interference is called for in favour of the petitioner owing to his conduct. He contents that the petitioner has argued on merit before the coordinate Bench while pressing for his plea of bail. However, he has not got a favourable order. inherent That’s jurisdiction of this Court under Section-482 Cr.P.C. 8. After the charge sheet was laid down by the investigation, the court below has taken cognizance of the offences against the petitioner. The matter is at the stage of framing of charges. Therefore, the principal prayer in this petition could be made before the trial Court at appropriate stage. 9. Having heard learned counsel for the parties, I am of the considered view that at this stage, this Court need not go into the disputed facts in detail. The petitioner has the liberty to urge all the point and raise all the issues at the appropriate stage of the proceeding before the court below. Since the petitioner has not appeared before the Court below leading to issuance of N.B.W. dated 19.12.2023 against him by the learned J.M.F.C.III, Bhubaneswar in C.T. Case No.6196 of 2019, he should surrender to the jurisdiction of the court below and avail remedy under law. Page 5 of 9 10. Learned counsel for the petitioner submits on instruction that his client would appear before the learned Court below on or before 29.02.2024 and seek appropriate remedy available to him under the law. 10. He further submits that he has placed on record voluminous documents to show that his client is terminally ill. He is suffering from oral cancer and recently, he has undergone medical procedure as well. Therefore, he submits that a lenient view should be taken and appropriate orders may be passed to exempt him from appearance in the court owing to him terrible health condition. 11. The petitioner, if so advised, may move appropriate application under Sections-205 Cr. P.C. or 317 Cr. P.C before the trial court. I leave it open to the learned Court Trial court to take appropriate view in the light of the fact that the petitioner is suffering from various the ailments. However, he has jurisdiction of the Court on or before 29.02.2024 and make such prayer. 12. The operation of the order dated 19.12.2023 passed by the learned J.M.F.C.-III, Bhubaneswar in C.T. Case No.6196 of 2019 is kept in abeyance till 29.02.2024. 13. This order is subject to the petitioner depositing cost of Rs.5,000/- (Rupees five thousand) before the Orissa High Court Advocates’ Welfare Fund. 14. With the aforementioned observation, the CRLMC is disposed of.= to surrender to 4. Pursuant to the aforementioned order, the Petitioner moved an application before the learned Court below under Section 205 Cr.P.C. In the said application, he had placed on record various documents to substantiate his case of exemption on the ground of terminal illness. The learned Court below vide order dated 29.02.2024 recorded the fact that the Petitioner is terminally ill and suffering from cancer and has also taken note of the fact that he has Page 6 of 9 been undergoing treatment since the year 2016 and subsequently his health has also been deteriorated. However, his application under Section 205 Cr.P.C. has been rejected on the ground that one of the offences alleged to have been committed by the Petitioner under Section 467 I.P.C. attracts life sentence. Accordingly, the application was turndown. The Petitioner seeks indulgence of this Court by moving the application for modification. 5. Earlier, the present Petitioner had also repeated similar prayer before this Court by filing various petitions. The Court has taken a serious view regarding the concealment made by the Petitioner by moving repeated applications without disclosing the pendency of similar application before this Court. To explain that the Petitioner has given a chart in para-4 of the present application. Relying upon the same, Mr. Shamshad, learned counsel for the Petitioner has made an attempt to explain the mistakes terming them to be bona fide mistakes and he submits that all the petitions filed by his client were for different relief though the pleadings and grounds were the same. Therefore, there had been a confusion. 6. Earlier this Court had imposed cost on the Petitioner for having concealed the material facts from the record. However, the fact remains that the Petitioner is indeed suffering from terminal diseases since the year 2016 and has been under constant medical Page 7 of 9 attention. His health condition is further deteriorated in the meantime. 7. Mr. Maharaj, learned Additional Standing Counsel for the State submits that the Petitioner out of over anxiety has been repeatedly approaching this Court by moving different petitions for similar relief by engaging different counsels. But in the same time, Mr. Maharaj, submits that the fact of the Petitioner is suffering from terminal disease like cancer is eminent from the record. Therefore, he submits that even if the application under Section 205 Cr.P.C. moved by the Petitioner is allowed, he must appear in the Court below through Virtual Mode so that the trial should not be hampered. Mr. Maharaj, further submits that the Petitioner should move fresh application under Section 205 Cr.P.C. inter alia making the prayer that he should be allowed to appear before the Court below through Virtual Mode as the same prayer was not made earlier. If such application is moved, the said application shall be considered by the learned Court below on its merit. 8. Learned counsel for the Petitioner on instruction from his client undertakes before this Court that his client would not seek adjournment on any pretext before the Court below so that the trial could proceed at an expected pace. Page 8 of 9 9. Taking into consideration the sequence of the event unfolded in the present case and the fact that the Petitioner is indeed suffering from cancer, I am inclined to allow the application. Accordingly, in the event the Petitioner files fresh application under Section 205 Cr.P.C. inter alia making a prayer for appearance before the Court below through Virtual Mode, the same shall be considered in the light of the observation made in this order. It is made clear that the Petitioner shall appear before the trial Court through Virtual Mode without fail on each and every date of hearing. 10. With the said observation, the I.A. is disposed of. (S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 19-Mar-2024 10:47:06 Page 9 of 9