The High Court
Case Details
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 Kumar Swain …. Petitioner -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 BLAPL No.3245 of 2023 Page 1 of 12 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,
Legal Reasoning
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 BLAPL No.3245 of 2023 Page 2 of 12 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 BLAPL No.3245 of 2023 Page 3 of 12 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 BLAPL No.3245 of 2023 Page 4 of 12 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 BLAPL No.3245 of 2023 Page 5 of 12 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
Decision
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 BLAPL No.3245 of 2023 Page 6 of 12 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 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.” live and 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 BLAPL No.3245 of 2023 Page 7 of 12 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. BLAPL No.3245 of 2023 Page 8 of 12 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. BLAPL No.3245 of 2023 Page 9 of 12 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 BLAPL No.3245 of 2023 Page 10 of 12 (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 BLAPL No.3245 of 2023 Page 11 of 12 facie accusations may be treated as a ground for cancellation of bail. 11 Accordingly, the BLAPL stands disposed of. Judge (G. Satapathy) 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 BLAPL No.3245 of 2023 Page 12 of 12