The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMA No.94 of 2021 (In the matter of an application under Section 439(2) of the Criminal Procedure Code, 1973) Republic of India (CBI) ……. Petitioner -versus- Bikash Swain ……. Opposite Party For the Petitioner : Mr. Sarthak Nayak, Advocate For the Opp. Party : Mr. Lalitendu Mishra and Mr. Bhupinder Singh, Advocates CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 04.10.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present petition has been filed by the petitioner/CBI seeking recalling of the concession of bail granted to the opposite party by this Court vide order dated 11.11.2016 passed in BLAPL No.3112 of 2015. 2.
Legal Reasoning
As a pre-face, the following facts are relevant on the background of which the present petition is based. The Hon’ble Supreme Court vide its judgment dated 09.05.2014 passed in W.P.(C) No.413 of 2013 and batch matters directed the CBI to investigate into the offences by transferring the 8 FIRs lodged in different parts of States of Odisha regarding large scale fraud of siphoning of huge amount collected from the general public, which is popularly known as “Ponzi Scam”. 3. The present opposite party is one of the accused in SPE Case No.42 of 2014. After the investigation, charge sheet was filed on 11.12.2014 against the present opposite party and others for the commission of alleged offences punishable under Sections 120-B/ 294/ 341/ 406/ 409/ 420/ 467/ 468/ 471/ 506/34 of the IPC read with Sections 4,5, & 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. Subsequently, supplementary charge sheet was also filed and investigation has been kept open under Section 173(8) of Cr.P.C. 4. The allegation against the opposite party is that he is the Executive Editor and Managing Director of Odia daily newspaper “Suryaprava” and Proprietor of Odia Journal “Pravasarjana”. It is alleged that an amount of Rs.1,43,46,560/- was transferred from M/s. Artha Tatwa Infra India Limited and M/s. Artha Tatwa Consultancy Private Limited to the account of “Suryaprabha” between a period from 09.01.2010 to Page 2 of 11 09.06.2012. Similarly, an amount of Rs.4,94,500/- was transferred from M/s. Artha Tatwa Consultancy Private Limited to the account of “Pravasarjana” between the period from 03.01.2011 to 08.06.2012. The Artha Tatwa Group of Companies and its Proprietor are the principal accused persons in all the eight cases. It is alleged against the principal company that it was registered as Cooperative Society and its franchise floated different schemes with a promise to give high rate of interests on deposits to be made by the public investors. The company had allured general public by misrepresentation, assurance and promise that on each deposit, the investors will get high return. Crores of rupees were collected from the general public and the same were diverted to different accounts. The said scam is the first of its kind in the State of Odisha and popularly known as Poonzi Scam wherein about 201 Crores was involved in the beginning. The magnitude of the entire scam is yet to be unearthed as the investigation is still on. 5. The present opposite party was one of the beneficiaries, who has derived financial benefits from the principal accused. The opposite party was taken into custody in the present case and eventually, this Court vide Page 3 of 11 its order dated 11.11.2016 in BLAPL No.3112 of 2015 enlarged him on bail. However, this Court imposed the following conditions while admitting him on bail: “(i) the petitioner shall furnish bail bond in the sum of Rs.2,00,000/- (Rupees two lakh) with two local solvent sureties each for the like amount to the satisfaction of the learned Special C.J.M., (CBI)-cum-A.C.J.M., Bhubaneswar; (ii) the petitioner shall furnish a cash security of Rs.5,00,00,000/- (Rupees five crore) in the shape of fixed deposit STDR’s obtained from any nationalized bank. The release of the amount payable thereunder shall not be made, without any order of the Court and, release when made shall be subject to any order passed under the provisions of the Cr.P.C. including Section 357 thereof; (iii) the petitioner shall not directly or indirectly make any inducement, threat or promise to any person who is acquainted with the facts of the case so as to dissuade him to disclose such facts to the investigating agency or to the court; (iv) the petitioner shall surrender his passport before the Special C.J.M. (CBI), Bhubaneswar and if he has no passport or has already surrendered the same, he shall swear an affidavit to that effect to (C.B.I.), Bhubaneswar; learned Special C.J.M. the satisfaction of the (v) the petitioner shall appear before the lower court on each date of posting of the case and shall also appear before the Investigating Officer on 1st Monday of every month until the investigation of the case is finally completed; and (vi) he shall not indulge in any sort of criminal activity while on bail.” 6. It’s the case of the prosecution that the present opposite party has allegedly violated each and every conditions imposed by this Court and abused the concession of bail granted to him. Hence, the Investigating Page 4 of 11 Agency/CBI has moved the present petition seeking recalling of the concession of bail granted to the opposite party.
Legal Reasoning
7. Mr. Sarthak Nayak, learned counsel for the petitioner/CBI has submitted that the opposite party has neither cooperated with the investigating agency nor has abided by the conditions imposed by this Court while admitting him on bail. Rather, on the contrary, the opposite party has threatened the I.O. and the vital witnesses. To illustrate the manner which the opposite party has violated the conditions and abused the concession of bail, Mr. Nayak has pointed out the following instances: “(i) This Court vide its order dated 11.11.2016 passed in BLAPL No.3112 of 2015 while enlarging the opposite party on bail, directed him to appear before the CBI on 1st Monday of every month. But, despite this order, the opposite party did not appear before the CBI on 03.04.2017, 03.12.2018, 07.01.2019, 02.09.2019 & 04.05.2020. (ii) This Court had also directed that “the petitioner shall not directly or indirectly make any inducement, threat or promise to any person who is acquainted with the facts of the case so as to dissuade him to disclose such facts to the investigating agency or to the court”. Instead of complying with this condition, the opposite party had threatened the Investigating Officer and the vital witness of this case; Page 5 of 11 (iii) Pursuant to the notice issued to Subhrakanta Pattnaik under Section 91 of the Cr.P.C., his brother Sudhansu Sekhar Pattnaik, who was acquainted with the facts and circumstances of the case, appeared before the Investigating Officer on 05.06.2017. On the same day at about 12.00 P.M., when Sudhansu Sekhar Pattnaik was confronted with the opposite party, on which the opposite party threatened the Investigating Officer and told that it would be better for him not to further investigate the matter. Thereafter, Sudhansu Sekhar Pattnaik was also threatened by the accused Bikash Swain. To that effect, Sudhansu Sekhar Pattnaik had given a complaint before the C.B.I. on 13.06.2017. (iv) Earlier on 04.09.2019 at around 9.15 a.m., the accused had threatened the Investigating Officer to implicate him in false cases by using his media contacts and thereafter, he left the C.B.I. Office. (v) From the Case Diary No.684 in RC/47/S/14-KOL, it reveals that on 06.11.2017, again the accused had threatened the I.O. to implicate him in false cases by using his influences. (vi) On 05.10.2018 at around 12.50 P.M., the accused appeared before the C.B.I. Office and started abusing the C.B.I. officials by saying “you cannot do anything even if I do not appear before you. I know how to manage the Courts/High Court. If you report against me I will also make false complaints against you like I did before Special C.J.M. (CBI), Bhubaneswar previously. (vii) The opposite party had filed I.A. No.856 of 2019 before this Court to modify the condition no.5 of order dated 11.11.2016. He gave a wrong submission that investigation has been completed and his presence is not required. The said I.A. was rejected. After rejection of the said application, the he was given a letter dated 08.01.2021 to appear before the I.O. on 11.01.2021. However, on 14.01.2021, suddenly he appeared before the C.B.I. Office without any prior notice and threatened the I.O., which was recorded in Case Diary. (viii) Pursuant to the notice dated 08.02.2021, the accused gave a reply on 09.02.2021 by saying that he will not be able to appear on 10.02.2021 as he has been to Delhi and he would only Page 6 of 11 return on 13.02.2021 and requested to fix the date of appearance on 15.02.2021. However, on 20.02.2021, without any prior notice, he appeared and threatened the I.O. by saying that he is not bound to cooperate with the investigation and if the I.O. wants to interrogate then that would be according to the suitability of the opposite party and he requires fifteen days advance notice before investigation. (ix) On 22.02.2021, Sudhansu Sekhar Pattnaik wrote a letter to the Superintendent of Police, E.O.-7 Branch, Nayapalli, Bhubaneswar stating that while he was going towards Khandagiri on 01.02.2021, suddenly he met with the opposite party in front of the CBI Officer. The opposite party started using slang languages to him and asked him to withdraw the complaint. When Sudhansu denied, the opposite party threatened him to face consequences. On 01.03.2021, the Superintendent of Police, CBI, Bhubaneswar forwarded the letter of Sudhansu to the Deputy Commissioner of Police, Bhubaneswar as the matter was not in the purview of the CBI investigation.” To substantiate the above submission and instances, Mr. Nayak has also placed on record the Case Diary entries in a sealed cover of the corresponding dates, besides relying upon several documents filed with this petition. 8. I have carefully gone through the documents placed by Mr. Nayak so as to ascertain the facts. 9. Mr. Bhupinder Singh and Mr. Lalitendu Mishra, learned counsel for the opposite party, have opposed the prayer made by Mr. Nayak on numerous grounds. The opposite party on 22.07.2024 has filed a detailed Page 7 of 11 reply running to 548 pages. Mr. Singh has taken me to the reply affidavit and documents and submitted that each and every contention raised by the petitioner are motivated and targeted to implicate the opposite party. Mr. Singh has further submitted that the investigation is going on since last ten years. Pursuant to direction of this Court, the opposite party has appeared more than 125 times before the I.O. and on every occasion, the I.O. has been humiliated the opposite party. The investigating agency has failed to complete the investigation even after lapse of a decade and expect the opposite party to appear before the I.O. every time. Mr. Singh has also submitted that the I.O. has mentally and physically tortured the opposite party and has been humiliating to the extent that the opposite party at times collapsed. The opposite party is bitterly hurt in the domestic front as his wife is in the advance stage of Cancer and struggling for life. In this testing time, the I.O. is unnecessarily subjecting the opposite party to humiliation and threatens him every now and then, as a result of which, the opposite party has reached to a point of breaking down. Mr. Singh submitted that the modus operandi adopted by the I.O. is only aiming at harassing the opposite party with pre Page 8 of 11 conceives notion that he is the culprit. The I.O. has a serious ego issue with the opposite party and bent upon to see that the bail granted to him by this Court is recalled. 10. I have gone through the voluminous records placed before me by both the parties to buttress their points. I have perused the documents meticulously and came to the conclusion that the opposite party has already been enlarged on bail way back in the year 2016 and the investigation of the case has been going on since last one decade, therefore, there is no point to recall the concession of bail granted to the opposite party at this belated stage. In that regard, the prayer made by the petitioner/CBI deserves no merit. Accordingly, the petition for recalling the concession of bail granted by this Court vide order dated 11.11.2016 in BLAPL no.3112 of 2015 stands rejected. 11. However, the premises on which the investigating agency is seeking cancellation of bail granted to the opposite party are very serious in nature. Besides the illustrations enumerated in the preceding paragraphs, the utterances alleged to have been made by the opposite party against the investigating agency and this Court as well as the Page 9 of 11 threatening imparted by him to I.O. is very disturbing, if it is found to be true. During the course of hearing of the present case the I.O. of the case was directed to be present vide order dated 03.07.2024. On 09.07.2024, the I.O. of the case Mr. G. K. Pradhan appeared before this Court in V.C. On the query from the Court, Mr. Pradhan has narrated the incidents and has complained regarding the opposite party’s conduct. The I.O. has also stated that the opposite party has been threatening him of dire consequences if he proceeds further against him besides threatening the witnesses. On the query from the Court, Mr. Pradhan has also stated that all these incidents have been mentioned in the case diary. I have gone through the case diary which has been produced in the sealed cover. I am surprised to find the non-action by the I.O. against the opposite party on any count till date and nothing is coming to fore as to what has prevented the I.O. from taking appropriate action against the opposite party, if the allegations are true. Be that as it may, while deciding the present application for cancelation of bail, I am not inclined to venture into the disputed and controverted facts so as to ascertain the truth. However, regard being had to the nature of allegations made by the CBI Page 10 of 11 against the opposite party, which indeed are reflecting in the Case Diary and keeping in view the detailed counter affidavit filed by the opposite party, this Court is of the view that an independent inquiry is necessitated to ascertain the truth. It’s accordingly left open to the investigating agency to act upon, if so advised, in case the cause of action still subsists. Therefore, notwithstanding the rejection of the present petition, liberty is granted to the petitioner/CBI to proceed against the opposite party in accordance with law.
Decision
12. The CRLMA is accordingly disposed of subject to the opposite party paying a cost of Rs 20,000/- (Rupees Twenty Thousand Only) to be deposited with the District Legal Services Authority, Bhubaneswar. (S.S. Mishra) Judge The High Court of Orissa, Cuttack Dated the 29th of October, 2024/ Amit Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Designation: Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 21-Nov-2024 10:01:49 Page 11 of 11