The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2710 of 2024 Sambit Mishra ..... Appellant Represented By Adv. - Puspamitra Mohapatra -versus- State Of Odisha ..... Respondent Represented By Adv. - Gyana Ranjan Mohanty, P.k.sahoo,l.n.patel,b.k.dash, Mr. P.C. Das, ASC CORAM: THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA ORDER 27.09.2024 This matter is taken up through Hybrid mode. The present application has been filed at the instance of the Order No. 06. 1. 2. accused-Petitioner invoking the inherent power of this Court under Section 482 of Cr.P.C. with a prayer to modify the condition imposed while enlarging the Petitioner on bail vide order dated 30.11.2023 in C.T. Case No.1705 of 2023 by the learned S.D.J.M., Bhubaneswar. 3.
Legal Reasoning
Learned counsel for the Petitioner at the outset submitted that while releasing the Petitioner on bail, the learned Court below imposed certain conditions which includes the following two Page 1 of 9. conditions; “4. He shall not go outside the state of Odisha without obtaining prior permission of the court. 5. He shall appear before the I.O. of the case once in a fortnight till completion of the investigation.” Learned counsel for the Petitioner further contended that an FIR was lodged at the instance of the Informant making allegation for commission of offence punishable under Sections 498-A, 323, 342, 506 & 34 of IPC read with Section 4 of D.P. Act. He further contended that the present Petitioner is the husband of the Informant. On the basis of the FIR allegation, investigation was commenced and the Petitioner was taken into custody. Thereafter, the Petitioner was released on bail vide the aforesaid order dated 30.11.2023. 4. In course of his argument, learned counsel for the Petitioner submitted that the Petitioner is a highly qualified person engaged in a job in the United States of America. He further contended that the Petitioner has been in India for almost one year now. Learned counsel for the Petitioner further submitted that unless the Petitioner goes back to USA and joins his duty by 30th September, 2024, there is every possibility that he might lose his job and as a result the Petitioner is likely to suffer huge financial loss. 5. Drawing attention of this Court to order dated 30.11.2023, learned counsel for the Petitioner submitted that while releasing the Petitioner on bail, the learned S.D.J.M., Bhubaneswar has imposed a condition whereby the Petitioner has been directed not to go outside the State of Odisha without first obtaining the permission of the Court. Further, under condition No.5, he has been directed to appear Page 2 of 9. before the I.O. of the case once in a fortnight till conclusion of the investigation. So far, condition No.5 is concerned, learned counsel for the Petitioner submitted that the same has become infructuous as the investigation has been completed in the meantime and the final charge-sheet has been filed. 6. Being aggrieved by the condition imposed vide order dated 30.11.2023, the Petitioner approached the learned District Judge, Khurda at Bhubaneswar by filing CRLMC No.38 of 2024. The learned District Judge, Khurda, vide order dated 03.05.2024, struck off the condition No.5. However, with regard to condition No.4, the learned District Judge has observed that since the same is not found to be adverse, it was not interfered with. Being aggrieved by order dated 03.05.2024, the Petitioner has approached this Court by filing the present application. Learned counsel for the Petitioner contended that the Petitioner happens to be a software engineer and is working as a Senior Staff Engineer, Product Management at a multinational company in USA since 2011. He further categorically submitted that unless the Petitioner reports at his USA office by 30th September of this year, there is every likelihood that he might lose his job. However, in view of the condition No.4, the Petitioner is unable to go outside the State of Odisha. As a result of which, the learned counsel for the Petitioner submitted that there is every likelihood that the Petitioner might lose his job, which would cause irreparable financial loss to the Petitioner. 7. Meanwhile, in course of the hearing of the matter, this Court, vide order dated 21.08.2024, had directed the parties to settle the matter amicably and accordingly Mr. P.C. Das, was appointed as Page 3 of 9. Mediator by this Court to make an attempt with the cooperation of the parties to settle the dispute amicably. The learned Mediator has submitted a report dated 26.09.2024 before this Court, which is taken on record. On perusal of the report submitted by the learned Mediator, it appears that the Mediation has failed. 8. In course of his argument, learned counsel for the Petitioner referred to the judgment of Hon’ble Supreme Court in the matter of Parvez Noordin Lokhandwalla vs. State of Maharashtra and Anr. bearing Criminal Appeal No.648 of 2020 arising out of SLP (Crl) No.3420 of 2020, decided vide a judgment of the Hon’ble Supreme Court dated 1st October, 2020. Referring to Para-19 of the said judgment, learned counsel for the Petitioner submitted that the Hon’ble Supreme Court, by referring to various earlier judgment of the Hon’ble Supreme Court, has observed that in appropriate cases, the accused-Petitioner can be permitted to travel abroad. On perusal of the judgment, this Court observed that the Hon’ble Apex Court has referred to a judgment of the Hon’ble Supreme Court in Pitam Pradhan vs. State of A.P., decided in Special Leave to Appeal Crl. No.9664 of 2013 on 26.02.2014, wherein the Hon’ble Supreme Court, while granting anticipatory bail, permitted the Petitioner travel abroad noting that the job required the Petitioner to travel abroad at frequent intervals and otherwise he may lose his employment if he was not permitted to travel abroad. On such grounds, learned counsel for the Petitioner submitted that unless the Petitioner is permitted to travel abroad, the Petitioner is likely to lose his job which would eventually cause immense financial loss to the Petitioner and his family. Page 4 of 9. 9. Learned counsel for the Informant-wife on the other hand contended that there is a divorce proceeding pending before the Petitioner and the Informant bearing C.T. No.716 of 2023 before the learned Family Judge-I, Khordha, Bhubaneswar. He further contended that in the aforesaid case recording of evidence of the prosecution has already been completed. Therefore, the case is at an advanced stage. In such view of the matter, learned counsel for the Informant submitted that in the event the Petitioner is permitted to travel abroad and he does not come back in time then the same would cause unnecessary delay in conclusion of both the pending criminal proceeding as well as the civil proceeding involving the divorce between the parties. On such ground, learned counsel for the Informant submitted that the prayer of the Petitioner for modification of condition No.4 of order dated 30.11.2023 be rejected at this juncture. 10. Learned Additional Standing Counsel for the State-Opposite Party on the other hand contended that the release of the Petitioner vide order dated 30.11.2023 was subject to the terms and conditions indicated in order dated 30.11.2023, which have been imposed by the learned S.D.J.M., Bhubaneswar by keeping in view the factual background of the present case. He further contended that in the event such conditions are modified then there is a likelihood that the Petitioner might abscond which would eventually cause delay in conclusion of the trial in the present case. On such grounds, learned counsel for the State submitted that the conditions, specifically condition No.4, imposed by the order dated 30.11.2023 cannot be/should not be modified at this juncture. Page 5 of 9. 11. Having heard the learned counsels appearing for the respective parties and, on a careful examination of the materials on record, this Court observes that the offences involved in the present case, i.e. offences under Sections 498-A, 323, 342, 506 & 34 of IPC read with Section 4 of D.P. Act, are offences that basically arise out of a matrimonial dispute between the Petitioner and the Informant- wife. Moreover, a divorce proceeding is also pending between both the sides. However, it appears at this point that conciliation between the parties is not possible. In the aforesaid factual backdrop, this Court is of the further view that both the divorce proceeding as well as the criminal proceeding are required to be taken to its logical conclusion by proceeding with the trial in both the cases in consonance with the legal provisions. 12. So far as the present Petitioner is concerned, it appears that he is working as a software engineer, employed in multinational company in USA and, in view of the materials on record, it appears that unless the Petitioner reports to his job by 30th September, 2024, he is likely going to lose the job in which he has been engaged in at the moment. Therefore, unless the condition No.4 is modified suitably the Petitioner is most likely to suffer irreparable loss. 13. At this juncture, this Court would also like to observe that the conditions which have been imposed at the time of releasing the Petitioner on bail, have been so imposed in order to ensure that the accused-Petitioner cooperates with the investigation as well as appears before the trial Court and cooperates with an early conclusion of the trial. Therefore, imposition of stringent conditions which would affect the rights of the Petitioner is uncalled for and the Page 6 of 9. same would be highly illegal. In the present case, by imposing the condition No.4, the learned Court below has restricted the right of free movement of the present Petitioner. However, while taking care of the aforesaid right of the movement of the Petitioner, this Court has to strike a balance between the Petitioner’s right to movement as well as the requirement of law and the need to ensure the Petitioner’s appearance before the trial Court. 14. This Court further observes that, in the event, the appearance of the Petitioner can otherwise be secured by imposing suitable conditions, then such stringent conditions should not be imposed which would cause harassment to the Petitioner and sometimes might affect the Petitioner’s right to be enlarged on bail. This Court is conscious of the fact that at this stage, the Petitioner, who is an accused, has not been convicted yet. Therefore, it is the duty of the Court below that while considering the bail application of the Petitioner and while imposing conditions for bail, it must be ensured that the presence of the accused-Petitioner before the Investigating Authority as well as before the trial Court is secured and, at the same time, the Court below is also required to remain conscious of the fact that such stringent conditions should not be imposed which would affect the rights of the accused-Petitioner. The aforesaid view taken by this Court gets support from the above referred judgments of the Hon’ble Supreme Court relied upon by the learned counsel for the Petitioner. 15. In view of the aforesaid analysis of the factual position as well as the settled legal position, this Court deems it proper to modify the condition No.4 of order dated 30.11.2023. Accordingly, it is directed Page 7 of 9. that the condition No.4 of order dated 30.11.2023 shall stand waved subject to the Petitioner furnishing property security to the tune of Rs.25,00,000/- (Rupees Twenty Five Lakhs). 16. It is further stated by learned counsel for the Petitioner that the Petitioner is having a residential property in Cuttack, which he owns as a joint owner thereof and that the said property is an ancestral property which he owns along with his mother and brother. 17. In such view of the matter, this Court directs that the condition No.4 stands waved subject to the condition that the Petitioner and his mother and brother, who are the joint owners of the property, furnish property security as has been directed hereinabove. In the event the ancestral properties of the Petitioner is not available for furnishing the same as property security, then the learned Court below shall accept any property security to the tune of the aforesaid amount to be given by any of his close relatives or friends. It is further directed that the modification is also subject to a further condition that the Petitioner shall cooperate with an early conclusion of the trial in both the cases and accordingly shall cooperate with both the Courts by remaining present before the respective Courts as and when his presence is required for the purpose of trial and recording of the evidence. Further, the learned Court below is directed to exempt the Petitioner of his personal appearance wherever his personal appearance is not required. It is further observed that, the Petitioner shall also furnish an undertaking to the effect that he shall permit the learned Court below for recording of the evidence in his absence on being represented by his counsel and he shall not object to the same later on. Page 8 of 9. 18. At this stage learned counsel for the Petitioner submitted that a look-out circular has also been issued against the present Petitioner on the requisition of the Court in seisin over the matter. In the event, any such look-out circular has been issued, on an application being filed by the Petitioner in that regard, the Court in seisin over the matter shall issue necessary orders for withdrawal of such look-out circular.
Decision
19. Accordingly, the CRLMC stands disposed of. 20. The learned Court in seisin over the matter is directed shall act upon duly authenticated download copy of this order. S.K. Rout ( A.K. Mohapatra ) Judge Signature Not Verified Digitally Signed Signed by: SANTANU KUMAR ROUT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 27-Sep-2024 19:42:15 Page 9 of 9.