In the matter of an application under Section 439 of the Criminal Procedure Code v. Union of India
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL NO. 8986 OF 2024 In the matter of an application under Section 439 of the Criminal Procedure Code, 1973. --------------- Ramendu Chattopadhyay …… Petitioner - Versus - Union of India (CBI) ...…. Opp. Party Advocate(s) appeared in this case:- ________________________________________________________________ For Petitioner : M/s Rajib Lochan, U.K. Ghosh, M. Sankar Chattopadhyay, A. Mondal, S. Mondal and S.D. Ray, Advocates. For Opp. Party : Mr. Sarthak Nayak, Special P.P.-cum-Retainer Counsel, CBI ___________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 23rd December, 2024 SASHIKANTA MISHRA, J. This is a successive bail application filed by the petitioner, his earlier application for bail (BLAPL No. 5975 of Page 1 of 17 2023) being rejected by this Court by order dated 26.09.2023. 2. Heard Shri Rajiv Lochan, learned counsel for the petitioner and Shri Sarthak Nayak, learned counsel for the CBI. 3. The petitioner is in custody in connection with
Legal Reasoning
S.P.E. No.5 of 2014 (arising out of Baliapal P.S. Case No.85 of 2013) of the Court of learned Special C.J.M. (CBI), Bhubaneswar for alleged commission of offence under Sections 420/467/468/120-B/34 of the IPC read with Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. He was initially arrested on 10.03.2016. By order dated 15.02.2018 passed in BLAPL No. 5748 of 2016 by this Court, he was granted bail. However, the Supreme Court in Criminal Appeal No. 1711 of 2019 (Special Leave Petition (Criminal) No. 120 of 2019), by judgment dated 19th November, 2019, cancelled the bail. The petitioner thereafter surrendered to custody on 19.11.2019 and is behind bars since then. Page 2 of 17 4. The prosecution allegation, in a nutshell, is that the petitioner is the Managing Director of a company named M/s. Tower Infotech Ltd. based at Calcutta. Said company collected funds from the general public between 2005 and 2013. In the process, a sum of Rs.255,91,00,541/- was collected from the public. The money was collected under various schemes through agents of the company with promise of high rate of interest on such deposits. However, the company is not a listed company with Reserve Bank of India as a non-banking financial company, nor listed in the National Stock Exchange. It is alleged that the money was collected only with the intention to cheat the public, as out of the amount so collected only a sum of Rs.98,97,50,508/- was paid by it to the depositors towards maturity payment leaving a balance amount of Rs.156,93,50,033/-. In so far as the petitioner is concerned, being the Managing Director, he was the authorized signatory in all the 59 bank accounts opened by the company and its group with different banks. Further, he had withdrawn huge amounts of money in cash Page 3 of 17 and misappropriated the same, thereby causing wrongful loss to the investors. Accordingly, charge-sheet was submitted against him under Section 120-B read with Sections 420 and 409 of the IPC and Sections 4 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. 5. It is relevant to note that being arrested on 10.03.2016 by the CBI, the petitioner was remanded to judicial custody. His application for bail being rejected by the trial Court, he approached this Court in BLAPL No. 5748 of 2016. By order dated 15.02.2018, this Court granted bail to the petitioner. Feeling aggrieved, the CBI moved the Supreme Court of India in Criminal Appeal No. 1711 of 2019 (Special Leave Petition (Criminal) No. 120 of 2019). By judgment dated 19th November, 2019, the Supreme Court cancelled the bail granted to the petitioner, inter alia, observing as follows:- We are of the prima facie view that if the “9. Respondent continues on bail, there is little chance of realizing any amount by selling the properties of the Tower Group of companies, since Page 4 of 17 he may use unlawful tactics to keep prospective buyers away. Moreover, it is relevant to note that the investigating agency has not yet assessed the exact total amount invested by the people of Orissa in the accused company, so as to find out the specific liability of the company in that regard. However, it is argued by both the Counsel that the amount may be about Rs. 350 crores. Be that as it may, having regard to the material on record, and since a huge amount of money belonging to investors has been siphoned off, as well as for the aforesaid reasons, in our considered opinion, should not have released the Respondent on bail.” the High Court, 5.1. Despite cancellation of bail by the Supreme Court, the petitioner did not surrender to custody within the stipulated period, for which NBW had to be issued by the trial Court, on the strength of which he was again taken to custody on 19.11.2019. He moved this Court again for bail in BLAPL No. 5975 of 2023, which was rejected by judgment dated 26.09.2023, inter alia, with the following observations:-
Decision
“8. For the foregoing reasons therefore, this Court does not deem it proper to direct release of the Petitioner on bail at this stage. Resultantly, the bail application stands rejected. However, the trial Court should do well to make all efforts to commence and conclude the trial as expeditiously as possible. Further, the prosecution must also come up with the list of witnesses it intends to examine to prove the guilt of the Petitioner and in such event, the trial Court shall do well to Page 5 of 17 examine them at the first instance. This is being said keeping in view the fact that the Petitioner has already spent 5 and half years in custody by now and trial is yet to commence.” 5.2. The present application has been filed on the ground of non-commencement of trial and prolonged incarceration. 6. Shri Rajiv Lochan, learned counsel for the petitioner submits that the petitioner has been in custody for more than six and half years. One of the co-accused persons, namely, Ashis Chatterjee, who stands on same footing, has been released on bail as per order passed by the Supreme Court taking note of the slow progress of trial. It is further submitted that out of nearly Rs. 256.00 crores outstanding, the company has repaid more than Rs. 96.00 crores, which shows its bonafides. Shri Rajiv Lochan further submits that this Court, while rejecting the application for bail of the petitioner on earlier occasion, had specifically directed the CBI to file a list of witnesses before the trial Court to prove the offences against the petitioner, but the CBI has not done so even till date. As a result, trial Page 6 of 17 has not even commenced. On merits, it is argued by Shri Rajib Lochan that the alleged offences are not made out against the petitioner. It is submitted that since the petitioner is not a public servant but the Director of a private company, the offence under Section 409, IPC is not made out. The money collected from the public is invested in different businesses and the profits earned are shared with the investors. As regards the offence under Section 420, IPC, an intention to cheat cannot be attributed from the inception, as the company has admittedly refunded Rs.96.00 crores. Shri Rajiv Lochan further argues that the petitioner holds property worth more than Rs. 300.00 crores and, therefore, had he been released on bail, he would have been in a position to repay the amount. The petitioner cannot be blamed for non-apprehension of the co-accused persons. Shri Rajiv Lochan concludes his argument by submitting that no person can be detained indefinitely and in the instant case the maximum punishment that may be imposed on the petitioner in the event of his conviction would be seven years, out of which Page 7 of 17 he has already spent six and half years in custody. This, according to Shri Rajiv Lochan, amounts to punishment without trial directly violating thereby his right to liberty as well as speedy trial guaranteed under Article 21 of the Constitution of India. 7. Shri Sarthak Nayak, learned counsel appearing for the CBI firstly submits that the delay in trial is entirely attributable to the defence and not prosecution, as several co-accused persons are yet to be apprehended. Secondly, the conduct of the petitioner disentitles him from any kind of leniency. Elaborating his argument on this score, Shri Nayak submits that the bail granted by this Court earlier was cancelled by the Supreme Court and, as such, in all fairness the petitioner ought to have surrendered to custody on his own volition, but he did not do so. As such, NBW had to be issued, on the strength of which he was taken to custody again. Shri Nayak further argues that while cancelling the bail granted by this Court, the Supreme Court expressed concern that after the petitioner Page 8 of 17 is released on bail, there is little chance of realizing any amount by selling the properties of the Tower Group of Companies, since he may use unlawful tactics to keep prospective buyers away. 7.1. Responding to the contention advanced by learned counsel for the petitioner that the offence under Section 409, IPC is not made out, as the petitioner is not a public servant, Shri Nayak would submit that the petitioner would come within the expression “banker” used in the provision, which can also include a non-banking financial institution. Undisputedly, the Tower Group of Companies did not have any license to collect money from the public, which fortifies the case of the prosecution. 7.2. Shri Nayak further argues that even otherwise delay in trial cannot always be a ground to release the petitioner on bail, if the offences are grave and serious and affects the public at large. In the instant case, the petitioner is accused of cheating the general public by misappropriating huge amount of money and, therefore, as Page 9 of 17 per the settled position of law, the case has to be viewed differently than other cases. As regards the contention that the co-accused has been released on bail, Shri Nayak would submit that he stands on a different footing than the petitioner. 8. From the facts and the materials placed before this Court, it is evident that the petitioner has, in the meantime, spent more than six and half years in custody. From the status report submitted by the trial Court, it is seen that trial has not commenced as yet, apparently because of non-production of some of the co-accused persons. This can hardly be attributed to the petitioner, who is already in custody. While rejecting the petitioner’s application for bail on the earlier occasion this Court held as follows:- “8. For the foregoing reasons therefore, this Court does not deem it proper to direct release of the Petitioner on bail at this stage. Resultantly, the bail application stands rejected. However, the trial Court should do well to make all efforts trial as to commence and conclude expeditiously the possible. prosecution must also come up with the list of witnesses it intends to examine to prove the guilt the Further, as Page 10 of 17 of the Petitioner and in such event, the trial Court shall do well to examine them at the first instance. This is being said keeping in view the fact that the Petitioner has already spent 5 and half years in custody by now and trial is yet to commence.” 9. Being directed by this Court, the Investigating Officer has filed an affidavit admitting therein that the list of witnesses to prove the guilt of the petitioner has not been submitted. The reason cited for the same is non- commencement of trial. The order rejecting the bail of the petitioner was passed more than a year ago. Therefore, it can hardly be accepted as a plausible reason for non-filing of the list of witnesses. Be that as it may, fact remains that a sort of status quo, as on the date of rejection of the petitioner’s earlier application, appears to be continuing without any change whatsoever. It is needless to mention that the right to liberty is a precious right guaranteed under Article 21 of the Constitution of India, which cannot be curbed without valid and justified reasons. It is well settled that indefinite detention of a person in custody without trial may actually result in punishment without trial, which is antithetical to the Constitutional principles. Page 11 of 17 10. Coming to the facts of the present case, undoubtedly, a prima facie case does exist against the petitioner, as was observed by this Court in its order passed on the earlier occasion. It was, therefore, felt that if released the petitioner may try to influence the witnesses in his favour, thereby jeopardizing a fair trial. Taking note of all such circumstances, this Court had deemed it proper to reject the application for bail at that point of time. But as is evident, not only that the trial has not commenced despite lapse of more than a year, since the date of passing of the earlier order by this Court, but also there is no likelihood of the trial commencing at any time in the near future. The prosecution has cited as many as 120 witnesses to be examined in the case. Looking at such large number, this Court wanted the prosecution to at least specify those witnesses, who would be examined to prove the case against the petitioner. Even that has not been done. Only more than a year has been added to his period of detention. Page 12 of 17 11. Learned counsel for the CBI has heavily relied upon the order passed by the Supreme Court in cancelling the bail granted to the petitioner by this Court. Reading of the order passed by the Supreme Court reveals that firstly, said order was passed on 19.09.2019, i.e., more than five years ago, and secondly at a time when investigation was still in progress. There has been material change in the facts and circumstances of the case ever since, apart from efflux of time. 12. Though the bail granted by this Court was cancelled by the Supreme Court on the above mentioned grounds, yet the right of the petitioner to move for bail afresh on change in circumstances was not foreclosed. 13. It is relevant to note that in the meantime one of the co-accused persons, namely, Ashis Chatterjee, whose bail application was rejected by this Court, has since been released on bail by order passed by the Supreme Court in Criminal Appeal No. 337 of 2024 (arising out of SLP (Crl.) No. 6515 of 2023). Reading of the order dated 22.01.2024 Page 13 of 17 passed by the Supreme Court in the case of Ashis Chatterjee (supra) would reveal that the Court took note of the fact that the said petitioner had already suffered incarceration for over five and half years, and that he is not responsible for most of the adjournments taken in the trial Court. The Supreme Court further observed that trial is proceeding at a slow pace. Though it has been argued that the petitioner stands on a different footing, this Court fails to comprehend how. Here also, as already discussed, the petitioner cannot be blamed for the delay in trial. He has spent more than six and half years in custody and trial has not begun at all. This Court, therefore, is of the considered view that the petitioner stands on the same, if not better, footing than the co-accused Ashis Chatterjee. 14. It has been argued that the petitioner’s company is liable to pay more than Rs.156.00 crores to the investors, to which it has been contended that the petitioner has properties worth more than Rs.300.00 crores, which can be utilized by him for making the Page 14 of 17 payment. If such is the case, then keeping the petitioner in detention would obviously not enure to the benefit of anyone, much less the investors. 15. As regards the so-called criminal antecedents of the petitioner, this Court finds that firstly, the said cases relate to the years 2014, 2017 and 2018, and secondly in view of the above narration regarding delay in commencement of trial, the same obviously cannot be utilized against the petitioner. 16. It has been argued that economic offences are to be viewed differently than other offences, as held by the Supreme Court in the cases of Y.S. Jagan Mohan Reddy v. CBI,1 and Satender Kumar Antil v. Central Bureau of Investigation,2. There is no quarrel with the propositions laid down in the said cases. The distinguishing feature in the present case is the period of incarceration of the petitioner without trial, which directly violates the principle of liberty enshrined under Article 21 of the Constitution of