The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.10026 of 2022 (In the matter of application under Section 439 of the Code of Criminal Procedure). Debjani Mukherjee …. Petitioner -versus- Republic of India … Opposite Party For Petitioner : Mr. H.Rahaman & Mr.J.K.Mahapatra, Advocate For Opposite Party : Mr. S.Nayak, Advocate for C.B.I. CORAM: JUSTICE G. SATAPATHY DATE OF HEARING : 24.02.2023 DATE OF JUDGMENT: 13.03.2023 G. Satapathy, J. 1. The petitioner by way of this application U/S. 439 of Cr.P.C. seeks for her release on bail in BLAPL No.10026 of 2022 Page 1 of 23 connection with the case in P.M.L.A. No. 148 of 2019 arising out of Economic Offence Wing, Bhubaneswar P.S. Case No. 13 of 2013 for commission of offence U/Ss. 420/406/120B of the IPC read with Sections 4, 5 & 6 of the Prize Chits & Money Circulation Schemes (Banning) Act, 1978 (in short, “PCMC Act”), but subsequently charge sheeted for offences punishable U/Ss. 406/409/420/120B of IPC read with Sections 4, 5 & 6 of PCMC Act pending in the Court of learned Additional District Judge-cum- Special Judge(CBI-I), Bhubaneswar. 2. The substance of allegation against the
Facts
petitioner and others arises out of an FIR lodged by one Rabinarayan Swain in Economic Offence Wing, Bhubaneswar P.S. Case No. 13 dated 06.05.2013 for offence punishable U/Ss. 420/406/120B of IPC read with Sections 4, 5 & 6 of PCMC Act and in such FIR, it is stated by the informant that the Saradha Group of Companies by opening its office at Puri was BLAPL No.10026 of 2022 Page 2 of 23 collecting money from local gullible depositors in different schemes such as RD/FD/MIS in the name of Saradha Reality India Limited and Saradha Garden Resort & Hotel Private Limited through their agents by influencing the depositors on the assurance of high returns with high interest. The petitioner and
Legal Reasoning
prima facie case against such person, provided there is a need to release such person on bail where facts demand so. Personal liberty of a person is precious, but it is not absolute in every situation. In this context, it is considered apt to refer to the decision in Ash Mohammad Vrs. Shiv Raj Singh @ Lalla BLAPL No.10026 of 2022 Page 14 of 23 Babu and another; (2012) 9 SCC 446 wherein the Apex Court at Paragraph-17 has held as under:- of liberty vacuum. Needless “17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a to sense emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The is individual restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well- accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law social balance and subserve function as a significant instrument for the BLAPL No.10026 of 2022 Page 15 of 23 It the collective. protection of human rights and security of is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, “it is regulated freedom”. 8. What are the factors to be borne in mind while considering an application for bail has also been discussed in Prasanta Kumar Sarkar V. Ashis Chatterjee and another; (2010) 14 SCC 496 wherein the Apex Court after referring to several precedents has held thus:- ” 9. …However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well other that, circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; among settled BLAPL No.10026 of 2022 Page 16 of 23 (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” A harmonious reading of the factors and consideration for grant or refusal of bail as stated by the Apex Court in Prasanta Kumar Sarkar(supra) would persuade this Court to consider the character, behaviour and standing of the accused and the circumstance which are peculiar to the accused and likelihood of the offence being repeated as well as larger interest of the public or the State as some of the factors amongst others while considering the bail to the applicant, but there is serious allegation against the petitioner for committing economic offence by way of cheating innocent public by BLAPL No.10026 of 2022 Page 17 of 23 collecting huge sum of money from them in the garb of camouflage schemes and misappropriating the same. What should be the consideration bail for commission of economic offence has been laid down by Apex Court in following decisions. 9. In Y.S.Jagan Mohan Reddy(supra), the Apex Court at Paragraphs- 34 and 45 has held as under:- “34.Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. in mind 35. While granting bail, the court has to keep the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of BLAPL No.10026 of 2022 Page 18 of 23 securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” 10. In Nimmagadda Prasad (supra), the Apex court at Paragraph-24 has held as under:- in mind “24. While granting bail, the court has to keep the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the the words Legislature has used "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” BLAPL No.10026 of 2022 Page 19 of 23 11. In State of Gujarat Vrs. Mohanlal Jitamalji Porwal; AIR 1987 SC 1321, the Apex Court in Paragraph-5 has held as follows:- “The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the to Community administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with eye unmindful of the damage done to the and National National Interest.” permissive Economy system the for in a 12. In this case it is never disputed by the petitioner that another three cases of similar nature are pending against her and the allegation against the petitioner also reveals about misappropriation of BLAPL No.10026 of 2022 Page 20 of 23 huge amount of public money to the tune of Rs.2569 crores. When these factors are considered on the backdrop of allegations of cheating of innocent depositors by alluring them on the promise to pay high rate of interest, a reasonable apprehension of tampering of prosecution witness by the petitioner looms large. Besides, while considering the bail application of an accused for commission of economic offence, one of the dominant considerations is to prevent repetition of such offence, but the petitioner in this case having undeniably found implicated in three other cases in two different States for similar offences, prima facie the same appears against grant of bail to her. The petitioner in this case has been alleged to have committed economic offence by way of collecting huge sum of money from innocent public illegally without approval of any Regulatory Authorities in disguise of different schemes with a false promise to BLAPL No.10026 of 2022 Page 21 of 23 pay high rate of interest and the enormity of misappropriated amount involved in this case to the tune of Rs.2569 crores with which the general public and gullible depositors have allegedly been duped, would definitely weigh in the mind of Court to deny bail to the petitioner. It, therefore, appears to the Court that there are prima facie allegations against the petitioner. 13. In view of the discussions made hereinabove and taking into consideration the rival submissions made by the respective parties and keeping in view the enormity of allegations leveled against the petitioner for cheating the innocent depositors and misappropriating their huge sum of money and taking into consideration the alleged mode and manner of cheating of the gullible depositors and the allegation of the involvement of the petitioner in four cases for similar offences in two States, which speaks about the brazen conduct of the petitioner, BLAPL No.10026 of 2022 Page 22 of 23 this Court does not find any justification at present to consider the bail application of the petitioner affirmatively. Hence, the bail application of the petitioner stands rejected. Trial in this case be expedited, if there is no other legal impediment.
Arguments
the head of the company Mr.Sudipta Sen had also conducted a meeting by coming to Puri, but subsequently the branch office at Puri and its nearby areas were closed down leaving the gullible depositors deprived of getting their legitimate amount. The informant also claims to have deposited a sum of Rs.75,000/- in some scheme like other gullible depositors and the petitioner and others thereby had allegedly cheated crores of Rupees of these innocent depositors, but subsequently, the CBI took over the investigation pursuant to the direction of the Apex Court passed in W.P.(Civil) No. 401 of 2013 and CBI after conducting BLAPL No.10026 of 2022 Page 3 of 23 investigation also submitted charge sheet against the petitioner and others for offence U/Ss. 406/409/420/120B of IPC read with Sections 4, 5 & 6 of PCMC Act keeping investigation open U/S. 173(8) of Cr.P.C. 3. In the course of hearing of bail application, Mr.Habibur Rahaman appearing along with Mr.J.M.Mahapatra, learned counsel for the petitioner submits that the petitioner is in jail custody since 22.04.2013 being arrested by West Bengal Police, but subsequently after CBI took over the investigation of all the cases registered against the petitioner and others got the petitioner remanded in this case with effect from 19.12.2016 and the petitioner has been in judicial custody in this case for more than six years & two months and the allegation against the petitioner is only to the extent of her status as Director of the company, but she had resigned from the company with effect from BLAPL No.10026 of 2022 Page 4 of 23 14.04.2012 and thereby, the petitioner has no role in this case. Mr.Rahaman has further submitted that despite the petitioner being in custody for more than six years, the trial is yet to commence and there is no need of any custodial interrogation of the petitioner and the petitioner during the course of investigation had cooperated the investigation and there is no allegation against the petitioner that she is likely to tamper with the evidence or avoid the trial. It is further submitted on behalf of the petitioner that since the main allegation is directed against Mr.Sudipta Sen, the Chairman-cum-MD of Saradha Group of Company, there is no need to keep the petitioner who is a lady in custody any further. It is also submitted that the personal liberty of a person is sacrosanct and even an accused cannot be kept inside the custody for indefinite period since bail is the rule and jail is the exception and one of the co-accused namely, Suman BLAPL No.10026 of 2022 Page 5 of 23 Chatopadhya have the privilege of benefit of pre- arrest bail and the petitioner being a respectable lady may kindly be granted bail. Learned counsel for the petitioner has also submitted that the petitioner has been granted bail by the High Court of Calcutta in another case on similar accusation and the petitioner having suffered incarceration for a substantial period may at least be given the benefit of 436-A of Cr.P.C. which was denied to the petitioner by the learned trial Court on erroneous interpretation of the provision of law. In praying to grant bail to the petitioner, learned counsel for the petitioner by relying upon the decision in the case of Reena Dutta Vrs. State of Orissa; 2009(1) Crimes 491(Ori) has submitted that in a similar situation, this Court by taking into consideration the status of the petitioner as a woman, the fact of her resignation from the work and her detention for a BLAPL No.10026 of 2022 Page 6 of 23 considerable period, has granted bail to the petitioner Reena Dutta therein. 4. In reply, Mr.Sarthak Nayak, learned counsel appearing for Republic of India(CBI) submits that the petitioner was the Executive Director of Saradha Group of Company and in that capacity, she had entered into an conspiracy with the Chairman-cum- MD of Saradha Group Mr.Sudipta Sen and collected huge sum money without any approval of Regulatory Authority and thereby, cheated the innocent depositors with false promise to return money with high rate of interest and in the process misappropriated the money of several innocent depositors who invested the money in the Saradha Group of Companies. Mr.Nayak has further submitted that the petitioner was the Director of 40 out of 160 numbers of companies floated by co- accused Sudipta Sen and out of these companies, the petitioner was the Director of two money BLAPL No.10026 of 2022 Page 7 of 23 collecting companies of Saradha Group namely, M/S. Saradha Reality India Limited and M/S. Saradha Tours and Travels Private Limited and the petitioner with full knowledge was also responsible for running ponzi schemes and although SEBI had started enquiry about illegal money collection business of M/S. Saradha Realty India Limited with effect from 2010, but the petitioner remained associated with the company till the outbreak of the scam in April, 2013 which by itself speaks of her knowledge about the illegal business of Saradha Group and she was also a pivotal figure in illegal money collection of Saradha Group of Companies without any approval of Regulatory Authorities such as RBI & SEBI etc. Mr. Nayak has further submitted that in early days of April, 2013 when the illegal money collection of Saradha Group came to the knowledge of general public, the petitioner absconded and on 23rd April, 2013, the petitioner along with Sudipta Sen was BLAPL No.10026 of 2022 Page 8 of 23 arrested from Sonmarg in Jammu & Kashmir and subsequently the petitioner was remanded in this case in the month of December, 2016 and the total amount of alleged misappropriated money in this case is for a colossal sum of Rs.2569 crores which is the harden money of depositors who have been duped by the petitioner and others of this company and the petitioner is also involved in another three cases of similar nature. In relying upon the decisions in the case of (i)Y.S.Jagamohan Reddy Vrs. Central Bureau of Investigation; (2013) 7 SCC 450,(ii)Nimmagada Prasad Vrs. Central Bureau of Investigation; (2013) 7 SCC 466, (iii) Kalyan Chandra Sarkar & Others Vrs. Rajesh Ranjan & Others;(2005) 2 SCC 42 and (iv) Central Bureau of Investigation & others Vrs. Ramendu Chattopadhyay and others; MANU/SC/ 1591/2019. Mr. Nayak prays to reject the bail application of the petitioner. BLAPL No.10026 of 2022 Page 9 of 23 5. A careful consideration of the rival submissions makes it very clear that the petitioner has primarily made thrust upon her long detention in custody as a ground for grant of bail which is also confirmed by the application filed by the petitioner before the learned trial Court U/S. 436-A read with 439 of the Cr.P.C., but a plain glance of the provision of 436-A makes it ample clear that when a person accused of offence (not being an offence for which the punishment of death has been specified as one of the punishments under that law) has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties. The petitioner in this case has been detained in custody for one of the offences U/S. 409 of IPC which prescribes punishment up to life imprisonment. Thus, in the circumstance, the claim BLAPL No.10026 of 2022 Page 10 of 23 of the petitioner for grant of bail on the ground to have undergone detention for a period of six years & two months which in the context of 436-A cannot be considered as one-half of the maximum period of imprisonment provided for offence U/S. 409 of IPC, would merit no consideration to extend the benefit of Section 436-A of Cr.P.C. Moreover, the first proviso to Section 436-A stipulates that the Court may for reasons to be recorded in writing order the continued detention of the person for a period longer than one half of the maximum period of imprisonment specified for that offence or release him on bail instead of personal bond with or without sureties. The above proposition of law has been reiterated in Christian Michel James Vrs. Central Bureau of Investigation; SPL(Crl) No. 4327 of 2022 disposed of on 07.02.2023 wherein the Apex Court at Paragraphs 6 and 12 has been pleased to hold as under:- BLAPL No.10026 of 2022 Page 11 of 23 “6. The first proviso to Section 436-A stipulates that the Court may for reasons to be recorded in writing order the continued detention of the person for a period longer than one half of the maximum period of imprisonment specified for that offence or release him on bail instead of a personal bond with or without sureties. 12. In the backdrop of the above discussion, it has emerged before the Court that the fundamental basis on which the petitioner has sought bail, namely, under the provisions of Section 436A, cannot be accepted as the provisions of valid. Besides Sections 415 and 420 read with Section 120-B and Section 8 of the PC Act, the petitioner is alleged to have committed offences under Section 467 IPC which is punishable with up to life imprisonment. In this backdrop, the provisions of Section 436A would not stand attracted in the present case.” 6. Similarly, in Kalyan Chandra Sarkar Vrs. Rajesh Ranjan alias Pappu Yadav and another; 2004(7) SCC 528 the Apex Court in paragraph-14 has held as under:- “In the impugned order it is noticed that the High Court has given the period of BLAPL No.10026 of 2022 Page 12 of 23 fact that incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the the accused has mere undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged under severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.” 7. In this case, it is advanced on behalf of the petitioner that the personal liberty of a person is sacrosanct and a person even an accused cannot be kept incarcerated except for compelling reasons. This Court is never in dilemma to accede such contention of personal liberty of an individual, which cannot be taken away except in accordance with the BLAPL No.10026 of 2022 Page 13 of 23 procedure established by law inasmuch as personal liberty is a constitutional guarantee, but criminal laws of this country authorises the law enforcement agency to take a person accused of non-bailable offences to custody during the pendency of investigation, inquiry and trial, unless such person is enlarged on bail in accordance with law and such detention cannot be considered as violative of Article 21 of Constitution of India. It is no doubt true that a person accused of non-bailable offences may also be entitled for bail if such person otherwise make out a case for grant of bail, even when there exists a
Decision
Accordingly the BLAPL stands disposed of. Judge (G. Satapathy) Orissa High Court, Cuttack, Dated the 13th of March, 2023/Kishore BLAPL No.10026 of 2022 Page 23 of 23