The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.14326 of 2023 Manoj Kumar Pattnaik … Petitioners State of Orissa Mr. S.C. Mohapatra, Sr. Advocate -versus- … Opposite Party Mrs. S.R. Sahoo, ASC Order No. 03. CORAM: JUSTICE G. SATAPATHY ORDER(ORAL) 08.02.2024 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with EOW P.S. Case No. 21 of 2018 corresponding to C.T. Case No.87 of 2023 pending in the file of learned Presiding Officer, Designated Court under OPID Act, Cuttack for commission of offences punishable under Sections 420/406/467/468/471/120-B of IPC, on the allegation of cheating the bank for more than one crore rupees by taking loan in the name of his wife-co-accused and dishonestly misappropriating the same on the pretext of allotting flat by not creating mortgage and not refunding the loan amount in collusion with his wife by forging documents. 3. Without disputing the prima facie allegation made against the petitioner and elaborating on the Page 1 of 9
Legal Reasoning
also prima facie provides reason enough to believe that Page 3 of 9 the Petitioner may commit similar type of offence in future if released on bail. Moreover, in an economic offence, not only the property of individual is involved, but also the property and savings of others are also concerned and at the same time, it affects the economic fiber of the society at large and that is why the consideration of bail in economic offences is slightly different and the Court has to take a different approach, while considering the bail application of a person accused of economic offence. This is the reason the Apex Court took serious view with regard to economic offence way back in the year 1987 in State of Gujarat v. Mohanlal Jitamalji Porwal and another; (1987) 2 SCC 364 wherein it has been held as under;- entire “5.The 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 the consequence of the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of regardless profit of Page 4 of 9 the damage done to the National economy and National interest”. 7. It is no more res integra that while considering the bail application in a case of economic offences, factors like, (i) nature of accusations, (ii) enormity of punishment that entail in conviction of the case, (iii) material evidence in support of the charge, (iv) criminal antecedents, if any, (v) reasonable apprehension of accused tampering with witnesses or absconding and reasonable possibility of securing the presence of accused in the course of trial are the few factors amongst others are required to be considered. 8. This Court is also conscious of the fact that personal liberty of an individual cannot be taken away, except in accordance with the 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 and trial, unless such person is enlarged on bail in accordance with law and such detention cannot be considered as a violative of Article 21 of Constitution of India. It is no doubt true, a person accused of non- bailable offences may also be entitled for bail if such person otherwise makes out a case for grant of bail, Page 5 of 9 even when there exists a 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 of Apex Court in Ash Mohammad Vrs. Shiv Raj Singh @ Lalla Babu and another; (2012) 9 SCC 446 wherein it has been held at Paragraph-17 as under:- “17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of immense liberty of a person has impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. it causes a sense of Sometimes vacuum. Needless to 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 individual liberty is restricted by its larger social deprivation must 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 interest and have Page 6 of 9 cry of the collective for justice, its desire for peace and harmony and its for security cannot be necessity 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 subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It 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, regulated freedom”. “it is 9. Chapter “V” of the Cr.P.C. provides for arrest of persons, but such provision does not command for routine arrest of persons even for commission of cognizable offence, however, if the police officer is satisfied that such arrest is necessary to prevent such person from committing any further offence which is one of the grounds as provided in Section 41(1)(b)(ii)(a) of the Cr.P.C., in such event, the police officer is authorised to arrest by recording the reasons in writing. Similarly, Section 437(3)(b) of the Cr.P.C. provides that when a person accused or suspected of the commission of an offence Page 7 of 9 punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the IPC or abetment of, or conspiracy or attempt to commit any such offence, is released on bail under sub-section (1), the Court shall impose the condition that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. It is, therefore, clear that while considering the bail application of an accused for commission of offence as indicated, one of the dominant consideration is to prevent repetition of the offence, but the petitioner in this case has undisputedly found implicated for similar offences in eight cases and, thereby, prima facie the same appears against the petitioner to prevent repetition of the offence. Since it is not desirable to make a detail and meticulous examination of evidence and elaborate documentation on merit, this Court refrains itself to analyse the materials collected by the investigating agency minutely, but only observes that there is a prima facie case against the petitioner for the alleged offences. Page 8 of 9 10. In view of the above facts and taking into consideration the mode and manner of alleged commission of crime by the Petitioner and regard being had to the involvement of the Petitioner in number of cases, out of whom some are for commission of economic offences and taking into account the circumstance involved in this case, keeping in mind the enormity of allegation leveled against the petitioner for cheating the bank, this Court is not inclined to grant bail to the Petitioner at this stage when the trial is yet to commence. Hence, the bail application of the petitioner stands rejected. The learned trial Court is, however, requested to expedite the trial, if there is no other legal impediment. 11. 12.
Arguments
principles of consideration of bail, Mr. S.C. Mahapatra, learned Sr. Counsel for the Petitioner submits that the offence alleged against the Petitioner is not only triable by Magistrate, but also is not punishable beyond 7 years and the main consideration in grant of bail is the securing the possibility of the attendance of the Petitioner at the trial and even if, there are criminal antecedents stated to have been shown against the Petitioner, but the Petitioner being duty bound to comply the order passed by this Court for his release on bail to provide flats to the customers in his project which was condition precedent for his release on bail, the Petitioner may kindly be released on bail in this case to give effect to the earlier order. 4. On the contrary, Mrs. S.R. Sahoo, learned ASC, however, opposes the bail application of the Petitioner vehemently by inter-alia contending that the Petitioner is not only a simple offender, but also a habitual offender and he has committed several economic offences and therefore, his bail application should not be considered favourably. 5. After having considered the rival submissions and on bestowing a careful consideration to the principles of bail as highlighted by learned Sr. Counsel for the Petitioner, this Court is conscious of one of the factors for consideration of bail is to prevent the offender from committing the crime further which is Page 2 of 9 one of the basic requirements while granting or refusing bail to the offender and also the ground necessitating arrest the offender as provided in Sec.41(b)(ii)(a) of the Cr.P.C. In this case as per the affidavit filed by the wife of the Petitioner, it appears that the Petitioner is involved in following cases with defalcated amounts which is provided in a tabular format as follows:- Sl.No. Case No. Offences Amount 01. 02. EOW BBSR P.S. U/s. 420/406/466/468 Rs.1,15,82,550 Case No. 02 of 2020 471/120B of IPC Saheednagar P.S. U/S. 420 of IPC Rs.21,00,000/- Case No. 532 of 2018 03. Saheednagar P.S. U/S. 420/34 of IPC Rs.46,00,000/- Case No. 367 of 2021 04. Mancheswar P.S. U/S. 420 of IPC Rs.19,26,000/- Case No. 498 of 2022 05. Mancheswar P.S. U/S. 420 of IPC Rs.18,37,000/- Case No. 499 of 2022 06. Saheednagar P.S. U/S. 406/420 of IPC Rs.26,00,000/- Case No. 242 of 2018 07. Saheednagar P.S. U/S. 420 of IPC Rs.30,00,000/- Case No. 578 of 2022 08. Colliery P.S. Case No. U/S. 420/34 of IPC Rs.53,70,000/- of 2019 6. The above criminal antecedents itself shows not only the criminal proclivity of the petitioner, but
Decision
Accordingly, the BLAPL stands disposed of. Issue urgent certified copy of the order as per Rules. (G. Satapathy) Judge Priyajit Signature Not Verified Digitally Signed Signed by: PRIYAJIT SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 09-Feb-2024 13:21:28 Page 9 of 9