The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No. 15446 of 2023 Samarjit Mohanty …. Mr. Pitambar Acharya, Sr. Advocate Petitioner State of Odisha and Another …. -versus- Opp. Party Mr. S. Patra, ASC, State of Odisha Mr. A. M. Tripathy, Advocate, State of Meghalaya, Opposite Party No.2 CORAM: JUSTICE CHITTARANJAN DASH Order No.
Decision
ORDER 25.04.2024 06. 1. Heard learned counsel for the Petitioner and the State of Meghalaya. 2. By means of this application, the Petitioner seeks grant of anticipatory bail U/s. 438 of Cr.P.C. in apprehension of arrest for his alleged involvement in the offence under Sections 409 of IPC pending before the learned Court of Chief Judicial Magistrate, Shillong, Meghalaya. 3. The brief facts of the case are such that the Petitioner is a senior executive at Feedback Infra Pvt Ltd, stationed in Bhubaneswar, a leading infrastructure services company operating across transportation, energy, and urban infrastructure sectors. They also oversee operational activities of Feedback Energy Distribution Company Limited (FEDCO), a subsidiary of Feedback Infra Ltd, // 2 // which distributes electricity in Odisha, Meghalaya, and Tripura. The Petitioner has been a resident of Bhubaneswar for 8 years due to various projects. MePDCL had a distribution franchise agreement with FEDCO, signed on March 18, 2019, for operating and maintaining three areas. The F.I.R. alleges that FEDCO breached this agreement, causing financial losses to MePDCL. On December 21, 2023, two individuals claiming to be from Sadar Police Station, Meghalaya, sought the Petitioner in connection with an F.I.R. where a Non-Bailable Warrant (NBW) was issued against him by the Chief Judicial Magistrate, Shillong. The F.I.R. alleges that FEDCO incurred losses due to non-payment of dues to Meghalaya Power Distribution Corporation Ltd (MePDCL). The police issued a notice under Section 91 of the Criminal Procedure Code (CrPC) to obtain information about the Petitioner. Due to the visit of police personnel to the Petitioner’s office and residence, and the issuance of an NBW, the Petitioner apprehends arrest in connection with the case. 4. Mr. Acharya, the learned Senior Advocate, appearing on behalf of the Petitioner, argues that he is not responsible for FEDCO’s day-to-day operations being only an employee of Feedback Infra Pvt. Ltd. cannot be saddled with the offences alleged in the F.I.R. He further submitted that the issuance of notice under section 91 of Cr.P.C to the Manager, HR of the company and NBW dtd. 13.12.2023, issued by a Competent court, the petitioner reasonably apprehends that there is every chance of his arrest. The learned counsel also contended that even if the allegations are true, they do not amount to breach of trust. Having regard to the terms of the Page 2 of 6 // 3 // agreement to the franchise in the event of the dispute and/or in case of non-settlement of any dispute, the same would be subject to the provisions of Arbitration and Conciliation Act, 1996 to be arbitrated by a panel consisting of 3 (three) arbitrators. Consequently, the dispute alleged in the F.I.R. is basically a matter to be resolved in the alternative dispute resolution forum as agreed by the parties under Article 17.2.5 of the franchise agreement. He, therefore, urged before this Court that the issues in question does not amount to any criminal liability but to be dealt with the civil side and more so through the mechanism of arbitration. It is also informed that FEDCO is admitted u/s 7(5) of IBC and moratorium is declared u/s 14 of IBC and accordingly, is undergoing Corporate Insolvency Resolution Process pursuant to order dtd. 12.12.2023, passed by Ld. NCLT-II, New Delhi, passed in Company Petition No. (IV)- 477(ND)/2023. The financial position of FEDCO along with the order dated 12.12.2023 passed by Ld. NCLT-II, New Delhi, in Company Petition No. (IV)- 477(ND)/2023 as intimated to MePDCL on 12.12.2023. Mr. Acharya specifically prayed for transit bail seeking a two-month period for the Petitioner to make arrangements for obtaining a proper bail from the jurisdictional court and to facilitate his cooperation with the investigation. 5. Learned counsel for the State of Meghalaya (Opposite Party No. 2), Mr. Tripathy, submitted that the Petitioner is accused of serious offenses under Section 409 of the IPC, involving the alleged misappropriation of ₹15 Crores of public funds collected as electricity bills in Meghalaya. Despite repeated attempts by the investigating authorities, the Petitioner has allegedly evaded the Page 3 of 6 // 4 // process of law for over 10 months, failing to submit required documents and potentially obstructing the investigation. Moreover, the Petitioner has not responded to notices issued under Section 91 of the Cr.P.C., which could aid the investigation. The Petitioner’s actions suggest an attempt to thwart the investigation and criminal proceedings against him. Consequently, the Petitioner’s lack of cooperation with the investigation may preclude the exercise of discretionary relief by this Honorable Court. Mr. Tripathy further objected to the time sought to the favour of the Petitioner and requested for a shorter period of time for him to appear before the investigating agency. 6. Having heard the learned counsels and perusal of the documents, it emerges that the allegations against the Petitioner involve offense under Section 409 of the IPC. However, it’s crucial to acknowledge that the Petitioner denies the allegations and is willing to cooperate with the investigation. Granting transit anticipatory bail would enable the Petitioner to appear before the concerned court in Meghalaya, demonstrating his commitment to the legal process and ensuring his presence during further proceedings. Additionally, the Petitioner’s employment and residence in Bhubaneswar for the past eight years, as established by his position as senior executive at Feedback Infra Pvt. Ltd., strongly demonstrate that he would not flee away from the jurisdiction of court and furthermore, the Petitioner’s compliance with any conditions imposed by the court would mitigate any concerns regarding his potential evasion of justice. Page 4 of 6 // 5 // 7. The Apex Court in Priya Indoria vs. State of Karnataka and Others 2023 SCC Online SC 1246, has reiterated that – “45. At the same time, we are also mindful of the fact that the accused cannot seek full-fledged anticipatory bail in a State where he is a resident when the F.I.R. has been registered in a different State. However, in view of what we have discussed above, he would be entitled to seek a transit anticipatory bail from the Court of Session or High Court in the State where he is a resident which necessarily has to be of a limited duration so as to seek regular anticipatory bail from the Court of competent jurisdiction. The need for such a provision is to secure the liberty of the individual concerned. Since anticipatory bail as well as transit anticipatory bail are intrinsically linked to personal liberty under Article 21 of the Constitution of India and since we have extended the concept of access to justice to such a situation and bearing in mind Article 14 thereof it would be necessary to give a constitutional imprimatur to the evolving provision of transit anticipatory bail. Otherwise, in a deserving case, there is likelihood of denial of personal liberty as well as access to justice for, by the time the person concerned approaches the Court of competent jurisdiction to seek anticipatory bail, it may well be too late as he may be arrested. Needless to say, the Court granting transit anticipatory bail would obviously examine the degree and seriousness of the apprehension expressed by the person who seeks transit anticipatory bail; while the object underlying exercise of such jurisdiction is to thwart arbitrary police action and to protect personal liberty besides providing immediate access to justice though within a limited conspectus.” 8. Upon consideration of the facts and circumstances, the submissions presented by the Petitioner’s counsel seeking transit anticipatory bail and on perusal of the relevant documents, there is compelling circumstance for grant of transit anticipatory bail which is accordingly allowed. Page 5 of 6 // 6 // 9. As a necessary corollary, in the event of his arrest, the arresting officer shall release him on bail upon furnishing a bail bond of ₹2,00,000 with one solvent surety to the like amount, to the satisfaction of the arresting officer. It is made clear that the liberty granted herein shall expire after six-weeks. Needless to mention that the transit ant bail has been granted to facilitate the Petitioner to appear before the court concerned in connection with F.I.R. No. 130 of 2023 registered at Sadar Police Station, Khasi Hills (East), Meghalaya in accordance with law. 10. The Petitioner is directed to cooperate fully with the investigating authorities and to appear before the concerned court within the stipulated six-week period or to move for bail as the Petitioner would find it necessary before a Court of competent jurisdiction in the interest of justice. Failure to comply with this order may result in the cancellation of the transit anticipatory bail. This ABLAPL is accordingly disposed of. Judge (Chittaranjan Dash) AKPradhan Signature Not Verified Digitally Signed Signed by: ANANTA KUMAR PRADHAN Reason: Authentication Location: HIGH COURT OF ORISSA Date: 26-Apr-2024 14:34:07 Page 6 of 6