Orissa High Court
Court Of Special Judge (Vigilance) vs State Of Orissa (Vig.) ........ Opp. ... on 26 June, 2020
Author: S.K.Sahoo
Bench: S.K. Sahoo
BLAPL No.1042
1 of 2020
IN THE HIGH COURT OF ORISSA, CUTTACK
I.A. No. 268 of 2020
(Arising out of BLAPL NO. 1042 of 2020)
An application for interim bail in connection with T.R. No.
01 of 2014 (V.G.R. Case No.05 of 2013) pending in the
Court of Special Judge (Vigilance), Keonjhar.
----------------------------
Deepak Gupta ........ Petitioner
-Versus-
State of Orissa (Vig.) ........ Opp. Party
For Petitioner: - M/s. Santosh Kumar Mund
H.K. Mund, A.K. Dei
S.C. Sahoo, S.K.Pandia
For Opp. party: - Mr. N.C. Panigrahi
(Senior Advocate)
---------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
....................................................................................
Date of Hearing: 12.6.2020 :Date of Order:26.06.2020
....................................................................................
2
I.A. No. 268 of 2020
07. 26.06.2020 Heard Mr. Santosh Kumar Mund, learned
counsel for the petitioner and Mr. N.C. Panigrahi, learned
Senior Advocate appearing for the State of Orissa
(Vigilance).
The petitioner Deepak Gupta who is in judicial
custody since 05.09.2013 and facing trial on being
charged under section 13(2) read with section 13(1)(c)(d)
of the Prevention of Corruption Act, 1988 (hereafter '1988
Act') and sections 420, 468, 409, 379, 411 read with
section 120-B of the Indian Penal Code in the Court of
learned Special Judge (Vigilance), Keonjhar in T.R. Case
No. 01 of 2014 (V.G.R. Case No.05 of 2013) which arises
out of Balasore Vigilance P.S. Case No. 30 of 2013, has
prayed for interim bail in I.A. No. 268 of 2020.
The petitioner has approached this Court for
the sixth time in BLAPL No. 1042 of 2020 after his earlier
five unsuccessful attempts before this Court and twice
before the Hon'ble Supreme Court.
2. The bail application of the petitioner was
rejected by this Court last time in BLAPL No.1053 of 2019
3
vide order dated 07.08.2019 with following observations:
".....nobody knows how many years it
would take for the prosecution to conclude
the examination of the rest of the
witnesses and thereafter how much time
would be consumed to conclude the trial
and pronounce the judgment. Everything
moves in the sphere of uncertainty and
the sufferer is not only the accused but
also the State of Odisha and the people
who are eagerly awaiting to see the
verdict in this multi-crores mining scam. I
am satisfied that in the last two years, at
least the accused persons have not played
truancy with the criminal trial or corroded
the sanctity of the proceeding rather the
prosecution has made the trial a farcical
one. The learned trial Court has also
remained like a silent spectator to the
lackadaisical attitude of the prosecution in
ensuring the attendance of the witnesses
on different dates and thereby causing
mockery of the trial. It seems that the
right of speedy trial which is a
fundamental right under Article 21 of the
Constitution of India and denial of this
right corrode the public confidence in the
justice delivery system, has not been
4
properly taken care of either by the
prosecution or by the learned trial Court."
xx xx xx xx
".....In the case in hand, the trial has not
progressed much in spite of the earlier
direction of this Court due to lack of
sincere effort of the prosecution and the
petitioner has remained in custody for
about six years and since at least for the
last two years, the petitioner has not
contributed to the delay, the detention
has virtually became pre-trial punishment
to him."
xx xx xx xx
".....while not inclining to release the
petitioner on bail in absence of any
substantial change of circumstances after
rejection of the last bail application by this
Court except a further detention of about
two years with slow progress of the trial, I
direct the learned trial Court to expedite
trial keeping in view the provision under
section 309 of Cr.P.C., to take effective
step to ensure the attendance of
witnesses and if the trial is not progressed
substantially with the examination of
material witnesses by December 2019,
5
the petitioner would be at liberty to move
for interim bail in the trial Court which
shall be considered in accordance with
law.
The order of this Court was received by the
learned trial Court on 22.08.2019. The petitioner moved
an application for bail before the learned trial Court after
December 2019 mainly on the ground that there was no
substantial progress of trial and only few witnesses were
examined by the prosecution. The application came to be
rejected on 28.01.2020.
3. Mr. Mund, learned counsel for the petitioner,
strenuously contended that after receipt of the order of
this Court on 22.08.2019 by the learned trial Court, the
trial of the case was posted on twelve dates by end of
December 2019 and during that period, the evidence of
only eight witnesses could be completed. The case was
posted to different dates not keeping in view the provision
under section 309 of Cr.P.C. in spite of observation of this
Court in the last bail rejection order. He further submitted
that two more witnesses were examined on 04.01.2020
6
and therefore, since the prosecution intended to examine
147 witnesses out of 178 charge sheet witnesses as
submitted by the learned counsel for the State during the
hearing of the last bail application of the petitioner before
this Court and after framing of charge since 05.06.2017,
only twenty five witnesses have been examined so far
during a span of three years and the hearing of the main
bail application would take a little more time and in the
present scenario arising out of the COVID-19 pandemic, it
would be difficult to conduct such hearing on video
conferencing, the petitioner's interim bail application be
favourably considered.
Mr. Panigrahi, learned Senior Advocate
appearing for the State of Orissa (Vigilance) though
agreed for the hearing of the interim application first but
vehemently opposed the prayer for interim bail and
contended that there has been substantial progress of the
trial after receipt of the order of this Court by the learned
trial Court passed in the last bail application and the
learned trial Court has posted the case to twelve dates by
December 2019 and since the said Court is also dealing
7
with other cases, no fault can be found either with the
Court or with the prosecution for non-conducting the trial
on day-to-day basis. He emphasised that witnesses are
being cross-examined by different set of lawyers
appearing for different accused persons for days together
for which there is delayed progress of trial. While
concluding his submission, he further emphasised that
there is every likelihood of the petitioner
influencing/intimidating witnesses/tampering with
evidence, in the event of his release even on interim bail
and therefore, the prayer made in the interim application
does not deserve any consideration.
4. The short point that arises for consideration is
whether relief of interim bail can be granted to the
petitioner in view of the previous order of this Court dated
07.08.2019 passed in BLAPL No.1053 of 2019. Some of
the important factual aspects which are relevant for
consideration of this application are as follows:-
(i) The petitioner is in judicial custody since
05.09.2013 in connection with this case
which is more than six years nine months;
(ii) The charge was framed on 05.06.2017
8
and the first witness for the prosecution
was examined on 22.08.2017;
(iii) The prosecution intends to examine 147
witnesses out of 178 charge sheet
witnesses as was submitted by the
learned counsel for the State on
instruction which has been reflected in the
last bail rejection order;
(iv) Direction was given to the learned trial
Court to expedite trial keeping in view the
provision under section 309 of Cr.P.C., to
take effective step to ensure the
attendance of witnesses and the petitioner
was given liberty to move for interim bail
in the trial Court if the trial is not
progressed substantially with the
examination of material witnesses by
December 2019;
(v) The order of this Court passed in the last
bail application was received by the
learned trial Court on 22.08.2019;
(vi) During the period from 22.08.2019 till end
of December 2019, the evidence of only
eight prosecution witnesses could be
completed and till date, only twenty five
charge sheet witnesses have been
examined.
9
5. Section 309 of Cr.P.C. provides, inter alia, that
in every inquiry or trial, the proceedings shall be continued
from day-to-day until all the witnesses in attendance have
been examined, unless the Court finds the adjournment of
the same beyond the following day to be necessary for
reasons to be recorded. It is further provided that no
adjournments shall be granted at the request of a party,
except where the circumstances are beyond the control of
that party.
A five-judge Constitution Bench of the Hon'ble
Supreme Court in the case of Kartar Singh -Vrs.- State
of Punjab reported in (1994) 3 Supreme Court Cases
569 held that the constitutional guarantee of speedy trial
is properly reflected in section 309 of the Code of Criminal
Procedure.
In the case of Vinod Kumar -Vrs.- State of
Punjab reported in (2015) 3 Supreme Court Cases
220, keeping in view the provision under section 309 of
Cr.P.C., it is held as follows:-
"57. Before parting with the case, we
are constrained to reiterate what we have
said in the beginning. We have expressed
10
our agony and anguish for the manner in
which trials in respect of serious offences
relating to corruption are being conducted
by the trial courts.
57.1. Adjournments are sought on the
drop of a hat by the counsel, even though
the witness is present in court, contrary to
all principles of holding a trial. That apart,
after the examination-in-chief of a witness
is over, adjournment is sought for cross-
examination and the disquieting feature is
that the trial courts grant time. The law
requires special reasons to be recorded for
grant of time but the same is not taken
note of.
xx xx xx xx
57.3. There is no cavil over the
proposition that there has to be a fair and
proper trial but the duty of the court while
conducting the trial is to be guided by the
mandate of the law, the conceptual
fairness and above all bearing in mind its
sacrosanct duty to arrive at the truth on
the basis of the material brought on
record. If an accused for his benefit takes
the trial on the path of total mockery, it
cannot be countenanced. The Court has a
sacred duty to see that the trial is
11
conducted as per law. If adjournments are
granted in this manner, it would
tantamount to violation of the rule of law
and eventually turn such trials to a farce.
It is legally impermissible and
jurisprudentially abominable. The trial
courts are expected in law to follow the
command of the procedure relating to trial
and not yield to the request of the counsel
to grant adjournment for non-acceptable
reasons.
57.4. In fact, it is not all appreciable to
call a witness for cross-examination after
such a long span of time. It is imperative
if the examination-in-chief is over, the
cross-examination should be completed
on the same day. If the examination of a
witness continues till late hours, the trial
can be adjourned to the next day for
cross-examination. It is inconceivable in
law that the cross-examination should be
deferred for such a long time. It is
anathema to the concept of proper and
fair trial.
57.5. The duty of the court is to see that
not only the interest of the accused as per
law is protected but also the societal and
collective interest is safeguarded. It is
12
distressing to note that despite series of
judgments of this Court, the habit of
granting adjournment, really an ailment,
continues. How long shall we say, "Awake!
Arise!". There is a constant discomfort.
Therefore, we think it appropriate that the
copies of the judgment be sent to the
learned Chief Justices of all the High
Courts for circulating the same among the
learned trial Judges with a command to
follow the principles relating to trial in a
requisite manner and not to defer the
cross-examination of a witness at their
pleasure or at the leisure of the defence
counsel, for it eventually makes the trial
an apology for trial and compels the whole
society to suffer chicanery. Let it be
remembered that law cannot allowed to
be lonely; a destitute."
6. On a conspectus of the certified copy of the
order sheet of the learned trial Court filed by the learned
counsel for the petitioner, it reveals that after the order of
this Court passed in the last bail application was received
by the learned trial Court on 22.08.2019, till end of
December 2019, the case was posted for trial on twelve
13
dates i.e. 05.09.2019, 19.09.2019, 03.10.2019,
17.10.2019, 30.10.2019, 31.10.2019, 01.11.2019,
15.11.2019, 16.11.2019, 29.11.2019, 13.12.2019 and
16.12.2019.
On 05.09.2019, P.W.14 who was earlier cross-
examined in part was present and he was further cross-
examined by the learned counsel for one of the accused
and it was deferred to 19.09.2019 for further cross-
examination on a time seeking petition being filed by the
said counsel. On 19.09.2019, cross-examination of P.W.14
was completed and he was discharged. On that very day,
P.W.17 was examined, cross-examined and discharged.
On 03.10.2019, P.W.18 was examined, cross-examined in
part and her further cross-examination was deferred due
to want of time. On 17.10.2019, no witness was present.
On 30.10.2019, P.W.19 was examined, cross-examined in
part and his further cross-examination was deferred on
time seeking petitions filed by the learned counsel for two
accused. On 31.10.2019, P.W.20 was examined, cross-
examined in part and her further cross-examination was
deferred on time seeking petitions filed by the learned
14
counsel for two accused. On 01.11.2019, P.W.21 was
examined, cross-examined and discharged. On
15.11.2019, further cross-examination of P.W.18
continued and she was discharged. On 16.11.2019,
P.W.22 and P.W.23 were examined, cross-examined and
discharged. On 29.11.2019, further cross-examination of
P.W.20 continued and she was discharged. On
13.12.2019, further cross-examination of P.W.19
continued and he was discharged. On 16.12.2019 no
witness was present.
On 04.01.2020, P.W.24 and P.W.25 were
examined, cross-examined and discharged.
Thus the posting of the dates of trial after
receipt of the order of this Court clearly reveal that the
learned trial Court has neither followed the provision under
section 309 of Cr.P.C. nor kept in view the observations of
this Court passed in BLAPL No.1053 of 2019 in the order
dated 07.08.2019 and also in BLAPL No.854 of 2015 in
which this Court observed that the learned trial Court shall
take all possible step to proceed with the trial on day-to-
day basis. If the learned trial Court is also dealing with
15
other cases for which it was not possible on its part to give
more time to this particular case, the case could have
been taken up during a particular time slot on each date
keeping in view the mandate of section 309 of the Code. If
any defence counsel after cross-examining a prosecution
witness for some time filed a petition for time to defer the
cross-examination, the learned trial Court should not have
been so liberal in adjourning the case giving long dates
without realizing the inconvenience likely to be faced by
the official witnesses in attending the Court again and
again. No special reasons have been assigned by the
learned trial Court in adjourning the case to long dates in
spite of the earlier orders of this Court. None of the parties
has approached the Hon'ble Supreme Court against the
order of this Court passed in BLAPL No.1053 of 2019 and
thus the observations made therein attained finality and
become binding on the trial Court. After receipt of the
order of this Court by the learned trial Court on
22.08.2019, the counsel for the petitioner who is
appearing for him has not sought for any adjournment.
Therefore, the petitioner is no way responsible for the
16
delayed trial. It cannot be lost sight of the fact that since
last week of March 2020, there is no progress of trial in
any Court in the State on account of situation arising out
of the COVID-19 pandemic and only urgent matters are
being taken up.
7. In view of the foregoing discussions,
particularly keeping in view the period of detention of the
petitioner for more than six years nine months in judicial
custody and snail speed at which the trial of the case has
proceeded so far, I am of the humble view that the
petitioner has made out a case for grant of interim bail.
Accordingly, the interim bail application is allowed. Let the
petitioner be released on interim bail for a period of one
month from the date of release on following conditions:-
(i) He shall furnish cash security of Rs.
1,00,00,000/- (rupees one crore) in the shape of fixed
deposit STDRs obtained from any nationalized bank and
also furnish bail bond of Rs. 2,00,00,000/- (rupees two
crores) with two local solvent sureties each for the like
amount to the satisfaction of the learned trial Court with
further terms and conditions as the learned Court may
17
deem just and proper;
(ii) He shall not leave the territorial
jurisdiction of the trial Court without its prior permission;
(iii) The petitioner shall, further, disclose his
place of residence where he will be residing after his
release on interim bail and also, disclose his phone
numbers and e-mail address to the Vigilance Department.
(iv) The petitioner shall not try to tamper with
the prosecution evidence in any manner nor shall he make
any threat or inducement to any witness acquainted with
the facts of the case, so as to dissuade him from disclosing
such facts to the Court.
(v) The petitioner shall surrender the
passport, if possessed by him, before the trial Court. If he
does not possess the passport, he shall file an affidavit
before the trial Court to that effect.
(vi) He shall personally appear before the trial
Court on the date fixed for trial.
(vii) He shall surrender before the trial Court
on completion of the interim bail period.
Accordingly, the I.A. is disposed of.
18
A copy of the order be handed over to the
learned counsel for the State of Orissa (Vigilance) and also
be communicated forthwith to the learned trial Court for
information and necessary action.
.............................
S.K.Sahoo, J.
P