Orissa High Court
Prasanna Kumar Mohanty vs State Of Odisha Vig on 28 March, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
ABLAPL No. 3235 of 2017
An application under section 438 of the Code of Criminal
Procedure.
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Prasanna Kumar Mohanty ........ Petitioner
-Versus-
State of Odisha (Vig.) ......... Opp. Party
For Petitioner: - Mr. H.S. Mishra
A.K.Mishra, R.Dash
For Opp. party: - Mr. Niranjan Moharana
Addl. Standing Counsel
(Vigilance Department)
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of argument and order: 28.03.2017
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S. K. SAHOO, J.The petitioner Prasanna Kumar Mohanty who is at present working as Superintendent of Excise, Dhenkanal has filed this application under section 438 of Cr.P.C. apprehending arrest in connection Cuttack Vigilance Cell P.S. Case No.5 of 2017 registered under section 13 (2) read with section 13(1) (e) 2 of the Prevention of Corruption Act, 1988 which corresponds to V.G.R. Case No.14 of 2017 pending in the Court of learned Special Judge, Vigilance, Bhubaneswar.
2. On 08.3.2017 one Pranita Kumari Ray, Inspector of Police, Vigilance, Cell Unit, Bhubaneswar lodged the First Information Report before the Superintendent of Police, Vigilance Cell, Cuttack stating therein that on receipt of reliable information that the petitioner was in possession of assets disproportionate to his known sources of income, an inquiry was taken up by the State Vigilance. On the strength of search warrant issued by Special Judge, Vigilance, Bhubaneswar in Misc. Case No.03 of 2017, the residential rented house of the petitioner located at Bhubaneswar, triple storied building located at Sector-11, CDA, Cuttack, S+4 storied building located at Bhubaneswar, parental house of the petitioner located at Dhenkanal and other places were simultaneously searched on 02.03.2017 and the inquiry revealed that the petitioner joined in the Government Service as S.I. of Excise on 12.09.1983 and during his incumbency as Government servant from 12.09.1983 (date of joining in Govt. service) to 02.03.2017 (date of house search), the total value of his movable and immovable assets comes to the tune of Rs.1,77,30,806.00. The income of the 3 petitioner and his family members was calculated at Rs.70,50,000.00. Similarly the expenditure of the petitioner and his family members was calculated at Rs.31,88,000.00. Therefore, the disproportionate assets were calculated at Rs.1,38,68,806.00 (197%), which the petitioner could not satisfactorily account for and therefore, he is liable for criminal misconduct under section 13 (2) read with section 13(1) (e) of the Prevention of Corruption Act, 1988.
3. This anticipatory bail application was presented before this Court on 06.03.2017 when the F.I.R. had not been registered. The learned counsel for the petitioner Mr. H.S. Mishra today filed the copy of the F.I.R. dated 08.03.2017 with a memo which is taken on record.
It is contended by the learned counsel for the petitioner that after joining the service, the petitioner applied for a plot at Mouza-Ghatikia, Bhubaneswar as per the advertisement made by the General Administration Department, Government of Orissa in the year 1989 and the total cost of the plot was Rs.1,20,000/- and the petitioner was given possession of the said plot on 19.08.1999. It is submitted by the learned counsel for the petitioner that the son of the petitioner namely Pritam Kumar Mohanty completed his Graduation in the year 2013 and 4 he formed a company called 'RM Infrasolutions Pvt. Limited' which was registered under the Companies Act with the Registrar of Companies, Odisha and the company was incorporated on 14.12.2012. The son of the petitioner proposed to construct some apartments over the said plot and accordingly, the petitioner entered into an agreement with his son on 05.04.2013, thereby enabling his son to go for construction of residential complex including the authority to sell the apartments. The petitioner executed an irrevocable General Power of Attorney in favour of his son which was duly registered before the Sub-Registrar, Bhubaneswar. It is submitted by the learned counsel for the petitioner that the petitioner applied for necessary permission before the Bhubaneswar Development Authority for construction of apartment over his Plot No.118 and vide order dated 28.06.2014, permission was granted for construction of S+4 residential apartment in favour of the petitioner. The son of the petitioner negotiated with different prospecting buyers of the apartment and he also negotiated with four persons to sell five flats to be constructed over the said plot and executed an agreement with the prospective buyers and received advance to the tune of Rs.34,00,000/- all by cheques or bank drafts. The son of the petitioner engaged one Trishna Real 5 Estate, PVt. Ltd. for carrying out civil construction work over the said plot and he issued necessary work order in favour of the said Firm. The Firm started construction and as and when the bills were submitted, the son of the petitioner paid to the builder. It is submitted by the learned counsel for the petitioner that the construction work is still continuing and the petitioner has paid a sum of Rs.20,00,000/- to the builder and in addition to that he has paid a sum of Rs.14,20,000/- to the Sub-contractors engaged by Trishna Real Estate Pvt. Ltd. It is further submitted that the entire project has been done by the son of the petitioner and the petitioner has not paid anything towards the construction of the apartment.
Mr. Mishra further contended that in the year 1991, the petitioner applied for a plot of land before the Cuttack Development Authority and he was given possession of such land on 22.12.2001 and C.D.A. executed the lease deed in favour of the petitioner on 01.09.2016. The petitioner applied for loan to Allahabad Bank for construction of a house over the C.D.A. plot and accordingly, loan of Rs.22,00,000/- was sanctioned in favour of the petitioner and the petitioner withdrew of Rs.7,40,000/- from the GPF for construction of the house and after approval of 6 the plan the petitioner started construction after the bank disbursed the loan amount.
It is submitted by the learned counsel for the petitioner that the petitioner is about retire from the Govt. service and his son is doing construction business at Bhubaneswar and has taken a house on rent at Bhubaneswar. The learned counsel further contended that the Vigilance Department mechanically ignored the manner in which construction S+4 storied building was going on at Bhubaneswar and calculated the cost of the construction work of the said building at Rs.1,30,00,000.00 as the immovable asset of the petitioner. The learned counsel for the petitioner further submitted that the Vigilance Authorities have seized all the relevant documents and the petitioner is also ready and willing to cooperate with the investigation of the case and there is no chance of absconding or tampering with the evidence and therefore, unless the petitioner is released on anticipatory bail, he will be seriously prejudiced.
4. Mr. Niranjan Maharana, learned Addl. Standing Counsel, Vigilance on the other hand produced the case diary and contended that the petitioner has concealed himself at some secrete place and search and seizure is still going on and the 7 petitioner did not cooperate with the Investigating Agency and there is every chance of destroying/tampering with the evidence in the event the petitioner is released on anticipatory bail. It is submitted that the petitioner being a public servant and having a legally married wife, has kept another wife namely Sunita Dalai who is A.S.I. of Excise and four storied house of Sunita Dalai was also searched in connection with the petitioner. It is submitted by the learned Addl. Standing Counsel that the petitioner and the said Sunita Dalai were blessed with a son namely Pratyush Kumar Mohanty. It is further submitted that during house search, the petitioner did not cooperate with the Vigilance team and he was not willing to sign the seizure list but after much persuasion, he signed the same. It is contended that number of documents relating to investment, deposits and other movable assets have been concealed by the petitioner at some undisclosed place which are to be unearthed and seized. It is contended that certain Benami transactions were found which could be ascertained by custodial interrogation. Learned Addl. Standing Counsel further contended that if the petitioner is released on anticipatory bail, he would influence the vital witnesses and tamper/destroy the documents. It is further contended that the petitioner is also involved in another 8 Vigilance case i.e., Berhampur Vigilance P.S. Case No.21 of 1998 and charge sheet has been submitted in that case under sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act. The learned counsel for the vigilance department submitted some relevant documents, photographs and instruction in a closed envelope and since the investigation is under progress, it would not be proper to discuss about all such aspects at present. It is contended that since the investigation is at initial stage and custodial interrogation of the petitioner is very much necessary, at this stage, it would not be proper to grant anticipatory bail to the petitioner.
5. In the case of Enforcement Officer -Vrs.- Bher Chand Tikaji Bora reported in (1999) 5 Supreme Court Cases 720, it is held as follows:-
"2......From a bare reading of the impugned order, it appears that the learned Single Judge is of the view that because the respondent was available for interrogation and the prosecution did not avail of that opportunity, there should not be any justification for not granting the anticipatory bail sought for. We have no hesitation to hold that the learned Judge has misread the decision of this Court referred to in the impugned order. The criteria and questions to be considered for exercising power under Section 438 of Cr.P.C. has been recently dealt with in Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v. Arun Kumar 9 Bajoria. The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore, unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiction under Section 438 Cr.P.C and granting anticipatory bail."
In the case of State rep. by the C.B.I. -Vrs.- Anil Sharma reported in (1997) 7 Supreme Court Cases 187, it is held as follows:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and 10 that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
In the case of Dukhishyam Benupani -v- Arun Kumar Bajoria reported in (1998) 1 Supreme Court Cases 52, it is held as follows:-
"6. Learned counsel for the respondent defended both orders on the premises that the respondent presented himself for being interrogated on many days subsequent to the High Court order and nothing incriminating was elicited from him so far and that the respondent is a sick person entitled to a pre-arrest bail order.
7.....It is not the function of the Court to monitor investigation process so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timing and the questions and the manner putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual."
In the case of Muraleedharan-v-State of Kerala reported in A.I.R. 2001 S.C. 1699, wherein it is held as follows:-
"7.....Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons 11 which ultimately led to the capital tragedy. We express our reprobation at the supercilious manner in which the Sessions Judge decided to think that "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused." Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against an accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime. The order of the Sessions Judge, blessing the appellant with a pre-arrest bail order, would have remained as a bugbear of how the discretion conferred on Sessions Judge under Section 438 of the Cr.P.C. would have been misused. It is heartening that the High Court of Kerala did not allow such an order to remain in force for long."
In the case of Promod Kumar Panda -Vrs.-
Republic of Indian reported in (2015) 60 Orissa Criminal Reports 660, while dealing with the anticipatory bail application of the petitioner in that case, I have held as follows:-
"17. What is "custodial interrogation"?
"Custody" means formal arrest or the deprivation of freedom to an extent associated with formal arrest. "Interrogation" means explicit questioning or actions that are 12 reasonably likely to elicit an incriminating response. Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called "custodial interrogation". The Court has to strike a balance between individual's right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humiliation and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several facts viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in which particular type of cases or particular type of accused, the custodial interrogation would be mandatory. It would all depend upon the facts and circumstances of each case. No strait jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Of course in terms of section 438 (2)
(i) Cr.P.C., the Court can impose a condition on the accused to make himself available for 13 interrogation by the Investigating Officer as and when required. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question.
No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer. The Investigating Officer is bound to provide the arrested accused to meet an advocate of his choice during interrogation though not throughout interrogation as required under section 41-D Cr.P.C."
In case of Adri Dharan Das -Vrs.- State of West Bengal reported in A.I.R. 2005 S.C. 1057, the Hon'ble Supreme Court held that the power exercisable under section 438 of the Cr.P.C. is somewhat extraordinary in character and it is only in exceptional cases where it appears that the petitioner may be falsely implicated or where there are reasonable grounds of holding that a person accused of an offence is not likely to otherwise misuse his liberty, then the power is to be exercised under section 438 of the Code.
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In case of Bharat Chaudhary -Vrs.- State of Bihar reported in A.I.R. 2003 S.C. 4662, the Hon'ble Supreme Court held that the object of section 438 of the Code is to prevent undue harassment of the accused person by pre-trial arrest and detention. It was held that the gravity of the offence is an important factor to be taken into consideration while granting anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the Courts concerned while entertaining for grant of anticipatory bail.
6. Adverting to the contentions raised by the respective parties and the materials available on record and in view of the nature and gravity of the accusation and the role of the petitioner which has come out so far by way of oral and documentary evidence, it prima facie appears that the petitioner who is an influential personality and serving in an important post of Excise Department under the State Government seems to have misutilised his official position and acquired disproportionate assets during the period from 12.09.1983 to 02.03.2017 to the tune of Rs.1,38,68,806.00(197%). The documents produced by the learned Addl. Standing Counsel for the Vigilance Department in the enclosed cover are very clinching and I am of the view that if the petitioner is ensconced 15 with a favourable order of pre-arrest bail then his interrogation would be a futile exercise. The further apprehension of the Investigating Agency that in the event the petitioner is protected with an order of anticipatory bail, there is reasonable apprehension of tampering with the witnesses has also got sufficient force. The F.I.R. has been registered only on 08.03.2017 and though the investigation has progressed to some extent but there are many other aspect which are to be unearthed in the case and custodial interrogation of the petitioner may provide many useful information and materials to the Investigating Agency on such aspect and grant of anticipatory bail would cause serious prejudice to the free, fair and full investigation. Without entering into a detailed examination of the materials available against the petitioner at this stage, but on a brief examination of such materials and after evaluating the same with utmost care and caution, I am not inclined to exercise the discretionary power under section 438 of the Code by granting pre-arrest bail to the petitioner.
Accordingly, the anticipatory bail application stands rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 28th March, 2017/Pravakar