Orissa High Court
Deepak Gupta vs State Of Orissa (Vig.) ........ Opp. ... on 7 August, 2019
Equivalent citations: AIRONLINE 2019 ORI 125, (2019) 75 OCR 713
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 1053 Of 2019
An application under section 439 of the Code of Criminal
Procedure, 1973 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
Sagar 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: 26.07.2019 Date of Order: 07.08.2019
...................................................................................................
S. K. SAHOO, J. 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
2
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 approached this Court for bail for the fifth
time after his earlier four unsuccessful attempts before this Court
and twice before the Hon'ble Supreme Court.
2. The accusation against the petitioner in a nut shell is
that he was the Director of M/s. Snehapusph Marketing Private
Ltd. as well as of M/s. Deepak Steel and Power Ltd. A registered
Power of Attorney was executed on 29.12.2003 by Sri B.K.
Mohanty mining lease holder of Uliburu Iron Ore Mines in favour
of M/s. Snehapusph Marketing Private Ltd. duly represented by
the petitioner for conducting mining operation in the ML area of
B.K. Mohanty located at Uliburu village over an area of 56.94 Ha.
Another Power of Attorney was also executed by co-accused Sri
Jagdish Mishra in favour of M/s. Snehapusph Marketing Private
Ltd. duly represented by the petitioner on 17.04.2004 to manage
his mines. After becoming the Power of Attorney holder of Sri
B.K. Mohanty and getting the Power of Attorney from Sri Jagdish
Mishra, the petitioner having full knowledge about the Uliburu
iron ore mines area, started excavating iron ore from the lapsed
mining lease of Sri Jagdish Mishra which is adjacent to the ML
3
area of Sri B.K. Mohanty and Uliburu reserve forest. During the
period from 2004 to 2009, the petitioner stated to have
dishonestly and fraudulently misappropriated
Rs.1523,59,48,527.48 paisa by conducting illegal mining of iron
ore in the lapsed ML area of Sri Jagdish Mishra and Uliburu
Reserve Forest by entering into criminal conspiracy with the
public servants of Mining Department, Forest Department and
Revenue Department and thereby obtained pecuniary advantage
to himself and causing equivalent loss to the Government
exchequer. Though the petitioner in connivance with other co-
accused persons illegally excavated a quantity of 65,25,741.438
MT of iron ore amounting to Rs.1520,39,64,049.60 but they had
declared production of only 47,48,826 MT and thus suppressed
the production of 17,76,915.438 MT during the period 2004 to
2009.
The first charge sheet was submitted on 31.12.2013
and the final charge sheet was submitted on 24.06.2014. The
charge against the petitioner in the trial Court was framed on
05.06.2017.
3. The last bail application of the petitioner in BLAPL
No.926 of 2017 was rejected on 24.08.2017 taking into account
that the crime has been committed in a cool, calculated and
4
organized manner causing loss to the tune of more than one
thousand five hundred crores to the Government exchequer and
that a strong prima facie case is available against the petitioner
showing his involvement in the economic offence and further
taking into account, inter alia, the severity of punishment in case
of conviction and reasonable apprehension of tampering with the
evidence.
The petitioner approached the Hon'ble Supreme
Court against the order dated 24.08.2017 passed by this Court in
BLAPL No.926 of 2017 by filing Special Leave to Appeal (Crl.)
No.2169 of 2018 and the Special Leave Petition was withdrawn
to approach the trial Court for the reason that the petitioner is
suffering incarceration for the last five years and accordingly, the
Special Leave Petition was dismissed as withdrawn on
10.07.2018.
The petitioner then moved the learned trial Court for
bail which was rejected on 03.12.2018.
4. Mr. Santosh Kumar Mund, learned counsel appearing
for the petitioner argued that merely because the Special Leave
Petition was dismissed as withdrawn before the Hon'ble Supreme
Court, it cannot be said that the order of this Court as well as the
orders passed by the learned trial Court till 10.07.2018 got
5
merged in the order of the Supreme Court and that it is not open
to this Court to reconsider the prayer for bail. He relied upon the
decisions of the Hon'ble Supreme Court in cases of
Kunhayammed & others -Vrs.- State of Kerala & another
reported in (2000) 6 Supreme Court Cases 359, Indian Oil
Corporation Ltd. -Vrs.- State of Bihar reported in (1986) 4
Supreme Court Cases 146 and Rani Dudeja -Vrs.- State of
Haryana reported in (2017) 13 Supreme Court Cases 555.
Relying on the provision under section 436-A of Cr.P.C., it was
argued that except the offence under section 409 of the Indian
Penal Code, all other offences under which the petitioner has
been charged in the trial Court carries maximum imprisonment
for seven years or less. So far as 409 of the Indian Penal Code is
concerned, the ingredients of the offence are not made out as no
money has been misappropriated and this Court is to be prima
facie satisfied while considering the application for bail that there
are materials to support such charge. The learned counsel relied
upon the decision of the Hon'ble Supreme Court in the case of
Sanjaya Chandra -Vrs.- Central Bureau of Investigation
reported in (2012) 1 Supreme Court Cases 40. Placing
reliance in the case of Hussain and another -Vrs.- Union of
India reported in (2017) 5 Supreme Court Cases 702, it
6
was argued that the sentence likely to be imposed for the
offence under section 409 of the Indian Penal Code cannot be
more than three years as the same is triable by a Magistrate,
First Class. It is contended that no part of delay in the progress
of the case in the trial Court can be attributed to the petitioner
after 11.07.2016. It was argued that for the purpose of trial, the
Special Judge follows the warrant procedure meant for the trial
by a Court of Magistrate. Section 437(6) of the Code provides
that in a case triable by a Magistrate, if the trial is not concluded
within sixty days of the first date fixed for taking evidence, the
accused shall be admitted to bail, unless the Magistrate
otherwise directs and as the petitioner has already completed a
period of detention of more than 600 days since the first date
fixed for taking of evidence, the benefit of section 437(6) of the
Code should be extended to the petitioner. It was further argued
that the progress of the trial is so slow that it amounts to denial
of the right to speedy trial guaranteed under Article 21 of the
Constitution and as stated by the learned Senior Advocate
appearing for the State of Odisha, out of 178 charge sheet
witnesses, the prosecution intends to examine 147 witnesses
and 85,000 documents are required to be sorted out and proved
during trial and therefore, there is no prospect of completion of
7
the trial in the near future and only sixteen witnesses have been
examined so far in spite of the direction of this Court in BLAPL
No.854 of 2015 to the learned trial Court to take all possible step
to proceed with the trial on day to day basis. Learned counsel
placed reliance in the cases of R.P. Upadhyay -Vrs.- State of
A.P. and others reported in (1996) 3 Supreme Court Cases
422, Shaheen Welfare Association -Vrs.- Union of India
reported in A.I.R. 1996 Supreme Court 2957 and Byrraju
Ramaa Raju -Vrs.- State reported in (2012) 1 Supreme
Court Cases 576. It is submitted that denial of bail would
amount to unjustified and unwarranted pre-trial punishment.
While concluding his argument, Mr. Mund stressed upon the fact
that the charge sheet dated 31.12.2013 reveals that the assets
belonging to the petitioner and his family members to the tune
of Rs.386 crores have been attached under the provisions of the
Criminal Law Amendment Ordinance, 1944 and that the CEC
appointed by the Hon'ble Supreme Court enquired into the
mining scam and found the value of illegal mining in respect of
Sri B.K. Mohanty was to the tune of Rs.384 crores and since as
against such amount, the properties of Rs.386 crores have been
attached, there would be no prejudice being caused to the
8
prosecution if the petitioner would be admitted to bail as there is
no chance of absconding.
Mr. N.C. Panigrahi, learned Senior Advocate
appearing for the State of Orissa (Vigilance) vehemently opposed
the prayer for bail and contended that since the bail applications
of the petitioner have been rejected four times by this Court on
merit and twice by the Hon'ble Supreme Court which were filed
against the last two rejection orders of this Court, in the absence
of any new or fresh ground, it is not open to this Court to
reconsider the same material and to take a different view
inasmuch as grant of bail to the petitioner would be virtually
review of the earlier orders which is not permissible in law. He
argued that the petitioner has virtually repeated the same
grounds including the ground of delay upon which the decisions
have already been taken in the last two bail orders. He placed
reliance in the case of State of Maharastra -Vrs.- Buddhikota
Subha Rao reported in A.I.R. 1989 Supreme Court 2292.
He argued that even the learned trial Court in its order dated
08.07.2019 has held that the accused persons are trying to delay
the proceeding by filing frivolous memo. It is contended that the
family members of the petitioner such as his father, mother, wife
and brother who are accused in the case are absconding since
9
2013 and they have not appeared in Court even on a single day
and there is every likelihood of the petitioner absconding once he
is released on bail. He emphasized that even when the petitioner
was under treatment at S.C.B. Medical College and Hospital,
Cuttack during his custody period, it was found that he was not
present in the hospital but in some hotel for which action was
taken against the erring hospital staff. He argued that the
petitioner being a highly influential and rich person, he is likely
to tamper with the evidence once he is enlarged on bail. It is
argued that in economic offences, the Hon'ble Supreme Court
and this Court have been insisting for deposit of proportionate
amount compared to the nature of crime committed and money
misappropriated before releasing the accused on bail, provided
all other conditions are satistied. The learned counsel placed
reliance in the case of State of Gujarat -Vrs.- Mohanlal
Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321.
Mr. Mund, learned counsel for the petitioner in his
reply stated that principle of res-judicata or estoppel does not
apply to criminal jurisprudence and there is no bar for an
accused to make successive bail applications and re-urge the
questions which might have been urged earlier and negatived by
the Court and in other words, the rule of finality does not apply
10
to bail petitions. He argued that Nimmagada Prasad (supra) is
a case where at the stage of investigation, the Hon'ble Supreme
Court rejected the bail application and directed the C.B.I. to
complete the investigation and file charge sheet preferably within
a period of four months and as a matter of fact, after submission
of charge sheet, the said accused along with Shri Jagan Mohan
Reddy renewed the prayer for bail which was allowed. It is
submitted that the Hon'ble Supreme Court is in seisin over the
matter in the case of Common Cause -Vrs.- Union of India
reported in (2017) 9 Supreme Court Cases 499 and directed
recovery of the amount of illegal mining assessed by the CEC i.e.
Rs.384 crores and odd in respect of Uliburu Iron Ore Mines and
recovery proceeding has already started. All the bank accounts
and properties of the petitioner and his family members to the
tune of Rs.386 crores have been attached since 2013 and
thereby virtually shutting down all the business activities of the
entire family of the petitioner. He reiterated that since the
petitioner has already remained in judicial custody for the period
for which he might be sentenced in case of conviction, it would
be just and proper on the part of this Court to release the
petitioner on bail.
11
5. Let me first consider the effect of Special Leave
Petition filed by the petitioner being dismissed as withdrawn
before the Hon'ble Supreme Court on 10.07.2018 which was filed
against the order of this Court dated 24.08.2017 passed in
BLAPL No.926 of 2017.
In the case of Kunhayammed (supra), it is held as
follows:-
"18. In our opinion what has been stated by
this Court applies also to a case where a special
leave petition having been dismissed by a non-
speaking order the applicant approaches the
High Court by moving a petition for review. May
be that the Supreme Court was not inclined to
exercise its discretionary jurisdiction under
Article 136 probably because it felt that it was
open to the applicant to move the High Court
itself. As nothing has been said specifically in the
order dismissing the special leave petition one is
left merely guessing. We do not think it would
be just to deprive the aggrieved person of the
statutory right of seeking relief in review
jurisdiction of the High Court if a case for relief
in that jurisdiction could be made out merely
because a special leave petition under Article
136 of the Constitution had already stood
rejected by the Supreme Court by a non-
speaking order.
12
xxx xxx xxx xxx xxx
27. A petition for leave to appeal to this Court
may be dismissed by a non-speaking order or by
a speaking order. Whatever be the phraseology
employed in the order of dismissal, if it is a non-
speaking order, i.e. it does not assign reasons
for dismissing the special leave petition, it would
neither attract the doctrine of merger so as to
stand substituted in place of the order put in
issue before it nor would it be a declaration of
law by the Supreme Court under Article 141 of
the Constitution for there is no law which has
been declared. If the order of dismissal be
supported by reasons then also the doctrine of
merger would not be attracted because the
jurisdiction exercised was not an appellate
jurisdiction but merely a discretionary
jurisdiction refusing to grant leave to appeal. We
have already dealt with this aspect earlier. Still
the reasons stated by the Court would attract
applicability of Article 141 of the Constitution if
there is a law declared by the Supreme Court
which obviously would be binding on all the
courts and tribunals in India and certainly the
parties thereto. The statement contained in the
order other than on points of law would be
binding on the parties and the court or tribunal,
whose order was under challenge on the
principle of judicial discipline, this Court being
the apex court of the country. No Court or
13
tribunal or parties would have the liberty of
taking or canvassing any view contrary to the
one expressed by this Court. The order of
Supreme Court would mean that it has declared
the law and in that light the case was considered
not fit for grant of leave. The declaration of law
will be governed by Article 141 but still, the case
not being one where leave was granted, the
doctrine of merger does not apply. The Court
sometimes leaves the question (sic) open. Or it
sometimes briefly lays down the principle, may
be, contrary to the one laid down by the High
Court and yet would dismiss the special leave
petition. The reasons given are intended for
purposes of Article 141. This is so done because
in the event of merely dismissing the special
leave petition, it is likely that an argument could
be advanced in the High Court that the Supreme
Court has to be understood as not to have
differed in law with the High Court.
xxx xxx xxx xxx xxx
34. The doctrine of merger and the right of
review are concepts which are closely
interlinked. If the judgment of the High Court
has come up to this Court by way of a special
leave, and special leave is granted and the
appeal is disposed of with or without reasons, by
affirmance or otherwise, the judgment of the
High Court merges with that of this Court. In
that event, it is not permissible to move the
14
High Court by review because the judgment of
the High Court has merged with the judgment of
this Court. But where the special leave petition
is dismissed - there being no merger, the
aggrieved party is not deprived of any statutory
right of review, if it was available and he can
pursue it. It may be that the review court may
interfere, or it may not interfere depending upon
the law and principles applicable to interference
in the review. But the High Court, if it exercises
a power of review or deals with a review
application on merits - in a case where the High
Court's order had not merged with an order
passed by this Court after grant of special leave
- the High Court could not, in law, be said to be
wrong in exercising statutory jurisdiction or
power vested in it.
xxx xxx xxx xxx xxx
40. A petition seeking grant of special leave to
appeal may be rejected for several reasons. For
example, it may be rejected (i) as barred by
time, or (ii) being a defective presentation, (iii)
the petitioner having no locus standi to file the
petition, (iv) the conduct of the petitioner
disentitling him to any indulgence by the Court,
(v) the question raised by the petitioner for
consideration by this Court being not fit for
consideration or deserving being dealt with by
the apex court of the country and so on. The
expression often employed by this Court while
15
disposing of such petitions are - "heard and
dismissed", "dismissed", "dismissed as barred by
time" and so on. May be that at the admission
stage itself the opposite party appears on caveat
or on notice and offers contest to the
maintainability of the petition. The Court may
apply its mind to the merit worthiness of the
petitioner's prayer seeking leave to file an
appeal and having formed an opinion may say
"dismissed on merits". Such an order may be
passed even ex-parte, that is, in the absence of
the opposite party. In any case, the dismissal
would remain a dismissal by a non-speaking
order where no reasons have been assigned and
no law has been declared by the Supreme Court.
The dismissal is not of the appeal but of the
special leave petition. Even if the merits have
been gone into, they are the merits of the
special leave petition only. In our opinion neither
doctrine of merger nor Article 141 of the
Constitution is attracted to such an order.
Grounds entitling exercise of review jurisdiction
conferred by Order 47 Rule 1 of the C.P.C. or
any other statutory provision or allowing review
of an order passed in exercise of writ or
supervisory jurisdiction of the High Court (where
also the principles underlying or emerging from
Order 47 Rule 1 of the C.P.C. act as guidelines)
are not necessarily the same on which this Court
exercises discretion to grant or not to grant
16
special leave to appeal while disposing of a
petition for the purpose. Mere rejection of
special leave petition does not take away the
jurisdiction of the court, tribunal or forum whose
order forms the subject matter of petition for
special leave to review its own order if grounds
for exercise of review jurisdiction are shown to
exist. Where the order rejecting an SLP is a
speaking order, that is, where reasons have
been assigned by this Court for rejecting the
petition for special leave and are stated in the
order still the order remains the one rejecting
prayer for the grant of leave to appeal. The
petitioner has been turned away at the threshold
without having been allowed to enter in the
appellate jurisdiction of this Court. Here also the
doctrine of merger would not apply. But the law
stated or declared by this Court in its order shall
attract applicability of Article 141 of the
Constitution. The reasons assigned by this Court
in its order expressing its adjudication (expressly
or by necessary implication) on point of fact or
law shall take away the jurisdiction of any other
court, tribunal or authority to express any
opinion in conflict with or in departure from the
view taken by this Court because permitting to
do so would be subversive of judicial discipline
and an affront to the order of this Court.
However this would be so not by reference to
the doctrine of merger.
17
xxx xxx xxx xxx xxx
42. "To merge" means to sink or disappear in
something else; to become absorbed or
extinguished; to be combined or be swallowed
up. Merger in laws defined as the absorption of a
thing of lesser importance by a greater, whereby
the lesser ceases to exist, but the greater is not
increased; an absorption or swallowing up so as
to involve a loss of identity and individuality.
(See Corpus Juris Secundum, Vol. LVII, pp.
1067-1068)
43......To sum up our conclusions are:
xxx xxx xxx xxx xxx
(iv) An order refusing special leave to appeal
may be a non-speaking order or a speaking one.
In either case it does not attract the doctrine of
merger. An order refusing special leave to
appeal does not stand substituted in place of the
order under challenge. All that it means is that
the Court was not inclined to exercise its
discretion so as to allow the appeal being filed.
In the case of Indian Oil Corporation Ltd. (supra),
it is held as follows:-
"6. We are clearly of opinion that the view
taken by the High Court was not right and that
the High Court should have gone into the merits
of the writ petition without dismissing it on the
preliminary ground. As observed by this Court in
18
Workmen of Cochin Port Trust v. Board of
Trustees of the Cochin Port Trust and Anr. :
A.I.R. 1978 S.C. 1283, the effect of a non-
speaking order of dismissal of a special leave
petition without anything more indicating the
grounds or reasons of its dismissal must, by
necessary implication, be taken to be that this
Court had decided only that it was not a fit case
where special leave should be granted. This
conclusion may have been reached by this Court
due to several reasons. When the order passed
by this Court was not a speaking one, it is not
correct to assume that this Court had
necessarily decided implicitly all the questions in
relation to the merits of the award, which was
under challenge before this Court in the special
leave petition. A writ proceeding is a wholly
different and distinct proceeding. Questions
which can be said to have been decided by this
Court expressly, implicitly or even constructively
while dismissing the special leave petition
cannot, of course, be re-opened in a subsequent
writ proceeding before the High Court. But
neither on the principle of res judicata nor on
any principle of public policy analogous thereto,
would the order of this Court dismissing the
special leave petition operate to bar the trial of
identical issues in a separate proceeding namely,
the writ proceeding before the High Court
merely on the basis of an uncertain assumption
19
that the issue must have been decided by this
Court at least by implication. It is not correct or
safe to extend the principle of res judicata or
constructive res judicata to such an extent so as
to found it on mere guesswork."
In the case of State of Punjab -Vrs.- Davinder Pal
Singh Bhullar reported in (2011) 14 Supreme Court Cases
770, it is held as follows:-
"77. xxx xxx xxx xxx xxx
The issue as to whether the dismissal of
the special leave petition by this Court in limine,
i.e., by a non-speaking order would amount to
affirmation or confirmation or approval of the
order impugned before this Court, has been
considered time and again. Thus, the issue is no
more res integra.
A large number of judicial
pronouncements made by this Court leave no
manner of doubt that the dismissal of the
Special Leave Petition in limine does not mean
that the reasoning of the judgment of the High
Court against which the Special Leave Petition
had been filed before this Court stands affirmed
or the judgment and order impugned merges
with such order of this Court on dismissal of the
petition. It simply means that this Court did not
consider the case worth examining for a reason,
which may be other than merit of the case. An
20
order rejecting the Special Leave Petition at the
threshold without detailed reasons, therefore,
does not constitute any declaration of law or a
binding precedent."
In view of the settled principle of law as decided by
the Hon'ble Supreme Court, merely because the Special Leave
Petition was dismissed as withdrawn on 10.07.2018, as the
learned counsel for the petitioner wanted to withdraw the
petition to approach the trial Court, for the reason that the
petitioner is suffering incarceration for the last five years, I am of
the humble view that this Court is not debarred from considering
the bail application of the petitioner nor this bail application can
be thrown out at the threshold on the ground of dismissal of the
Special Leave Petition. In fact, after withdrawing the application
for bail in the Hon'ble Supreme Court, the petitioner moved for
bail in the learned trial Court which was rejected on 03.12.2018.
Now the question remains, which aspects are to be kept in mind
while adjudicating this successive bail application? While
rejecting the earlier application for bail of the petitioner in BLAPL
No. 926 of 2017, I have held that successive application for
grant of bail to an accused is permissible under the changed
circumstances which must be substantial one and which has got
a direct impact on the earlier decision and not merely cosmetic
21
changes which are of little or no consequence. Without the
change in the circumstances, the subsequent bail application
would be deemed to be seeking review of the earlier rejection
order which is not permissible under criminal law.
In the case of Rani Dudeja (supra), it is held the
principle of res judicata cannot operate in an application for bail.
In the case of Kalyan Chandra Sarkar and Ors. -Vrs.- Rajesh
Ranjan reported in (2005) 30 Orissa Criminal Reports
(SC) 455, it is held as follows:
"18. The principles of res judicata and such
analogous principles although are not applicable
in a criminal proceeding, still the Courts are
bound by the doctrine of judicial discipline
having regard to the hierarchical system
prevailing in our country. The findings of a
higher Court or a coordinate bench must receive
serious consideration at the hands of the Court
entertaining a bail application at a later stage
when the same had been rejected earlier. In
such an event, the Courts must give due weight
to the grounds which weighed with the former or
higher Court in rejecting the bail application.
Ordinarily, the issues which had been canvassed
earlier would not be permitted to be re-agitated
on the same grounds, as the same would lead to
a speculation and uncertainty in the
22
administration of justice and may lead to forum
hunting.
19. The decisions given by a superior forum,
undoubtedly, is binding on the subordinate
forum on the same issue even in bail matters
unless of course, there is a material change in
the fact situation calling for a different view
being taken. Therefore, even though there is
room for filing a subsequent bail application in
cases where earlier applications have been
rejected, the same can be done if there is a
change in the fact situation or in law which
requires the earlier view being interfered with or
where the earlier finding has become obsolete.
This is the limited area in which an accused who
has been denied bail earlier, can move a
subsequent application. Therefore, we are not in
agreement with the argument of learned counsel
for the accused that in view of the guarantee
conferred on a person under Article 21 of the
Constitution of India, it is open to the aggrieved
person to make successive bail applications even
on a ground already rejected by Courts earlier
including the Apex Court of the country."
Therefore, even though the principle of res judicata is
not applicable while considering the successive bail application,
the Court has to see whether there is any substantial change in
circumstances either in the fact situation or in law having a direct
23
impact on the earlier decision and it is to be kept in mind that
the issues and grounds which have been canvassed earlier would
not be ordinarily permitted to be re-agitated. If some important
aspects of the case could not be placed earlier inadvertently and
the Court feels that such aspects have a direct bearing on the
result of the case, in the interest of justice the Court can
consider the same in the subsequent application.
In the case of Buddhikota Subha Rao (supra), the
Hon'ble Supreme Court held that once the application was
rejected, there was no question of granting a similar prayer. That
is virtually overruling the earlier decision without there being any
change in the fact-situation. It was held that the change must be
a substantial one which has a direct impact on the earlier
decision and not merely cosmetic changes which are of little or
no consequence.
6. The bail application before the learned trial Court was
moved mainly relying upon the provisions under sections 436-A
and 437(6) of Cr.P.C. and similar grounds were taken by the
learned counsel for the petitioner while moving this application
for bail. The learned counsel submitted that the petitioner is
facing trial for the commission of offences under section 13(2)
read with section 13(1)(c)(d) of the Prevention of Corruption Act,
24
1988 and sections 420, 468, 409, 379, 411 read with section
120-B of the Indian Penal Code and except for the offence under
section 409 of the Indian Penal Code, all other offences under
which the petitioner has been charged in the trial Court carries
maximum imprisonment for seven years or less. He argued that
section 409 of the Indian Penal Code prescribes punishment for
an accused with imprisonment for life, or with imprisonment of
either description for a term which may extend to ten years and
he shall also be liable to fine. It is contended that the ingredients
of the offence under section 409 of the Indian Penal Code are not
made out as no money has been misappropriated and in view of
the ratio laid down in case of Sanjaya Chandra (supra), this
Court has to be prima facie satisfied even while considering the
bail application as to whether there are materials in support of
the charge under section 409 of the Indian Penal Code or not.
He placed reliance in the case of Hussain (supra) wherein it is
held that as a supplement to section 436-A of Cr.P.C., but
consistent with the spirit thereof, if an undertrial has completed
period of custody in excess of the sentence likely to be awarded
if conviction is recorded, such undertrial must be released on
personal bond. He argued that for an offence under section 409
of the Indian Penal Code which is triable by any Magistrate of the
25
first class, the sentence likely to be awarded if conviction is
recorded is for a period of three years which the petitioner has
already undergone. Section 436-A of Cr.P.C. states that if a
person, during the period of investigation or trial has undergone
detention for a period extending upto one-half of the maximum
period of imprisonment specified for that offence, he shall be
released by the Court on his personal bond with or without
sureties. It is argued that not only the petitioner has undergone
the sentence likely to be awarded if the conviction is recorded
under section 409 of the Indian Penal Code but also he has
already undergone detention for a period extending upto one-
half of the maximum period of imprisonment specified for the
other offences and therefore, the petitioner is deserved to be
released on bail.
Per contra, the learned counsel for the opposite party
argued that the contentions were earlier raised by the
petitioner's counsel in BLAPL No.854 of 2015 that the ingredients
of the offence under section 409 of the Indian Penal Code are not
attracted against the petitioner which was dealt by this Court
and against the rejection of the bail order, the petitioner
approached the Hon'ble Supreme Court by filing Special Leave
Petition which was dismissed as per order dated 02.05.2016 and
26
therefore, such ground cannot be re-agitated in this bail
application. It is contended that since life imprisonment has been
prescribed for the offence under section 409 of the Indian Penal
Code, in view of the huge loss caused to the Government
exchequer to the tune of more than one thousand five hundred
crores for illegal and unauthorized excavation of iron ore, the
punishment in case of conviction may be severe and not just
three years as contended by the learned counsel for the
petitioner.
Coming to the submission made by the learned
counsel for the petitioner that the ingredients of the offence
under section 409 of the Indian Penal Code are not attracted, I
find that such a point was raised during hearing of the earlier
bail application of the petitioner in BLAPL No. 854 of 2015 and
this Court while rejecting the bail application, held that there are
serious allegations against the public servants who were to
safeguard the valuable properties of the State and being
dominion over the property in the capacity of public servants,
have failed to discharge their statutory duty and entered into
criminal conspiracy with the petitioner and others and facilitated
dishonest use and disposal of the property and therefore
committed criminal breach of trust. It was further held that the
27
involvement of the petitioner in the deep rooted conspiracy in
the economic offences involving huge loss to Government
exchequer is prima facie apparent. Keeping in view the ratio laid
down in the case of Kalyan Chandra Sarkar (supra), since
the issue relating to non-availability of the ingredients of the
offence under section 409 of the Indian Penal Code had been
canvassed in the earlier bail application and dealt with by this
Court and a separate petition has been filed challenging the
order of framing charge which is subjudiced, therefore,
permitting it to be re-agitated would lead to a speculation and
uncertainty in the administration of justice and any finding
thereon is likely to cause prejudice to either of the parties.
The provision under section 436-A of Cr.P.C. is
applicable to a person who has undergone detention for a period
extending up to one-half of the maximum period of
imprisonment specified for the offence under the law. Maximum
period of imprisonment for life has been prescribed for the
offence under section 409 of the Indian Penal Code. As per
section 45 of the Indian Penal Code, the word 'life' denotes the
life of a human being, unless the contrary appears from the
context. Section 57 of the Indian Penal Code provides that in
calculating the fractions of terms of punishment, the
28
imprisonment for life shall be reckoned as equivalent to
imprisonment for twenty years. In the case of Shraddananda
-Vrs.- State of Karnataka reported in A.I.R. 2008 S.C.
3040, it is held that section 57 of the Penal Code does not in
any way limit the punishment of imprisonment for life to a term
of twenty years. Section 57 is only for calculating fractions of
terms of punishment and provides that imprisonment for life
shall be reckoned as equivalent to imprisonment for twenty
years. In the case of Subash Chander -Vrs.- Krishan Lal and
Ors. reported in (2001) 4 Supreme Court Cases 458, the
Hon'ble Supreme Court held that life imprisonment means
imprisonment for the whole of the remaining period of the
convicted person's natural life unless the appropriate
Government chooses to exercise its discretion to remit either the
whole or a part of the sentence. Similar was the view taken by
the Hon'ble Supreme Court in the case of Shri Bhagwan -Vrs.-
State of Rajasthan reported in (2001) 6 Supreme Court
Cases 296. In the case of Mohd. Munna -Vrs.- Union of
India and Ors. reported in (2005) 7 Supreme Court Cases
417, the Hon'ble Supreme Court held that the life imprisonment
means imprisonment for whole of the remaining period of the
convicted person's natural life. There is no provision either in the
29
Indian Penal Code or in the Code of Criminal Procedure, whereby
life imprisonment could be treated as either 14 years or 20 years
without there being of formal remission by the appropriate
Government. In the case of Sangeet and Anr. -Vrs.- State of
Haryana reported in (2013) 2 Supreme Court Cases 452,
the Hon'ble Supreme Court held that a prisoner serving a life
sentence has no indefeasible right to be released on completion
of either 14 years or 20 years imprisonment. A convict
undergoing life imprisonment is expected to remain in custody
till the end of his life subject to any remission granted by the
appropriate Government under Section 432 Code of Criminal
Procedure. In the case of Duryodhan Rout -Vrs.- State of
Orissa reported in A.I.R. 2014 S.C. 3345, it is held that a
sentence of imprisonment for life means a sentence for entire life
of the prisoner unless the appropriate Government chooses to
exercise its discretion to remit either the whole or a part of the
sentence under the provisions of the Code of Criminal Procedure.
At this juncture, it cannot be speculated as to what
sentence is likely to be awarded, if conviction is recorded under
section 409 of the Indian Penal Code particularly in view of the
huge loss caused to the Government exchequer for illegal and
unauthorized excavation of iron ore. Therefore, even though the
30
petitioner is in judicial custody for about six years, I am of the
humble view that the provision under section 436-A of Cr.P.C. is
not applicable in the present case.
7. Coming to the next contention raised by the learned
counsel for the petitioner for grant of bail in view of the provision
under section 437 (6) of Cr.P.C., the section reads as follows:-
"Sec.437(6):- If, in any case triable by a
Magistrate, the trial of a person accused of any
non-bailable offence is not concluded within a
period of sixty days from the first date fixed for
taking evidence in the case, such person shall, if
he is in custody during the whole of the said
period, be released on bail to the satisfaction of
the Magistrate, unless for reasons to be
recorded in writing, the Magistrate otherwise
directs."
To attract the provision under sub-section (6) of
section 437 Cr.P.C., it is the requirement of law that the case
must be triable by a Magistrate and at least one of the offences
under which the accused is facing trial should be non-bailable. In
such a case, if the trial is not concluded within a period of sixty
days from the first date fixed for taking evidence in the case and
the accused is in custody during the whole of the said period
then the Magistrate on application being filed by the accused for
bail can release him on bail to his satisfaction. However if in spite
31
of the accused being remained in custody for such period, the
Magistrate is of the view that the accused should not be released
on bail, he has to record his reasons in that respect. There is no
dispute that taking into account the nature of offences which are
triable by Magistrate, the legislature in its wisdom has thought of
conclusion of such trial without any unreasonable delay. There
may be several contingencies for not concluding the trial by the
Magistrate within a period of sixty days from the first date fixed
for taking evidence and in some cases the accused himself may
be responsible for that. For example, if after the commencement
of trial, the accused approaches the higher Court challenging
some order passed by the learned Magistrate and obtains an
order of stay or the accused deliberately takes time for cross-
examining the prosecution witnesses or adducing his defence
evidence then there is possibility of non-completion of trial within
the aforesaid period of sixty days. Being responsible for delay in
disposal of the trial, the accused cannot take benefit of this
provision and demand his right for being released on bail. There
may be number of chargesheet witnesses in a case or the
Presiding Officer may in some cases be not available after the
first date fixed for taking evidence or there may be huge
pendency of such types of cases in a particular Court. In some
32
such cases, the Magistrate may refuse to exercise his discretion
in favour of the accused if he feels that release of the accused on
bail will have a serious adverse impact on the society. Therefore,
it is the duty of the Magistrate not to grant unnecessary
adjournment in such cases and make every endeavour to
conclude the trial as expeditiously as possible keeping in view
the intention of the legislature in making such a provision. Even
otherwise also if the trial is not concluded within a period of sixty
days from the first date fixed for taking evidence in the case
then also if the Magistrate feels that the release of the accused
would not be in the interest of justice or that the accused is a
habitual offender or an absconder then he can assign those
reasons for not releasing him on bail. In trial of warrant cases by
Magistrate, after framing of charge under section 240 Cr.P.C, the
date is fixed for taking evidence in the case and obviously the
period of sixty days has to be counted from that date. Similarly
in cases instituted otherwise than on police report, after framing
of the charge under section 246(1) Cr.P.C, if the accused wishes
to cross-examine any of the prosecution witnesses already
examined before framing of charge, the Magistrate shall fix the
date and the period of sixty days has to be counted from that
date. Therefore, no straight jacket formula can be laid down as
33
to in which Magistrate triable non-bailable offence case, the
accused shall be released on bail in case he is in custody during
the whole period of sixty days from the date fixed for taking
evidence in the case. It depends on the facts and circumstances
of each case. The right of the accused under section 437(6) of
the Code is not an absolute right. The very fact that the
discretion has been left to the Magistrate to direct otherwise than
to release the accused on bail after recording the reasons in
writing substantiate that the provision is not mandatory. The
inbuilt exception has to be exercised with due care striking a
balance between the rights of the accused and the rights of the
society as a whole.
In case of Nehul Prakashbhai Shah & Ors. -Vrs.-
State of Gujarat passed in Criminal Reference No.2 of 2011
decided on 06.07.2012 by a Division Bench of Gujarat High Court
reported in (2012) 3 Gujarat Law Reporter 685, the following
questions were referred for answer:-
(i) Whether in a case triable by the learned
Magistrate particularly of a person accused of
any non-bailable offence not concluded within a
period of sixty days from the first date fixed for
taking evidence in the case and such person is in
custody during the whole of the said period,
such person gets an absolute indefeasible right
34
to be released on bail to the satisfaction of the
learned Magistrate unless for the reasons to be
recorded in writing by the learned Magistrate to
direct otherwise?
(ii) Whether the provisions of sec. 437(6) of
the Code is mandatory or not?
(iii) Whether the learned Magistrate has an
option to refuse bail upon his satisfaction by
recording reasons in writing and in such an
eventuality, what could be the parameters,
factors, grounds and circumstances to be
considered by the learned Magistrate vis-a-vis
the application preferred by the accused
claiming absolute right in such circumstances as
mentioned in sub-sec. (6) of sec. 437 of the
Code?
(iv) Whether the above factors, parameters,
circumstances and grounds for seeking bail by
the accused as well as the ground to be
considered by the learned Magistrate for his
satisfaction are to be similar to that of sub-secs.
(1), (2) of sec. 437 of the Code or other than
that or no straight-jacket formula can be laid?
(v) Whether the parameters contained in
sec. 167(2)(a)(i)(ii) of the Code (default bail)
found in Chapter XII pertaining to 'information
to the police and their powers to investigate' can
be imported for exercising powers for seeking
bail under sec. 437(6) found in Chapter XXXIII
35
pertaining to the provisions as to 'bail and
bonds'?
(vi) Whether a decision in principle on which
it is decided is binding to the Co-ordinate Bench
of equal strength when such decision of the
earlier Bench is a principle of law laid down
and/or a 'statement of law' in the context of the
subject-matter?
(vii) Whether the accused has a fundamental
right under Art. 21 of the Constitution of India
for a speedy trial can it be pressed into service
vis-a-vis right of the accused accruing under
sec. 437(6) of the Code.
The Division Bench while answering the question
wise held as follows:-
Q.1. An accused involved in a non-bailable
offence triable by Magisterial Court whose trial is
not concluded within a period of sixty days from
the first date fixed for taking evidence in that
case, and who has been in custody during the
whole of the said period, does not get an
absolute or indefeasible right to be released on
bail to the satisfaction of the Magistrate. The
Magistrate has discretion to direct otherwise
(refuse bail) by recording in writing the reasons
for such rejection.
Q.2. The provisions contained in sec. 437(6) of
the Code are not mandatory.
36
Q.3. The Magistrate has option/discretion to
refuse bail by assigning reasons there for. The
parameters, factors, circumstances and grounds
to be considered by Magistrate vis-a-vis such
application preferred by the accused under
sec. 437(6) of the Code may be:
1. Whether the reasons for being unable
to conclude trial within sixty days from the first
date fixed of taking evidence, are attributable to
the accused?
2. Whether there are any chances of the
accused tampering with evidence or causing
prejudice to the case of the prosecution in any
other manner?
3. Whether there are any chances of
abscondance of the accused on being bailed out?
4. Whether accused was not in custody
during the whole of the said period?
If the answer to any one of the above-
referred fact situations or similar fact situations
is in affirmative than that would work as a fetter
on the right that accrues to the accused under
first part of sub-sec. (6) of sec. 437 of the Code.
The right accrues to him only if he is in custody
during the whole of the said period as can be
seen from the language employed in sub-sec.
(6) of sec. 437 of the Code by the legislature.
37
It would also be relevant to take into
consideration the punishment prescribed for the
offence for which the accused is being tried in
comparison to the time that the trial is likely to
take, regard being had to the factors like volume
of evidence, number of witnesses, workload on
the Court, availability of prosecutor, number of
accused being tried with accused and their
availability for trial, etc.
The factors which are quoted above by
this Court are only illustrative and not
exhaustive.
Q.4. The factors, parameters, circumstances
and grounds for seeking bail by the accused as
well as grounds to be considered by the learned
Magistrate for his satisfaction would not be
identical or similar to sub-sec. (1) and sub-sec.
(2) of the sec. 437 of the Code, but may be
relevant and overlapping each other depending
upon facts and there cannot be any straight-
jacket formula. But, we may add that the
reasons for rejection of applications under
sec. 437(6) need to be more weighty than the
routine grounds of rejection.
Q.5. The parameters relevant for deciding
application under sec. 167(2)(a)(i)(ii) of the
Code (default bail), cannot be imported for
exercise of power under sec. 437(6) of the Code.
38
Q.6. A decision in principle rendered by a Co-
ordinate Bench of equal strength would bind
another Co-ordinate Bench as it lays down a
principle of law and not a statement of law in
context of subject-matter.
Q.7. The legislature, while enacting
sec. 437(6) of the Code, has not given an
absolute, indefeasible or unfettered right of bail.
But right of bail is given with a rider investing
the Magistrate with discretion to refuse bail by
recording reasons there for. Therefore, the right
of accused for a speedy trial, though,
constitutional and aimed at liberty of accused, is
not put on that high a pedestal that it becomes
absolute. It is a right given with reasonable
restrictions. This is the only way the provisions
of sec. 437(6) of the Code and Art. 21 of the
Constitution of India can be harmonised and
have to read and interpreted accordingly.
In case of Robert Lendi -Vrs.- The Collector of
Customs and another reported in 1986(3) Crimes 54, a
Division Bench of Delhi High Court held as follows:-
"15. This brings us back to sub-section (6) of
sec. 437. The object of sub-section (6) of
sec. 437 is that if the trial of non-bailable
offences in the Court of Magistrate is not
concluded within sixty days from the first date
fixed for taking evidence in the case, such
39
person shall, if he is in custody during the whole
of the said period, be released on bail to the
satisfaction of the Magistrate, unless for reasons
to be recorded in writing, the Magistrate
otherwise directs.
16. The expression "from the first date fixed
for taking evidence in the case", cannot be read
in isolation of the expression "if the trial of a
person accused of any non-bailable offence is
not concluded within a period of the sixty days".
Both these expressions have to be read together
and in harmony. A plain reading of the provision
would clearly go to show that the period of sixty
days will start from the date fixed for taking
evidence in the case in which the accused has
been charged and has pleaded not guilty to the
charge, and has asked for being tried. In other
words the time spent on recording the pre-
charge evidence which is usually recorded in
complaint cases before the charge is framed, will
not be counted for purposes of sub-section (6)
of sec. 437 Cr.P.C. In our view, therefore, Mr.
Mehta's line of reasoning is not correct and it
does not commend to us.
17. The next question that arises for
consideration is whether while refusing bail
under sub-section (6) of sec. 437 of the Code
the Magistrate can only refuse bail on the limited
reasoning germane to the cause of delay and
whether the bail can be refused on the general
40
grounds recognised as good for refusal to grant
bail. Undoubtedly, the object of sub-section (6)
of sec. 437 of the Code is to eradicate delay in
trial. To us, it appears that it is equally
important that the ends of justice do not suffer.
The procedural laws are essentially meant to
safeguard the interest of justice. The twin
objects namely to eradicate the delay in trial and
to achieve and ends of justice are necessarily to
be harmonized. It is in that the context one has
to find out whether the discretion exercised by
the Magistrate in withholding bail after sixty
days, has been properly and judicially exercised.
We find nothing in the provision to support the
assertion of Mr. Mehta that the reasons for the
declining the bail under this provision should be
only those which are germane to the cause of
delay. There is no reason to give such a
restricted meaning to the provision. The
expression used in the provision is "unless for
the reasons to be recorded in writing, the
Magistrate otherwise directs". A plain reading of
the expression shows that the Legislature has
put no fetters on the powers of the Magistrate
that under this provision bail can only be refused
for reasons germane to the cause of delay. If
that were so, the Legislature would have
certainly made it clear. To us it appears that the
considerations for refusing bail under this
provision can be the reasons which are generally
41
invoked and understood in law as the grounds
for refusing bail. All that is required of the
Magistrate is that should he decide to decline to
grant bail, he must record his reasons in writing.
There are no fetters placed on the exercise of
this discretion.
18. It was next urged by Mr. Mehta that the
even if a distinction is recognised between the
'Enquiry' and 'Trial', the petitioner was entitled
to grant of bail, as the first date fixed for taking
evidence in the case was 17th of February 1986
and that since sixty days' period has expired,
the petitioner should be released on bail. We
have given our anxious consideration to the
contention of Mr. Mehta. The learned A.C.M.M.
has refused bail on the ground that the case
against the petitioner is a serious one involving
smuggling of gold and since the petitioner is a
foreigner and has no fixed residence in India,
there is likelihood of this jumping the bail. We
do not find anything wrong in the reasons given
by the learned Magistrate for refusing to grant
bail. We may, however, additionally state that
on a perusal of the copy of the order sheet, right
from 17-2-1986 onwards, it is abundantly clear
that the delay in the trial of the case against the
petitioner has mostly been caused due to the
conduct of the defense. In that view of the
matter and in the light of the reasons given by
the learned A.C.M.M. for refusing bail, we are of
42
the opinion that the petitioner cannot be granted
bail.
19. In conclusion we may state that there is a
sharp distinction recognised by the Code of
Criminal Procedure between the Enquiry and
Trial. Under sub-section (6) of sec. 437 of the
Code, the first date fixed for taking evidence in
the case, would be the date fixed for recording
of evidence, after the accused is charge-sheeted
and the prosecution is given notice of the date
on which the evidence of the prosecution is to be
recorded. We are further of the view that the
reasons for refusing bail under this provision
need not be restricted to reasons which are
germane to the cause of delay. We see no such
fetters on the powers of the Magistrate and the
only requirement of law is that should the
Magistrate refuse to grant bail, he must record
his reasons for so doing in writing. The reference
is accordingly answered."
The learned trial Court has held that the petitioner is
facing trial before a Special Judge appointed under section 3 of
the Prevention of Corruption Act, 1988 and as per sub-section
(3) of section 5 of the said Act, the Court of the Special Judge is
deemed to be a Sessions Judge while exercising his power under
the provision of Cr.P.C. and the trial of an offence by Special
43
Judge, which also can be tried by a Magistrate does not deem to
be a trial before a Magistrate.
In the case of State of Tamil Nadu -Vrs.-
Krishnaswami Naidu and Anr. reported in A.I.R. 1979 S.C.
1255, a question was raised whether the Special Judge has the
power of remand. The Hon'ble Supreme Court, by referring to
Section 3(32) of the General Clauses Act, 1897 defining a
Magistrate, held that Magistrate will include a Special Judge.
Therefore, a Special Judge shall be a Magistrate for the purposes
of section 167 of the Code even though the word 'Special Judge'
is not mentioned in section 167.
In the case of Bangaru Laxman -Vrs.- State
(through CBI) and Ors. reported in A.I.R. 2012 S.C. 873, it
is held as follows:-
"41. It is therefore clear that, on the ratio of V.
Krishnaswami (supra), the Special Judge has
been given a very important magisterial
function, namely the power of remand.
Compared to that, the power to grant pardon is
an ancillary power. Therefore, under the scheme
of the Code, read with section 5(2) of the PC
Act, and in light of the consistent view of this
Court, a Special Judge will include a Magistrate.
On the same parity of reasoning a Special Judge,
unless specifically denied, will have the power to
44
grant pardon. Here there is no question of
specific denial, rather section 5(2) of the P.C.
Act clearly confers this power subject to the
deeming clause, the limited purpose of which
has been discussed above.
42. Thus, on a harmonious reading of section
5(2) of the P.C. Act with the provisions of
section 306, specially section 306(2)(a) of the
Code and section 26 of the P.C. Act, this Court is
of the opinion that the Special Judge under the
P.C. Act, while trying offences, has the dual
power of the Session Judge as well as that of a
Magistrate. Such a Special Judge conducts the
proceedings under the Court both prior to the
filing of charge sheet as well as after the filing of
charge sheet, for holding the trial."
The offence under the 1988 Act is triable by a Special
Judge appointed under section 3 of the Act. Section 5(1) of the
1988 Act provides that a Special Judge in trying the accused
persons, shall follow the procedure prescribed by the Code of
Criminal Procedure, for the trial of warrant cases by the
Magistrates. Trial of warrant cases by the Magistrates is provided
under Chapter XIX of Cr.P.C. Section 5(3) of the 1988 Act states
that the provisions of Cr.P.C., save as provided in sub-section
(1) or sub-section (2), so far they are not inconsistent with the
1988 Act, shall apply to the proceedings before a Special Judge
45
and for purposes of the said provisions, the Court of the Special
Judge shall be deemed to be a Court of Session. In case, the
Special Judge is held not to have the dual capacity and powers
both of the Magistrate and the Court of Session, depending upon
the stage of the case, there will be a complete hiatus. It is only
in the event of inconsistency with the provisions of Cr.P.C. that
the provisions of the 1988 Act would prevail. Merely because the
Special Judge has the dual capacity and powers both of the
Magistrate and the Court of Session and while trying the accused
persons for the commission of offences punishable under the
1988 Act, he shall follow the procedure prescribed by the
Cr.P.C., for the trial of warrant cases by the Magistrates as
envisaged under chapter XIX of Cr.P.C., it cannot be said that
the present case which is pending before the learned trial Court
is triable by Magistrate and the case also cannot be deemed to
be a trial before a Magistrate. The provision of section 437(6) of
the Code shall be applicable to a case triable by the Court of a
Magistrate and such provision does not apply to the proceedings
before Special Judge in trying cases under the 1988 Act.
Therefore, the learned trial Court has rightly turned down the
applicability of section 437(6) of the Code for grant of bail.
46
8. Coming to the detention period of the petitioner and
delayed trial as highlighted by the learned counsel for the
petitioner, it is not in dispute that Article 21 of the Constitution
of India guarantees for speed trial and an undertrial prisoner
cannot be detained in jail custody for an indefinite period. The
Court while exercising its discretionary jurisdiction while
considering the application for bail has to maintain a balance
between the valuable right of liberty of an individual and the
interest of the society in general. While considering the bail
application of an accused who is involved in the grave economic
offences, the Court has to view it seriously as it involves deep
rooted conspiracies and huge loss of public funds and affects the
economy of the country as a whole and thereby poses serious
threat to the financial health of the country.
Reliance was placed by the learned counsel for the
petitioner in the case of R.P. Upadhyay (supra) wherein time
limit of two years of custody was taken for grant of bail involving
the offence under section 307 of the Indian Penal Code. In the
case of Shaheen Welfare Association (supra), time limit of
five years detention in custody was applied to the prisoners
involved in offences under section 3 and 4 of TADA whose trial
was not likely to be completed in the next six months time. In
47
the case of Byrraju Ramaa Raju (supra), bail was granted as
the accused persons had already spent two years and eight
months in jail and the case involved corporate fraud of such
massive proportion that it had not only shaken the commercial
world in the country but abroad as well.
Learned counsel for the State on the other hand
placed reliance in the case of State of Gujarat -Vrs.- Mohanlal
Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321, wherein
it is held as follows:-
5......The mere fact that six years had elapsed,
for which time-lag the prosecution was in no
way responsible, was no good ground for
refusing to act in order to promote the interests
of justice in an age when delays in the Court
have become a part of life and the order of the
day......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 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
48
without fear of criticism from the quarters which
view white collar crimes with a permissive eye
unmindful of the damage done to the National
Economy and National Interest."
While rejecting the earlier bail application of the
petitioner in BLAPL No.926 of 2017 as per order dated
24.08.2017, after verifying the order sheet of the learned trial
Court, it was observed that the accused persons including the
petitioner are playing hide and seek with the Court just to delay
the progress of the trial and more particularly, the petitioner was
keen to see that trial is not progressed for about a year which
would give him an additional ground to apply for bail in view of
the observation made in BLAPL No.854 of 2015. It was further
held that the learned trial Court cannot be blamed for the delay
and the deliberate delay caused by the accused persons
including the petitioner cannot be a ground to grant bail to the
petitioner and that delay in progress of the trial in the factual
scenario has not created an additional ground for grant of bail.
The order sheet and the evidence copy of the
witnesses produced by the learned counsel for the petitioner
indicate that till 24.08.2017 (when the last bail application was
rejected), only one prosecution witness was examined in part.
The examination-in-chief of P.W.1 was completed on 04.09.2017
49
but the cross-examination was deferred on the petition filed by
the petitioner and other accused persons till the examination of
M. Radhakrishna, D.S.P., Vigilance, Cuttack who was the team
leader. Thereafter, the case was posted to 05.09.2017,
18.09.2017, 25.09.2017, 10.10.2017, 24.10.2017, 06.11.2017,
18.11.2017, 01.12.2017, 14.12.2017 and 15.12.2017 but not a
single prosecution witness was examined. On 16.12.2017 P.W.2
was examined in part and the case was adjourned and on the
next dates i.e. 26.12.2017, 08.01.2018, 09.01.2018, 18.01.2018
and on 19.01.2018, the prosecution did not produce P.W.2 for
his further examination. On 31.01.2018 even though one witness
M. Radhakrishna was produced but on the prayer of Special P.P.,
the hearing was adjourned. On the next date i.e. on 01.02.2018
P.W.2 was produced and his examination-in-chief was completed
and P.W.3 M. Radhakrishna was examined in part and as the
said witness was not allowed to refresh his memory by looking at
the documents, the State challenged the order dated 01.02.2018
before this Court in CRLMC No.977 of 2018 and while issuing
notice, this Court vide order dated 10.04.2018 in M.C. No.650 of
2018 directed the trial to proceed but further examination of
P.W.3 was kept in abeyance. The case then suffered
adjournments on 13.02.2018, 27.02.2018, 12.03.2018,
50
22.03.2018, 04.04.2018 and 17.04.2018 without examination of
a single prosecution witness. P.W.4 was examined on
30.04.2018 and P.W.5 was examined on 11.05.2018. No
prosecution witness was present on 24.05.2018 and 05.06.2018.
On 03.07.2018 P.W.7 was examined. No prosecution witness was
present on 17.07.2018 and 31.07.2018. P.W.8 was examined in
part but on 21.08.2018 he remained absent. On 03.09.2018,
12.09.2018, 25.09.2018, 09.10.2018, 12.10.2018, 05.11.2018
due to cease work call given by the Bar Association, no witness
could be examined. On 17.11.2018 the Presiding Officer was
absent and on 01.12.2018 P.W.8 was examined further and on
03.12.2018 his evidence was completed. On 15.12.2018 and
26.12.2018 P.W.9 was examined. P.W.10 was examined on
10.01.2019 and P.W.11 was examined on 24.01.2019. P.W.12
was examined on 08.02.2019 in part and on 21.02.2019 he did
not appear for his further examination and on 07.03.2019
recording of his evidence was completed. On 20.03.2019 no
witness was present. On 02.04.2019 P.W.13 was examined so
also P.W.14 was examined in part. No witness remained present
on 16.04.2019. P.W.15 was examined on 30.04.2019 and
P.W.16 was examined on 14.05.2019. On 27.05.2019 and
10.06.2019 no witness remained present. On 24.06.2019 P.W.14
51
was cross-examined in part and it was deferred. On 08.07.2019
and 22.07.2019 no witness was present. In the order dated
08.07.2019, the learned trial Court while rejecting the memo
filed by the co-accused Jagannath Mishra for a direction to the
prosecution to supply the visible and exact copy of the map (Ext.
95), it was observed that it is a year old case of the year 2013
and one of the accused is UTP and in order to delay the
proceeding, the memo has been filed. The said order has got
nothing to do with the petitioner. The evidence of the witnesses
produced indicates that after completion of examination-in-chief,
the witnesses were cross-examined by different sets of lawyers
and it runs to several pages.
On a conspectus of the order sheet, it is evident that
after rejection of the bail order of the petitioner on 24.08.2017,
the learned trial Court used to post the trial of the case on two or
three dates each month and issued summons after summons but
only sixteen witnesses so far could be examined and the
evidence of some of the witnesses has remained incomplete for
some reason or other. The delay has been caused after
24.08.2017 mainly due to laches of the prosecution in not
producing the witnesses and on some occasion on account of
cease work call given by the Bar Association. Though some
52
witnesses have been examined and cross-examined for days
together but no fault can be attributed to either of the parties for
that. The learned trial Court seems to have not verified the
status of the summons issued to the witnesses and has taken no
coercive step to ensure the attendance of the witnesses who did
not appear on receipt of summons. While rejecting the bail
application on 28.03.2016, this Court directed the learned trial
Court to take all possible steps to proceed with the trial on day-
to-day basis. The learned trial Court has also not adhered to the
provision under section 309 of Cr.P.C. and the prosecution has
mostly contributed to the delay in the trial of the case after
rejection of the last bail application of the petitioner perhaps
forgetting that the delay might hamper the result and the justice
which it is expecting due to loss of more than one thousand five
hundred crores to the Government exchequer. The learned
counsel for the State on instruction submitted that out of 178
charge sheet witnesses, the prosecution is likely to examine 147
witnesses. Since within a span of almost two years after
rejection of the last bail application on 24.08.2017 by this Court,
the prosecution has examined only sixteen witnesses i.e. on an
average of eight witnesses per year in the sixty two dates the
case was posted, nobody knows how many years it would take
53
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 properly taken care of either by the prosecution or
by the learned trial Court.
In the case of Hussain (supra), it is held that
deprivation of personal liberty without ensuring speedy trial is
not consistent with Article 21. While deprivation of personal
liberty for some period may not be avoidable, period of
54
deprivation pending trial/appeal cannot be unduly long. The
Court further held that while a person in custody for a grave
offence may not be released if trial is delayed, trial has to be
expedited or bail has to be granted in such cases.
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.
9. In view of the foregoing discussions, since the nature
of accusation against the petitioner is very serious one and it
relates to the commission of grave economic offences and on
account of the crime committed in a cool, calculated and
organized manner in connivance with mining, forest, revenue
officials and mining lease holders, the Government exchequer
has sustained huge loss to the tune of more than one thousand
five hundred crores and a strong prima facie case is available
against the petitioner, 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
55
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, the petitioner would be at liberty
to move for interim bail in the trial Court which shall be
considered in accordance with law.
Accordingly, the bail application is disposed of.
A copy of the order be communicated forthwith to
the learned trial Court for information and necessary action.
...........................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 07th August, 2019/ Pravakar/Sukanta