Orissa High Court
Biswajeet Barik vs State Of Odisha .... Opposite Party on 14 October, 2022
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.6971 of 2022
Biswajeet Barik .... Petitioner
Mr. D. Nayak, Sr. Advocate along with
Mr. Pratik Nayak, Advocate
-versus-
State of Odisha .... Opposite Party
Mr. P.C. Das, A.S.C.
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. Date of hearing : 07.09.2022 / Date of order : 14.10.2022
04. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. Heard Mr. D. Nayak, learned senior counsel appearing for the Petitioner and Mr. P.C. Das, learned counsel appearing for the State. Perused the F.I.R., case diary as well as other relevant documents placed before this Court for consideration.
3. This is an application for bail under Section 439 of the Cr.P.C. filed by the petitioner in connection with Bhadrak Town P.S. Case No.93 of 2021 corresponding to G.R. Case No.587 of 2021 pending in the court of learned J.M.F.C., Bhadrak for the alleged commission of offences punishable under Sections 406/468/467/471/120-B, I.P.C.
4. The prosecution case, in brief, is that one Biswojit Acharya lodged a written report before the Inspector-in-Charge, Bhadrak // 2 // Town Police Station on 25.02.2021 addressing himself to be the authorized representative of Bharti Axa Lie Insurance Company Ltd. (hereinafter referred to as the company). In the complaint lodged by the complainant it has been alleged that the accused petitioner was an ex-employee, (Employee Code No.61135) and his designation in the company was Branch Support Executive and he was posted at Bhadrak Branch since 2018. It is also alleged that since the company which is dealing in Insurance Business is required to collect premium amount in cash from various customers, which is deposited at different branches. The company in question has an agreement with one Cash Pick-up Agency, namely, C.M.S. and as per the said agreement, the said C.M.S. was providing the service of collecting cash from different branches and depositing the same with a designated Bank nominated by the company in question.
While the matter stood thus, the Finance Operation Team at the Head Office of the company conducted an audit in respect of the cash receipts from the customers and the deposit of such amount in the designated Bank account. In course of such audit, the Finance Operation Team of the Head Office found certain irregularities in depositing the cash with the designated Bank. It is further alleged that since the accused petitioner had been given the duty of coordinating with the Cash Pick-up Agency, the Finance Operation Team found the petitioner prima facie guilty of irregularities committed in the Bank transactions. Further in the complaint, it has been clearly stated that total amount of financial irregularities as has been uncertified by the audit team is Rs.33,30,918/-. Accordingly, the F.I.R. was lodged.
5. Although in the complaint it is alleged that the accused-
// 3 // petitioner was absconding, however, he was arrested by the police after lodging of the F.I.R. on 21.07.2021 and since then he is in custody. Mr. D.Nayak, learned senior counsel appearing on behalf of the petitioner submitted that the petitioner is languishing in jail custody since 21.07.2021 i.e. for more than one year. It is further submitted by Mr. Nayak, learned senior counsel on behalf of the petitioner that the foundation of the entire allegation made in the complaint is the report of the Finance Operation Team of the Head Office of the company. He further submitted that there is no direct allegation of any amount transferred to the account of the petitioner or any direct evidence to the effect that any money has been paid to the accused-petitioner. He further submits that it is only on the basis of finding of the Finance Operation Team, the petitioner has been implicated in the present case. Broadly the sum and substance of the contentions raised by Mr. Nayak are as follows:-
I. The petitioner has been falsely implicated in this case.
II. There is no allegation of falsification of record, forgery of documents or cheating in the complainant.
III. Despite earlier direction, the trial has not been concluded within the time stipulated by this Court.
IV. Since all the offences are triable by the Magistrate, in view of mandate of Section 437(6) of the Code of Criminal Procedure (in short 'Cr.P.C.') i.e. if the trial of the case is not // 4 // completed within the period of 60 days from the first day of recording of evidence, the accused-petitioner is entitled to be released on bail.
V. The court has not taken any effective steps to ensure that the trial is concluded within the stipulated period of time and that such delay is not attributable to the defence or to the present petitioner.
VI. The right conferred on the accused under Section 437(6), Cr.P.C. is akin to the provisions contained in Article 21 of the Constitution of India, therefore, the court below should have released the petitioner by applying the law contained in Section 437(6), Cr.P.C.
VII. The petitioner is in custody for more than one year and his custodial interrogation is no more required. Further the entire case is based on documentary evidence.
VIII. The petitioner is a law abiding citizen and he does not have any similar nature of criminal antecedents and further in the event the petitioner is released on bail, he shall abide any terms and conditions as would be imposed by this Court.
On the above grounds, learned senior counsel appearing for // 5 // the petitioner urges that the petitioner be enlarged on bail on such terms and conditions as would be deemed just and proper by this Court.
6. Learned Additional Standing Counsel representation for the State, vehemently, opposes the release of the petitioner on bail. It is submitted by learned Additional Standing Counsel for the State that the offences alleged are in the nature of Economic Offence, therefore, no leniency should be shown to the accused while considering his bail application. He further contended that occurrence of such offences are rampant now-a-days and therefore, this Court needs to deal with such cases with a iron hand, so that such crimes cure not repeated in future. Referring to the complaint, learned Additional Standing Counsel also submits that the complaint was lodged after Finance Operation Team of the company found irregularities in the transaction and that the petitioner was held responsible by such Finance Operation Team at Head Office of the company. He also submits that at this stage, this Court need not conduct a minitrial to find out as to whether the available materials are sufficientto implicate the petitioner in the alleged crime. In reply to the contention under Section 437(6), Cr.P.C., learned counsel for the State submits that the said provision confers a discretion upon the Court and that while exercising such discretion, the Court is also required to consider the gravity and seriousness of the allegation and the difficulties likely to be faced during investigation only the Investigating Agency. In gist, learned counsel for the State contends that the petitioner is not entitled to get such benefits under Section 437(6) and as such, the bail application of the petitioner is liable to be rejected.
// 6 //
7. Mr. D. Nayak, learned senior counsel appearing on behalf of the petitioner submits that earlier the petitioner had approached this Court by filing an application in BLAPL No.8753 of 2021, which was disposed of by this Court vide order dated 06.04.2022 by granting liberty to the petitioner to move a fresh bail application in the event the trial is not concluded within a period of six months from the date of production of certified copy of the order dated 06.04.2022. Further, it is stated that since the trial was not concluded within the time stipulated by this Court in its order dated 06.04.2022. The petitioner has moved the present bail application seeking release on regular bail.
8. With regard to applicability of Section 437(6), Cr.P.C., Mr. Nayak, learned senior counsel appearing on behalf of the petitioner relied upon a judgment of this Court rendered in BLAPL No.5486 of 2020 disposed of on 07.01.2021 (Brahmananda @ Ankit Kumar Barik vrs. State of Odisha). He further contends that in the above noted judgment, the petitioner was CEO of the company, namely, Vatsalya Empire and the allegations against him was that he has cheated innocent villagers to the tune of lakhs of rupees and as such, he was charged under Sections 468/471/420/34, I.P.C. In the above noted case, the petitioner took a stand that he is entitled to be release under Section 437(6), Cr.P.C. Further, it appears from the judgment dated 07.01.2021, this Court in paragraph-5 of the said judgment formulated a question of law to the effect as to "whether the accused has indefeasible right to be released on bail under Section 437(6), Cr.P.C., in case trial is not completed within the period of sixty days as stated therein?" This court while considering the provision of Section 437(6), Cr.P.C. has categorically observed that the said // 7 // provision is link with the right of the accused to have a speedy trial as has been guaranteed under Article 21 of the Constitution of India. However, this Court has categorically held that the provision as a whole is not mandatory rather the same is directory in nature.
9. For better appreciation of the point of law involved in the present case, the provision contained in Section 437(6), Cr.P.C. is quoted herein below:-
Section 437(6) in The Code Of Criminal Procedure, 1973
"(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 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."
10. On a careful consideration of Sub-section(6) of Section 437, Cr.P.C., this Court is of the considered view that the right conferred under Sub-section(6) of Section 437, Cr.P.C. is subject to the rider i.e. "unless for reasons to be recorded in writing, the Magistrate otherwise directs" , therefore, the above quoted sentence which is also a part of Sub-section(6) of Section 437, Cr.P.C. takes away the absolute right of an accused to be released on bail, in the event the trial is not concluded within the stipulated period of sixty days, from the first date fixed for taking evidence in the case. Further the above quoted sentence also confers power on the Magistrate to pass any other order/issue any other direction for reasons to be recorded in writing. On a conspectus of the provision contained in Section // 8 // 437(6), Cr.P.C., this Court is of the considered view that the right conferred on the accused under Section 437(6), Cr.P.C. is not an absolute one and the same is subject to the condition stated in the said provision.
11. Now reverting back to the fact of the present case and considering the submissions made by learned counsel for the respective parties as well as considering the materials available on record and further taking into consideration the nature and gravity of the allegations made in the complaint and the fact that the offences are all triable by Magistrate and maximum sentence that can be imposed is up to seven years, this Court is inclined to exercise the discretion in favour of the accused-petitioner considering further fact that the petitioner does not have any similar criminal antecedents.
12. Accordingly, it is directed that let the petitioner be leased on bail subject to the petitioner furnishing a bail bond of Rs.30,000/- (rupees thirty thousand) with two solvent sureties each for the like amount to the satisfaction of the learned court in seisin over the matter subject to such other terms and conditions as would be deemed fit and proper be imposed by the learned court in seisin over the matter. The release of the petitioner shall also be subject to verification of petitioner's criminal antecedents, in the event it is found that the petitioner is involved in similar nature of criminal offences then this order shall not be given effect to.
13. The release of the petitioner shall also be subject to following additional terms and conditions:-
I. The petitioner shall furnish property security free from all encumbrances worth of Rs.5,00,000/-
// 9 // (rupees five lakhs);
II. while on bail, he shall not indulge in similar criminal offences;
III. he shall not tamper with the prosecution evidence and shall not make any attempt to threaten or terrorize to the prosecution witnesses in any manner whatsoever;
IV. he shall appear before the court on each and every date without fail;
V. he shall not leave the jurisdiction of the trial court without specific permission of the trial court;
VI. he shall surrender his travel documents like passport before the court below and in the event the petitioner does not have any passport, he shall file an affidavit indicating such fact before the trial court.
14. With the aforesaid observation/direction, the bail application stands allowed.
Urgent certified copy of this order be granted on proper application.
( A.K. Mohapatra) Judge Jagabandhu