Orissa High Court
Indrajit De vs Republic Of India .... Opposite ... on 27 September, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMA No.169 of 2024
Indrajit De .... Petitioner(s)
Mr. S. K. Padhi, Senior Advocate
-versus-
Republic of India .... Opposite Party(s)
Mr. S. Nayak, Advocate for C.B.I.
CORAM: JUSTICE SIBO SANKAR MISHRA
ORDER
27.09.2024 Order No.
01. 1. The petitioner has assailed the order dated 23.08.2024 passed by the learned Special C.J.M., (C.B.I.), Bhubaneswar in Criminal Misc. Case No.06/909 of 2024, whereby his application to vary the condition imposed by the learned Court below while enlarging him on bail on 09.10.2023 has been disallowed.
2. The petitioner is an accused in S.P.E. No.05 of 2014 for the alleged offences under Sections 120(B)/420/409 of I.P.C. read with Sections 4, 5 & 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. The petitioner has been implicated in the present case through the supplementary charge-sheet filed on 26.12.2022.
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3. The allegation against the petitioner in the charge-sheet is that in the year 2009-10, an amount of Rs.2.5 crores was transferred to the Bank account to M/s. Eden Infra Projects Private Limited, which is the Company of the petitioner from the Bank account of M/s. Tower Infotech Limited. It is further alleged that M/s. Tower Infotech Limited floated a Non-banking Financial Company and by alluring general public collected deposits from public across the State with a promise to pay high rate of interest. In order to allure the general public, colourful brochures have been circulated by giving a false impression that the Company is running on high profits and would return the amount to the general public with promised interest. On enquiry, it was found that the Company is neither listed in the Reserve Bank of India as a NBFC nor in National Stock Exchange of India. Hence, the activities undertaken by the said Company was completely illegal. Rs.2.5 crores has been admittedly transferred from the account of the said M/s. Tower Infotech Limited to the petitioner-company. Therefore, the petitioner was arrayed as an accused in the supplementary charge- sheet dated 26.12.2022. The learned Court below vide order dated 27.12.2022 has taken cognizance of the offences against the Page 2 of 9 accused persons. Since the present petitioner was absent, NBW was issued against him.
4. The petitioner approached this Court by filing CRLMC No.1054 of 2023 challenging the order dated 27.12.2022, whereby NBW was issued against him. This Court vide its judgment dated 28.07.2023 set aside the NBW issued against him the petitioner and directed the petitioner to appear before the Court below. Pursuant thereto, the petitioner appeared before the trial Court and applied for grant of bail. The learned Court below vide its order dated 09.10.2023 admitted the petitioner on bail with the following conditions, which reads as under:-
<(i) He shall furnish cash security of Rs.5,00,000/- (Rupees five lakhs).
(ii) He shall surrender his passport before this Court.
(iii) He shall not tamper with the prosecution evidence in any manner whatsoever.
(iv) He shall not default in personal attendance in court as and when required.=
5. The petitioner is aggrieved by the condition No.(ii) as mentioned above. Therefore, he moved an application before the Court below, inter alia, praying for deletion of that condition and for releasing the passport in his favour on various grounds. Learned Special C.J.M., (C.B.I.), Bhubaneswar vide impugned order dated 23.08.2024 rejected the said prayer by observing as under:-Page 3 of 9
<It is pertinent to mention here that a criminal court has no power of review and accordingly has no power to modify its own order. Once a criminal court has signed its judgment or final order disposing of a case, then the power of the Court ceases to modify or alter its own order or judgment being a functus officio in view of the mandate of Section 362 of Cr.P.C.
Considering the above facts and the mandate of Section 362 of Cr.P.C., this court is of the considered view that the petition filed by the accused-petitioner to modify the order dtd. 09.10.2023 by deleting the second condition of the said order is beyond the purview of Law and not sustainable. In the result, the petition dtd. 26.07.2024 filed by the accused- petitioner stands rejected. Accordingly, the Misc. case is disposed of.=
6. In this petition, the petitioner has challenged the order aforementioned order of the trial Court dated 23.08.2024.
7. Heard Mr. S. K. Padhi, learned Senior Counsel for the petitioner and Mr. S. Nayak, learned counsel for the C.B.I.
8. Mr. Padhi, learned Senior Counsel for the petitioner submitted that the petitioner is a permanent resident of West Bengal. M/s. Eden Infra Project Private Limited and its sister concern, which is being owned by the petitioner is running business across the country with a turnover worth more than Rs.1000 crores.
The family members of the petitioner are the resident of USA. His wife, who is a practicing lawyer in USA, is not able to handle the family affairs because of the terrible health condition of her parents those who are staying with her. The petitioner has 11 years old minor daughter, who is studying in USA and staying with her Page 4 of 9 mother. The mother-in-law of the petitioner is suffering from acute Respiratory complications with Hypoxia, Hypercapnia, severe muscle easting, Rheumatoid Arthritis, therefore, she is completely bedridden.
9. Mr. Padhi, learned Senior Counsel further submits that the petitioner has been staying in India for more than 7 to 9 months in every year. He has a strong root in the society and there is no scope and apprehension of evading the court proceeding. There is no <flight risk= as well. He further submits that this Court while allowing his Criminal Revision being CRLREV No.690 of 2023 on 15.04.2024 allowed him to travel to USA for two months. He had left India on 25.04.2024 and returned back to India on 25.06.2024. He has never misused the concession granted by this Court. Mr. Padhi, further submits that the petitioner would give undertaking and abide by any condition to be imposed. The petitioner is also ready to voluntarily undertake that he shall intimate detailed about his travel details prior in time to the Court and meticulously follow the restrictions, if any, to be imposed by the Court. He further submits that the petitioner had already deposited Rs.2.67 crores as against the alleged siphon amount of Rs.2.5 crores. Over and above, Page 5 of 9 he furnished cash security of Rs.5 lakhs. Hence, there is no chance of absconding.
10. Mr. Padhi, learned Senior Counsel further submits that the trial Court has rejected the petitioner's application for modification of bail condition only on the ground of lack of jurisdiction. Therefore, while exercising the plenary power bestowed upon this Court under Section 482 Cr.P.C., the prayer of the petitioner can safely be allowed.
11. Mr. Nayak, learned counsel for the C.B.I. has vehemently opposed the prayer made by learned counsel for the petitioner. He submitted that the petitioner is not an ordinary resident of India. He has business across the world. The petitioner is an accused and has <flight risk=. He submitted that the past conduct of the petitioner also speaks volume regarding the risk involved in granting any concession to the petitioner. The petitioner was an absconder. Therefore, the trial Court had to resort to stringent process to ensure his presence and had issued NBW against him. Therefore, he submits that the petitioner is not entitled to the relief sought for. He further submits that this Court vide judgment dated 15.04.2024 in CRLREV No.690 of 2023 had only temporarily allowed the release of the original passport to the accused-petitioner for travelling to Page 6 of 9 USA for only two months. Therefore, he cannot derive the benefit from the said judgment for release of the passport.
12. In rejoinder, Mr. Padhi, learned Senior Counsel for the petitioner has relied upon the following observations of this Court while dealing with the Revision Petition as mentioned above, which reads as under:-
<The apprehension of 8flight risk9 of the petitioner, i.e. he might escape from the clutches of law, has to be objectively assessed and for objective assessment, the Court has to be alive to the facts and circumstances of the case. Merely because a person is accused of misappropriating or siphoning off public money, it does not make him a 8pre- trial convict9. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 augments that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law and the same is an integral part and fundamental principle of the Indian criminal justice system. The same principle is reflected through the legal maxim omnis indemnatus pro innoxio legibus habetur, which means that everyone who has not been found guilty is deemed innocent by the law. Notwithstanding the allegations levelled against the petitioner, if it is found that he has been thoroughly cooperative in the proceedings before the trial Court, there is hardly any reason for denying him his fundamental rights on the mechanical premise that the release of his passport involves flight risk. It has to be remembered that flight risk is not determined by the offences alleged against an accused, rather it is assessed by the conduct of the concerned accused.
The trial in the case has not commenced and nobody knows how many years it would take for conclusion of the trial and therefore, during this period, it is not expected of the accused to keep himself away from professional assignments and his obligations to his family. Another reason which has been assigned in the rejection order is that one of the conditions of the bail order was that the petitioner should not default in personal attendance of the Court as and when required, is also not valid a ground to reject the petition inasmuch as there is no material on Page 7 of 9 record that at any point of time after being released on bail, the Court sought for the personal attendance of the petitioner and that he defaulted in complying the same. During trial, if the Court requires the personal attendance of the petitioner, an order to that effect can be passed and the petitioner is bound to comply the same.=
13. Mr. Padhi, learned Senior Counsel submits that the trial has not yet been commenced. Therefore, the observation made by this Court as mentioned above could be rightly employed for allowing the prayer made by the petitioner.
14. Mr. Nayak, learned counsel for the C.B.I. at this stage seeks an adjournment for one week to file a detailed affidavit regarding the <flight risk= involved in the case of the present petitioner.
15. This Court allows Mr. Nayak, learned counsel for the opposite party-C.B.I. to file a detailed affidavit within a period of one week.
16. List this matter on 25.10.2024.
17. Mr. Padhi, learned Senior Counsel for the petitioner submits that in the interregnum, the petitioner may be allowed to travel to USA to attend the domestic issues and give medical attention to his parent-in-laws. He also submits that the petitioner would be abiding by any condition that should be imposed for the purpose of undertaking travel for two months to USA. Page 8 of 9
18. Regard being had to the aforementioned discussion and the fact that earlier the petitioner was granted two months travel permission to USA, to which he has meticulously complied with and returned back to the country within stipulated time, this Court feels it appropriate to allow the prayer of the petitioner for two months travel to USA.
19. Accordingly, the learned trial Court is directed to release the original passport bearing No.Z6948595 in favour of the petitioner forthwith for a period of two months to facilitate his travel to abroad, subject to submitting the itinerary/travel schedule and details of the duration and place of stay in USA before the learned trial Court and the trial Court may impose any condition may deem fit and proper and expedient in the present case. The petitioner shall furnish undertaking that he would return to India and deposit the passport back in the Court below.
(S.S. Mishra) Judge Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 07-Oct-2024 13:45:19 Page 9 of 9