Orissa High Court
Rabi Narayan Sahoo vs State Of Orissa on 31 October, 2016
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 3590 of 2016
An application under section 439 of the Code of Criminal
Procedure.
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Rabi Narayan Sahoo ......... Petitioner
-Versus-
State of Orissa ........ Opp. Party
For Petitioner - Mr. Devashis Panda
For Opp. party - Mr. Deepak Kumar
Addl. Standing Counsel
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P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument- 06.10.2016 Date of order- 31.10.2016
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S. K. SAHOO, J.The petitioner is an accused in Laxmisagar P.S. Case No. 45 of 2013 which corresponds to C.T. Case No. 797 of 2013 pending on the file of Smt. S.S. Mishra, J.M.F.C., Bhubaneswar for offences punishable under sections 420, 467, 468 read with sections 120-B and 34 of the Indian Penal Code. He has filed this application under section 439 Cr.P.C. for bail as his prayer for 2 grant of bail was turned down by the learned Additional Sessions Judge, Bhubaneswar vide order dated 23.05.2016.
The petitioner approached this Court earlier on bail in BLAPL No. 2231 of 2015 which was allowed vide order dated 16.07.2015, inter alia, with condition that the petitioner shall furnish cash security to the tune of Rs.50,00,000/-( Rupees Fifty lakh) in the shape of fixed deposit in any Nationalized Bank. It is submitted by the learned counsel for the petitioner that as the petitioner failed to comply with the terms and conditions imposed in the bail order, he could not be released from custody.
2. The factual matrix of the prosecution case as unfolded from the First Information Report lodged by one Chittaranjan Das of Satya Bihar, Palasuni, Bhubaneswar on 25.02.2013 before Inspector in charge of Laxmisagar Police Station is that as the informant was allured with false promise by the petitioner and others who are the Directors of Systematics Fund Management Limited (hereafter 'the Company'), he invested money in the Company. The Company was executing agreements with people to provide them land and flats since 2011. It is further stated that some of the Directors resigned from the Company and the rest of the Directors were not able to fulfill the promise made by the Company. Even though the 3 invested money of the informant matured since June 2012 but the Company did not refund the maturity amount. The office of the Company was closed down and the investors were in darkness as to when they would get back their money. In spite of repeated approach by the informant to the authorities, no fruitful result came out.
On the basis of such First Information Report, Laxmisagar P.S. Case No.45 of 2013 was registered on 25.02.2013 under sections 420/467/468/120-B/34 of the Indian Penal Code.
During course of investigation, it came to light that Susanta Kumar Nayak as Managing Director, petitioner as Director along with other associates were running the Company at A-301, 3rd Floor, Acrux Gokul Plaza, Cuttack Road, Bomikhal. The Company was dealing with shares, mutual funds, insurance, Government securities, real estate business, gold and other bonds and working as portfolio Manager for its plants. The informant was assured by the company to be provided with a land and accordingly, he paid cash of Rs.2,10,000/- and the company had made an agreement with the informant to provide land after the completion of maturity period. When the maturity period was over and the informant deposited the agreement before the company authorities, the company authorities neither 4 provided him land nor refunded the money deposited by him. After some days, the Managing Director of the company, the petitioner and others absconded. Some other investors who also paid cash to the company and executed agreements were also cheated. The petitioner was arrested on 27.02.2013 in connection with another case and he confessed his guilt that he along with other Directors have cheated around 100 persons all over Odisha and he was taken on remand in this case. On 25.06.2013 charge sheet was submitted against the petitioner and others under sections 420/467/468/120-B/34 of the Indian Penal Code keeping the investigation open for collection of material proof and to arrest the other accused persons.
3. Mr. Devashis Panda, learned counsel for the petitioner contended that the trial of the case commenced on 23.07.2013 with the framing of charge and on 16.01.2014 three prosecution witnesses were examined, one more witness was examined on 28.08.2014 and on 18.08.2015 two more witnesses were examined and the case is pending awaiting examination of the rest of the witnesses who are not turning up to give their evidence due to the laches on the part of the prosecution. The learned counsel for the petitioner further contended that the offences are triable by Magistrate and even though the offences are non-bailable but since the trial has not been concluded within 5 a period of sixty days from the first date fixed for taking evidence in the case, the petitioner is entitled to be released on bail in view of sub-section (6) of section 437 of the Cr.P.C.
Mr. Deepak Kumar, learned Addl. Standing Counsel on the other hand opposed the prayer for bail and contended that the petitioner is involved in an economic offence and the provision under sub-section (6) of 437 of the Cr.P.C. is not mandatory and the Magistrate has got power to refuse bail for the reasons to be recorded in writing. The learned counsel further urged that the learned Additional Sessions Judge, Bhubaneswar has observed that the matter deals with cheating the general public and the petitioner and other co-accused persons hatched out a conspiracy to give effect to the offence by influencing the customers who have lost their hard earned money. The learned counsel further contended that in a case of this nature, the petitioner is not entitled to be released on bail however in view of the period of detention of the petitioner in judicial custody, appropriate direction can be given to the Trial Court for expeditious disposal of the trial.
4. Section 437 (6) of the Code of Criminal Procedure reads as follows:-
S.437(6)- If, in any case triable by a Magistrate, the trial of a person accused of any 6 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 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 7 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 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 8 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 to in which Magistrate triable non-bailable offence case, the accused shall be released on bail in case 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 9 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 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 10 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 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 11 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.
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?12
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.
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.
13Q.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. 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 14 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 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 15 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 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. 16 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 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 17 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 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 18 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."
5. On perusal of the lower Court record which was called for from the Court of Smt. S.S. Mishra, J.M.F.C., Bhubaneswar in C.T. Case No. 797 of 2013, it is found that charge was framed on 23.07.2013 under sections 420/467/468/120-B/34 of the Indian Penal Code. Out of 12 charge sheet witnesses, P.W.1 Hemant Kumar Moharana, P.W.2 Ramachandra Parida, P.W.3 Dilip Kumar Bhatta were examined on 16.01.2014. P.W.4 Sukanata Shekar Pradhan was examined on 28.08.2014, P.W.5 Pradipta Kumar Pradhan and P.W.6 Sadasiv Behera were examined on 18.08.2015. The record further reveals that after 18.08.2015, number of dates have been fixed for examination of the rest of the witnesses and summons were issued to the witnesses but the witnesses have not turned up to give their evidence and the prosecution has also not taken any concrete steps to ensure the attendance of such witnesses. Therefore, I am of the view that the prosecution has failed in its duty in taking expeditious steps for conclusion of trial 19 particularly when the legislature has conferred a valuable right in favour of the accused to seek for bail on completion of sixty days from the first date fixed for taking evidence in a Magistrate triable non-bailable offence case.
6. Adverting to the contentions raised by the learned counsels for the respective parties, looking at the oral as well as documentary evidence available on record against the petitioner relating to the commission of the offences under which charge sheet has been submitted, the nature and gravity of the accusation against the petitioner, the manner in which the company where the petitioner was working as a Director has siphoned off huge public money alluring the investors with false promise and particularly when such type of crimes are rampant in the society and chance of tampering with the further evidence cannot be ruled out, striking a balance between the rights of the petitioner under section 437(6) of the Cr.P.C. and also the rights of the society as a whole, I am of the view that it would not be proper to release the petitioner on bail in the larger interests of public and State.
However, taking into account the period of incarceration of the petitioner in judicial custody and the date of commencement of the trial, number of witnesses examined till date and the fact that the last witness was examined more than 20 a year and two months back, keeping in view the right to speedy trial flowing from Article 21 of the Constitution of India, I direct the Investigating Officer/Inspector in Charge of Laxmisagar Police Station to appear before the learned Trial Court on or before 07.11.2016 and receive summons in respect of the rest of the prosecution witnesses to be examined and ensure their attendance on the next dates fixed for trial. The learned Magistrate is directed to conduct day to day trial and conclude the trial by 24.12.2016.
A copy of the order be handed over to the learned State Counsel to instruct the Investigating Officer/Inspector in Charge of Laxmisagar Police Station to do the needful.
Accordingly, the bail application sans merit and hence stands rejected.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 31st October,2016/Sisir