Orissa High Court
Deepak Gupta vs State Of Orissa (Vig.) ....... Opp. ... on 28 September, 2020
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 1042 Of 2020
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
A.Padhi, S.C. Sahoo
Sagar Kumar 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: 24.09.2020 Date of Order: 28.09.2020
...................................................................................................
S. K. SAHOO, J. Whether right to speedy trial which flows from Article
21 of the Constitution of India is a remote control in the hands of
prosecution prosecuting an accused in a criminal case, so that it
can take the trial speedily whenever it desires and slow it down
2
to create frightening moments for the accused to carry an
impression that he is fighting an endless battle? Can an accused
be left to become a puppet in the hands of the prosecuting
agency? Will the trial Court remain as a silent spectator when
either from the side of the prosecution or accused, dilly-
dallying or shilly-shallying attitude is adopted for some oblique
purposes? These are the package of questions with which the
petitioner Deepak Gupta has knocked at the portals of this Court
for the sixth time seeking for bail after his earlier five
unsuccessful attempts before this Court and also twice before
the Hon'ble Supreme Court.
The petitioner 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 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.
The last bail application of the petitioner in BLAPL No.
1053 of 2019 was rejected as per order dated 07.08.2019 with a
direction to the learned trial Court to expedite the trial keeping in
3
view the provision under section 309 of Cr.P.C., to take effective
step to ensure the attendance of witnesses and it was further
observed that 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.
The petitioner moved bail/interim bail before the
learned trial court on 02.01.2020 which was rejected on
28.01.2020.
The petitioner filed an application for interim bail in
this bail application which was registered as I.A. No.268 of 2020
and this Court as per order dated 26.06.2020, granted him
interim bail for a period of one month with certain conditions.
Pursuant to the said order, the petitioner was released on bail
and after availing the interim bail period, the petitioner has
surrendered before the learned trial 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
4
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 also 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 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
5
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 and twenty five charge sheet
witnesses have been examined so far during trial.
3. Mr. Santosh Kumar Mund, learned counsel appearing
for the petitioner argued that after rejection of the last bail
application by this Court on 07.08.2019 in BLAPL No. 1053 of
2019, the evidence of one Debadutta Suranjita (P.W.18) who
was working as Under Secretary, Steel & Mines, Secretariat,
Govt. of Odisha has been recorded on 03.10.2019 and she stated
in her cross-examination that the outstanding dues against the
lessee upto 31.12.2012 was Rs.3,42,486/- and that the loss
sustained by the State is the loss of royalty due to illegal mining.
According to Mr. Mund, in view of the evidence of P.W.18, the
prosecution case that the loss sustained to the State Exchequer
was more than one thousand five hundred crores is absolutely
unfounded and wholly misconceived. It is further argued that in
the charge sheet dated 24.06.2014, it is mentioned that a sum
6
of Rs.13,17,59,863/- has been debited from the two accounts of
the lessee B.K. Mohanty to the Govt. accounts towards payment
of royalty and other taxes during the period from 2004 to 2010
and therefore, there can be no question of loss of revenue to the
State. It is further argued that as per the case of the
prosecution, mining was done as per the mining plan approved
by the Indian Bureau of Mines and in the charge sheet, it is
mentioned that the petitioner who was the Power of Attorney
holder of B.K. Mohanty had submitted mining plan and scheme
of mining to Indian Bureau of Mines, Bhubaneswar which was
approved by Regional Controller of Mines on 15.12.2004,
14.09.2007 and 05.08.2009. Investigation further revealed that
the officials of Indian Bureau of Mines have conducted the MCDR
inspections of the mines on various occasions and as per the
prescribed law and procedure, it is mandatory on their part to
examine and report as to whether the mining was performed in
accordance with the terms of the lease deed. Though it is alleged
that officers of IBM were negligent but for their negligence, the
petitioner is in custody for seven years. It is further argued that
similar allegation of illegal mining was found by the Central
Empowered Committee (CEC) appointed by the Hon'ble Supreme
Court and the amount in case of others was much more than
7
what is alleged in this case, but all of them have not been
prosecuted criminally, whereas the petitioner has been singled
out and is kept in judicial custody for so many years. Apart from
the penalty, the petitioner has been subjected to three more
criminal cases, besides this case for the same cause of action,
whereas the Hon'ble Supreme Court did not even direct
investigation in the other cases of illegal mining. He further
argued that the charge under section 409 of the Indian Penal
Code because of which the petitioner has been denied bail is
frivolous and totally misconceived. He emphatically contended
that this Court has twice directed to the learned trial Court for
expeditious trial with examination of material witnesses in BLAPL
Nos.854 of 2015 and 1053 of 2019 but in spite of such direction,
during the period of more than three years of framing of charge,
the evidence of only twenty five witnesses have been recorded
so far and therefore, it would be travesty of justice to keep the
petitioner in custody for any longer period. According to Mr.
Mund, the prosecution is deliberately flouting the orders of this
Court repeatedly and therefore, the State has no right to oppose
the application for bail as the detention has already become pre-
trial punishment. He further argued that the petitioner has deep
roots in the society, with his business interests and he is a
8
permanent resident of Barbil and he is neither a flight risk
(having surrendered his passport to the investigating agency)
nor has he been shown to have any propensity to tamper with
evidence or influence any witnesses apart from the fact that the
evidence are mostly documentary in nature which have already
been seized by the Vigilance police and submitted in the trial
court. His properties and properties of his family members
including bank accounts, business concerns and factory to the
tune of Rs.386 crores have been attached under the Criminal
Law Amendment Ordinance, 1944. He further argued that by
reason of his continued incarceration, the petitioner is unable to
instruct his lawyers properly and thereby unable to effectively
defend himself, in violation of his right to fair trial under Article
21 of the Constitution of India. Placing reliance in the case of P.
Chidambaram -Vrs.- Directorate of Enforcement reported
in (2020) 77 Orissa Criminal Reports (SC) 383, it is
contended that since there is no chance of absconding of the
petitioner or tampering with the evidence and he has also not
flouted the terms and condition of interim bail granted by this
Court in I.A. No.268 of 2020, the bail application deserves
favourable consideration.
9
Mr. N.C. Panigrahi, learned Senior Advocate
appearing for the State of Orissa (Vigilance) on the other hand
vehemently opposed the prayer for bail and contended that since
the bail applications of the petitioner have been rejected earlier
by this Court on five occasions as well as twice by the Hon'ble
Supreme Court on merit, 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 further argued that the
petitioner in connivance and conspiracy with several public
servants has committed an economic offence causing loss of
around one thousand five hundred crores to the State exchequer
and a strong prima facie case is available against the petitioner
to show his involvement in such offence and in view of the
severity of the punishment in case of conviction, incarceration of
the petitioner for a period of seven years is no ground to release
him on bail. He emphatically contended that the family members
of the petitioner such as his father, mother, wife and brother,
who are also accused in this case, are absconding since 2013.
The petitioner is a highly influential and very rich person and
therefore, tampering of evidence cannot be ruled out particularly
10
when large numbers of witnesses are yet to be examined. It is
further contended that since taking into account the delay of the
trial and period of detention of the petitioner in judicial custody,
the petitioner has already been granted interim bail for a period
of one month which he had availed and surrendered before the
learned trial Court, the same ground cannot be taken again in
the main bail application to grant him bail and therefore, the bail
application should be rejected.
4. Before dealing with the rival contentions raised, let
me take a bird's eye view of the previous bail applications of the
petitioner.
(i) The first bail application of the petitioner in BLAPL
No.25588 of 2013 was rejected on 29.01.2014 considering the
nature of offence, its magnitude and ramification as alleged and
also the materials available on record.
(ii) The second bail application of the petitioner in
BLAPL No.7277 of 2014 was rejected on 14.11.2014 holding that
there is no change of circumstance and the release of the
petitioner on bail is likely to cause further delay in getting the
case ripen for trial, likelihood of tampering of evidence, the
nature of accusation, seriousness of the offences, role played by
11
the petitioner and also the quantum of punishment prescribed for
the offences.
(iii) The third bail application of the petitioner in
BLAPL No.854 of 2015 was rejected on 28.03.2016 with following
observation:
"The crime was committed continuously for
years together in a cool, calculated and
organized manner causing loss of thousand of
crores to the Government exchequer. There are
prima facie materials showing involvement of
the petitioner in the deep rooted conspiracy with
other co-accused persons including the public
servants. A strong prima facie case is available
against the petitioner to show that he in
connivance with the mining, forest, revenue
officials and mining lease holders by creating
fake documents illegally and unauthorizedly
excavated iron ore which caused pecuniary
advantage to him, his family members and
others and there was equivalent loss to the
Government exchequer to the tune of more than
one thousand five hundred crores. The
involvement of the petitioner in the deep rooted
conspiracy in the economic offences involving
huge loss to Government exchequer is prima
facie apparent."
12
This Court while rejecting the bail application also
took into account the nature and seriousness of accusation, its
serious adverse impact on the fabric of the society,
misappropriation of huge amount of public money and
substantial loss to Government exchequer, availability of prima
facie materials against the petitioner, the severity of punishment
in case of conviction, reasonable apprehension of tampering with
the evidence and absence of any substantial change of
circumstances or fresh grounds after the rejection of the earlier
two bail applications by this Court. However, this Court observed
as follows:-
"The petitioner is in jail custody since
05.09.2013 and it is stated at the Bar that in the
trial Court, the case is posted today for framing
of charge. Keeping in view the period of
detention of the petitioner in judicial custody
even after the submission of the final charge
sheet on 24.06.2014, the learned Trial Court is
directed not only to take immediate and
effective steps for framing of charge but also
take all possible steps to proceed with the trial
on day-to-day basis. The material witnesses
may be identified and examined at the earliest.
If the trial is not concluded within a period of
one year from today for reasons not attributable
to the petitioner, the petitioner will be at liberty
13
to apply for bail afresh before the learned trial
Court which may be considered in the light of
the situation which may be then prevailing."
(iv) The fourth bail application of the petitioner in
BLAPL No.926 of 2017 was rejected on 24.08.2017 with following
observations:-
"The nature of accusation against the petitioner
is that he in connivance with the mining, forest,
revenue officials and mining lease holders by
creating fake documents illegally and
unauthorizedly excavated iron ore which caused
pecuniary advantage to him, his family members
and others and the State of Odisha which has
the highest stake in mineral production in the
country sustained equivalent loss to the
Government exchequer to the tune of more than
one thousand five hundred crores. The crime
appears to have been committed in a cool,
calculated and organized manner. A strong
prima facie case is available against the
petitioner to show his involvement in the
economic offence. In view of the severity of
punishment in case of conviction, reasonable
apprehension of tampering with the evidence,
absence of any substantial change of
circumstances after rejection of bail applications
by this Court thrice and particularly when the
last bail rejection order of this Court was
14
affirmed by the Hon'ble Supreme Court by
dismissing the special leave petition, I am not
inclined to reconsider the prayer for bail and
release the petitioner on bail."
(v) The fifth bail application of the petitioner in
BLAPL No.1053 of 2019 was rejected on 07.08.2019 with
following observations:-
"8.....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
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
15
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 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
16
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."
xx xx xx xx
".....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."
xx xx xx xx
"9.....while not inclining to release the petitioner
on bail in absence of any substantial change of
17
circumstances after rejection of the last bail
application by this Court except a further
detention of about two years with slow progress
of the 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."
5. This bail application of the petitioner being the sixth
one before this Court, it is to be kept in mind the settled
principle of law 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 changes which are of
little or no consequence inasmuch as 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. Of Course, the principle of res
judicata is not applicable while considering the successive bail
application but the issues and grounds which have been
18
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.
The learned counsel appearing for the petitioner
raised similar contention regarding absence of ingredients of the
offence under section 409 of the Indian Penal Code in the
previous bail applications, which have been dealt with and
therefore, the same cannot be permitted to be re-agitated in this
bail application in view of the principle laid down by Hon'ble
Supreme Court in the case of Kalyan Chandra Sarkar -Vrs.-
Rajesh Ranjan reported in (2005) 30 Orissa Criminal
Reports (SC) 455. It is stated at the Bar that a separate
petition has been filed by the petitioner before this Court
challenging order of framing of charge against him by the
learned trial Court which is subjudiced since 2017. I am of the
humble view that any finding in this bail application whether the
ingredients of the offence under section 409 of the Indian Penal
Code are made out or not, is likely to cause prejudice to either
the parties and may create an unconscious impression upon the
19
trial Court, which has to ultimately decide the point after
assessing the entire ocular and documentary evidence adduced
during trial. Similarly whether the evidence of P.W.18 elicited in
her cross-examination that the outstanding dues against the
lessee upto 31.12.2012 was Rs.3,42,486/- which is the loss
sustained by the State would be sufficient to discard the entire
prosecution case that the loss sustained to the State Exchequer
was more than one thousand five hundred crores, is also to be
adjudicated by the learned trial Court and therefore, I refrain
from detailing or discussing the evidence on that score.
6. Coming to the issue of delayed trial, 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. If an accused 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.
20
In the case of Hussain and Ors. -Vrs.- Union of
India (UOI) reported in (2017)5 Supreme Court Cases
702, 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 deprivation pending trial/appeal cannot be
unduly long. It was 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 of P. Chidambaram (supra), it is held
that the grant of bail is the rule and refusal is the exception so
as to ensure that the accused has the opportunity of securing
fair trial. The gravity of the offence is an aspect which is required
to be kept in view by the Court and the same has to be gathered
from the facts and circumstances arising in each case. Keeping in
view the consequences that would befall on the society in cases
of financial irregularities, it has been held that even economic
offences would fall under the category of 'grave offence' and in
such circumstance while considering the application for bail in
such matters, the Court will have to deal with the same, being
sensitive to the nature of allegation made against the accused. It
is further held that it is to be kept in perspective that even if the
21
allegation is one of grave economic offence, it is not a rule that
bail should be denied in every case since there is no such bar
created in the relevant enactment passed by the legislature or
does the bail jurisprudence provides so. Ultimately the
consideration will have to be on case to case basis on the facts
involved therein and securing the presence of the accused to
stand trial.
7. While disposing of the previous bail application of the
petitioner on 07.08.2019 in BLAPL No.1053 of 2019, I have held
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. I have further held that 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.
It appears that the aforesaid order dated 07.08.2019
was received by the learned trial Court on 22.08.2019. After the
order of this Court was received, the learned trial Court posted
the case on twelve dates till the end of December 2019 i.e.
05.09.2019, 19.09.2019, 03.10.2019, 17.10.2019, 30.10.2019,
22
31.10.2019, 01.11.2019, 15.11.2019, 16.11.2019, 29.11.2019,
13.12.2019 and 16.12.2019. On 05.09.2019, P.W.14 who was
earlier cross-examined in part was present and he was further
cross-examined by the learned counsel for one of the accused
and it was deferred to 19.09.2019 for further cross-examination
on a time seeking petition being filed by the said counsel. On
19.09.2019, cross-examination of P.W.14 was completed and he
was discharged. On that very day, P.W.17 was examined, cross-
examined and discharged. On 03.10.2019, P.W.18 was
examined, cross-examined in part and her further cross-
examination was deferred due to want of time. On 17.10.2019,
no witness was present. On 30.10.2019, P.W.19 was examined,
cross-examined in part and his further cross-examination was
deferred on time seeking petitions filed by the learned counsel
for two accused. On 31.10.2019, P.W.20 was examined, cross-
examined in part and her further cross-examination was deferred
on time seeking petitions filed by the learned counsel for two
accused. On 01.11.2019, P.W.21 was examined, cross-examined
and discharged. On 15.11.2019, further cross-examination of
P.W.18 continued and she was discharged. On 16.11.2019,
P.W.22 and P.W.23 were examined, cross-examined and
discharged. On 29.11.2019, further cross-examination of P.W.20
23
continued and she was discharged. On 13.12.2019, further
cross-examination of P.W.19 continued and he was discharged.
On 16.12.2019 no witness was present. On 04.01.2020, P.W.24
and P.W.25 were examined, cross-examined and discharged.
This aspect was considered in I.A. No.268 of 2020 and while
granting interim bail to the petitioner for a period of one month,
it was observed as follows:-
"Thus the posting of the dates of trial after
receipt of the order of this Court clearly reveal
that the learned trial Court has neither followed
the provision under section 309 of Cr.P.C. nor
kept in view the observations of this Court
passed in BLAPL No.1053 of 2019 in the order
dated 07.08.2019 and also in BLAPL No.854 of
2015 in which this Court observed that the
learned trial Court shall take all possible step to
proceed with the trial on day-to-day basis. If the
learned trial Court is also dealing with other
cases for which it was not possible on its part to
give more time to this particular case, the case
could have been taken up during a particular
time slot on each date keeping in view the
mandate of section 309 of the Code. If any
defence counsel after cross-examining a
prosecution witness for some time filed a
petition for time to defer the cross-examination,
the learned trial Court should not have been so
24
liberal in adjourning the case giving long dates
without realizing the inconvenience likely to be
faced by the official witnesses in attending the
Court again and again. No special reasons have
been assigned by the learned trial Court in
adjourning the case to long dates in spite of the
earlier orders of this Court. None of the parties
has approached the Hon'ble Supreme Court
against the order of this Court passed in BLAPL
No.1053 of 2019 and thus the observations
made therein attained finality and become
binding on the trial Court. After receipt of the
order of this Court by the learned trial Court on
22.08.2019, the counsel for the petitioner who is
appearing for him has not sought for any
adjournment. Therefore, the petitioner is no way
responsible for the delayed trial. It cannot be
lost sight of the fact that since last week of
March 2020, there is no progress of trial in any
Court in the State on account of situation arising
out of the COVID-19 pandemic and only urgent
matters are being taken up."
During hearing of the bail application, as per order
dated 07.09.2020, a report was called for from the learned trial
Court as to whether the Court work has started functioning
normally, whether any witness has been examined in the
meantime and whether summons have been issued to the
25
witnesses and what are the dates of posting of trial. The learned
trial Court has submitted the status report which is dated
10.09.2020, in which it is stated as follows:
".........In obedience to the kind order dated
07.09.2020, passed by the Hon'ble Court in
BLAPL No.1042 of 2020 and communicated to
this Court under Hon'ble Court's Letter No.13208
dated 10.09.2020, I am to humbly submit as
follows:
That so far only 25 (Twenty five)
witnesses have been examined. The date of
examination of the last witness was 04.01.2020.
That my predecessor-in-office was
transferred on 10.01.2020 and I joined her as
Special Judge (Vigilance) on 23.03.2020.
That in order to prevent the pandemic
arising out of Covid-19 from spreading, lock-
down was imposed in the State on 23.03.2020
and the same was extended from time to time.
That as per the direction of the Hon'ble
Court, as there was restricted functioning of the
Subordinate Courts in the State, summons were
not issued during the said period to the
witnesses for which no other witnesses in VGR
Case No.05 of 2013 were examined.
That VGR Case No.05 of 2013 was posted
today i.e. 10.09.2020 for trial. In pursuance of
the Hon'ble Court's Notification No.XLIX-E-
04/2020/7817 (38) Dted.25.08.2020, this Court
26
in order to resume and expedite the trial of the
said case, issued summons to two witnesses,
directing them to appear today and record their
evidence. One of them appeared today.
That in the meanwhile, the Registrar of
Civil Courts, Keonjhar tested Covid-19 positive
on 03.09.2020 for which covid tests on 41 staff
including the Officers of the Civil Courts,
Keonjhar were conducted on 06.09.2020 and 9
(nine) of them were detected on 07.09.2020 as
Covid-19 carriers. Following this development,
as per the order of the District Judge, Keonjhar,
the Courts here at Keonjhar were closed down
for 48 hours from 5 a.m. of 08.09.2020 to 5
a.m. of 10.09. 2020.
That being not satisfied with the above
duration of the closure of the Civil Courts, the
members of the District Bar Association decided
to abstain from work from 10.09.2020 to
15.09.2020. The decision was communicated to
the District and Sessions Judge, Keonjhar under
their Letter No.27 Dtd. 08.09.2020 which was
communicated to my Office under District Office
Memo No.4685(10) Dtd. 10.09.2020.
That as the members of the Bar
Association have abstained from the work today,
the witness present today could not be
examined. The case is now adjourned to
25.09.2020 with a direction to the office to issue
27
summons to the witnesses to appear and record
their evidence in the case.
That in view of the above, the normal
functioning of the Court has not been restored
till today. It is humbly submitted that this Court
shall make all endeavor to resume the trial in
VGR Case No.05 of 2013 by procuring the
attendance of the witnesses in the Court."
While rejecting the last bail application of the
petitioner in BLAPL No.1053 of 2019, it has already been held
that the detention of the petitioner has virtually become pre-trial
punishment to him as 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 moreover, the petitioner has not
contributed to the delay. Though direction was given to the
learned trial Court to expedite the trial keeping in view the
provision under section 309 of Cr.P.C. and to take effective step
to ensure the attendance of witnesses but it seems that even
after the said order was received by the learned trial Court, the
learned trial Court has neither followed the provision under
section 309 of Cr.P.C. nor kept in view the observation made by
this Court while disposing of the earlier bail application. No
special reason has been assigned by the learned trial Court in
adjoining the case to long dates. Not a single witness has been
28
examined after 04.01.2020 and the status report makes it clear
how difficult it has become to proceed with the trial of the case
at present.
Mr. Panigrahi, leanred Senior Advocate placed the
observation made by the Hon'ble Supreme Court in the case of
Ranjan Dwibedi -Vrs.- C.B.I. reported in A.I.R. 2012 S.C.
3217, wherein it is held as follows:-
"19.....However, unintentional and unavoidable
delays or administrative factors over which
prosecution has no control, such as, over-
crowded court dockets, absence of the presiding
officers, strike by the lawyers, delay by the
superior forum in notifying the designated
Judge, (in the present case only), the matter
pending before the other forums, including High
Courts and Supreme Courts and adjournment of
the criminal trial at the instance of the accused,
may be a good cause for the failure to complete
the trial within a reasonable time. This is only
illustrative and not exhaustive. Such delay or
delays cannot be violative of accused's right to a
speedy trial and needs to be excluded while
deciding whether there is unreasonable and
unexplained delay..."
Keeping in view the observation made by the Hon'ble
Supreme Court in the aforesaid case, if the order sheet of the
29
learned trial Court is perused from 05.09.2019 onwards till the
end of December 2019, it cannot be said that the delay which
was caused was unavoidable or on account of any administrative
factors over which the prosecution has no control. During the
said period, the trial court was functioning normally and no
adjournment was sought for from the side of the petitioner and
therefore, the delay which has been caused by the trial Court
even after the receipt of the order this Court on 22.08.2019
passed in BLAPL No.1053 of 2019, in my humble view, is
unreasonable and unexplained. Of course after the last two
witnesses i.e. P.W.24 and 25 were examined on 4.01.2020, the
Presiding Officer was transferred on 10.01.2020 and the new
Presiding Officer joined on 23.03.2020 and then the lock-down
was imposed in the State since 23.03.2020 which was extended
from time to time and during the said period, there was
restricted functioning of the Subordinate Courts in the State as
per the direction of this Court and no summons were issued to
witnesses during the said period and now the letter dated
10.09.2020 of the learned trial Court makes it clear that the
normal functioning of the Court has not been restored. Since the
learned trial Judge has made it clear in the said letter that he
shall make all endeavor to resume the trial by procuring the
30
attendance of the witnesses in the Court, it is expected that the
observation made by this Court while disposing of BLAPL
No.1053 of 2019 to expedite the trial keeping in view the
provision under section 309 of Cr.P.C. and to take effective step
to ensure the attendance of the witnesses shall also be kept in
mind. All possible steps shall be taken to proceed with the trial
on day-to-day basis. Since the learned trial Court is also dealing
with other cases, a particular time slot should be fixed on each
date and the mandate of section 309 of Cr.P.C. shall be adhered
to. The trial Court shall take all possible steps to stop the dilly-
dallying or shilly-shallying attitude adopted either from the side
of the prosecution or accused and ensure that the constitutional
right of speedy trial of the accused as guaranteed under Article
21 of the Constitution of India is not flouted causing mockery of
the trial. It seems unnecessary lengthy cross examination has
been made by different set of defence counsel to the witnesses
to make it a gallery show, which needs to be regulated by the
learned trial Court keeping in view the provisions under sections
146, 148, 150, 151, 152 and 165 of the Indian Evidence Act,
1872.
8. In view of the foregoing discussions, in absence of
any substantial change of circumstances after the rejection of
31
the last bail application on merit and particularly since there is
strong prima facie case against the petitioner relating to his
involvement in the commission of grave economic offence, I am
not inclined to reconsider his prayer for bail on merit and release
him on bail pending disposal of trial. However, keeping in view
the period of detention of the petitioner for seven years in
judicial custody and snail speed at which the trial of the case has
proceeded so far even after three years of framing of charge, the
fact that the prosecution is likely to examine one hundred forty
seven witnesses as submitted by the learned Senior Advocate
appearing for the State of Orissa (Vigilance) and only twenty five
witnesses have been examined so far, the fact that the petitioner
is no way responsible for the delayed trial, the fact that no
effective steps have been taken either by the prosecution or by
the learned trial Court to expedite the trial in spite of repeated
directions of this Court in the earlier bail applications and the
orders of this Court in that respect have been flouted and the
fact that the normal functioning of the trial Court has not been
restored on account of situation arising out of COVID-19
pandemic as per the status report submitted by the learned trial
Court and further taking into account the conduct of the
petitioner in not flouting the terms and conditions of the interim
32
bail order, I am of the humble view that the petitioner is entitled
for grant of interim bail with the following terms and conditions:-
(i) The interim bail period of the petitioner shall
commence from 01.10.2020 and he shall surrender before the
learned trial Court on 02.01.2021 positively without fail.
(ii) He shall furnish cash security of Rs.
1,00,00,000/- (rupees one crore) in the shape of fixed deposit
STDRs obtained from any nationalized bank and also furnish bail
bond of Rs. 2,00,00,000/- (rupees two crores) with two local
solvent sureties each for the like amount to the satisfaction of
the learned trial Court with further terms and conditions as the
learned Court may deem just and proper;
(iii) He shall not leave the territorial jurisdiction of
the trial Court without its prior permission;
(iv) The petitioner shall, further, disclose his place of
residence where he will be residing after his release on interim
bail and also, disclose his phone numbers and e-mail address to
the Vigilance Department.
(v) The petitioner shall not try to tamper with the
prosecution evidence in any manner nor shall he make any
threat or inducement to any witness acquainted with the facts of
33
the case, so as to dissuade him from disclosing such facts to the
Court.
(vi) The petitioner shall surrender the passport, if
possessed by him, before the trial Court. If he does not possess
the passport, he shall file an affidavit before the trial Court to
that effect.
(vii) The petitioner shall personally appear before the
trial Court on all the dates fixed for trial.
(viii) The petitioner shall not give any press
interviews nor make any public comment in connection with this
case qua him or other co-accused.
It is made clear that if the trial is not progressed
substantially with the examination of material witnesses within
six months after the first date fixed for trial on normal
resumption of the Court work, the petitioner would be at liberty
to move for interim bail in the trial Court which shall be
considered in accordance with law.
A copy of the order be handed over to the learned
counsel for the State of Orissa (Vigilance) and also be
communicated forthwith to the learned trial Court for information
and necessary action.
34
Accordingly, the bail application as well as the
connected pending interim applications stands disposed of.
...........................
S.K. Sahoo, J.
Orissa High Court, Cuttack The 28th September 2020/Pravakar