Orissa High Court
Jibandeep Rout Alias Jibandip Rout vs State Of Odisha on 19 July, 2017
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 184 of 2017
An appeal under section 13 of the Odisha Protection of Interests
of Depositors (In Financial Establishments) Act, 2011 from the
order dated 25.01.2017 passed by the Presiding Officer,
Designated Court under OPID Act, Cuttack in C.T. Case No.02 of
2017.
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Smt. Bhagyabati Rout
& Another ......... Appellants
-Versus-
State of Odisha ......... Respondent
For Appellants: - Mr. Himanshu Sekhar Mishra
For Respondent: - Mr. Bibekananda Bhuyan
Addl. Govt. Advocate
For Informant: - Mr. Prafulla Kumar Rath
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BLAPL No. 3331 of 2017
An application under section 438 of the Code of Criminal
Procedure.
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Jibandeep Rout
@ Jibandip Rout ........ Petitioner
-Versus-
State of Odisha ......... Opp. Party
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For Petitioner: - Mr. Smruti Ranjan Mohapatra
For Respondent: - Mr. Bibekananda Bhuyan
Addl. Govt. Advocate
For Informant: - Mr. Prafulla Kumar Rath
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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: 07.07.2017 Date of Order: 19.07.2017
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S. K. SAHOO, J.The appellants Bhagyabati Rout and her husband Duryodhan Bhuyan have filed CRLA No.184 of 2017 challenging the impugned order dated 25.01.2017 passed by the learned Presiding Officer, Designated Court under the OPID Act, Cuttack in C.T. Case No.2 of 2017 in rejecting their application for bail. The said case arises out of Nikirai P.S. Case No.12 of 2017 in which charge sheet has been submitted under section 420/34 of the Indian Penal Code and sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (hereafter 'P.C.M.C.S.B. Act, 1978') and section 6 of Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (hereafter 'O.P.I.D. Act, 2011').
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The petitioner Jibandeep Rout @ Jibandip Rout in BLAPL No.3331 of 2017 has filed the application under section 439 of Cr.P.C. seeking for bail in the aforesaid case as his prayer for bail was turned down vide order dated 01.05.2017 by the said Court.
Since in both the cases, the prayer for bail has been made, with the consent of the respective parties, the matters were heard analogously and disposed of by this common order.
2. One Narayan Chandra Malla lodged the first information report before the Superintendent of Police, Kendrapara which was forwarded to Inspector in-charge of Nikirai Police Station and accordingly, on 14.01.2017 the Inspector in- charge of Nikirai Police Station registered Nikirai P.S. Case No.12 of 2017 under sections 420/34 of the Indian Penal Code and sections 4, 5 and 6 of the P.C.M.C.S.B. Act, 1978 and section 6 of O.P.I.D. Act, 2011.
It is alleged in the F.I.R. that the appellants Smt. Bhagyabati Rout and Duryodhan Bhuyan along with one Laxmipriya Rout arrived at the house of the informant and convinced him to invest money in SIDDHA MAHAPURUSH MONEY SOCIETY, Mangalpur so that he can get 3% monthly interest. The informant believed them and deposited Rs.1 lakh for the first time 4 as fixed deposit and Rs.3000/- as membership fees of 15 numbers of members (one member fee is Rs.200/-). Again on first sunday of March 2013 appellant Smt. Bhagyabati Rout, Dharanidhar Rout, Gitanjali Rout and Manoj Rout conspired together and convinced the informant to invest his retirement benefits in the said society and accordingly the informant gave Rs.50,000/- to the appellant Smt. Bhagyabati Rout towards deposit. Again in March 2013 Manoj Rout and Gitanjali Rout came to the house of the informant and convinced him and his wife to deposit more money to get high benefit which would be easy for them in solemnizing their daughter's marriage. The informant again deposited a sum of Rs.1 lakh as fixed deposit. After five days, appellant Smt. Bhagyabati Rout came again to the informant and took Rs.7800/- towards 39 numbers membership fees and Rs.10,000/- for capital deposit. The appellant Bhagyabati Rout told the informant that the grand total capital deposit of the informant is Rs.2,60,000/- (rupees two lakhs and sixty thousand) and Rs.7,800/- as membership fees. It is further stated in the FIR that on 26.05.2014 when the informant came to the society office for his money, he saw the office was locked and all the accused persons have absconded.
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3. The investigation of the case was taken up by the Inspector in-charge of Nikirai Police Station. During course of investigation, the Investigating Officer visited the spot, examined the informant and other witnesses. The registers and records of SIDDHA MAHAPURUSH MONEY SOCIETY, Mangalpur were seized in connection with Nikirai P.S. Case No.73 of 2016. From the statements of the informant and others, the Investigating Officer found that more than four crores of rupees was collected from public and near about two crores of rupees was given to the public on interest basis and almost 641 depositors were victimized in the case. During course of investigation, the two appellants in CRLA No.184 of 2017 along with the petitioner in BLAPL No.3331 of 2017 were arrested and forwarded to Court and ultimately the first charge sheet was submitted on 14.05.2017 under sections 420/34 of the Indian Penal Code, sections 4, 5 and 6 of the P.C.M.C.S.B. Act, 1978 and section 6 of O.P.I.D. Act, 2011 keeping the investigation open under section 173(8) of Cr.P.C. as other actions were to be completed and stipulated period of 120 days was going to completed on 15.05.2017.
4. Mr. Himanshu Sekhar Mishra, learned counsel appearing for the appellants Smt. Bhagyabati Rout and Duryodhan Bhuyan contended that there are all total four cases 6 against the appellants. In Nikirai P.S. Case No.46 of 2015, though the F.I.R. was not registered against the appellants but during course of investigation, the appellants were implicated as accused and in that case, they were taken into custody and released on bail and in the said case, investigation is under progress. In Nikirai P.S. Case No.53 of 2015, though the F.I.R. was not registered against the appellants but during course of investigation, the appellants were implicated as accused and in that case, the appellants have been granted anticipatory bail. In Nikirai P.S. Case No.73 of 2016, neither the F.I.R. was registered against the appellants nor the first charge sheet was submitted against the appellants and in that case the further investigation is under progress and the appellants have been granted anticipatory bail. It is further contended that in the present case i.e., Nikirai P.S. Case No.12 of 2017, the first charge sheet was submitted against the appellants and two others including the petitioner in BLAPL No. 3331 of 2017 and further investigation is under progress and while submitting first charge sheet, the statements of only two witnesses namely informant Narayan Chandra Malla and one Nilakantha Panda were sent to Court and both of them have implicated the appellants and though the summary of the statements of depositors were reflected in the case diary but no 7 separate statements have been recorded or forwarded to Court. It is further submitted that though the appellants were arrested in connection with this case on 14.01.2017 at about 12.30 p.m. but they were produced before the Designated Court, OPID, Cuttack on 15.01.2017 at 9.30 p.m. after 33 hours and after submission of first charge sheet, cognizance of offences under 420/34 of the Indian Penal Code, sections 4, 5 and 6 of the P.C.M.C.S.B. Act, 1978 and section 6 of O.P.I.D. Act, 2011 has been taken and the case was adjourned from time to time for supply of police papers. It is further contended that the appellants are no way related to the money lending business done by late Trilochan Rout or his wife, sons and daughters. The appellants were also loanees and they had obtained a loan of Rs.6,71,308/- and deposited a sum of Rs.3,59,308/-. It is stated that the police illegally issued notice under section 160 of Cr.P.C. to the appellant No.1 Smt. Bhagyabati Rout on 29.12.2015 asking her to deposit Rs.16,10,915/- and the appellant no.1 challenged such illegal notice before this Court in CRLMP No.738 of 2016 and this Court has stayed realization of such amount. It is further contended that some of the depositors including the informant of the present case were examined in the previous cases and they have not whispered anything against the appellants and there is no 8 document to show that the appellants have received any money from any of the depositors and in the earlier cases, the Investigating Officer seized various notarized agreements of the depositors with late Trilochan Rout and his family members but no such agreement has been seized in respect of the appellants. It is further submitted that there is no chance of absconding or tampering with the evidence and therefore, the appellants may be directed to be released on bail.
Mr. Smruti Ranjan Mohapatra, learned counsel for the petitioner Jibandip Rout contended that the petitioner is neither the Director of SIDDHA MAHAPURUSH MONEY SOCIETY, Mangalpur nor he has accepted any deposit from any of the depositors nor there is no allegation that he has allured any of the depositors to deposit money. It is further contended that the petitioner was taken into custody in connection with Nikirai P.S. Case Nos. 46 of 2015 and 53 of 2015 and released on bail and he has been granted anticipatory bail in Nikirai P.S. Case No.73 of 2016 and the allegations in all the cases are similar in nature. He further submitted that none of the depositors whose statements are available in the case diary implicate the petitioner to have accepted any money from them and therefore, taking into account the period of detention of the petitioner in jail custody 9 since 20.04.2017, the bail application may be favourably considered.
Mr. Bibekananda Bhuyan, learned Addl. Government Advocate appearing for the State submitted that while submitting chargeshhet in Nikirai P.S. Case No.12 of 2017, the I.O. submitted case diary along with the statements of the informant as well as one Nilakantha Panda and statements of other witnesses like Sulochana Mallik, Ketaki Rout, Mamata Bhuyan, Swadhinbala Jena, Akshya Maharana, Hrudananda Bhuyan, Pravat Kumar Samal, Bijaya Kumar Jena, Debadutta Rout, Gundicha Rout and Kartika Chandra Rout were reflected in the case diary. It is further contended that there are direct allegations against the appellants to have persuaded the informant to invest money in SIDDHA MAHAPURUSH MONEY SOCIETY, Mangalpur with a promise to return interest @ 3% per month and in the 161 Cr.P.C. statement, the informant has also implicated the appellants. The other witness Nilakantha Panda has corroborated the informant's statements in material particulars and the other witnesses like Sulochana Mallik, Ketaki Rout, Mamata Bhuyan have implicated the appellants to have persuaded them to deposit money in the society. The witness Bijaya Kumar Jena has stated that the appellants and others were managing the society. Similarly the 10 other witnesses have stated the role of the appellants as agents of the society. It is contended that the appellants duped the innocent depositors with a promise of high return of money and since they are involved in economic offences, they are not entitled to be released on bail. So far as the petitioner Jibandip Rout in BLAPL No. 3331 of 2017 is concerned, it is contended by Mr. Bhuyan that the materials on record indicate that the petitioner was one of the members of the society and promising high return, he induced the innocent persons to invest money but failed to keep up the promise. The petitioner issued a cheque of Rs.3 lakhs in favour of one Jayant Kumar Pradhan who is a witness in Nikirai P.S. case No. 73 of 2016 and Nikirai P.S. case No. 53 of 2015 from his Bank of India account which has been encashed. Similarly he has paid Rs.20,000/- to each of the witnesses Bipin Bihari Narayak and Trilochan Rout from his Bank of India account which have been encashed and the account has been verified by the Investigating Officer. It is contended that since the petitioner is taking all possible steps to motivate and influence the witnesses in order to foil the investigation and to wipe out the evidence, he should not be released on bail when further investigation is under progress.
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Mr. Prafulla Kumar Rath, learned counsel for informant while opposing the prayer for bail submitted that the role of the bail applicants in the management of the society as well as inducing the depositors to deposit money in the society is apparent. He further submitted that the applicants have directly accepted deposits not only from the informant but also from others which would be clear from the statements of Purusottam Sahoo, Kanakalata Bhanja, Jyostnarani Jena, Biswaranjan Das, Pravat Kumar Sahoo, Ranjan Kumar Sahoo and Sridhar Thatoi. Learned counsel further submitted that in Nikirai P.S. Case No.73 of 2016, the aforesaid witnesses were examined and they implicated the applicants. It is further contended that since the applicants are directly connected with the affairs of the society and they have persuaded the depositors to deposit the money in the society and the appellants after taking loan to tune of Rs.16,10,915/- are not repaying the same, the society became sick and as many as 641 depositors who have deposited their hard-earned money lost their money. The learned counsel relied upon the decisions of the Hon'ble Supreme Court in the cases of Y.S. Jagan Mohan Reddy -Vrs.- C.B.I. reported in (2013) 55 Orissa Criminal Reports (SC) 825 and Nimmagadda Prasad
-Vrs.- C.B.I. reported in (2013) 7 Supreme Court Cases 466 12 and contended that the bail applicants are not entitled to be released on bail.
5. Economic offences are considered grave offences and such offences having deep rooted conspiracy and involving huge loss of public fund are to be viewed seriously. Economic offence is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences, while granting bail, the Court has to keep in mind, inter alia, the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications. ( Ref:- Y.S. Jagarmohon Reddy -Vrs.- CBI reported in (2013) 55 Orissa Criminal Reports (SC) 825, State of Gujurat -Vrs.- Mohan Lal Jitamalji Porwal reported in AIR 1987 SC 1321 and Nimmagadda Prasad -Vrs.- CBI reported in (2013) 7 Supreme Court Cases 466).
Bail is granted on the totality of facts and circumstances of a case. No doubt at the stage of granting bail, detailed examination of evidence and elaborate discussions on merits of the case need not be taken but the order must reflect 13 the reasons for arriving at a prima facie conclusion as to why bail was being granted particularly when the accused-petitioner is charged with economic offences. Discretion should be used in a proper and judicious manner and the Court must take note of the nature of accusation, the nature of supporting evidence, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence, criminal antecedents etc. Preliminary objection has been raised by Mr. Mishra relating to the conduct of the Investigating Officer in recording the statements of the witnesses in the case diary in gist without making a separate and true record of the statement of each of such witnesses. The statements of the witnesses recorded in the case diary is not in consonance with the provision laid down under section 161(3) of Cr.P.C. which indicates that once the police officer exercising his discretion in favour of reducing the statement of the witnesses into writing, he is bound to make a separate and true record of the statement of each person whose statement he records. The matter does not rest with his discretion here. The police may not record any statement at all but if they choose to record any statement as important or necessary, they are not to do so in a boiled form but separately 14 under each such person so that the defence may use it in accordance with section 162 of Cr.P.C. The statement recorded should not be in the indirect form of speech and it should be recorded in the first person of the whole of the account a witness gives. Failure to perform the duty enjoined by the law constitutes a flagrant attempt to circumvent the law and thereby to defeat the right which the law bestows on the accused under section 162 of Cr.P.C. Rule 162 (a) of Orissa Police Rules indicates the guidelines for examination of witnesses which also states that the statement of each witness shall be recorded separately. Rule 164 of the Orissa Police Rules indicates that in all cognizable offences investigated, the proceedings subsequent to the recording of the information and the dispatch of the information report must be recorded in a special diary called the 'case diary' in P.M. Form No.30 mentioning particulars required by section 172 Cr.P.C. The main heads of information received from witness shall be recorded very briefly in narrative form, together with the name(s) of witness(es) examined. It further indicates that the names of the witnesses whose statements are embodied in the diaries shall be noted in the margin against their statements. It further indicates that when the Investigating Officer decides to record a statement under section 161 of Cr.P.C., the record 15 should be made at the time the witness is examined. Sub-section (1-A) of section 172 of Cr.P.C. indicates that the statements of the witnesses recorded during course of investigation shall be inserted in the case diary. Therefore, the Investigating Officer even though has not committed any illegality in recording the statements of the witnesses in the case diary but recording the gist of the statements in the indirect form of speech was not proper and not in consonance with sub-section (1-A) of section 172 of Cr.P.C. The Investigating Officer should have recorded a separate and true record of the statement of each of such witnesses and their exact statements should have been inserted in the case diary. However, since further investigation is under progress, the Investigating Officer can record separate statements of each of such witnesses whose statements are available in the case diary.
There is no dispute that there are three criminal antecedents of similar nature against the bail applicants. The first information report, the other statements available on record including the registers seized in connection with this case and connected cases clearly makes out prima facie case under which charge sheet has been submitted against the bail applicants. In register no.2 of the society, the appellants have been shown to 16 have taken an amount of Rs.12,00,000/- (rupees twelve lakhs) from the society and the outstanding dues as on 02.03.2014 was Rs.16,10,915/-. In register no.1, the appellants have been shown to have taken a loan of Rs.4,50,000/- (rupees four lakhs and fifty thousand), out of which they have refunded Rs.1,07,000/- and the outstanding dues with interest is Rs.9,12,744/- and it is counter signed by appellant No.2. The contentions of the learned counsel for the State that since huge numbers of depositors are there, the investigation may take some more time for completion appear to have sufficient force. Materials available till date in the case records indicate that 641 depositors have been victimized and more than four crores of deposits have been collected from them.
After bestowing my anxious, painstaking and careful consideration to the tactical and enthralling contentions raised at the Bar and on perusal of the case-laws cited, I am of the considered view that the collected oral and documentary evidence prima facie shows the involvement of the bail applicants. The crime was committed continuously for years together in a cool, calculated and organized manner causing loss of crores to the innocent depositors. There are prima facie materials showing involvement of the bail applicants in the deep 17 rooted conspiracy with other co-accused persons. A strong prima facie case is available against the applicants to show that they in connivance with others illegally and unauthorizedly by forming a society, motivated the people to deposit money in the society with a promise of high return of interest. The involvement of the applicants in the deep rooted conspiracy in the economic offences causing huge loss to depositors is prima facie apparent.
In my humble opinion, granting bail to the petitioners in economic offences of this nature would be against the larger interest of public and State. The prosecution case as per first charge sheet clearly indicates the allegations against the applicants and the further investigation of the case is under progress. When the offence involves cheating of huge amount of public money, it would not be proper at this stage to release the applicants on bail.
Accordingly, the criminal appeal and the bail application sans merit and hence stands rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 19th July, 2017/Pravakar 18