Orissa High Court
Rashmi Ranjan Paikray vs State Of Orissa on 9 September, 2015
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3646 of 2015
Application under section 439 of the Code of Criminal Procedure,
1973.
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Rashmi Ranjan Paikray ........ Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - M/s Satyabrata Pradhan
A.K. Dash, P. Dutta
G.N. Sahoo
P. Sahoo
For Opp.Party: - Mr. Jyoti Prakash Patra
A.S.C.
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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- 01.09.2015 Date of order- 09.09.2015
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S.K.SAHOO, J."The God who gave us life, gave us liberty at the same time."
- Thomas Jefferson The petitioner Rashmi Ranjan Paikray who is an accused in Olatpur P.S. Case No. 26 of 2015 corresponding to C.T. Case No.16 of 2015 pending before the learned 1st Addl. 2 Sessions Judge -cum- Designated Court, Cuttack registered under sections 420, 406, 120-B of Indian Penal Code and section 18 of the Odisha Protection of Interests of Depositors (in Financial Establishments) Act, 2011 (Odisha Act 21 of 2013) (hereafter "the OPID Act") has knocked the doors of this Court craving for bail as his prayer for bail was turned down by the said Court on 08.06.2015.
2. The criminal investigative machinery was set into motion by lodging of the First Information Report by Dipak Kumar Baral, Agent and the depositors of Ashribad Multi-purpose Co-Operative Ltd. on 27.03.2015 before the Inspector in charge of Olatpur Police Station in relation to commission of cognizable offences by the petitioner and others.
It is the case of the prosecution as per the First Information Report that a Chit Fund Organization namely Ashribad was functioning since 2009 by opening branch offices in the State of Odisha at Adaspur, Jagatsinghpur, Banamalipur, Bhubaneswar, Khurda, Tangi, Bhapur, Gopalpur, Dasapalla, Badamba-Narasinhpur, Ganjam, Nuapatna, Berhampur and Jajpur and it has got different sections like Ashribad Goat Rearing India Ltd., Ashribad Future Care, Ashribad Multitech and Infracon Ltd., Ashribad Multipurpose Co-Operative Ltd. and was collecting huge amounts from the depositors by circulating 3 different alluring schemes through its agents. It is mentioned that Ashribad Organization has collected more than Rs.2 crores from 3600 depositors of Adaspur branch. It is further stated that after the collection of money was stopped since May 2013, the depositors are not getting back their dues in respect of their Pass Books and bonds even after the maturity period. When the depositors and the agents came to the Head Office, they found the office had been locked. The Directors of the Organization were either not responding to the phone calls of the agents and depositors or threatening them for which they were harassed. It is stated that the petitioner is the Director of Ashribad Multi- purpose Co-Operative Ltd.
On receipt of the First Information Report, Olatpur P.S. Case No. 26 of 2015 was registered under sections 420, 406, 120-B of Indian Penal Code and section 18 of the OPID Act against the petitioner and four others namely Niroj Kumar Das, Swetanga Pattanayak, Subash Srichandan and Sukant Mohapatra.
3. During course of investigation, as prima facie evidence against the petitioner was made out, he was arrested on 02.04.2015 and forwarded to the Court of learned J.M.F.C., Rural, Cuttack on 03.04.2015 and the forwarding report indicates that there is ample evidence against the petitioner regarding 4 commission of offences under sections 420, 406, 120-B of Indian Penal Code and section 18 of the OPID Act.
5. Mr. Satyabrata Pradhan, learned counsel appearing on behalf of the petitioner contended that in the forwarding report, it is mentioned that since the offences alleged against the petitioner prescribes punishment up to seven years, the provisions of section 41-A Cr.P.C. was complied with. He further contended that after the case records were transmitted from the Court of learned J.M.F.C., Rural, Cuttack to the Court of the learned 1st Addl. Sessions Judge, Cuttack who was functioning as Designated Court under the OPID Act, the petitioner moved for bail and during pendency of the bail application before the Designated Court, since it was the cognizance taking Court under the OPID Act as per section 15 of the OPID Act and can try any offence other than an offence specified in section 6 of the OPID Act as per section 8(4) of the OPID Act, another application was filed under section 167 (2) Cr.P.C. by the petitioner for bail in the Designated Court as the final form was not submitted within the stipulated period of sixty days from the date of first remand of the petitioner to custody. It was contended by the learned counsel for the petitioner that though the bail was specifically prayed for under section 167(2) Cr.P.C. but the learned Court has not dealt with the same and mechanically rejected the 5 prayer for bail. Learned counsel further urged the registration of the case under section 18 of the OPID Act and forwarding of the petitioner to Court under such offence is a total non-application of mind by the investigating officer as section 18 of the OPID Act is not a penal provision and it deals with the power of the Government to make rules by notification to carry out the purposes of the OPID Act. He further urged that section 6 is the only penal provision under the OPID Act.
6. The learned counsel for the State Mr. Jyoti Prakash Patra, learned Addl. Standing Counsel on the other hand submitted that it is an economic offence having deep rooted conspiracy committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community and when defrauded amount is yet to be traced and the investigation is under progress, at this crucial stage, if the petitioner is enlarged on bail, he may try to interfere with the course of investigation, tamper with witnesses, fabricate evidence, intimidate or create obstacles in the path of investigating officers and derail the case and therefore the learned Court was justified in rejecting the application for bail in the larger interest of public and State.
7. The learned Designated Court vide order dated 08.06.2015 observed that from the materials collected by the 6 investigating agency, the involvement of the petitioner under section 6 of the OPID Act is prima facie established. It was further observed that taking into account the gravity of the situation which was being expressed by the common men of the province at the hands of the persons running different financial institutions, the petitioner would not be entitled to the liberty of bail and accordingly the prayer for bail was rejected.
8. Since the bail application was pressed only under section 167 (2) Cr.P.C. on the ground that the final form was not submitted within the stipulated period of sixty days from the date of first remand of the petitioner to custody before the Designated Court under the OPID Act, after giving my anxious consideration to the rival submissions made by the learned counsels for the respective parties, I find that there are certain undisputed facts in the case which are as follows:-
(i) The petitioner was forwarded to Court of learned J.M.F.C. (Rural), Cuttack on 03.04.2015 after his arrest on 2.4.2015 for commission of offences under sections 420, 406, 120-B of Indian Penal Code and section 18 of the OPID Act.
(ii) The case records were transmitted to the learned 1st Addl. Sessions Judge -cum- Designated Court, Cuttack from the Court of learned J.M.F.C. (Rural), 7 Cuttack and it was received on 18.05.2015 in the Designated Court.
(iii) An application under section 167(2) Cr.P.C. was filed by the petitioner for bail on 06.06.2015 in the Designated Court.
(iv) Final form was not submitted till the filing of the bail application under section 167(2) Cr.P.C. before the learned Designated Court and even till 08.06.2015 when the bail application was rejected.
(v) The learned 1st Addl. Sessions Judge -cum-
Designated Court, Cuttack has not dealt with the application filed under 167(2) Cr.P.C. while rejecting the prayer for bail on 08.06.2015.
9. The point involved in the present case is as to whether clause (i) of proviso (a) to section 167(2) or clause (ii) of proviso
(a) to section 167(2) Cr.P.C. will be applicable for the offences under sections 420, 406 and 120-B of Indian Penal Code read with section 6 of the OPID Act?
Section 420 I.P.C. prescribes punishment up to seven years and also with fine. Section 406 I.P.C. prescribes punishment up to three years, or with fine or with both. Section 120-B I.P.C. prescribes punishment, in absence of any express provision made in Cr.P.C., in the same manner as if the accused 8 had abetted the offence provided the offence is punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. Section 18 of the OPID Act is not a penal provision. Section 6 of the OPID Act which is the penal provision prescribes punishment up to ten years and also with fine.
10. Right to liberty which is a fundamental right flows from Article 21 of the Constitution of India. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law.
Section 167 Cr.P.C. has been enacted with the spirit that if a person is arrested by police in connection with any offence then such person should be produced before the Magistrate with all promptitude.
Section 167(2) Cr.P.C. prescribes that an accused can be detained by the Magistrate before whom he is forwarded either in judicial custody or on the prayer of the investigating officer in police custody from time to time for a term not exceeding fifteen days in the whole. It is immaterial whether the concerned Magistrate has or has no jurisdiction to try the case but he has to forward the accused to a Magistrate who has jurisdiction either to try the case or commit it for trial if he 9 considers further detention unnecessary on the expiry of fifteen days.
The proviso to section 167 (2) Cr.P.C. has been enacted not only to safeguard the liberty of a citizen but also to safeguard the interests of the State and the public. Parliament introduced the proviso to section 167 (2) of the Code prescribing the outer limit within which the investigation must be completed. The proviso to sub-section (2) fixes the outer limit within which the investigation must be completed and in case the same is not completed within the said prescribed period, the accused would acquire a right to seek to be released on bail.
The proviso (a) to sub-section (2) of section 167 Cr.P.C. prescribes that the Magistrate who has either jurisdiction to try the case or commit the case for trial can authorize the detention of the accused beyond the period of fifteen days but not in the custody of the police if he is satisfied that adequate grounds exists for such detention. The words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso means the custody after the expiry of first fifteen days can only be judicial custody during the rest of the period of one hundred and twenty days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days.
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Constructing proviso (a) either in conjunction with sub- section (2) of Section 167 or as an independent paragraph, it is clear that the total period of one hundred and twenty days under clause (i) and the total period of sixty days under Clause (ii) have to be calculated only from the date of remand and not from the date of arrest.
In view of the proviso (a) (i) to sub-section (2) of Section 167 of the Code, a Magistrate has no power to detain an accused in custody for a total period exceeding one hundred and twenty days from the first date of remand, where investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a terms not less than ten years. By virtue of Orissa Act 11 of 1997 which came into force with effect from 20.11.1997, the words "ninety days" in section 167 of the Code has been substituted with "one hundred and twenty days".
Similarly in view of the proviso (a) (ii) to sub-section (2) of section 167 of the Code, the Magistrate has no power to detain an accused in custody for total period exceeding sixty days, where investigation relates to any other offence. Thus if the punishment for an offence is ten years or below that, the maximum period of detention is sixty days.
Sub-section (2) (a) of Section 167 of the Code further provides that on the expiry of the said period of one hundred and 11 twenty days or sixty days as the case may be, the accused shall be released on bail by the Magistrate if he is prepared to furnish bail and accordingly furnishes bail bond. Even though the accused is released on bail under this provision by default for non-submission of charge sheet by police within stipulated period of one hundred and twenty days or sixty days from the date of his first remand to custody but nonetheless the order of bail shall be deemed to be an order of bail under the provisions of Chapter XXXIII of the Code.
An order for release on bail under the proviso (a) of section 167(2) of the Code is an order on default on the part of the prosecution to file charge sheet within the prescribed period. It is a legislative command and not a judicial discretion of the Court. An indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in completing the investigation within the period prescribed. If an accused entitled to be released on bail under the proviso (a) makes an application before the Magistrate, there is no discretion left in the Magistrate and the only thing he is required to find out is whether the specified period under the statute has elapsed or not and whether a challan has been filed or not. The merits of the case are not to be gone into while 12 releasing the accused on bail under proviso (a) to section 167(2) Cr.P.C.
In case of Bijaya Kumar Rout -v- State of Orissa reported in (1993) 6 Orissa Criminal Reports 714, where the accused was involved in commission of offence under section 392 I.P.C. which prescribes punishment which may extend to ten years and also fine, it was held that the term "imprisonment for a term not less than ten years" is not to be confused with the terms "up to ten years" and where the maximum punishment is up to ten years, the period of detention, which is permissible U/s.167 (2) Cr.P.C. is only sixty days.
In case of Babu -v- State of Karnataka reported in 1998 Criminal Law Journal 16, it is held as follows:-
"4........The question is whether the case on hand would come under clause (i) or (ii) of sub-sec. (2) of S. 167. The punishment prescribed for the offence U/s. 306 IPC is up to ten years. That means the maximum punishment be imposed by the Court if the offence is proved, is up to ten years and not beyond. The language used in sub-clause (i) of sub-sec.(2) of S.167 is not less than ten years but the minimum punishment prescribed is ten years. In the circumstances, the learned Magistrate has correctly applied the principles of law to direct the release of the petitioner from custody. However, the learned Sessions Judge has not understood the implication of the term 'not less than ten years'.
Therefore, it is clear where the maximum 13 punishment prescribed is up to ten years, the charge sheet ought to be filed within sixty days from the date of the arrest. In other words, where the minimum punishment is ten years or the offence is punishable with death or imprisonment for life, S. 167 (1) prescribes the charge sheet shall be filed within ninety days." In case of Rajeev Chudhary -v- State of (N.C.T.) of Delhi reported in A.I.R. 2001 S.C. 2369, where the offence was under section 386 I.P.C. which prescribes punishment up to ten years and fine, the Hon'ble Court held that the expression "not less than as appears in Section 167 (2) (a) (i)" would mean that imprisonment should be ten years or more and would cover only those offences for which punishment could be imprisonment for a clear period of ten years or more. In view of the punishment prescribed U/s.386 I.P.C., imprisonment can be for a clear period of ten years or less. Hence, it could not be said that minimum sentence would be ten years or more rather the imprisonment can vary from minimum to maximum ten years and it cannot be said that imprisonment prescribed is not less than ten years. Clause (i) of the proviso (a) to Section 167 (2) would not cover the offence for which punishment would be imprisonment for less than ten years and accordingly the order of the Magistrate granting bail to the accused on the ground that 14 charge sheet was not submitted within sixty days was ultimately upheld by the Hon'ble Supreme Court.
In case of Nijamuddin Mohammad Bashir Khan -v- State of Maharashtra reported in 2006 Criminal Law Journal 4266, a Division Bench of Bombay High Court held that in every case in which offence is punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, provisions of Section 167(2)(a)(ii) Cr.P.C. will be attracted and if investigation in such case is not completed within the period of sixty days, no Magistrate shall authorise the detention of the accused person beyond the said period.
11. Section 8 of the OPID Act, 2011 deals with constitution of one or more Designated Courts for an area or areas or for such case or cases as may be specified in the notification issued by the Government with the concurrence of the Chief Justice of the Orissa High Court. It also lays down that only an officer who belongs to Odisha Superior Judicial Service can preside over the said Court. Once the Designated Court is constituted as per notification, no other Court shall have jurisdiction to deal with any matter under the OPID Act to which the provisions of OPID Act shall apply. The pending proceedings in other Courts to which the provisions of OPID Act apply are to be transferred to 15 the Designated Court. The Designated Court while trying a case under OPID Act can also try any offence other than an offence specified in section 6 of the said Act.
Section 15 of the OPID Act empowers the Designated Court to take cognizance of the offence without the commitment of the accused to it for trial. While trying the case, the Designated Court has to follow the procedure laid down in Chapter XIX of Cr.P.C. i.e. the trial of the warrant cases by Magistrates. The provisions of the Cr.P.C. shall also be applicable to the proceedings before a Designated Court and such Court shall be deemed to be a Magistrate.
12. In the case at hand, when the Inspector in Charge of Olatpur Police Station registered the case, inter alia, under Section 18 of the OPID Act, 2011 (seems to have been wrongly registered in place of 6 of the OPID Act) and arrested the petitioner finding ample evidence available against him, he should have forwarded the petitioner to the Court of learned First Additional Sessions Judge -cum- Designated Court, Cuttack who is the cognizance taking Court under the OPID Act, 2011 instead of forwarding him to the Court of learned J.M.F.C.(R), Cuttack.
13. When an application under Section 167(2) Cr.P.C. was filed by the petitioner for releasing him on bail on the ground of default of the investigating agency to submit the final form 16 within the stipulated period, the learned Presiding Officer of the Designated Court should not have gone into the merits of the case rather he should have dealt with the points raised by the learned counsel for the petitioner in support of the entitlement of the petitioner to be released on bail under Section 167(2) Cr.P.C.
14. After bestowing my most anxious and thoughtful consideration to the submissions raised at the Bar, I am of the view that even if it is prima facie held that the petitioner is involved in an offence under Section 6 of the OPID Act, which prescribes punishment up to ten years and with fine and the other offences under sections 420, 406 and 120-B of Indian Penal Code which certainly prescribes punishment for less than ten years, clause (ii) of proviso (a) to sub section (2) of section 167 Cr.P.C. would be applicable in this case and since no final form has been submitted within a period of sixty days from the date of first remand of the petitioner to custody, the petitioner is entitled to be released on bail.
15. In view of the foregoing analysis, I direct the petitioner to be released on bail in the aforesaid case on furnishing cash security of Rs.1,00,000/- (rupees one lakh) and also furnishing bail bond of Rs.50,000/- (rupees fifty thousand) with two solvent sureties each for the like amount to the satisfaction of the learned Court in session over the matter with further terms and 17 conditions as the learned Court may deem just and proper. The petitioner shall deposit his passport, if any, with the learned trial Court and if he does not hold a passport, he shall file an affidavit to that effect. The petitioner shall present himself at Olatpur Police Station once a week on every Sunday between 4 p.m. to 6 p.m. for a period of six months from the date of his release. The petitioner shall appear before the investigating officer as and when required upon prior written notice. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. The petitioner shall attend the trial Court on each and every date when the case is posted. The learned trial Court is at liberty to cancel the bail if any of the conditions imposed is violated or a case for cancellation is otherwise made out.
The BLAPL is accordingly disposed of.
Urgent certified copy of the order be granted on proper application.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 9th September,2015/Pravakar