Orissa High Court
Shrikant Mohta vs Republic Of India ........ Opp. Party on 1 December, 2020
Equivalent citations: AIRONLINE 2020 ORI 156
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 5622 Of 2020
An application under section 439 of the Code of Criminal
Procedure in connection with R.C. Case No. 39/S/2014-Kol
corresponding to SPE Case No. 34 of 2014 pending on the file of
Special C.J.M. (C.B.I.), Bhubaneswar.
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Shrikant Mohta ........ Petitioner
-Versus-
Republic of India ........ Opp. Party
For Petitioner: - Mr. Kapil Sibal
(Senior Advocate)
Mr. Milan Kanungo
(Senior Advocate)
For Opp. Party (C.B.I.) - Mr. Sarthak Nayak
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing: 17.11.2020 Date of Order: 01.12.2020
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S. K. SAHOO, J. This is the third successive bail application of the
petitioner Shrikant Mohta before this Court. The first bail
application in BLAPL No.1983 of 2019 was rejected on
13.05.2019 and the second one in BLAPL No.5450 of 2019 was
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rejected on 02.01.2020. The petitioner approached the Hon'ble
Supreme Court against the rejection order dated 02.01.2020 by
preferring petition for Special Leave to Appeal (Crl.) No.839 of
2020 which was also dismissed on 10.02.2020. After the
dismissal of the Special Leave Petition, the petitioner without
preferring any application for bail before the learned trial Court,
has approached this Court directly and filed the present bail
application on 17.08.2020.
The petitioner is an accused in R.C. Case No.
39/S/2014-Kol corresponding to SPE Case No. 34 of 2014
pending on the file of Special C.J.M. (C.B.I.), Bhubaneswar for
commission of offences punishable under sections 420, 409 read
with section 120-B of the Indian Penal Code and sections 4, 5
and 6 of the Prize Chits and Money Circulation Schemes
(Banning) Act, 1978 (hereafter '1978 Act').
2. The present case was instituted by clubbing three
first information reports of three different cases i.e. Buguda P.S.
Case No.75 of 2013, Jeypore Town P.S. Case No.71 of 2013 and
Nuapada P.S. Case No.82 of 2013 in pursuance of the order
dated 09.05.2014 of the Hon'ble Supreme Court of India passed
in W.P. (Civil) No.401 of 2013 filed by Shri Subrata Chattoraj
and W.P. (Civil) No.413 of 2013 filed by Shri Alok Jena.
3
The factual matrix of the prosecution case is that
Rose Valley Group of Companies (hereafter for short 'Rose
Valley') collected huge amount of money from public enticing
them with false promise of paying higher rates of interest
although Rose Valley was not having any authorization from the
Reserve Bank of India (hereafter for short 'RBI') or the Securities
and Exchange Board of India (hereafter for short 'SEBI') for
carrying out such activities and therefore, the company cheated
the public.
Investigation revealed that 'Rose Valley Resorts and
Plantations Limited, Kolkata' was founded in the year 1997 and
in the year 2002, SEBI imposed ban on the teak based
investment schemes which the company was carrying out, for
which the schemes floated were stopped. The company was
renamed as 'Rose Valley Hotel and Entertainment Limited' in the
year 1999. Two more companies in the name of 'Rose Valley
Real Estates Constructions Limited' and 'Real Estate and
Landbank India Ltd.' were founded subsequently in the year
1999 and 2001 which were registered with the Registrar of
Companies (hereafter for short 'ROC'). Rose Valley started
expanding its spheres and a lot of new companies were formed
in between 1997 to 2012. The accused persons, namely Gautam
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Kundu, Chairman of Rose Valley, Shibamoy Dutta, Managing
Director, Ashok Kumar Saha and Ram Lal Goswami, Directors of
Rose Valley in furtherance of criminal conspiracy by establishing
branches of the companies in different parts of India, collected
money from the public through multi-level agent network
system. They cheated the investors/depositors by way of
camouflaged schemes and false assurance about legal sanctity
and false promise of higher rates of interest. The accused
persons also cheated the depositors as well as the agents by
making false assurance that the accused companies were legally
empowered to collect money from the public. They were running
ponzi schemes and circulating the money collected from the
depositors which was not disclosed to the depositors and agents.
The accused persons made false propaganda that Rose Valley is
having a big business empire and diversified business. They
fraudulently claimed that the money collected from the
depositors would be invested in those businesses and with the
help of high returns from those companies, they would be able to
pay back to the depositors their invested money with interest on
maturity. The accused persons deceived the depositors and
deliberately induced them to invest their hard-earned money in
the accused companies. It further revealed from the scrutiny of
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the balance sheet of all the companies of Rose Valley that almost
all the companies were making loss and old depositors were paid
by using money of the new depositors since there was no income
generated by the companies from any source. It further revealed
that the total business model of Rose Valley was commercially
unrealistic/unviable and it was not in a position to pay to its
depositors the promised higher rates of interest and therefore, it
was just rotating the money. Rose Valley not only collected
thousand of crores of rupees illegally from the depositors by
cheating them but they did not utilize the same for the purpose
for which the money was invested. The accused persons did not
return the money of lakh of depositors and thereby committed
criminal breach of trust. The total money collection of Rose
Valley according to the database up to the financial year 2012-
13 was Rs.1471,18,81724/- (rupees fourteen hundred seventy
one crores eighteen lakhs eighty one thousand seven hundred
twenty four only).
On 06.01.2016 first charge sheet was submitted
against accused Gautam Kundu, Shibamoy Dutta, Ashok Kumar
Saha, Ram Lal Goswami and three Rose Valley Companies under
sections 420, 408, 409, 120-B/34 of the Indian Penal Code and
sections 4, 5 and 6 of 1978 Act keeping the further investigation
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open under section 173(8) of Cr.P.C. for ascertaining the role of
regulatory agencies like SEBI, ROC and RBI and other agencies
and also other influential persons involved in it and for probing
the larger criminal conspiracy and money trailing.
During course of further investigation, the roles of
Tapas Paul and Shri Sudeep Bandyopadhyay, both Members of
Parliament were examined and it was found that both the
accused allowed their stature to be used to allure the investors,
agents and in return, they also gained wrongfully. In order to
promote the illegal money collection business of Rose Valley,
they grossly abused their respective official positions and overtly
certified the business of Rose Valley and their presence with the
company bestowed confidence in the minds of agents and
investors about the credential of the company. Thus, the two
accused M.Ps. also deceived the investors to deposit money in
the Rose Valley, cheated them and misappropriated the money
in conspiracy with other accused persons.
On 26.04.2017 second charge sheet was submitted
under sections 420 and 409 read with section 120-B of the
Indian Penal Code and sections 4 and 6 of 1978 Act and section
13(2) read with section 13(1)(d) of the Prevention of Corruption
Act, 1988 against the M.Ps. Tapas Paul and Shri Sudeep
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Bandyopadhyay and others keeping the further investigation
open to look into the role of the regulatory authorities, larger
criminal conspiracy and money trailing.
During course of further investigation, materials were
found against accused Ramesh Gandhi, who was the Managing
Director of M/s. Rainbow Productions Limited. It was found that
having full knowledge that Rose Valley was collecting money
from the general public in an illegal manner and their activities
were under the scanner of law enforcement agencies, accused
Ramesh Gandhi, who was a producer of T.V. programmes and
was in electronic media business entered into business relation
with accused Gautam Kundu and an agreement was executed to
protect illegal money collection business of Rose Valley and to
gain wrongfully. The said accused Ramesh Gandhi projected
himself to be keeping control over the media channels/
newspapers of Assam for protecting the business of Rose Valley.
Huge amount was paid to M/s. Rainbow Productions Ltd. towards
the release of advertisements of the company from the account
of Rose Valley.
On 15.05.2018 third charge sheet was submitted
against accused Ramesh Gandhi, M/s. Rainbow Productions Ltd.
and M/s. Aarambh Advertising and Marketing Ltd. under section
8
120-B read with sections 420 and 409 of the Indian Penal Code
and sections 4 and 6 of 1978 Act keeping the further
investigation open.
During course of further investigation, it was found
that the petitioner is the Founder Director of M/s. Shree
Venkatesh Films Private Limited (hereafter 'SVFPL'). SVFPL
entered into an agreement with a sister concern of Rose Valley,
namely, M/s. Brand Value Communication Ltd. (hereafter 'BVCL')
on 07.04.2010 for supplying the telecast rights of seventy
Bengali films for an amount of Rs.25 crores to be broadcasted
through the satellite channel of BVCL namely 'Rupashi Bangla'.
During telecast of Bengali films, publicity of Rose Valley was
made in the T.V. channel owned by Rose Valley for alluring the
investors to make investment which reflected the real purpose
behind the agreement for supply of seventy Bengali films to
BVCL. Nineteen films supplied by SVFPL to BVCL amounting to
Rs.6.84 crores were found to be technically not viable and as
such those films were returned to SVFPL but the amount of
Rs.6.84 crores was not returned back by SVFPL to BVCL.
Investigation further revealed that BVCL lodged a
first information report against SVFPL and its employees on
16.11.2011 at Baguiati Police Station, Kolkata in which charge
9
sheet was submitted against all the F.I.R. named accused
persons including the petitioner. The said charge sheet was
challenged by the petitioner and other accused persons before
the Hon'ble Calcutta High Court and the Hon'ble Court quashed
the charge sheet. BVCL challenged the matter before the Hon'ble
Supreme Court which upheld the decision of the Hon'ble Calcutta
High Court. Finally, as it was found that the SVFPL had not
supplied nineteen technically feasible films to BVCL, in an
arbitration proceeding, the learned Arbitrator vide order dated
13.06.2018 awarded a payment of Rs.6.84 crores by SVFPL to
BVCL. The award amount of Rs.6.84 crores passed by the
learned Arbitrator was not paid by SVFPL. Investigation further
revealed that the petitioner and accused Gautam Kundu,
Chairman of Rose Valley entered into a criminal conspiracy
amongst themselves to misappropriate the public fund illegally
collected by the Rose Valley on the garb of an agreement for
telecast right of films to the BVCL. The illegal financial business
activities of the Rose Valley Group of companies namely Rose
Valley Real Estates & Constructions Ltd., Rose Valley Resorts &
Plantations Ltd. (subsequently renamed as 'Rose Valley Hotels
and entertainments Ltd.'), Real Estates & Landbank India Ltd.
were banned by SEBI by its orders in the year 2002 and during
10
2010-11 respectively. The same was widely publicised through
media. The petitioner having full knowledge of banning of the
activities of Rose Valley by the regulatory authority SEBI,
entered into an agreement with BVCL. The petitioner through his
company SVFPL purchased paintings from an exhibition held in
Kolkata during 2011-13 for a declared amount of Rs.15 lakhs
from 'Jago Bangla'. According to the prosecution, the amount
which was received by SVFPL from BVCL was the money
collected by the Rose Valley Group of companies from the
depositors by deceiving them with assurance of getting higher
returns without the permission of RBI. The money so collected
was diverted by the Rose Valley to its sister concern BVCL which
was further diverted to the accounts of SVFPL. It is the case of
the prosecution that the petitioner belonged to the community of
media and he was supposed to have the knowledge of the
banning of the activities of the Rose Valley by the regulatory
authority SEBI and in spite of that the petitioner's company
SVFPL entered into an illegal agreement with BVCL. During
course of investigation, as the petitioner did not cooperate with
the investigation and prima facie case relating to his involvement
in the crime was made out, he was arrested and forwarded to
Court on 25.01.2019.
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After rejection of the first bail application of the
petitioner by this Court in BLAPL No.1983 of 2019, fourth charge
sheet was submitted against the petitioner on 22.05.2019 under
sections 420, 409 read with section 120-B of the Indian Penal
Code and sections 4, 5 and 6 of the 1978 Act. In the said charge
sheet, it is mentioned that SVFPL was registered with Registrar
of Companies (ROC), Kolkata, West Bengal. The company was
renamed as M/s. SVF Entertainment Private Ltd. (hereafter
'SVEPL') on 16.03.2017. The Directors of the company were the
petitioner, Sri Mahendra Suni, Shri Bishnukanta Mohta and Sri
Jeeban Das Mohta. The main object of the company was to carry
out the business of exhibition, distribution of cinema TV, video
films and production of cinema TV, Video cassettes etc.
Investigation revealed that since the company M/s Rose Valley
Resort and Plantation was indulged in illegal deposit collection
business, SEBI had banned the collection of deposits in the name
of M/s. Rose Valley Resorts & Plantation Ltd. vide order dated
24.02.2002. SEBI had also directed the M/s. Rose Valley Resorts
and Plantation Ltd. to refund the money collected under the
schemes within one month from the date of the order. The order
passed by the SEBI was uploaded in the public domain. In
compliance with the order of the SEBI dated 24.02.2002, M/s.
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Rose Valley Resorts and Plantation Ltd. wind up the CIS Scheme
and repaid money to the investors. Subsequently during an
enquiry by SEBI started from 08.01.2010, the company M/s.
Rose Valley Real Estate and Construction Ltd. was also found to
be engaged in running "Collective Investment Scheme" and
soliciting money from the public in the name of plot selling
without having any permission from the SEBI. In order to
prevent the activities of M/s Rose Valley Real Estate and
Constructions Ltd, SEBI banned the business of the company
vide order dated 03.01.2011 and the said order was also
uploaded in public domain and published in the newspaper "The
Times of India" dated 19.05.2013 for the awareness of general
public. Investigation further revealed that though SEBI had
banned the company M/s. Rose Valley Resort and Plantation
Limited, accused Gautam Kundu, Chairman of M/s. Rose Valley
Group continued with illegal deposit collection business with an
intention to cheat the public by changing the name of the
company M/s. Rose Valley Resorts and Plantation Ltd. to M/s.
Rose Valley Hotels and Entertainment Ltd. in the year 2007. In
addition to that, with an intention to promote the illegal chit fund
business of M/s. Rose Valley Group and to divert the money
received from public, accused Gautam Kundu set up media
13
business in the name of M/s. Rose Valley Films Ltd. and BVCL.
To carry on the media business with the ulterior motive to
promote illegal chit fund business, accused Gautam Kundu
wanted to purchase some good films and telecast those films
through 'Rupashi Bangla' Channel of BVCL. Investigation further
revealed that the petitioner was the chief promoter of SVFEPL
which was engaged in production and distribution in the field of
media, music, digital cinema, exhibition since 1996. Though Shri
Mahendra Soni, Jeewan Das Mohta and Shri Vishnukant Mohta
were also the directors of SVFEPL, all the decisions were taken
by the petitioner since he was the main director of the company.
Despite being in the world of media, the petitioner was closely
associated with the Managing Director of M/s. Rose Valley Group
who was none else than accused Gautam Kundu and despite
having knowledge about the illegal business activities of the Rose
Valley Group, he entered into the business alliance which was in
the nature of criminal conspiracy to divert the ill-gotten money in
the guise of commercial ties.
Investigation further revealed that before entering
into an agreement with BVCL, the petitioner and Mahendra Soni,
both directors of SVFEPL company had joined in a meeting with
accused Gautam Kundu, Shri Satyajit Saha, Director and Shri
14
Kranti Kumar, staff of BVCL at Hotel Taj on 26.01.2010 and in
the said meeting, accused Gautam Kundu on behalf of Rose
Valley Group and the petitioner on behalf of SVFEPL discussed to
promote the actual business i.e Chit fund business of M/s Rose
Valley in the garb of business opportunity. In the said meeting,
accused Gautam Kundu disclosed about his actual chit fund
business in the name of M/s Rose Valley to the petitioner. He
further requested the petitioner to promote his media business
by supplying good films produced by SVFPL since during the
relevant period of time TRP of SVFPL was very high in
comparison to other production houses. Accused Gautam Kundu
disclosed that his company's actual source of income was deposit
collection from the public and he wanted to invest the said
money in the media business for branding and promotion of his
chit fund business. The petitioner knowing the facts that accused
Gautam Kundu was doing illegal chit fund business by collecting
the deposits from the public in the name of M/s. Rose Valley
agreed to enter into an agreement and other business alliance
with accused Gautam Kundu and finally both agreed mutually
and decided the agenda vide item numbers 1, 2 & 3 of the
minutes of the meeting which was sent by Mahendra Soni on
behalf of SVFPL. In a said meeting, Shri Satyajit Saha, Shri
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Kranti Kumar of BVCL and Mahendra Soni were present.
Investigation further revealed that agenda item no. 1 was the
film deal i.e. M/s. Rose Valley principally agreed to acquire
satellite right of seventy films from SVFPL for a period of three
years. Agenda item no.2 was the fiction show i.e. SVFPL agreed
to produce one fiction show for M/s. Rose Valley for 9 p.m. slot.
Rose Valley had suggested launching the show by the end week
of February. Further, M/s. Rose Valley approved the concept
given by SVFPL and for the said fiction show, M/s. Rose Valley
would provide the shooting floor. Agenda item no.3 was the film
distribution and M/s. Rose Valley had asked SVFPL to distribute
all their upcoming films and Shri Kranti Kumar was to further
coordinate with SVFPL on the way forward.
Investigation further revealed that the petitioner as
Director of SVFPL had entered into a criminal conspiracy with
accused Gautam Kundu to promote the illegal chit fund business
in the garb of business transaction with BVCL in spite of knowing
the facts that M/s. Rose Valley Group was indulged in an illegal
business activities i.e deposit collection from the public which
was already banned by the SEBI in the year 2002 and in
furtherance of that, an agreement dated 07.04.2010 was signed
by Shri Mahendra Soni, Director on behalf of SVFPL and Shri
16
Satyajit Saha, Director on behalf of BVCL for films assignment of
sole and exclusive satellite television broadcasting rights in
respect of seventy films through its channel 'Rupashi Bangla' at
mutually agreed consideration amount of twenty five crores.
Investigation further revealed that as soon as the
agreement was signed, total consideration amount of rupees
twenty five crores after deducting a sum of Rs.2.5 crores on
account of Tax Deducted at source (TDS) i.e Rs 22.50 crores was
paid by accused Gautam Kundu to the petitioner by issuing
cheques under his own signatures. The total amount of Rs 22.50
crores was debited from the account of BVCL. The said amount
was diverted by accused Gautam Kundu in the account of BVCL
from M/s. Rose Valley Real Estate & Constructions Ltd. During
the relevant period of transaction i.e. 03.04.2010 to 01.07.2010,
the major amount credited into the account of BVCL was from
M/s. Rose Valley Real Estate & Construction Ltd. (Group
Company of M/s. Rose Valley). The Rose Valley Real Estate &
Constructions Ltd. was collecting investment from the public in
an illegal manner for which the company was banned by the
SEBI vide order dated 03.01.2011 and later on 06.01.2016 this
company was charge sheeted by C.B.I. in this case. Investigation
established that the amount received by SVFPL was actually the
17
ill-gotten money invested to Rose Valley Real Estate &
Constructions Ltd. which was transferred to BVCL by accused
Gautam Kundu. Investigation further revealed that an amount of
rupees nine crores was paid by BVCL by way of a cheque
credited on 28.06.2010 in the account of SVFPL (TV & Studio
Division). Another cheque for rupees nine crores was credited on
24.04.2010 in the account of SVFPL and another cheque for Rs
4.5 crores was credited on 05.05.2010 in the OD account of
SVFPL.
Investigation further revealed that the petitioner did
not supply films in spite of full payment received for supply of
the films. Out of the seventy films, SVFPL finally supplied only
fifty one films and the remaining nineteen films remained
unsupplied which showed the actual attitude and intent of the
said Company. The petitioner intended to receive the ill-gotton
money in the garb of a genuine business deal/agreement but
investigation established that by entering into a criminal
conspiracy in the form of a business deal with accused Gautam
Kundu, the petitioner conspired to cheat the general public since
the amount received by him on the guise of the business
transaction was the public money.
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Investigation further revealed that apart from the
film assignment agreement, to promote the chit fund business of
M/s Rose Valley Group, SVFPL and BVCL had also entered into
another agreement on 23.05.2010 to produce TV Serial
"Suhashini" by SVFPL for BVCL @ Rs.1,45,000/- + Service Tax
per episode and the said TV Serial was telecasted from 'Rupashi
Bangla' channel of BVCL. Further, BVCL also provided shooting
floor to SVFPL for the shooting of said TV serial.
Investigation further revealed that in order to bring
more and more advertisers for telecasting their advertisements
during the intervals of movies of SVFPL, one brochure was
designed by using SVF logo and 'Rupashi Bangla' logo so that the
advertisers might know that the films of SVFPL, a reputed
production house which was known for production of quality films
would be shown in the television channel of BVCL. The brochure
was shown to the intending advertisers so that they could
subscribe their advertisements during the programme which
would increase the revenue and prestige of BVCL. Further, in the
'Rupashi Bangla' channel of BVCL, the advertisement of Rose
Valley was used to be shown on a regular basis. By such
agreement, SVFPL helped BVCL to enhance their revenue
generation and also their prestige.
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Investigation further revealed that some differences
between BVCL and SVFPL culminated into registration of F.I.R.
No.689 of 2011. Finally, SVFPL and its inmate along with two
employees of BVCL were charge sheeted. However, the said
proceeding was quashed by the Hon'ble Calcutta High Court.
Investigation further disclosed that in respect of alleged amount
of said agreement dated 07.04.2010 which was the subject
matter of the said proceeding, it was not surfaced at that time
that the said amount was actually the misappropriated property
of the general public invested with M/s. Rose Valley Real Estate
& Constructions Ltd. Accordingly, C.B.I. while tracing the trail of
money ascertained that SVFPL and its directors had conspired to
misappropriate the fund of ill-gotten money. Though in the
Baguiati P.S. case, the aggrieved party was BVCL but in the
instant case, the aggrieved parties are poor and gullible
investors and the public at large. In Baguiati P.S. case, whether
the money involved was actually the money invested by poor
investors or not, was never investigated.
Investigation further revealed that till 2010-11, the
M/s. Rose Valley Group of companies had already raised funds to
the tune of Rs.5357,92,82,699/- illegally. The payments made to
SVFPL by BVCL was nothing but the investments made by
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gullible investors illegally collected by M/s. Rose Valley Group.
The petitioner despite being a high profile person in the world of
media, maintained his relationship with the Managing Director of
M/s. Rose Valley Group and entered into business alliance with
him, in spite of having fine knowledge about the illegal business
activities of the M/s. Rose Valley Group. It is further stated that
the illegal act of the companies, conspiracy angle for promoting
the chit fund business under the guise of film supply, production
of TV Serial, all these factual criminal angles were not placed
before the Hon'ble High Court and instead of that, only
agreement part was highlighted for treating the matter as civil in
nature.
Investigation further revealed that a Divisional Bench
of Calcutta High Court appointed an Arbitrator to decide the
dispute between BVCL and SVFPL. During the arbitral
proceedings, the learned Arbitrator compensated BVCL for the
loss of title rights to telecast nineteen films for which it had paid
and accordingly, taking average valuation of each film,
compensation was awarded to the tune of Rs.6.84 crores to be
paid by SVFPL to BVCL along with an interest @ 8% per annum
w.e.f. 06.08.2013 to 13.06.2018 and further interest of 9% was
directed to be levied on the awarded amount plus the interest
21
amount from 14.06.2013 till the date of actual payment which
was to be paid by SVFPL.
3. The first bail application of the petitioner in BLAPL
No.1983 of 2019 was rejected by this Court on 13.05.2019
considering the nature and gravity of the accusation, strong
prima facie case available against the petitioner to show his
involvement in the economic offence committed by Rose Valley,
likelihood of tampering with the evidence when the investigation
was at a crucial stage and several bank accounts of the
petitioner and his company were under scrutiny to trace out any
further money transactions with Rose Valley and above all in the
larger interest of society.
The second bail application of the petitioner in BLAPL
No.5450 of 2019 was rejected by this Court on 02.01.2020 on
the ground that the petitioner's key role in the commission of
economic offence by Rose Valley is prima facie apparent and that
there is deep rooted criminal conspiracy to cheat the public with
an eye on personal profit and that large number of innocent
depositors have been duped of their hard-earned money and
that there was cool calculation and deliberate design by the
accused persons to flourish the illegal chit fund business
activities of Rose Valley and further taking into account the
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crucial stage of investigation and that the release of the
petitioner who is a very influential person having close contacts
with high level personalities and politicians of West Bengal is
likely hamper such investigation.
The Hon'ble Supreme Court in the Special Leave
Petition filed by the petitioner challenging the order dated
02.01.2020 of this Court, on perusal of the available materials on
record was also not inclined to consider the bail application at
that stage and dismissed the same on 10.02.2020.
4. In the present bail application which was filed on
17.08.2020, mainly the following grounds have been taken:
(i) Daily examination of the petitioner by doctors of
AMRI Hospital is being done and periodic medical updates are
also sent to the jail authorities. The petitioner was admitted with
hemorrhagic stroke, and that the petitioner is also suffering from
comorbidities such as hypertension, diabetes mellitus. The
petitioner was attended by multiple specialist doctors like
endocrinologist, cardiologist, ophthalmologist, orthopaedic
surgeon etc. as well as by psychiatrist and psychologist for
depression and anxiety.
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(ii) The state of health of the petitioner is extremely
critical and is deteriorating at a very fast pace as evident from
the medical reports/examinations. The ailment of the petitioner
is also taking a heavy toll on his mental framework. The
petitioner has already suffered two massive strokes, which has
left him susceptible to various kinds of other ailments. Due to
the state of health of the petitioner, he is presently at AMRI,
Bhubaneswar. The petitioner's state of health is in a precarious
condition and in view of the situation arising out of COVID-19, it
would be safer for the petitioner to be in his house with twenty
four hours medical supervision. With each passing moment, the
petitioner is at risk of coming in contact with the deadly virus.
The petitioner's suffering due to his health condition is of a
severe nature. Since the charge sheet has been submitted by the
investigating agency, there is no further use of keeping the
petitioner in detention. The recent medical reports indicate that
the petitioner is suffering from hypertension, T2DM, Old CVA
(ICH) with acute depression.
(iii) Taking the allegations in its entirety, no criminal
case is made out against the petitioner inasmuch as the money
transaction between the petitioner and the principal accused Sri
Kundu is out and out civil in nature arising out of commercial
24
transaction between the parties and by no stretch of
imagination, it attracts the ingredients of any of the offences
alleged. By no figment of imagination, complicity of the
petitioner can be established vis-a-vis the offences alleged. The
petitioner is in no way connected with the alleged offences and
there is no evidence available on record to show his complicity in
such offences. The facts have been deliberately twisted to
somehow rope in the petitioner without any basis.
(iv) The petitioner has cooperated with the
investigation as and when so directed and his statement has also
been recorded by the I.O. on 29.08.2018 and 06.12.2018 and
there is no scope for the petitioner either to influence or to
interfere with the investigation.
(v) The attempt made by the investigating agency
in accomplishing arrest of the petitioner is nothing but a gross
misuse of criminal process against the petitioner for putting him
under pressure in civil disputes between SVF and BVC.
(vi) The petitioner is a victim of non-adherence of
contractual terms by the Brand Value Communication Ltd. owned
by Shri Goutam Kundu. The dispute between the parties is now
pending for arbitration, yet to add insult to injury, the petitioner
25
was arrested on the accusation that the principal accused had
parked huge money with the petitioner which supposedly makes
the petitioner liable. There is no basis to make such wild
allegations vis-a-vis the petitioner and it goes to establish that
the authorities are on a witch-hunt and the petitioner has
become an easy target being in public domain as an
entrepreneur in the entertainment industry and he has been
made a scapegoat.
(vii) Co-accused Ramesh Gandhi preferred a petition
before the Hon'ble Apex Court, being registered as Special Leave
to Appeal (Criminal) No.2274 of 2020 and vide order dated
04.05.2020, he was released on bail. Another accused Suman
Chatopadhy has also been granted bail by the Hon'ble Apex
Court on health grounds.
(viii) Mr. Tapas Pal, who is the Director of the Rose
Valley Group, which was actively involved in collecting money,
and Mr. Sudip Bandhopadhyay, who is accused of directly
propagating and advertising the chit fund schemes have been
released on bail. Both the accused persons are elected members
of the Parliament and highly influential, despite which they have
been granted bail.
26
(ix) The charge sheet upon a closer scrutiny reveals
false and perverse imagination of the prosecution without in any
manner disclosing any offence allegedly committed by the
petitioner. Bundle of lies, contradictions, sheer dishonesty are
the foundation on which the charge sheet is structured and laid.
(x) M/s. Rose Valley was doing its alleged business
of chit fund without any assistance from the petitioner or for that
matter from the SVF. There is no iota of evidence that the
petitioner was involved in any form of conspiracy. The
petitioner's company came into being much earlier to that of
Rose Valley.
(xi) The petitioner has roots in the society and there
cannot be any allegation of fleeing from justice and non-
cooperation in the trial.
5. Learned counsel for the petitioner filed an additional
affidavit on dated 07.09.2020 which was sworn by the wife of
the petitioner indicating therein that the petitioner was admitted
to AMRI Hospital, Bhubaneswar for treatment of his ailment and
while he was under treatment in the said hospital, he came into
contact with the deadly virus COVID-19, after which he was
shifted to COVID Isolation Ward of the said hospital. It is further
27
stated in the affidavit that the state of health of the petitioner
was critical and deteriorating at a very fast pace which became
worst after being infected with the deadly virus and that the
ailment of the petitioner was taking a heavy toll on his mental
condition and that he is required to be shifted to an isolated
place after recovering from COVID-19 and it would be safer for
the petitioner to be in his house with 24 x 7 medical supervision.
Learned counsel for the C.B.I. filed his reply to the
additional affidavit on 25.09.2020 indicating therein that except
the old ailments, the only new fact which revealed from the
additional affidavit was about the infection of the petitioner from
COVID-19 and his treatment for such infection. As regards the
suffering of the petitioner from COVID-19, it was intimated by
the AMRI Hospital authorities, Bhubaneswar vide letter dated
24.09.2020 that as per treatment guidelines, the petitioner was
provided with necessary treatment and that in a day or two, he
would be shifted to non-COVID Ward. No medical reports were
filed by the petitioner along with the bail application to show that
there was rapid deterioration of his health condition. It is stated
that there is no change in the circumstances after rejection of
the earlier bail application to reconsider the same on merit. It is
further stated that the further investigation of the case is under
28
progress and at this stage, the release of the petitioner on bail is
likely to jeopardize such investigation. It is further stated in the
reply that the offences alleged against the petitioner have
serious social ramifications and there is segment of larger
conspiracy and money trailing. Investigation revealed that the
petitioner was in regular contact with many influential persons
and he would threaten/allure the witnesses by using his influence
and money power and tamper with the evidence. There is strong
apprehension that the defrauded amount which is yet to be
traced out would be utilized by the petitioner to influence the
witnesses or further divert the ill-gotten money to different
influential persons for different purposes. There is every chance
that the petitioner would abscond and he would not cooperate
with the investigation. There is possibility of examining some of
employees of the petitioner in course of further investigation
along with other witnesses and if the petitioner is enlarged on
bail, his employees would not come forward to divulge the truth
and thereby there would be derailing of the ongoing
investigation. In the past, the petitioner did not cooperate with
the investigating agency (C.B.I.) and even tried to derail the
investigation by alluring one of the employees of C.B.I. with
monetary benefit. Even on the day of the arrest, the
29
Investigating Officer of the case came to the office of the
petitioner and requested him to join the investigation by visiting
C.B.I. Office, however, instead of cooperating with C.B.I., by
using his influence, the petitioner lodged a false case before local
police that some unknown persons visited his office being fully
aware that those persons are C.B.I. Officers. The interest of the
society at large is of paramount importance. The conduct of the
petitioner was very much questionable which can be inferred
from the facts and circumstances of the case. Certain documents
relating to status of the case and stage of investigation etc. were
submitted in a sealed cover on 28.09.2020 by the learned
counsel for the C.B.I. keeping in view the secrecy of the
investigation.
6. Learned counsel for the petitioner filed one interim
application on 06.11.2020 seeking for interim bail of the
petitioner for a period of six months which was registered as I.A.
No.1093 of 2020, wherein grounds were taken about his
precarious medical condition and that his brother-in-law
(husband of the sister) expired on 10.10.2020 and that the
petitioner was kept in the COVID Ward of AMRI Hospital from
04.09.2020 to 25.09.2020 and that there is every chance of
coming in contact with the deadly virus again and that even
30
though further investigation of the case is continuing since
22.05.2019, no supplementary charge sheet has been filed.
Further ground has been taken that trial of the case has been
stayed by this Court in CRLMC No.3407 of 2019 vide order dated
12.03.2020. Reliance was placed on the medical reports of AMRI
Hospital which were called for by this Court as per order dated
15.09.2020 and 07.10.2020.
7. On 09.11.2020, a rejoinder affidavit was filed on
behalf of the petitioner to the reply filed by the C.B.I. which was
sworn by the wife of the petitioner wherein it is stated that in
spite of lapse of more than six years after registration of the
F.I.R. in the year 2014, the C.B.I. has not completed the
investigation and that the employees of the petitioner have been
summoned and they have appeared for more than fourteen
occasions and supplied all the documents which have been
requisitioned by the C.B.I. In the rejoinder affidavit, objection
was raised on the perusal of the status report as well as report
relating to the stage of investigation which was filed by the
C.B.I. in a sealed cover. Reliance was placed in the case of P.
Chidambaram -Vrs.- Directorate of Enforcement reported
in (2020)77 Orissa Criminal Reports (SC) 383. It is stated
therein that not a single application has been filed by the
31
prosecution seeking extension of the judicial custody of the
petitioner after filing of the charge sheet asserting that remand
was required for collection of further evidence but orders have
been passed by the learned Court below extending custody of
the petitioner as a matter of course which was per se illegal and
unwarranted and the same is not inconsonance with section 309
of Cr.P.C. Reliance was placed in the case of C.B.I. -Vrs.-
Anupam J. Kulkarni reported in (1992)3 Supreme Court
Cases 141 and Manubhai Ratilal Patel -Vrs.- State of
Gujarat reported in (2012)53 Orissa Criminal Reports (SC)
875. The order sheet of the learned trial Court from 22.05.2019
to 21.11.2019 and some other orders were relied upon to
substantiate such point. It is further stated that no order was
obtained from the learned Special C.J.M. to conduct further
investigation which is a mandatory requirement and in that
regard, reliance was placed in the case of Vinay Tyagi -Vrs.-
Irshad Ali reported in (2013)54 Orissa Criminal Reports
(SC) 561. It is further stated that the delay in completion of
further investigation is no way attributable to the petitioner as he
is in judicial custody since 24.01.2019.
Another additional affidavit was filed on behalf of the
petitioner on 11.11.2020 which was sworn by his wife wherein it
32
is stated that some of the undertrial prisoners in the chit fund
scam cases have died which was reported in the media and in
case the petitioner is not released on interim bail, it would cause
irreparable loss and injury to his life and liberty.
8. Mr. Kapil Sibal, learned Senior Advocate along with
Mr. Milan Kanungo, learned Senior Advocate appearing for the
petitioner contended that the petitioner is in judicial custody for
twenty two months and after submission of third supplementary
charge sheet on 22.05.2019, there has been no interrogation of
the petitioner and therefore, no useful purpose would be served
in detaining the petitioner further on the ground that the further
investigation is under progress. He further contended that as and
when necessary, the petitioner will appear before the C.B.I.
authorities at the place of interrogation and he will also
cooperate with the same and in case he fails to appear or does
not cooperate, condition can be put to cancel the bail order,
however taking the plea of continuance of further investigation,
the petitioner cannot be detained for an indefinite period. It is
further argued that some of the co-accused persons have
already been enlarged on bail and the health condition of the
petitioner is very much critical which would be evident from the
medical documents called for from the AMRI Hospital. It is
33
further argued that in view of the order passed in CRLMC
No.3407 of 2019, at this stage there cannot be any progress in
the proceeding in the Court below. The learned counsel urged
that no reliance should be placed on the documents which were
filed by the C.B.I. authorities in the sealed cover for adjudicating
this bail application. He placed some parts of the rejoinder
affidavit where some other grounds have been taken for grant of
bail.
Mr. Sarthak Nayak, learned counsel appearing for the
C.B.I., on the other hand, vehemently opposed the prayer for
bail and contended that mere long detention period cannot be a
ground to release the petitioner on bail as economic offences are
required to be visited with a different approach as those are
grave offences affecting the economy of country as a whole. He
argued that when all the medical facilities are being provided to
the petitioner for his treatment for different ailments in AMRI
Hospital which would be evident from the medical documents,
there is no necessity to release him on bail particularly when the
case relates to chit fund scam of rupees seventeen thousand
crores and none of the principal accused has been enlarged on
bail and the petitioner has played a very vital role in the
commission of economic offence. It is further submitted that
34
when the bail application of the petitioner was last time rejected
by this Court on 02.01.2020 which was also confirmed by the
Hon'ble Supreme Court and there is no change in the
circumstances, grant of bail would amount to review the earlier
order which is not permissible and the so-called changes as
pointed out in the petition are cosmetic changes and not real
one. It is further argued that necessary permission has been
taken for further investigation from the learned Special C.J.M.
and therefore, there is no illegality in the continuance of further
investigation. Reliance was placed in the cases of State of
Madhya Pradesh -Vrs.- Kajad reported in (2001)21 Orissa
Criminal Reports (SC) 507, State of Maharashtra -Vrs.-
Captain Buddhikota Subha Rao reported in A.I.R. 1989
S.C. 2292 and K.K. Jerath -Vrs.- Union Territory reported
in (1999)16 Orissa Criminal Reports (SC) 178.
Direct approach to this Court for bail:
9. When the petitioner approached this Court for the
second time for bail in BLAPL No.5450 of 2019 and the same was
rejected on 02.01.2020 and thereafter the petitioner approached
the Hon'ble Supreme Court against the rejection order in a
Special Leave Petition which was also dismissed on 10.02.2020,
in the event of any change in the circumstances, he should have
35
approached the learned Special C.J.M. (C.B.I.), Bhubaneswar
seeking for bail where the case is subjudiced and then in the
event of rejection, he could have approached this Court. The
petitioner was not justified in approaching this Court directly
without preferring any application for bail before the learned
Court below. In a judicial hierarchy, whenever any application is
tenable in law before the lower Court, then the applicant should
always approach the lower forum first, so that after exhausting
the said remedy, if the applicant is still aggrieved, he can
approach the higher forum. In that event, the higher forum will
have an advantage of going through the judgment/order of the
lower Court both on the point of facts and law. In a judicial
hierarchy, instead of approaching directly higher forum, if law
permits, always matter should be filed in the lower forum. Where
two forums have concurrent jurisdiction, the lower one should be
approached at the first instance, unless the party concerned
gives special reasons for a direct approach to the higher one. In
the case of Gurcharan Singh and Ors. -Vrs.- State (Delhi
Administration) reported in A.I.R. 1978 S.C. 179, it is held
that section 439(1) of Cr.P.C. confers special powers on the High
Court or the Court of Session in respect of bail. Unlike under
section 437(1), there is no ban imposed under section 439(1) of
36
Cr.P.C. against granting of bail by the High Court or the Court of
Session to persons accused of an offence punishable with death
or imprisonment for life, it is, however, legitimate to suppose
that the High Court or the Court of Session will be approached by
an accused only after he has failed before the Magistrate and
after the investigation has progressed throwing light on the
evidence and circumstances implicating the accused.
Law is well settled that even if the higher Court has
rejected the bail application in a given circumstances, the
applicant can approach the lower Court in the change of
circumstances and in that event, the lower Court has to consider
the same in accordance with law and not to reject the application
holding the same to be not maintainable. The reason given by
the petitioner in the bail application to approach this Court
directly that it was an unprecedented situation arising out of
outbreak of the deadly virus COVID-19, is not at all convincing
particularly when the Court of learned Special C.J.M. was
functioning as per the guidelines issued by this Court and taking
up bail matters through virtual mode during the period the
petitioner approached this Court directly. However, since the
application for bail was filed on 17.08.2020 and the learned
counsel for the C.B.I. raised no objection to the hearing of the
37
application before this Court, in the interest of justice, I thought
it proper not to direct the petitioner to approach the Court below
first and then come to this Court seeking for bail.
Whether Magistrate's nod for further investigation taken:
10. There is no dispute that while submitting the fourth
chargesheet (i.e. third supplementary charge sheet) on
22.05.2019 against the petitioner, it is mentioned therein that
further investigation of the case as per the provision under
section 173(8) of Cr.P.C. is continuing in respect of charge
sheeted accused persons as well as commissions/omissions on
the part of regulatory authorities, larger conspiracy angle and
money trailing and also against other persons whose complicity
might be found in course of further investigation. The order
sheet of the learned Special C.J.M., C.B.I., Bhubaneswar filed by
the learned counsel for the petitioner with the rejoinder affidavit
indicates that the said charge sheet was placed before the Court
on 23.05.2019 along with a petition filed by the Investigating
Officer through the learned Public Prosecutor with a prayer to
retain the case diary and the documents of the case in C.B.I.
Malkhana as further investigation was continuing. The petition
was allowed and the I.O. was directed to produce the documents
as and when required. The Court also after perusing the F.I.R.,
38
charge sheet, statements of witnesses and other connected
documents submitted by the Investigating Officer, took
cognizance of offences under which charge sheet was placed.
The Court also took notice of the detention of the petitioner in
judicial custody at Special Jail, Bhubaneswar and fixed the date
for supply of police papers to the UTPs.
In the case of Vinay Tyagi (supra), it is held as
follows:
"15. 'Further investigation' is where the
investigating officer obtains further oral or
documentary evidence after the final report has
been filed before the Court in terms of section
173(8). This power is vested with the executive.
It is the continuation of previous investigation
and, therefore, is understood and described as
'further investigation'. The scope of such
investigation is restricted to the discovery of
further oral and documentary evidence. Its
purpose is to bring the true facts before the
Court even if they are discovered at a
subsequent stage to the primary investigation. It
is commonly described as 'supplementary
report'. 'Supplementary report' would be the
correct expression as the subsequent
investigation is meant and intended to
supplement the primary investigation conducted
39
by the empowered police officer. Another
significant feature of further investigation is that
it does not have the effect of wiping out directly
or impliedly the initial investigation conducted by
the investigating agency. This is a kind of
continuation of the previous investigation. The
basis is discovery of fresh evidence and in
continuation of the same offence and chain of
events relating to the same occurrence
incidental thereto. In other words, it has to be
understood in complete contradistinction to a
'reinvestigation', 'fresh' or 'de novo'
investigation.
16. However, in the case of a 'fresh
investigation', 'reinvestigation' or 'de novo
investigation', there has to be a definite order of
the Court....
xx xx xx xx xx
38. Now, we may examine another significant
aspect which is how the provisions of section
173(8) have been understood and applied by the
courts and investigating agencies. It is true that
though there is no specific requirement in the
provisions of section 173(8) of the Code to
conduct 'further investigation' or file
supplementary report with the leave of the
Court, the investigating agencies have not only
understood but also adopted it as a legal
40
practice to seek permission of the courts to
conduct 'further investigation' and file
'supplementary report' with the leave of the
court. The courts, in some of the decisions, have
also taken a similar view. The requirement of
seeking prior leave of the Court to conduct
'further investigation' and/or to file a
'supplementary report' will have to be read into,
and is a necessary implication of the provisions
of section 173(8) of the Code. The doctrine of
contemporanea expositio will fully come to the
aid of such interpretation as the matters which
are understood and implemented for a long
time, and such practice that is supported by law
should be accepted as part of the interpretative
process.
39. Such a view can be supported from two
different points of view: firstly, through the
doctrine of precedent, as aforenoticed, since
quite often the courts have taken such a view,
and, secondly, the investigating agencies which
have also so understood and applied the
principle. The matters which are understood and
implemented as a legal practice and are not
opposed to the basic rule of law would be good
practice and such interpretation would be
permissible with the aid of doctrine of
contemporanea expositio. Even otherwise, to
seek such leave of the court would meet the
41
ends of justice and also provide adequate
safeguard against a suspect/accused."
In the case of Vinubhai Haribhai Malaviya -Vrs.-
The State of Gujarat reported in A.I.R. 2019 S.C. 5233, it is
held that Article 21 of the Constitution demands no less than a
fair and just investigation. To say that, a fair and just
investigation would lead to the conclusion that the police retain
the power, subject, of course, to the Magistrate's nod under
section 173(8) of the Cr.P.C. to further investigate an offence till
charges are framed.
In view of the aforesaid decisions of the Hon'ble
Supreme Court, it becomes clear that the power lies with police
for further investigation of a case under section 173(8) of Cr.P.C.
after submission of a report under sub-section (2) of section 173
of Cr.P.C., but for that there is requirement of seeking prior
leave of the Magistrate to conduct further investigation and after
taking Magistrate's nod, further investigation can be conducted
and supplementary report/chargesheet can be filed.
The order sheet of the learned trial Court clearly
indicates that while submitting third supplementary charge sheet
on 22.05.2019, it was brought to the notice of the Court on
which aspect the further investigation is continuing and petition
42
was filed by the I.O. through the learned Public Prosecutor to
retain the case diary and other documents for such investigation,
which was allowed and other orders were passed. Each time
while submitting charge sheet, it was brought to the notice of
the Court on which aspect the further investigation is under
progress and the learned Court has taken judicial notice of the
same and passed necessary order on receipt of such charge
sheet. Therefore, the continuance of further investigation was
within the knowledge of the Court and the Court has passed
orders on the same from time to time. The Magistrate's nod for
further investigation is apparent. Therefore, the point raised in
the rejoinder affidavit that no order for further investigation has
been obtained from the learned Special C.J.M. has no legal basis.
Whether remand order passed from time to time was
legal:
11. Let me now deal with the point raised in the rejoinder
affidavit relating to non-filing of a single application by the
prosecution seeking extension of judicial custody of the
petitioner and therefore, the extension of judicial custody is
illegal and unwarranted in view of section 309 of Cr.P.C.
43
In the case of Anupam J. Kulkarni (supra) upon
which reliance was placed by the learned counsel for the
petitioner, the question that arose for consideration was whether
a person arrested and produced before the nearest Magistrate as
required under section 167(1) of Cr.P.C. can still be remanded to
police custody after the expiry of the initial period of fifteen days.
The Hon'ble Supreme Court while deciding such point has been
pleased to hold that remand under section 309 Cr.P.C. can only
be to judicial custody in terms mentioned therein and section
309 Cr.P.C. comes into operation after taking cognizance and not
during the period of investigation and the remand under this
provision can only be to judicial custody and there cannot be any
controversy about the same. The Hon'ble Supreme Court relied
upon the case of Natabar Parida -Vrs.- State of Orissa
reported in A.I.R. 1975 S.C. 1465.
In the case of Manubhai Ratilal Patel (supra) upon
which reliance was placed by the learned counsel for the
petitioner, it was held that there are two provisions in the Code
which provide for remand, i.e., sections 167 and 309. While
dealing with remand of an accused under section 167 of Cr.P.C.,
it was held that the Magistrate has the authority under section
167(2) of the Code to direct for detention of the accused in such
44
custody, i.e. police or judicial, if he thinks that further detention
is necessary. The act of directing remand of an accused is
fundamentally a judicial function. The Magistrate does not act in
executive capacity while ordering the detention of an accused.
While exercising this judicial act, it is obligatory on the part of
the Magistrate to satisfy himself whether the materials placed
before him justify such a remand or, to put it differently,
whether there exist reasonable grounds to commit the accused
to custody and extend his remand. The purpose of remand as
postulated under section 167 Cr.P.C. is that investigation cannot
be completed within 24 hours. It enables the Magistrate to see
that the remand is really necessary. This requires the
investigating agency to send the case diary along with the
remand report so that the Magistrate can appreciate the factual
scenario and apply his mind whether there is a warrant for police
remand or justification for judicial remand or there is no need for
any remand at all. It is obligatory on the part of the Magistrate
to apply his mind and not to pass an order of remand
automatically or in a mechanical manner.
In the case of Pradeep Ram -Vrs.- The State of
Jharkhand reported in A.I.R. 2019 S.C. 3193, while
discussing the relevant provisions of section 167(2) and section
45
309 of Cr.P.C., it is held that the accused can be remanded
under section 167(2) Code of Criminal Procedure during
investigation till cognizance has not been taken by the Court.
Even after taking cognizance when an accused is subsequently
arrested during further investigation, the accused can be
remanded under section 167(2) of Code of Criminal Procedure.
When cognizance has been taken and the accused was in
custody at the time of taking cognizance or when inquiry or trial
was being held in respect of him, he can be remanded to judicial
custody only under section 309(2) of Code of Criminal Procedure.
The part of the order sheet of the learned Special
C.J.M. annexed to the rejoinder affidavit indicates about the
remand of the petitioner from time to time to judicial custody
after taking cognizance of offences on third supplementary
charge sheet, inter alia, after noticing the status of other co-
accused and adjourning the case recording reasons. The remand
order of the petitioner has been passed purportedly under
section 309(2) of Cr.P.C. which law requires for a reasonable
cause and not automatic or as a matter of course. When the
learned Special C.J.M. on submission of chargesheet against the
petitioner, on being satisfied about existence of prima facie
materials has taken cognizance of offences and was also
46
appraised by the prosecution from time to time about the further
investigation of the case on some important aspects and
accordingly passed the remand order while adjourning the case
which was obviously for postponing the commencement of the
trial in the case, it cannot be said that there is any illegality in
the remand order merely in absence of any application filed by
the prosecution seeking extension of judicial custody of the
petitioner on each occasion. Section 309(2) of Cr.P.C. does not
indicate about filing of any application by the prosecution for
extending the remand period of the accused, but the discretion
lies with the Court in passing the order though the Court has to
assign reasons for postponing the commencement of any inquiry
or trial or adjourning any inquiry or trial and has to grant
reasonable time and while doing so, the Court has got power to
remand the accused if in custody. Therefore, the point raised on
this score is also not sustainable.
Change in the circumstances for reconsidering bail:
12. Mr. Kapil Sibal, learned Senior Advocate without
pointing out any substantial change in the circumstances after
rejection of the bail application of the petitioner in BLAPL
No.5450 of 2019 on 02.01.2020 which was confirmed by the
Hon'ble Supreme Court on 10.02.2020 on dismissal of the
47
Special Leave Petition, urged that the Hon'ble Supreme Court
has mentioned in the dismissal order 'at this stage', therefore,
there cannot be any bar in considering the bail application
afresh.
In the case of Kajad (supra), it is held that
successive bail applications are permissible under the changed
circumstances, but without the change in the circumstances, the
second application would be deemed to be seeking review of the
earlier judgment which is not permissible under criminal law. In
the case of Captain Buddhikota Subha Rao (supra), it is held
that once the bail application is rejected, there is no question of
granting similar prayer. That is virtually overruling the earlier
decision without there being a change in the fact-situation and
the change means a substantial one which has a direct impact on
the earlier decision and not merely cosmetic changes which are
of little or no consequence. In the case of Kalyan Chandra
Sarkar and Ors. -Vrs.- Rajesh Ranjan reported in (2005)30
Orissa Criminal Reports (SC) 455, it is held that even though
there is room for filing a subsequent bail application in cases
where earlier applications have been rejected, the same can be
done if there is a change in the fact situation or in law which
requires the earlier view being interfered with or where the
48
earlier finding has become obsolete. This is the limited area in
which an accused who has been denied bail earlier, can move a
subsequent application.
Thus an accused has a right to make successive
applications for grant of bail under the changed circumstances
and such change must be substantial one having direct impact
on the earlier decision and not merely cosmetic changes which
are of little or no consequence. 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. While entertaining such
subsequent bail applications, the Court has a duty to consider
the reasons and grounds on which the earlier bail applications
were rejected and what are the fresh grounds which persuade it
warranting the evaluation and consideration of the bail
application afresh and to take a view different from the one
taken in the earlier applications. There must be change in the
fact situation or in law which requires the earlier view being
interfered with or where the earlier finding has become obsolete.
This is the limited area in which the application for bail of an
accused that has been rejected earlier can be reconsidered.
49
In view of settled position of law, without any
substantial change in the circumstances, it is very difficult to
take a contrary view from the one taken earlier.
Period of detention for bail:
13. Mr. Sibal, learned Senior Advocate emphasised on
the period of detention of the petitioner in judicial custody which
is twenty two months. Mr. Nayak opposed to the same.
Needless to mention here that the accusation is
commission of economic offence which prima facie appears to
have been committed with cool calculation and deliberate design
with an eye on personal profit regardless of the consequence to
the community and it involves deep rooted conspiracies and
further investigation is at crucial stage. I have already held while
rejecting the last bail application of the petitioner that the case
involves public interest at large as they are the real sufferers and
there is accusation of criminal conspiracy between the accused
Gautam Kundu and the petitioner to expand the chit fund
business activities of Rose Valley and the petitioner has played
his part whereby the illegal object of huge investment by
innocent people was fulfilled. There is accusation that the
petitioner entered into the business alliance with the co-accused
50
Gautam Kundu which was in the nature of criminal conspiracy to
divert the ill-gotten money of Rose Valley in the guise of
commercial ties. In the case of State of Gujarat -Vrs.-
Mohanlal Jitamalji Porwal reported in A.I.R. 1987 S.C.
1321, it is held as follows:-
5......The mere fact that six years had elapsed,
for which time-lag the prosecution was in no
way responsible, was no good ground for
refusing to act in order to promote the interests
of justice in an age when delays in the Court
have become a part of life and the order of the
day......The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to books......A disregard for
the interest of the community can be manifested
only at the cost of forfeiting the trust and faith
of the community in the system to administer
justice in an even handed manner without fear
of criticism from the quarters which view white
collar crimes with a permissive eye unmindful of
the damage done to the National Economy and
National Interest."
Therefore, in my humble view, in the facts and
circumstances, the period of detention cannot be the sole criteria
for grant of bail to the petitioner.
51
Physical ailment ground for bail:
14. Mr. Sibal, learned Senior Advocate then emphasised
on the physical ailment of the petitioner which was also taken in
the last bail application as a ground for his release on bail. Since
the petitioner was shifted to AIIMS, Bhubaneswar and S.C.B.
Medical College & Hospital, Cuttack whenever there was
necessity and there was no negligence on the part of the jail
authorities in providing proper treatment to the petitioner, I did
not consider as a ground to release him on bail, however, I
directed that such facility would be provided to the petitioner in
the Specialised Government Hospital in future at the time of
need.
The health condition report and the nature of
treatment provided to the petitioner in AMRI Hospital,
Bhubaneswar was sought for by this Court and the Medical
Superintendent of AMRI Hospital has submitted his report dated
09.10.2020 which indicates that the petitioner who is aged about
46 years is hospitalised under him since 18.12.2019. It is
mentioned therein for what diseases, the treatment was
provided to the petitioner and what medicines were given to him.
It is further mentioned that at present the petitioner is suffering
from severe depression, fluctuating blood sugar level and
52
hypertension and that he is undergoing stretching and spinal
mobilization physiotherapy daily. It is further stated that the
Medical Superintendent of the hospital is looking after all patient
related issues of the petitioner. Therefore, I am convinced that
there is no negligence on the part of the jail authorities in
providing proper treatment to the petitioner in a specialised
hospital for his ailment.
Release of co-accused on bail:
15. The release of some of the co-accused was also
taken as a ground in the previous bail application but this Court
held that the petitioner has played a key role in ensuring huge
investment of public money in Rose Valley and he cannot claim
parity with others. The same ground has been reiterated during
argument by Mr. Sibal, learned Senior Advocate.
Parity cannot be the sole ground for grant of bail. It
is one of the grounds for consideration of the question of bail.
There is no absolute hidebound rule that bail must necessarily be
granted to an accused, where another co-accused has been
granted bail. It transpires that the case of the petitioner is not
identically similar to the co-accused persons who have been
53
bailed out. The grant of bail is not a mechanical act nor can the
power of the Court be fettered to act against conscience.
No further interrogation, no requirement of detention:
16. Though it was urged by Mr. Sibal, learned Senior
Advocate that after submission of third supplementary charge
sheet on 26.05.2019, there has been no interrogation of the
petitioner and therefore, the detention of the petitioner for the
further investigation is not necessary but it is within the domain
of the investigating officer when and how to interrogate an
accused but the interrogation should be fair and impartial. A fair,
impartial, truthful and independent investigation is crucial to the
preservation of the rule of law and in the ultimate analysis to
liberty itself.
The documents produced by the C.B.I. in the sealed
cover were perused by me keeping in view the observations the
Hon'ble Supreme Court in the case of P. Chidambaram (supra)
to satisfy my conscience as to whether the investigation is
proceeding in the right lines. I am satisfied from the huge
number of important documents seized and statements of
witnesses collected even after the rejection of the last bail
application of the petitioner by this Court that the investigation is
54
proceeding in the right lines. In my humble view, it would not be
proper to discuss about those documents and statements
collected regarding unearthing of further role played of the
petitioner's company SVFPL in the illegal financial business of
Rose Valley.
The other grounds taken in the bail application and
rejoinder affidavit, though not urged during argument but it
seems that those were dealt with in the earlier rejection orders
of this Court for which it is not necessary to deal with the same
once again.
17. It seems that the petitioner has approached this
Court under section 482 of Cr.P.C. in CRLMC No.3407 of 2019,
inter alia, to quash the charge sheet filed against him and an
order was passed on 05.02.2020 that since the case was posted
for framing of charge, if a petition is filed by the petitioner before
the Court below on the date fixed for an adjournment of the
case, the Court concerned shall do well to adjourn the matter for
a month. Similar order was passed on 12.03.2020 and it was
directed to the concerned Court to adjourn the matter to a date
after 25th March 2020. It is stated at the Bar that thereafter on
account of situation arising out of COVID-19 pandemic, the
matter has not been listed for final disposal and the case is
55
adjourned from time to time in the Court below awaiting further
order of this Court. Merely because of the interim order passed
by this Court, the framing of charge has been delayed, in my
humble view that cannot be a ground for grant of bail to the
petitioner. The parties concerned in the said CRLMC application
can take step for early listing of the case in view of the urgency
involved and the importance of the matter.
18. In the case of K.K. Jerath (supra), the Hon'ble
Supreme Court held that in considering a petition for grant of
bail, necessarily, if public interest requires detention of citizen in
custody for the purposes of investigation, the same could be
considered and bail application is to be rejected, as otherwise
there could be hurdles in the investigation even resulting in
tampering of evidence.
The case record indicates as to how the petitioner being
a Director of SVFPL entered into criminal conspiracy with accused
Gautam Kundu, Chairman of Rose Valley and others to
misappropriate the public fund illegally collected by Rose Valley
in the garb of an agreement for the sake of production and
supply of telecast rights of Bengali feature films to be
broadcasted through the satellite channel of BVCL namely
'Rupashi Bangla', a sister concern of Rose Valley and after
56
execution of the agreement, ill-gotten money was diverted from
BVCL to SVFPL in the guise of commercial ties. The Hon'ble
Supreme Court passed order on 09.05.2014 in the aforesaid two
writ petitions to investigate the money trailing aspect and
accordingly during investigation of the case, it came to light that
there has been money trailing from Rose Valley to BVCL and
then from BVCL to SVFPL and public money collected illegally by
Rose Valley was utilised in an illegal way. The telecast of Bengali
feature films had also an illegal purpose to promote chit fund
business activities of Rose Valley Group. The role played by the
petitioner in flourishing the business activities of Rose Valley was
very crucial inasmuch as by such telecast of films in the 'Rupashi
Bangla' channel and the advertisements of Rose Valley shown
during the telecast, the investors were allured to make huge
investment that increased the collection of deposits from general
public which was the real purpose behind the telecast. It appears
that the total collection of Rose Valley Group since beginning till
2010-11 was Rs. 5357,92,82,699/- only but during the year
2011-12, the total collection raised to Rs. 3322,67,60,290/- in a
single year and raised further in the year 2012-13 and ultimately
Rose Valley Group has been accused of duping investors of about
Rs. 17,000 crores in different states. Further investigation which
57
is continuing in respect of the charge sheeted accused persons,
commission/omissions on the part of the regulatory authorities,
larger conspiracy angle and money trailing aspect is likely to
take time when high officials and some politicians of the State of
West Bengal are allegedly involved in the scam as per case
records. I have already held while rejecting the last bail
application of the petitioner that Rose Valley's lucrative offer and
mirage of huge outturn on investments as projected successfully
during telecast of Bengali feature films produced by the
petitioner's company in satellite channel 'Rupashi Bangla"
mesmerised the gullible investors and they could not realise that
all that glitters is not gold. For collecting pearl of high interest,
they drowned themselves in the sea of treachery. Before they
could wake up from their deep slumber, they had already been
trapped and squeezed and were left only with tears in their eyes
which never dried up. The incomprehensible pain and sufferings
of those hundreds and thousands of investors are apparent and
nobody knows when and how they would get back their money.
Business tycoons have played the game with people's money
very cunningly with active support of some of the high level
politicians, police officials and film personalities. It was bed of
roses for them but bed of thorns for the investors.
58
Now, it appears that many of the so-called important
personalities have played pivotal role in the multi crores scam
very cunningly and after being caught one after another, they
are taking the plea of ignorance of nature of business activities
of Rose Valley Group. Cat closing its eyes while drinking milk
thinks nobody is watching it. An economic offence is a well
manipulated offence. It is a white collared crime which
disturbs economic equilibrium in the society and the weaker
section is victimised. Liberty of an individual cannot outweigh the
interest of the society. An economic offence has to be viewed
from a serious perspective and no lenient view can be taken. A
murderer takes away the life of a person but a person
committing economic offence leaves a living person dead.
19. In view of the foregoing discussions, in absence of
any such substantial change in the circumstances after rejection
of the last bail application of the petitioner by this Court on
02.01.2020 and dismissal of the Special Leave Petition against
that order by the Hon'ble Supreme Court on 10.02.2020 and
when further investigation of the case is at a crucial stage and
huge number of documents have been seized and statements of
witnesses have been collected against the petitioner even after
the rejection of the last bail application of the petitioner by this
59
Court relating to his involvement in the Rs.17,000 crores scam
committed by Rose Valley Group and there is no negligence on
the part of the jail authorities in providing proper treatment to
the petitioner in a specialised hospital for his ailment, at this
juncture, when the petitioner's key role in the commission of
economic offence by Rose Valley is prima facie apparent, there is
deep rooted criminal conspiracy to cheat the public with an eye
on personal profit, large number of innocent depositors have
been duped of their hard-earned money, there was cool
calculation and deliberate design by the accused persons to
flourish the illegal chit fund business activities of Rose Valley and
the release of the petitioner who is a very influential person
having close contacts with high level personalities and politicians
of West Bengal is likely hamper such investigation, in the larger
interest of public and State, I am not inclined to reconsider the
prayer for bail and direct his release on bail. Accordingly, the bail
application of the petitioner sans merit and hence stands
rejected. Consequently, I.A. No.1093 of 2020 also stands
rejected.
Before parting, I would like to place it on record by
way of abundant caution that whatever has been stated
hereinabove in this order has been so said only for the purpose
60
of disposing of the prayer for bail made by the petitioner.
Nothing contained in this order shall be construed as expression
of a final opinion on any of the issues of fact or law arising for
decision in the case which shall naturally have to be done by the
trial Court at the appropriate stage of the trial.
Urgent certified copy of this order be granted on
proper application.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 1st December 2020/Pravakar