Orissa High Court
Mrs. Leena Mahesh vs Republic Of India ....... Opp. Party on 25 February, 2019
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 7580 OF 2018
An application under section 439 of the Code of Criminal
Procedure in connection with S.P.E. Case No.29 of 2014 pending
in the file of learned Special Chief Judicial Magistrate (C.B.I.),
Bhubaneswar.
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Mrs. Leena Mahesh
Motewar ........ Petitioner
-Versus-
Republic of India ....... Opp. Party
For Petitioner: - Mr. Suresh Tripathy
B.P. Tripathy
Keshab Kumar Pradhan
For Opp. party: - Mr. Anup Kumar Bose
Asst. Solicitor General
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order: 25.02.2019
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S. K. SAHOO, J. The petitioner Mrs. Leena Mahesh Motewar has filed
this application under section 439 of Code of Criminal Procedure
seeking for bail in connection with S.P.E. Case No.29 of 2014
pending in the file of learned Special Chief Judicial Magistrate
(C.B.I.), Bhubaneswar corresponding to R.C. No.34/S/2014-
2
CBI/Kol. dated 05.06.2014 for offences punishable under
sections 120-B, 420, 409 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. Sri Basudev Seth, A.S.I. of Police of Bargarh police
station lodged the first information report on 12.05.2013 before
the Inspector in charge of Bargarh Town police station wherein it
is stated that in obedience to the directions of the then I.I.C.,
Bargarh Town police station, he conducted raid on 11.05.2013 at
the Branch Office of Samruddha Jeevan Foods India Ltd.
(hereafter 'the company') located at Bandutikra Chowk at
Bargarh and it came to light during such raid that the Director
General, Director and official staff of the said company entered
into a criminal conspiracy with each other and in pursuance of
such conspiracy, they were collecting huge deposits from the
poor public of rural area alluring of high returns and also to
provide them domestic animals like goat, sheep, pig etc. It is
further stated that the company was not registered with RBI or
SEBI for conducting such type of business/money transaction
and investment of public money in their own business and
thereby cheating the poor investors.
3
On the basis of such F.I.R., Bargarh P.S. Case
No.155 of 2013 was registered on 12.05.2013 under sections
420, 406, 120-B of the Indian Penal Code and sections 4 and 5
of 1978 Act.
During course of investigation, it revealed that the
company was registered under Company Registration Act, 1956
with the Registrar of the Companies (ROC), Pune which was
incorporated on 29.04.2002 as Gurukrupa Diary Pvt. Ltd. and the
name of the company changed to Samruddha Jeevan Foods
India Ltd. w.e.f. 17.09.2003. The status of the company was
converted to Public Ltd. Company on 13.04.2006 and the name
of the company changed to Samruddha Jeevan Foods India Ltd.
As per the Memorandum of Association, the main
objectives of the company was to carry on business i.e. to
produce, breed, manufacture, purchase, sell, transfer, lease,
develop, care, import, export, hire, licence, use, dispose off for
commercial use of all types of animals and live stock such as
goat, sheep etc. and also to manufacture all types of food
products, agricultural products, fertilizers, animal foods, farming
and plantation and to deal with all types of animals and their
products.
4
The Authorised share capital of the company in the
year 2002 in Gurukrupa Diary Pvt. Ltd. was Rs.1,00,000/-
(rupees one lakh only) divided into 10,000 (ten thousand) equity
share of Rs.10/- each. The petitioner was one of the founder
directors of the company and her husband was the Managing
Director. There were other directors of the company. As per
resolution passed by the Board of Directors in the year 2013, the
authorised share capital of the company increased from rupees
twenty crores to rupees twenty five crores.
The investigation further revealed that the company
collected and mobilized deposits from the public through
different plans in the guise of sale/purchase of
goats/cattle/buffalos. The company managed to carry out the
running of illegal financial business by accepting deposits in
fraudulent manner. The husband of the petitioner applied for
registration of Samruddha Jeevan Multi State Multi Purpose Co-
operative Societies in the office of Central Registrar for Co-
operative Societies and continued to accept deposits illegally
from the depositors by deceiving them through various schemes
in the guise of live stock business with an oblique motive to
cheat the depositors.
5
As per the direction of the Hon'ble Supreme Court on
09.05.2014 in the writ petitions filed by Sri Subrat Chattoraj and
Sri Alok Jena, F.I.R. in Bargarh P.S. Case No. 155 of 2013 was
treated as the original F.I.R. by the C.B.I. SPE, SCB, Kolkata and
the aforesaid RC case was registered. The investigation further
revealed that the company had its sister concerns which had set
up more than three hundred branches all over India including
State of Odisha. The husband of the petitioner was holding major
shares in many of the companies. Meetings/seminars were
conducted at Bhubaneswar and other places all over India to
allure the depositors/agents for higher returns on the investment
in the company. The money deposited by the investors were not
returned to them as assured and they were cheated and the
money was misappropriated even though sale registration
letters/certificates were issued to the investors/depositors in
token of investment by the depositors in the company. The
company without any certificate of registration from SEBI
launched Collective Investment Scheme (CIS) which was in
contravention of section 12(1B) of the Securities and Exchange
Board of India Act, 1992 (hereafter 'SEBI Act') and regulation 3
of Securities and Exchange Board of India (Collective Investment
Schemes) Regulations, 1999 (hereafter 'CIS Regulations').
6
During 2008 to 2014, the company mobilized deposits to the
quantum of Rs.1116.12 crores approximately from 47.76 lakhs
depositors.
The company diverted substantial part of funds
mobilized from the public under the guise of sale and purchase of
livestock for other purposes. The fund mobilizing activity i.e.
promising an estimated returns/profit, was camouflaged by the
company by way of ordinary sale and purchase of livestock only
to mislead and attract investment from general public. The
company initially carried on the business of purchase, sale,
dealing, trading, breeding and rearing in livestock, including
selling the by-products of the livestock like milk, dung, etc. The
company invested a substantial amount of money collected from
purchases and from investors in assets like land and other
infrastructures and also spent substantial amount on
advertisements and business promotion and for other purposes.
During the course of investigation by CBI, it revealed
that the company was collecting investment from customers with
a promise of high returns in the guise of operating schemes
dealing with goats and buffaloes. The investors did not have any
control over the management and operation of the schemes or
arrangements. More than six hundred bank accounts were traced
7
which were opened/maintained in the name of the company at
different banks like Axis Bank, State Bank of India, ING Vysya
Bank/Kotak Mahindra Bank, ICICI Bank etc. Out of the above
accounts, in majority of accounts, the husband of the petitioner
was one of the authorised signatory along with others. The
statement of accounts and scrutiny of the bank accounts
revealed that there are several high value transactions/transfers
of amounts i.e. debits/credits from the accounts of the company
to its sister concern and vice versa as well as to the bank
accounts of the husband of the petitioner. The company was not
having sufficient credit balance in the bank accounts to repay the
dues to the large numbers of depositors spreading across all
over India in several States. The deposits were initially collected
from public by the company with malafide intention and
therefore, the company was criminally liable for offence of
cheating and misappropriation. It was prima facie found that the
husband of the petitioner entered into criminal conspiracy with
the company and in pursuance thereof, he collected money from
public unauthorizedly with dishonest and fraudulent intention
alluring them of higher returns and thereafter he cheated the
public.
8
The first charge sheet was placed before the Court on
23.08.2016 against Shri Mahesh Kisan Motewar, Chairman -cum-
Managing Director of Samruddha Jeevan Foods India Ltd. and
against M/s. Samruddha Jeevan Foods India Ltd. represented
through its Director Shri Mahesh Kisan Motewar i.e. accused no.1
under sections 120-B, 420, 409 of the Indian Penal Code and
sections 4, 5 and 6 of the 1978 Act keeping the investigation of
the case open in terms under section 173(8) of Cr.P.C.
During course of further investigation, it revealed
that the petitioner was the Promoter Director of the Company
since 29.04.2002 and continued till 15.12.2003. She was again
appointed as Director of the company on 24.10.2013. She
resigned from the Directorship of the company since 25.10.2013,
however, she continued to be a major stake holder of the
company. Substantial amounts, which were illegally collected by
the company from the gullible investors in the guise of
sale/purchase and rearing of livestocks, were unauthorizedly
diverted from the bank account of the company to the various
bank accounts of the petitioner through online transfer as well as
through cheque payments. An amount of Rs.13,40,87,178/- has
been diverted from various bank accounts of the company to the
bank account No.37010100673648, maintained with Axis Bank
9
Ltd., Pune Mina Branch of the petitioner. Further an amount of
Rs.2,74,80,786/- has been diverted from various bank accounts
of the company to the bank account No.003901561673,
maintained with ICICI Bank Ltd. Shivaji Nagar Branch, Pune of
the petitioner. Apart from that, an amount of Rs.20,00,000/- has
been diverted from various bank accounts of the company to the
bank account No.4362, maintained with Puna Merchant Coop.
Bank Ltd., Padmavati, Pune of the petitioner. Hence, a total sum
of Rs.16,35,67,964/- was found to have been diverted to the
bank account of the petitioner from the bank accounts of the
company. Hence, the petitioner being a promoter Director of the
company and a stake holder of the company misappropriated a
sum of Rs.16,35,67,964/-, as the investors were not paid back
their deposits as assured on maturity.
It revealed during further investigation of the case
that the petitioner and Mr. Rajendra Pandurang Bhandare,
Directors of the company entered into criminal conspiracy with
other co-accused already charge sheeted as well as the company
and in pursuance thereof, they cheated the public and
subsequently misappropriated the public money collected
illegally from the gullible investors in the guise of sale/purchase
of livestock which constitute offences punishable under sections
10
120-B, 420, 409 of the Indian Penal Code and sections 4, 5 and
6 of the 1978 Act. The investigation was kept open under section
173(8) of Cr.P.C. as several aspects like large criminal
conspiracy, money trail, role of regulatory agencies like ROC,
SEBI and RBI etc. as mentioned in the order of Hon'ble Supreme
Court of India as well as the role of other Directors/Agents of the
company were to be fully investigated into.
On 12.09.2018 the second charge sheet was placed
against the petitioner and Mr. Rajendra Pandurang Bhandare,
Directors of the company under sections 120-B, 420, 409 of the
Indian Penal Code and sections 4, 5 and 6 of the 1978 Act to
face trial in the competent Court, by keeping the investigation of
the case open under section 173(8) of Cr.P.C.
On receipt such charge sheet, cognizance of the
offences under sections 120-B, 420, 409 of the Indian Penal
Code and sections 4, 5 and 6 of the 1978 Act was taken and
process was issued against the petitioner and Mr. Rajendra
Pandurang Bhandare, Directors of the company.
3. The bail application of the petitioner was rejected by
the learned Sessions Judge, Khurda at Bhubaneswar in Bail
Application No.876 of 2018 vide order dated 17.07.2018 on the
11
ground that the petitioner was one of the Directors of the
company and she was involved in generating the public money
and misappropriating the same in connivance with the other co-
accused persons and that the further investigation was underway
and that the petitioner might influence the material witnesses
and even abscond and that it is an economic offence which has
affected the society at large.
4. Mr. Suresh Tripathy, learned counsel for the
petitioner contended that the co-accused Mahesh Kisan Motewar,
who was the Managing Director of the company and the husband
of the petitioner has been released on bail by the Hon'ble
Supreme Court in SLP(Crl.) No.7563 of 2018 vide order dated
26.10.2018 only on the ground that he was arrested on
16.12.2015 and charge sheet was filed on 23.08.2016 and
charges have not been framed. It is submitted that the
petitioner, who is in judicial custody since 10.08.2016, stands on
the similar footing and therefore, on the ground of parity and
equity, she should be released on bail keeping in view the
proviso to section 437(1) of Cr.P.C. It is further contended that
there is nothing in the charge sheet to show that the petitioner
was responsible for handling the bank transaction or she was
actively associated with the company as Director. The money
12
which was transferred to the accounts of the petitioner was her
salary and other remunerations and the Investigating Officer has
given it a name of misappropriation just to harass the petitioner.
It is further submitted that since the charge sheet contains
thousands of pages and there are more than hundred of
witnesses and since charges have not yet been framed, the trial
would take years for its completion and since there is no chance
of absconding or tampering with the evidence, therefore, the bail
application may be sympathetically considered.
5. Mr. Anup Kumar Bose, learned Asst. Solicitor General
appearing for the Republic of India, on the other hand, submitted
that so far as this case is concerned, the petitioner was taken on
remand on 17.05.2018, which is also reflected in the second
charge sheet, which was filed on 12.09.2018. Co-accused
Mahesh Kisan Motewar, on the other hand, was taken on remand
in the case on 27.04.2016 though he was arrested in connection
with other cases on 16.12.2015. Therefore, the period of
detention of the petitioner is much lesser than that of the co-
accused Mahesh Kisan Motewar. It is submitted that the
petitioner and one Santosh Kaluram Paigude were the founder
Directors of the company, which was in the name of M/s.
Gurukrupa Diary Pvt. Ltd. since 29.04.2002 and she was a major
13
stake holder of the company. Number of shares allotted to the
petitioner was 855265 and the value of the shares allotted was
Rs.85,52,650/- (rupees eighty five lakhs fifty two thousand six
hundred fifty only). The petitioner with her Director Identification
no.03611758 was registered with the Ministry of Corporate
Affairs (MCA) and she was also the director of various other
sister concerns of the company. Learned counsel submitted that
substantial amount of deposits were illegally collected by the
company from the gullible investors in the guise of sale/purchase
and rearing of live stocks and money was unauthorizedly
diverted from the bank account of the company to various bank
accounts of the petitioner through online transfer as well as
cheque payments. Total amount of Rs.16,35,67,964/- (rupees
sixteen crores thirty five lakhs sixty seven thousands nine
hundred sixty four only) was found to have been diverted from
the bank account of the company to various bank accounts of
the petitioner, which she has misappropriated and the investors
were not paid back with their deposits with assured amount on
maturity. It is submitted that the Securities and Exchange Board
of India (SEBI) passed an ex-parte order on 31.10.2013
observing that the company was engaged in fund mobilising
activities from the public by floating or sponsoring or launching
14
Collective Investment Scheme (CIS) in terms of section 11AA of
SEBI Act without obtaining a Certificate of Registration from
SEBI as required under section 12(1B) of the SEBI Act and
regulation 3 of the CIS Regulations. By virtue of interim order,
the company and its Directors were restrained collecting any
more money from the investors including under the existence
schemes, launching new schemes, disposing of any of the
properties or alienate any of the assets of the schemes and also
diverting any fund raised from public at large, which were kept in
the bank accounts or in the custody of the company. It is further
argued that the company had no statutory authority to run
Collective Investment Schemes by making false promises to the
investors of higher return on their investment. In the guise of
rearing contracts of goat, buffalos etc., the company collected
huge amount from the depositors. It is submitted that further
investigation of the case is under progress. The role of other
Directors are yet to be found out so also the money trailing,
larger conspiracy and role of regulatory authorities like ROC,
SEBI and RBI. It is submitted that the gravity of the accusation
is severe, period of detention for a substantial period cannot be a
ground to grant bail. It is submitted that the petitioner was
inducted as Director of the company on 29.04.2002 and she
15
continued as such till 15.12.2003 at the first instance and on the
second instance, she joined as a Director on 24.10.2013 but she
resigned from the Directorship of the company on 25.10.2013. It
is argued that the submission of the petitioner's counsel that the
money which was transferred to the accounts of the petitioner
was her salary and other remuneration is not correct. The
petitioner was a major stake holder of the company and she
misappropriated huge amount. It is further submitted that the
complicity of the petitioner prima facie revealed during
investigation and there is chance of her absconding as well as
tampering with the evidence. It is argued that the offence
committed was having grave social ramifications and the
investigation is still open and therefore, the petitioner should not
be released on bail.
6. Adverting to the contentions raised by the learned
counsels for the respective parties, I find that there is no dispute
that the petitioner was the Promoter Director of the company
since 29.04.2002 and she continued till 15.12.2003. She was
again appointed as Director of the company on 24.10.2013 but
she resigned from the Directorship on the next day i.e. on
25.10.2013. The company offered various schemes for sale,
purchase, rearing and breeding of live stocks i.e. goats and
16
buffaloes and collected huge amount from the public. It appears
that the total deposits received from 47.76 lakhs depositors
during the financial years from 2008-09 to 2013-14 was to the
tune of Rs.1116.12 crores approximately. In spite of the ex-
parte interim order of SEBI not to collect money from the
investors or launch or carry out any collective investment
schemes, the company flouted the order and accepted money
from the depositors and also indulged in diversion of funds. It
further appears that the petitioner continued to be a major stake
holder of the company and a total sum of Rs.16,35,67,974/-
(rupees sixteen crores thirty five lakhs sixty seven thousands
nine hundred seventy four only) was found to have been
diverted to different accounts of the petitioner from the
company. The assurance which was given to the depositors by
way of different schemes at the time of collection of money was
not carried out and huge amount of public money collected
illegally was misappropriated.
Section 12(1B) of the SEBI Act states that no person
shall sponsor or cause to be sponsored or carry on or cause to be
carried on any venture capital funds or collective investment
scheme including mutual funds, unless he obtains a certificate of
registration from the Board in accordance with the regulations.
17
Regulation 3 of CIS regulations states that no person other than
a Collective Investment Management Company which has
obtained a certificate under these regulations shall carry on or
sponsor or launch a collective investment scheme. Admittedly,
no such certificates as provided either in the SEBI Act or CIS
regulations were obtained by the company from the competent
authority.
7. Law is well settled that detailed examination of
evidence and elaborate discussion on merits of the case need not
be undertaken for grant of bail. The Court has to indicate in the
bail order, reasons for prima facie conclusion why bail was being
granted, particularly, when the accused is charged of having
committed a serious offence.
In the case of Kalyan Chandra Sarkar -Vrs.-
Rajesh Ranjan alias Pappu Yadav reported in 2004
Supreme Court Cases (Criminal) 1977, it is held as follows:
"11....The Court granting bail should exercise its
discretion in a judicious manner and not as a
matter of course. Though at the stage of
granting bail, a detailed examination of evidence
and elaborate documentation of the merit of the
case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged of
18
having committed a serious offence. Any order
devoid of such reasons would suffer from non-
application of mind. It is also necessary for the
Court to consider among other circumstances,
the following factors also before granting bail:
(a) The nature of accusation and the severity of
punishment in case of conviction and the nature
of supporting evidence.
(b) Reasonable apprehension of tampering with
the witness or apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the Court in
support of the charge."
In the case of Ram Govind Upadhyay -Vrs.-
Sudarshan Singh reported in 2002 Supreme Court Cases
(Criminal) 688, it is held as follows:-
"3.Grant of bail though being a discretionary
order but, however, calls for exercise of such
discretion in a judicious manner and not as a
matter of course. Order of bail bereft of any
cogent reason cannot be sustained. Needless to
record, however, that the grant of bail is
depended upon the contextual facts of the
matter being dealt with by the court and facts,
however, do always vary from case to case.
While placement of the accused in the society,
though may be considered but that by itself
cannot be a guiding factor in the matter of grant
of bail and the same should and ought always to
be coupled with other circumstances warranting
the grant of bail. The nature of the offence is
one of the basic considerations for the grant of
bail. More heinous is the crime, the greater is
19
the chance of rejection of the bail, though,
however, depended on the factual matrix of the
matter".
In the case of Prahalad Singh Bhati -Vrs.- NCT,
Delhi reported in 2001 Supreme Court Cases (Criminal)
674, it is held as follows:-
"8.....While granting the bail, the court has to
keep in mind the nature of accusations, the
nature of evidence in support thereof, the
severity of the punishment which conviction will
entail, the character, behaviour, means and
standing of the accused, circumstances which
are peculiar to the accused, reasonable
possibility of securing the presence of the
accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger
interests of the public or state and similar other
considerations".
In the case of Sanjay Chandra -Vrs.- CBI
reported in A.I.R. 2012 S.C. 830, it is held as follows:-
"25.........It is, no doubt, true that the nature of
the charge may be relevant, but at the same
time, the punishment to which the party may be
liable, if convicted, also bears upon the issue.
Therefore, in determining whether to grant bail,
both the seriousness of the charge and the
severity of the punishment should be taken into
consideration. The grant or refusal to grant bail
lies within the discretion of the Court. The grant
or denial is regulated, to a large extent, by the
facts and circumstances of each particular case.
But at the same time, right to bail is not to be
denied merely because of the sentiments of the
20
community against the accused. The primary
purposes of bail in a criminal case are to relieve
the accused of imprisonment, to relieve the
State of the burden of keeping him, pending the
trial, and at the same time, to keep the accused
constructively in the custody of the Court,
whether before or after conviction, to assure
that he will submit to the jurisdiction of the
Court and be in attendance thereon whenever
his presence is required".
The law relating to bail in a case of economic
offences in is more or less settled in view of the decisions of the
Hon'ble Supreme Court in case of Y.S. Jagarmohon Reddy
-Vrs.- CBI reported in (2013) 55 Orissa Criminal Reports
(SC) 825, State of Gujurat -Vrs.- Mohan Lal Jitamalji
Porwal reported in A.I.R. 1987 S.C. 1321 and
Nimmagadda Prasad -Vrs.- CBI reported in (2013) 7
Supreme Court Cases 466.
In the case of Y.S. Jagan Mohan (supra), it is held
as follows:-
"15. Economic offences constitute a class apart
and need to be visited with a different approach
in the matter of bail. The economic offences
having deep-rooted conspiracies and involving
huge loss of public funds need to be viewed
seriously and considered as grave offences
affecting the economy of the country as a whole
and thereby posing serious threat to the
financial health of the country.
21
16. While granting bail, the Court has to keep in
mind the nature of accusations, the nature of
evidence in support thereof, the severity of the
punishment which conviction will entail, the
character of the accused, circumstances which
are peculiar to the accused, reasonable
possibility of securing the presence of the
accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger
interests of public/State and other similar
considerations."
In case of Mohan Lal Jitamalji Porwal (supra), it
is held as follows:-
"5. xx xx xx
The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of moment upon passions
being aroused. An economic offence is
committed with cool calculation and deliberate
design with an eye on personal profit regardless
of the consequence to the Community. 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 colour crimes with a permissive eye
unmindful of the damage done to the National
Economy and National Interest".
In case of Nimmagadda Prasad (supra), it is held
as follows:-
22
"25. Economic offences constitute a class apart
and need to be visited with a different approach
in the matter of bail. The economic offence have
been deep-rooted conspiracies and involving
huge loss of public funds needs to be viewed
seriously and considered as a grave offence
affecting the economy of the country as a whole
and thereby posing serious threat to the
financial health of the country."
Therefore, economic offences are considered grave
offences as it affects the economy of the country as a whole and
such offences having deep rooted conspiracy and involving huge
loss of public fund are to be viewed seriously. Economic offence
is committed with cool calculation and deliberate design solely
with an eye on personal profit regardless of the consequence to
the community. In such type of offences, while granting bail, the
Court has to keep in mind, inter alia, the larger interest of public
and State. The nature and seriousness of an economic offence
and its impact on the society are always important considerations
in such a case and those aspects must squarely be dealt with by
the Court while passing an order on bail applications.
No doubt at the stage of granting bail, detailed
examination of evidence and elaborate discussions on merits of
the case need not be taken but the order must reflect the
reasons for arriving at a prima facie conclusion as to why bail
23
was being granted particularly when the accused-petitioner is
charged with economic offences. Discretion should be used in a
proper and judicious manner and the Court must take note of the
nature of accusation, the nature of supporting evidence, the
severity of punishment in case of conviction, reasonable
apprehension of tampering with the evidence, criminal
antecedents etc. Bail should not be denied merely because the
sentiments of the community are against the accused.
8. Coming to the contention raised by the learned
counsel for the petitioner relating to release of the petitioner on
bail on the ground of parity, it is the settled law that
parity cannot be the sole ground for grant of bail. It is one of the
grounds for consideration of the question of bail. Bail is granted
on the totality of facts and circumstances of a case. The principle
of grant of bail on parity cannot be allowed to be carried to an
absurd or illogical conclusion so as to put a Judge in tight and
strait jacket to grant bail automatically. There is no absolute
hidebound rule that bail must necessarily be granted to the co-
accused, where another co-accused has been granted bail. Even
at the stage of subsequent bail application when the bail
application of the co-accused whose bail had been earlier
rejected is allowed and co-accused is released on bail, even then
24
also the Court has to satisfy itself that, on consideration of more
materials placed, further developments in the investigations or
otherwise and other different considerations, there are sufficient
grounds for releasing the applicant on bail. If on careful scrutiny
in a given case, it transpires that the case of the applicant before
the Court is identically similar to the accused on facts and
circumstances who has been bailed out, then the desirability of
consistency will require that such an accused should also be
released on bail. The grant of bail is not a mechanical act. Merely
because some of the co-accused, whom similar role has been
ascribed, has been released on bail earlier, the power of the
Court cannot be fettered to act against conscience.
The Hon'ble Supreme Court granted bail to the co-
accused Mahesh Kisan Motewar on 26.10.2018 on the ground
that he was arrested on 16.12.2015 and charge sheet was
submitted since 23.08.2016 but charges have not been framed.
The first charge sheet was submitted on 23.08.2016 against the
said accused and the company, wherein, it was indicated that
the said accused was taken on remand in the case on
27.04.2016 on the basis of production warrant. The second
charge sheet was submitted on 12.09.2018 against the petitioner
and another and it is reflected therein that the petitioner was
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taken on remand in the case on the strength of production
warrant on 17.05.2018. Therefore, the period of detention of the
petitioner in judicial custody in connection with this case varies
from the co-accused, who has been enlarged on bail by the
Hon'ble Supreme Court, in other words, the petitioner has
remained in custody for a much lesser period than the co-
accused.
9. Let me now consider the contention of the learned
counsel for the petitioner regarding favourable consideration of
bail of the petitioner being a woman in view of the proviso to
section 437(1) of Cr.P.C.
Under section 437 (1) of the Code, when a person
accused of, or suspected of, the commission of any non-bailable
offence is arrested or detained without warrant by an officer in
charge of a police station or appears or is brought before a Court
other than the High Court and Court of Session, he may be
released on bail by the Court subject to the conditions that he
does not reasonably appear to have been guilty of an offence
punishable with death or imprisonment for life. The conditions of
not releasing the person on bail charged with an offence
punishable with death or imprisonment for life shall not be
applicable if such person is under the age of sisteen years or is a
26
woman or is sick or infirm, subject to such conditions as may be
imposed. It does not, however, mean that persons specified in
the first proviso to sub-section (1) of section 437 of Cr.P.C.
should necessarily be released on bail. The proviso is an enabling
provision which confers jurisdiction upon a Court, other than the
High Court or Court of Session, to release a person on bail who
has appeared or brought before the Court despite the fact that
there appears reasonable ground for believing that such person
has been guilty of an offence punishable with death or
imprisonment for life. There is no gainsaying that the discretion
conferred by the Code has to be exercised judicially. The
overriding considerations in granting bail which are common both
in sections 437(1) and 439(1) of the Code are the nature and
gravity of the offence, position and status of the accused with
reference to the victim and the witnesses and likelihood of the
accused fleeing from justice and tampering with witnesses etc.
Bail is a matter of procedural privilege and not an accrued right
until it is granted. The law is the sentinel of rights of the society
and of the individual. The cause of public justice and interest of
society have to be zealously guarded compared to the rights of
an applicant. If the offence is of such a nature which affects the
vital interest of the society and has adverse effect on the social
27
and family life, in such matters the issue is to be considered with
reference to them and one of the consideration which has to be
weighed for granting or refusing bail is the nature of the offence
and its heinousness. Though the beneficial provision relating to
release of an accused under the age of sixteen years or on the
ground of being a woman or sick or infirm has to be kept in mind
while considering his/her bail in spite of his/her involvement in
an offence punishable with death or imprisonment for life but at
the same time the Court should also give due weight to the other
aspects like nature and gravity of the offence etc. and also the
adverse impact of the offence committed on the society.
10. Without detailed examination of evidence and
elaborate discussions on the merits of the case but taking into
account the oral as well as documentary evidence available on
record against the petitioner relating to the commission of the
offences under which charge sheet has been submitted, the
nature and gravity of the accusation, the nature of supporting
evidence, the severity of punishment in case of conviction, the
manner in which huge amount of money was collected in
contravention of the provisions of SEBI Act and CIS Regulations
and the innocent poor persons were cheated of their hard earned
money on the basis of the false assurance given by the company
28
in the name of sale/purchase/rearing/breeding of live stocks like
goats and buffaloes, availability of documentary evidence relating
to money trailing from the company's accounts to the accounts of
the petitioner, reasonable apprehension of tampering with the
evidence, availability of prima facie materials against the
petitioner regarding her involvement in the commission of
offences and particularly taking into account the fact that further
investigation on some important aspects is under progress and
when the offence involved misappropriation of huge amount of
public money, in the larger interest of public and State, I am of
the humble view that even if the co-accused has been released
on bail, it would not be proper to release the petitioner on bail.
Accordingly, the bail application sans merit and
hence stands rejected.
...............................
S. K. Sahoo, J.
Orissa High Court, Cuttack The 25th February 2019/RKM