Orissa High Court
Deepak Gupta vs State Of Orissa Vig on 24 August, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 926 Of 2017
An application under section 439 of the Code of Criminal
Procedure, 1973 in connection with T.R. No. 01 of 2014 pending
in the Court of Addl. Sessions Judge -cum- Special Judge
(Vigilance), Keonjhar.
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Deepak Gupta ........ Petitioner
-Versus-
State of Orissa (Vig.) ........ Opp. Party
For Petitioner - Mr. A. Majeed Memon
(Senior Advocate)
Mr. D.P. Dhal
For Opp. party - Mr. N.C. Panigrahi
(Senior Advocate)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Argument: 22.08.2017 Date of order: 24.08.2017
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S. K. SAHOO, J.After being unsuccessful on the last three occasions before this Court and once before the Hon'ble Supreme Court and being in judicial custody since 05.09.2013, the petitioner Deepak Gupta has once again knocked at the portals of this 2 Court seeking for bail under section 439 of the Code of Criminal Procedure, 1973 in connection with Balasore Vigilance P.S. Case No. 30 of 2013 which corresponds to T.R. Case No. 01 of 2014 pending in the Court of learned Addl. Sessions Judge -cum-
Special Judge (Vigilance), Keonjhar in which he is facing trial on being charged under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 and sections 420, 468, 409, 379, 411 read with section 120-B of the Indian Penal Code.
2. As per the first charge sheet dated 31.12.2013, the role of the petitioner is mentioned as follows:-
"Sri Deepak Gupta is the Director of M/s. Snehapusph Marketing Private Ltd. as well as Power of Attorney Holder of B.K. Mohanty mines, is also a Director of M/s. Deepak Steel and Power Ltd......
From the above facts, it is found that Sri Deepak Gupta has actually raised a quantity of 65,25,741.438 MT amounting to Rs.1520,39,64,049.60 but he has shown 47,48,826 MT and suppressed the production of 17,76,915,438 MT during the period 2004 to 2009 which indicates that Deepak Gupta, Sri Haricharan Gupta, the lease holders and others have also indulged the illegal theft of iron ore of the suppressed quantity which has been clandestinely sold amounting to Rs.680,72,52,301.60 by entering into criminal conspiracy with above noted mining, forest and revenue officials without payment of royalty.......3
Investigation further revealed that Sri Deepak Gupta has dishonestly and fraudulently sold the illegally extracted iron ore at a very low price to his group of company M/s. Deepak Steel & Power Ltd. where he is also a Director along with Sri Haricharan Gupta which clearly indicates that M/s. Deepak Steel & Power is the illegal beneficiary of the stolen iron ore. In this process Sri Deepak Gupta, Sri Haricharan Gupta and other co-accused have suppressed a turnover of Rs.270,12,71,492.00 on account of undervaluation........
Sri Deepak Gupta and Sri Haricharan Gupta and others through their companies have indulged in illegal mining much beyond the permissions given by the Mining Officials........
Thus the loss towards cost of iron ore raised illegally caused to Government is Rs.1520,39,64,049.60. So also the lessee and the Power of Attorney Holder have cheated the Government by non-payment of royalty to the tune of Rs.3,19,84,477.88 @ Rs.18/- per MT on an average by falsifying records. Thus the total loss is Rs.1523,59,48,527.48 and as such all are liable u/s.13(2) r/w 13 (1) (c) (d) of P.C. Act, 1988 and section 120-B/409/379/420/468 and 411 IPC".
In the final charge sheet dated 24.6.2014, the role of the petitioner is mentioned as follows:-
"Investigation also revealed that Sri Deepak Gupta and other co-accused entered into criminal conspiracy with the public servants of Mining Department, Forest Department and Revenue Department and in pursuance of the 4 said conspiracy, they have, dishonestly and fraudulently, indulged in illegal mining from the Reserve Forest Area, and Government land much beyond the mining lease area of Sri B.K. Mohanty (for which he was the Power of Attorney Holder). Sri Deepak Gupta confessed that he has indulged in illegal mining and has shown the area near the mining lease area of Sri B.K. Mohanty from where he has extracted the iron ores. The said area has been demarcated during joint physical verification by a team consisting of Mining, Forest and Revenue Officials and by conducting DGPS survey, and taking DGPS readings of the demarcated points. The DGPS Survey clearly proved that the mining was done outside the lease hold area of Sri B.K. Mohanty, i.e, in the Reserve Forest Area and in the lapsed mining lease earlier granted to Sri Jagadish Mishra. The survey also showed that Sri Deepak Gupta and Sri Hari Charan Gupta and other co-accused, through their companies M/s. Snehapushp Marketing Pvt. Ltd and M/s Deepak Steel and Power Ltd., illegally extracted, stored, transported the iron ore from outside the lease area and also violated the various provisions of MMDR Act by utilizing the Government land for keeping the stack dumps, transformers and for carrying out other illegal mining activities. The above evidence was further corroborated by the evidence of the Raising Contractors and the villagers and also SLES Report by the Mining Department, Joint Enquiry Report by the team appointed by the Collector, Keonjhar and others. These Enquiries Reports further corroborated the charges against Sri Deepak Gupta.
x x x x x x x Sri Deepak Gupta has dishonestly and fraudulently sold the illegally extracted iron ore at a very low price to his group company M/s.5
Deepak Steel and Power Ltd. (where he is also a Director along with Sri Hari Charan Gupta). Thereby, M/s Deepak Steel and Power Ltd. became the illegal beneficiary of the stolen iron ore. In the process, Sri Deepak Gupta, Sri Hari Charan Gupta and other co-accused also evaded a huge amount of Commercial Taxes to the tune of Rs.44,86,21,101.14.
x x x x x x x The accused persons i.e. Sri Deepak Gupta and Sri Hari Charan Gupta and Sri Champak Gupta and other co-Directors of the accused Companies M/s Snehapushp Marketing Pvt. Ltd. and M/s Deepak Steel & Powers Ltd. have acquired a large number of assets in their names as well as in the names of their group companies. These assets have been procured from the proceeds of crime obtained by the sale of illegally extracted iron ore and have been attached under the provisions of Criminal Law Amendment Ordinance pending their forfeiture in the event of the charges being proved against the accused persons and the accused companies in the Court of law.
x x x x x x x Sri Deepak Gupta and Sri Hari Charan Gupta and others through their companies have indulged in illegal mining much beyond the permissions given by the Mining officials. Though, the mining lease holder has furnished returns, (albeit in totally illegal manner), for extraction of 47,48,826.000 MT of iron ore, it was found that the accused persons have extracted 65,25,741.438 MT of iron ore which exceeds the shown extraction quantity by 17,76,915.438 MT. This will imply that the accused persons have also indulged in illegal theft of iron ore amounting to 17,76,915.438 MT and valued of Rs.680,72,52,301.60 6 (Rs.746,30,43,000. 00 on current price), in connivance with the accused public servants for which they are liable. It was found further that though co-Directors Smt. Kanta Devi Gupta and Smt. Nitu Gupta were also part of the criminal conspiracy and have illegally acquired assets in their names from the proceeds of crime. Hence, they are being prosecuted as co-accused. Thus, the loss towards cost of the iron ore raised illegally causing to Govt. is Rs.1520,39,64,049.60 (Rs.839,67,11,748.00 + Rs.680,72,52,301.60). So also the lessee and the power of attorney holder have cheated the Govt. by non-payment of royalty to the tune of Rs.3,19,84,477.88 on an average by falsifying the records. Thus, the total loss of Rs.1523,59,48,527.48 and as such all are liable U/s.13(2) r/w 13 (1) (c) (d) P.C. Act, 1988/Sec.120-B/409/379/ 420/468/ 411 IPC."
3. Mr. A. Majeed Memon, learned Senior Advocate being ably assisted by Mr. D.P. Dhal, Advocate strenuously argued that while rejecting the bail application of the petitioner on the last occasion in BLAPL No.854 of 2015 vide order dated 28.03.2016, this Court taking into account the period of detention of the petitioner as well as submission of final charge sheet, directed the learned Trial Court to take immediate and effective steps for framing of charge and also to take all possible steps to proceed with the trial on day to day basis, to identify and examine the material witnesses at the earliest and it was further observed that if the trial is not concluded within a period 7 of one year from the date of pronouncement of the order for reasons not attributable to the petitioner, the petitioner will be at liberty to apply for bail afresh before the learned Trial Court which shall be considered in the light of the situation prevailing then. He emphasized that in spite of such order, there was no progress in the trial and when the petitioner approached the Hon'ble Supreme Court against the order dated 28.03.2016 passed in BLAPL No.854 of 2015, the Hon'ble Court did not interfere with the order of this Court in exercise of jurisdiction under Article 136 of the Constitution of India and thereby reaffirmed the observation made by this Court relating to expeditious trial. Since there was no progress in trial of the case, the petitioner has to file this bail application and this Court vide order dated 12.05.2017 made a specific direction to the learned trial Court to frame charge positively on 20.05.2017 and ultimately the charge was framed on 05.06.2017. Learned Senior Counsel further contended that even thereafter also not a single witness was produced by the prosecution before the learned Trial Court though the case was posted for trial on 06.07.2017, 07.07.2017, 20.07.2017, 28.07.2017 and 09.08.2017. It is contended that one of the co-accused namely Manas Ranjan Mohanty has been released on bail by the Hon'ble Supreme 8 Court in Criminal Appeal No.684 of 2017 vide order dated 11.04.2017 on the ground that he had remained in custody for more than one year and nine months in jail. He further submitted that another co-accused namely Madan Mohan Biswal who was the Deputy Director of Mines, Joda was also released on bail by the learned Trial Court on surrendering on 06.07.2017 and all other co-accused persons arrested so far are on bail and some of the co-accused persons have even granted anticipatory bail and therefore, the petitioner is entitled to be released on bail on the ground of parity and equity. He further contended that since as per the previous order of this Court dated 28.03.2016 passed in BLAPL No.854 of 2015, the delay in commencement of the trial is not attributable to the petitioner and in view of the change in the circumstances, the bail petition of the petitioner requires favourable reconsideration. Learned counsel emphasized that as per charge sheet, there are 178 witnesses to be examined and 50,000 pages of documents are to be proved and it is not possible to conclude the trial for years together even if it is held on day-to-day basis in view of number of counsels engaged by different accused persons who are supposed to cross-examine all those witnesses and that the accused persons would adduce defence evidence particularly when the learned 9 Trial Court has not been specifically designated to try this case only and it has got several assignments and therefore, the Court cannot grant complete time to this case. He further contended that the petitioner requires a 'fair trial' and he has to go through the voluminous documents filed by the prosecution and consult his lawyer to prepare for his defence which is not possible remaining in custody. It is further contended that since most of the witnesses are official witnesses and all the documents are before the learned Trial Court, there is no chance of tampering with the same and in the event of any apprehension in that respect, stringent conditions may be imposed while granting bail to the petitioner. Learned counsel for the petitioner relied upon the decisions of the Hon'ble Supreme Court in cases of Sanjay Chandra -Vrs.- C.B.I. reported in (2012) 1 Supreme Court Cases 40 and State of Kerala -Vrs.- Raneef reported in 2011 (1) Supreme Court Cases 784.
4. Mr. N.C. Panigrahi, learned Senior Advocate appearing for the State of Orissa (Vigilance) vehemently opposed the prayer for bail and contended that the trial got delayed as one after another accused including the petitioner filed applications for supply of documents even after receipt of police papers and also discharge petitions. He further contended that 10 the case of the petitioner is quite distinguishable from the other co-accused persons who are on bail and in view of the nature and gravity of the accusation, the petitioner cannot claim parity with others and delay in trial in the peculiar circumstances cannot be the sole ground for grant of bail. Learned Senior Counsel emphasized that the accused persons are not allowing the case to proceed by filing frivolous petitions one after another before the learned Trial Court which would be evident from the order sheet. He emphasized that the family members of the petitioner are absconding and even when the petitioner was under treatment at S.C.B. Medical College and Hospital, Cuttack during his custody period, it was found that he was not present in the hospital but in some hotel for which action has been taken against the erring hospital staffs and therefore, there is every likelihood of petitioner tampering with the evidence while on bail and he may abscond like his family members and therefore, in absence of any substantial change in the circumstances after rejection of the last bail application of the petitioner by this Court which was confirmed by the Hon'ble Supreme Court, the prayer for bail should be rejected. Learned counsel for the State relied upon the decisions of the Hon'ble Supreme Court in cases of Nimmagadda Prasad -Vrs.- C.B.I. reported in 2013 (7) 11 Supreme Court Cases 466, State of Gujarat -Vrs.-
Mohanlal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321, Rajesh Ranjan Yadav @ Pappu Yadav -Vrs.- C.B.I. reported in A.I.R. 2007 S.C. 451, Ash Mohammad -Vrs.-
Shiv Raj Singh reported in (2012) 9 Supreme Court Cases 446, Abdul Rehman Antulay -Vrs.- R.S. Nayak reported in A.I.R. 1992 S.C. 1701 and Ranjan Dwibedi -Vrs.- C.B.I. reported in A.I.R. 2012 S.C. 3217.
5. Let me first discuss the relevant paragraphs of the decisions cited by the learned Senior Counsel for the petitioner.
In the case of Sanjay Chandra -Vrs.- CBI reported in (2012) 1 Supreme Court Cases 40 wherein it is held as follows:-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure their attendance at the 12 trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, as we have already noticed that the "pointing finger of accusation"
against the Appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the Appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice."
25. The provisions of Code of Criminal Procedure. confer discretionary jurisdiction on 13 Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual.
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42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the Appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the Appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the Appellants on bail when there is no serious contention of the Respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the 14 completion of the investigation and filing of the charge-sheet.
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46. We are conscious of the fact that the accused as charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the Investigating Agency has already completed investigation and charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
In the case of State of Kerala -Vrs.- Raneef reported in 2011 (1) Supreme Court Cases 784, it is held as follows:-
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail."15
6. Now, let me analyse the ratio of the decisions placed by the learned Senior Advocate for the State. In the case of Nimmagadda Prasad -Vrs.- C.B.I. reported in 2013 (7) Supreme Court Cases 466, it is held as follows:-
"24. 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 the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence"
which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs 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."
16In 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 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 collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."
In the case of Rajesh Ranjan Yadav @ Pappu Yadav -Vrs.- C.B.I. reported in A.I.R. 2007 S.C. 451, it is held as follows:-
"15. Learned Counsel for the appellant has repeatedly referred to Article 21 of the Constitution and on that basis has submitted that the appellant should be released on bail particularly since he has already been imprisoned for more than six years.17
16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society."
In the case of Ash Mohammad -Vrs.- Shiv Raj Singh reported in (2012) 9 Supreme Court Cases 446, it is held as follows:-
"17. We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and 18 such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, "it is regulated freedom".
18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. Not for nothing J. Oerter stated:
"Personal liberty is the right to act without interference within the limits of the law."
19. Thus analyzed, it is clear that though liberty is a greatly cherished value in the life of an individual, it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized, for the rational collective does not countenance an anti-social or anti-collective act.
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29. Be it noted, a stage has come that in certain States abduction and kidnapping have been regarded as heroism. A particular crime changes its colour with efflux of time. The concept of crime in the contextual sense of kidnapping has really undergone a sea change and has really shattered the spine of the orderly society. It is almost nauseating to read almost every day about the criminal activities relating to kidnapping and particularly by people who call themselves experts in the said nature of crime.
30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused."
In the case of Abdul Rehman Antulay -Vrs.- R.S. Nayak reported in A.I.R. 1992 S.C. 1701, it is held as follows:-
54. In view of the above discussion, the following propositions emerge, meant to serve 20 as guidelines. We must forewarn that these propositions are not exhaustive. It is difficult to foresee all situations. Nor is it possible to lay down any hard and fast rules. These propositions are :
1. Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the societal interest also, does not make it any-the-less the right of the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
2. Right to Speedy Trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial. That is how, this Court has understood this right and there is no reason to take a restricted view.
3. The concerns underlying the Right to speedy trial from the point of view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4. At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the 21 burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the Right to speedy trial is alleged to have been infringed, the first question to be put and answered is-who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not a frivolous. Very often these stays obtained on ex- parte representation.
5. While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
6. Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a 22 delay is too long in a system where justice is supposed to be swift but deliberate."
In the case of Ranjan Dwibedi -Vrs.- C.B.I. reported in A.I.R. 2012 S.C. 3217, it is held as follows:-
19. The reasons for the delay is one of the factors which courts would normally assess in determining as to whether a particular accused has been deprived of his or her right to speedy trial, including the party to whom the delay is attributable. Delay, which occasioned by action or inaction of the prosecution is one of the main factors which will be taken note by the courts while interjecting a criminal trial. A deliberate attempt to delay the trial, in order to hamper the accused, is weighed heavily against the prosecution. However, unintentional and unavoidable delays or administrative factors over which prosecution has no control, such as, over-crowded court dockets, absence of the presiding officers, strike by the lawyers, delay by the superior forum in notifying the designated Judge, (in the present case only), the matter pending before the other forums, including High Courts and Supreme Courts and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trial within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay. The good cause exception to the speedy trial requirement focuses on only one factor i.e. the reason for the delay and the attending circumstances bear on the inquiry only to the extent to the sufficiency of the reason itself. Keeping this settled position in view, we have perused the note prepared by Shri Raval, learned ASG. Though, the note produced is not certified with copies of the order sheets maintained by the trial court, since they are not 23 disputed by the other side, we have taken the information furnished therein as authentic. The note reveals that prosecution, apart from seeking 4-5 adjournments, right from 1991 till 2012, is not responsible for delay in any manner whatsoever. Therefore, in our opinion the delay in trial of the Petitioners from 1991 to 2012 is solely attributable to Petitioners and other accused persons.
20. Second limb of the argument of the learned Senior Counsel Shri Andhyarujina is that the of failure of completion of trial has not only caused great prejudice to the Petitioners but also their family members. Presumptive prejudice is not an alone disparities of speedy trial claim and must be balanced against other factors. The accused has the burden to make some showing of prejudice, although a showing of actual prejudice is not required. When the accused makes a prima-facie showing of prejudice, the burden shifts on the prosecution to show that the accused suffered no serious prejudice. The question of how great lapse it is, consistent with the guarantee of a speedy trial, will depend on the facts and circumstances of each case. There is no basis for holding that the right to speedy trial can be quantified into specified number of days, months or years. The mere passage of time is not sufficient to establish denial of aright to a speedy trial, but a lengthy delay, which is presumptively prejudicial, triggers the examination of other factors to determine whether the rights have been violated.
21. The length of the delay is not sufficient in itself to warrant a finding that the accused was deprived of the right to a speedy trial. Rather, it is only one of the factors to be considered, and must be weighed against other factors.
Moreover, among factors to be considered in determining whether the right to speedy trial of the accused is violated, the length of delay is least conclusive. While there is authority that even very lengthy delays do not give rise to a 24 per se conclusion of violation of constitutional rights, there is also authority that long enough delay could constitute per revelation of right to speedy trial. In our considered view, the delay tolerated varies with the complexity of the case, the manner of proof as well as gravity of the alleged crime. This, again, depends on case to case basis. There cannot be universal rule in this regard. It is a balancing process while determining as to whether the accused's right to speedy trial has been violated or not. The length of delay in and itself, is not a weighty factor.
22. In the present case, the delay is occasional by exceptional circumstances. It may not be due to failure of the prosecution or by the systemic failure but we can only say that there is a good cause for the failure to complete the trial and in our view, such delay is not violative of the right of the accused for speedy trial.
23. Prescribing a time limit for the trial court to terminate the proceedings or, at the end thereof, to acquit or discharge the accused in all cases will amount to legislation, which cannot be done by judicial directives within the arena of judicial law making power available to constitutional courts; however, liberally the courts may interpret Articles 21, 32, 141 and
142. (Ram Chandra Rao P. v. State of Karnataka: (2002) 4 SCC 578). The Seven Judges Bench overruled four earlier decision of this Court on this point: Raj Deo (II) v. State of Bihar: (1999) 7 SCC 604, Raj Deo Sharma v.
State of Bihar: (1998) 7 SCC 507; Common Cause, A Registered Society v. Union of India:
(1996) 4 SCC 33. The time limit in these four cases was contrary to the observations of the Five Judges Bench in A.R. Antulay (supra). The Seven Judges Bench in Ram Chandra Rao P. v.
State of Karnataka, (Supra) has been followed in State through CBI v. Dr. Narayan Waman Nerukar: (2002) 7 SCC 6 and State of Rajasthan v. Ikbal Hussen: (2004) 12 SCC 499. It was further observed that it is neither advisable, 25 feasible nor judicially permissible to prescribe an outer limit for the conclusion of all criminal proceedings. It is for the criminal court to exercise powers under Sections 258, 309 and 311 of the Code of Criminal Procedure. to effectuate the right to a speedy trial. In an appropriate case, directions from the High Court under Section 482 Code of Criminal Procedure. and Article 226/227 can be invoked to seek appropriate relief.
24. In view of the settled position of law and particularly in the facts of the present case, we are noting agreement with the submissions made by learned Senior Counsel, Shri. T.R. Andhyarujina. Before we conclude, we intend to say, particularly, looking into long adjournments sought by the accused persons, who are seven in number, that accused cannot take advantage or the benefit of the right of speedy trial by causing the delay and then use that delay in order to assert their rights.
25. The learned Senior Counsel would tell us, please don't look who caused the delay in completing the trial but only look at whether there is delay in completion of the trial and if it is there, please put a big "full stop" for the trial. In our view, this submission of the learned Senior Counsel cannot be accepted by us, in view of the observations by this Court in P. Ram Chandra's case(supra). Before parting with the case, we should certainly give credit to our judicial officers, who have painstakingly suffered with all the dilatory tactics adopted by the accused in dragging on with the proceedings for nearly thirty seven years. They are not to be blamed at all. In fact, they do deserve appreciation while conducting such trials where one of the accused is not only Bachelor of Laws but also Bachelor of Literature. We certainly say that our system has not failed, but, accused was successful in dragging on the proceedings to a stage where, if it is drawn further, it may snap the Justice Delivery System. We are also 26 conscious of the fact that more than thirty Judges had tried this case at one stage or the other, but, all of them have taken care to see that the trial is completed at the earliest. They are not to be blamed and certainly the system has not to be blamed, but, positively, somebody has succeeded in his or in their attempt. The system has done its best, but, has not achieved the expected result and certainly, will not fit into the category of cases where (late) N.A. Palkhiwala, one of the most outstanding Senior Advocates in the Country had said that "...... the law may or may not be amass, but in India it is certainly a snail and our cases proceed at a pace which would be regarded as unduly slow in a community of snails". Therefore, we say, we will not buy this argument of the learned Senior Counsel that there is systemic failure. Therefore, in our view at this stage the one and the only direction that requires to be issued is to direct the learned trial judge to take up the case on day to day basis and conclude the proceedings as early as possible, without granting unnecessary and unwarranted adjournments.
7. The settled principle of law is that successive application for grant of bail to an accused is permissible under the changed circumstances which must be substantial one and which has got a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence.
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.
The release of some of the co-accused persons on bail was argued in the earlier bail application of the petitioner 27 which was rejected by me in BLAPL No.854 of 2015 vide order dated 28.03.2016. No doubt after such order was not interfered with by the Hon'ble Supreme Court in SLP (Crl.) No. 3310 of 2016 vide order dated 02.05.2016, one of the co-accused namely Manas Ranjan Mohanty has been released on bail by the Hon'ble Supreme Court in Criminal Appeal No.684 of 2017 vide order dated 11.04.2017 on the ground that he had remained in custody for more than one year and nine months in jail and another co-accused namely Madan Mohan Biswal who was the Deputy Director of Mines, Joda has also been released on bail by the learned Trial Court on surrendering on 06.07.2017 but the petitioner stands in a complete different footing and the allegations against the petitioner are more serious in nature than the co-accused persons who have been enlarged on bail as per first charge sheet and supplementary/final charge sheet and when the allegations are supported by material on record and there is a potential of trial being adversely influenced by grant of bail, seriously jeopardizing the interest of justice, the claim of parity and equity as contended by the learned counsel for the petitioner is not acceptable.
8. No doubt while rejecting the prayer for bail of the petitioner in BLAPL No.854 of 2015, direction was issued to the 28 learned Trial Court to take immediate and effective steps for framing of charge and also to take all possible steps to proceed with the trial on day-to-day basis, to identify and examine the material witnesses at the earliest which could not be possible and as per the specific order dated 12.05.2017 passed in this bail application, charge was framed on 05.06.2017 but the order sheet of the learned trial Court produced by the parties during hearing of the bail application goes to show that even after supply of police papers, one after another petitions were filed by the petitioner and other co-accused persons either for supply of documents or for discharge which were to be dealt with by the learned Trial Court after hearing the learned counsels for both the sides. Even after framing of charge, the filing of petitions by the accused persons have not stopped and one of them has even filed a petition to postpone the hearing on the ground of pendency of CRLMC No.1762 of 2017 before this Court and for supply of documents. Therefore, when the accused persons including the petitioner are playing hide and seek with the Court just to delay the progress of the trial and more particularly, the petitioner was keen to see that trial is not progressed for about a year which would give him an additional ground to apply for bail in view of the observation made in BLAPL No.854 of 2015, the 29 learned Trial Court cannot be blamed for the delay and the deliberate delay caused by the accused persons including the petitioner cannot be the ground to grant bail to the petitioner.
The learned senior counsel appearing for the petitioner, with all the wits at his command submitted that the petitioner does not want 'speedy trial' but 'fair trial' as he was aware that in spite of the order passed by this Court in BLAPL No.854 of 2015, the petitioner has also contributed to the delay in trial. The trial would have progressed substantially had the dilly-dallying tactics not been adopted by the accused persons including the petitioner. Therefore, I am of the view that the delay in progress of the trial in the factual scenario does not create an additional ground for grant of bail.
9. How many witnesses out of 178 charge sheeted witnesses, the prosecution would examine and how many documents out of the 50,000 pages of documents filed with the charge sheet, the prosecution would prove and in what way is a matter which is in the domain of the learned trial Court.
Obviously the prosecution is not expected to delay the trial as the delay may hamper the result and the justice which it is expecting due to loss of more than one thousand five hundred crores to the Government exchequer. The learned trial Court is 30 also not expected to be a silent spectator or a mute observer and it has got solemn duty to see that neither the prosecution nor the accused play truancy with the criminal trial or corrode the sanctity of the proceeding and thereby expropriate or hijack the community interest by conducting themselves in such a manner as a consequence of which the trial becomes a farcical one.
10. The nature of accusation against the petitioner is that he in connivance with the mining, forest, revenue officials and mining lease holders by creating fake documents illegally and unauthorizedly excavated iron ore which caused pecuniary advantage to him, his family members and others and the State of Odisha which has the highest stake in mineral production in the country sustained equivalent loss to the Government exchequer to the tune of more than one thousand five hundred crores. The crime appears to have been committed in a cool, calculated and organized manner. A strong prima facie case is available against the petitioner to show his involvement in the economic offence. In view of the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence, absence of any substantial change of circumstances after rejection of bail applications by this Court thrice and particularly when the last bail rejection order of this Court was 31 affirmed by the Hon'ble Supreme Court by dismissing the special leave petition, I am not inclined to reconsider the prayer for bail and release the petitioner on bail.
Accordingly, the bail application sans merit and hence stands rejected.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 24th August, 2017/ Pravakar