Orissa High Court
Ashok Kumar Sinha vs State Of Orissa on 8 July, 2016
Author: S.K. Sahoo
Bench: S. K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL No. 3213 of 2016
Application under section 439 of the Code of Criminal Procedure,
1973.
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Braja Kishore Mishra ........ Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - M/s. Dharanidhar Nayak
(Senior Advocate)
Basanta Kumar Das
S.K. Das, U.R. Jena
For Opp.Party: - Mr. Arupananda Das
Addl. Govt. Advocate
BLAPL No. 3245 of 2016
Ashok Kumar Sinha ........ Petitioner
-Versus-
State of Orissa ......... Opp. Party
For Petitioner: - M/s. Rajat Kumar Rath
(Senior Advocate)
Biraja Prasanna Das
J.S. Maharana
D.K. Panda, P.K. Kar
For Opp.Party: - Mr. Arupananda Das
Addl. Govt. 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- 30.06.2016 Date of order-08.07.2016
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S.K.SAHOO, J.The petitioner in BLAPL No. 3213 of 2016 namely, Braja Kishore Mishra was the Junior Steno -cum- Registration Clerk and petitioner in BLAPL No. 3245 of 2016 namely, Ashok Kumar Sinha was the Junior Inspector of Motor Vehicles in the office of the Regional Transport Officer, Chandikhol respectively have filed applications under section 439 Cr.P.C. for bail as their prayer for grant of bail was turned down by the learned Sessions Judge in charge, Jajpur vide order dated 24.05.2016.
Since these bail applications arise out of the same First Information Report, on the basis of which Badachana P.S. Case No.75 dated 30.04.2016 was registered under sections 420, 468, 471 read with section 34 of the Indian Penal Code corresponding to G.R. Case No.405 of 2016 pending in the Court of learned J.M.F.C., Chandikhole, with the consent of the respective parties, the bail applications were heard analogously and the same are disposed of by this common order.
2. On 30.04.2016 Shri Prahallad Behera, the Regional Transport Officer, Chandikhole presented the First Information Report before the Inspector in Charge, Badachana Police Station, 3 Jajpur stating therein that basing upon an information regarding fraudulent act by some tanker operators during registration of the vehicles in his office, he probed into the matter and found that twenty seven numbers of transport vehicles more particularly in the category of "Tanker" were registered at various stages and the owners/agents of those vehicles produced forged and fake documents like sale letters and connected documents and on verification with the concerned manufacturer/dealer, the fraudulent and dishonest activities of the violators were proved. The informant cancelled the registration certificates of twenty five vehicles and issued notices for cancellation to the concerned persons in compliance with the settled provisions of the Motor Vehicles Act and Rules as well as the departmental circular. The registered owners of remaining two vehicles were also issued notice for production of their vehicles along with all original documents. The numbers of twenty seven vehicles were mentioned in the First Information Report in which by producing fake documents, the accused persons had managed to get RC books, fitness certificates and permits.
On receipt of such First Information Report, Badchana P.S. Case No.75 of 2016 was registered against 4 twenty seven accused persons under sections 420, 468, 471 read with section 34 of the Indian Penal Code.
3. The Inspector in Charge of Badachana Police Station himself took up investigation of the case and recorded the statement of the informant who stated that the staffs of RTO Office, Chandikhole including the petitioner Ashok Kumar Sinha who was the Junior Inspector of Motor Vehicles knowing fully well that the documents produced in the Office for registration of the vehicles were fake, facilitated the unscrupulous owners through the dalals/agents to get the registration numbers, fitness certificates and permits and the petitioner Ashok Kumar Sinha used his own personal I.D. and password which was not transferable, from which it was established that deliberately he had committed the offence for his personal gain.
On 02.05.2016 on the production of the informant, the Investigating Officer seized the personal files of all the FIR mentioned twenty seven vehicles as per seizure list. On 03.05.2016 the Investigating Officer received reply from the informant in connection with the duties distributed among his staffs. Petitioner Braja Kishore Mishra who was the Junior Steno was allotted with the registration charges in respect of certain series of vehicles.
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During course of investigation, the Investigating Officer also collected materials which indicated that the policies of the Insurance Company which were produced at the time of registration of the tankers before RTO, Chandikhole were fake. Request letter was sent to SP, Jajpur to move the bank authorities to freeze the bank accounts of the tanker owners and transporters in which they had received illegal money by using new registration numbers in their old vehicles for transportation of petroleum products illegally and taking part in the tender process without having such vehicles against which new registration numbers had been obtained from the office of the RTO along with road permits and fitness certificates. The statement of one Kalyan Ch. Samal, Jr. Clerk in the office of RTO, Chandikhole was recorded who stated that fake sale letter, tax invoice, roadworthy certificate and insurance certificate etc. were produced before the petitioner Braja Kishore Mishra for registration of the tankers who never verified the genuineness of those documents and fixed the fees of the tankers and asked the owners to deposit the fees. He further stated that the petitioner Ashok Kumar Sihna had signed on the hardcopies of all the twenty seven files as well as online in the office computer system and issued fitness certificates of all the twenty seven vehicles and neither the petitioner Braja Kishore Mishra nor the 6 petitioner Ashok Kumar Sihna had physically seen the tankers before or after issuance of registration numbers, permits and fitness certificates. He further stated that such tankers were never existing and knowing fully well that the documents produced in the Office for the registration of the vehicles were fake, facilitated the unscrupulous owners through the dalals/agents to get the registration numbers, fitness certificates and permits. The Investigating officer also obtained the procedure for registration of a tanker from the RTO, Chandikhole and documents required for such registration.
Petitioners Braja Kishore Mishra and Ashok Kumar Sihna were taken into custody on 19.05.2016 as prima facie evidence under sections 420/468/419/471/120-B of the Indian Penal Code was made out against them and they were forwarded to Court.
4. Mr. Dharanidhar Nayak, learned Senior Advocate appearing for the petitioner Braja Kishore Mishra while urging for bail contended that the petitioner has completed twenty two years of unblemished service career in the RTO Office and during his entire career, he had discharged his duties with full sense of devotion, honesty, sincerity and integrity and the petitioner was just a Steno and he was in no way involved in the alleged crime and had no role to play in the registration of tankers. It was 7 further contended that the petitioner had no knowledge regarding the false documents and the ingredients of the offences are not made out against him and his wife is suffering from neuro problems and there is no other male member in the family to look after his ailing wife and the petitioner is a Government Servant and there is no chance of his absconding to evade trial or tamper with the prosecution witnesses and therefore, the bail application may be favourably considered.
Mr. Rajat Ku. Rath, learned Senior Advocate appearing on behalf of petitioner Ashok Kumar Sihna on the other hand emphatically contended that the petitioner has not been named in the First Information Report which was lodged after due inquiry/probe and the contents of the FIR are completely contradictory to the 161 Cr.P.C statements recorded during investigation. It was further contended that since last two years, the petitioner was suffering from chronic renal failure and under continuous hemodialysis at KIMS, Bhubaneswar twice in a week and he was also admitted in Nephrology Department at S.C.B. Medical College and Hospital, Cuttack from jail for a routine dialysis. He drew the attention of this Court to the medical documents which are annexed to the bail petition as Annexure-3 Series. It was further contended that the petitioner is a Government Servant and there is no chance of his 8 absconding and therefore, the bail application may be favourably considered.
Both the learned counsels submitted that in the meantime a number of other co-accused persons have been granted either anticipatory bail or regular bail and therefore, on the ground of parity and equity, the bail applications of the petitioners may be favourably considered. In support of such contentions, they filed the copies of the bail orders which were taken on record.
5. Mr. Arupananda Das, learned Addl. Government Advocate on the other hand contended that the statements collected during investigation clearly indicate the unholy combination between the petitioners on the one hand and the owners of the vehicles, dalals/agents on the other and fake sale letter, tax invoice, road worthy certificate, insurance certificate etc. were produced before the petitioner Braja Kishore Mishra who without verification of genuineness of such documents, fixed the fees for the tankers and the petitioner Ashok Kumar Sihna without physically verifying the tankers issued fitness certificates. The learned State Counsel further contended that the old tankers by virtue of new fake registration numbers were utilized for transportation of oil and there was no explosive licence as a result of which there was risk to the lives of innocent 9 persons. It is further contended that the petitioners had taken bribe from the agents/dalals, owners and they had conspired together in committing the offence in a preplanned manner. The learned counsel for the State placed the statement of the informant Prahallad Behera who has stated as to how the tanker owners in connivance with the petitioners have committed the offence by managing to get registration numbers of the tankers by producing forged documents and thereby able to participate in the tender process of different oil manufacturing companies as a result of which the genuine persons having new tankers were deprived of getting the transportation contract. The witness has further stated that petitioner Ashok Kumar Sinha after accepting bribe from dalals indulged himself in such illegal activities and thereby lowered down the sanctity of the registration office. The learned counsel for the State further placed the statement of the Bikash Kumar Choudury, MVI, RTO Office, Chandikhole which indicates the illegalities committed by the two petitioners in their respective capacities. The learned counsel for the State also drew the attention of the Court to different documents to indicate how forgery has been committed. The learned counsel for the State urged that the investigation is under progress and the charges are very serious and the further investigation is likely to reveal the detail materials relating to criminal conspiracy 10 between the accused persons and at this stage if the petitioners are enlarged on bail, there is likelihood of tampering with the evidence and destruction of material evidence.
6. Chapter IV of the Motor Vehicles Act, 1988 (hereafter "1988 Act") deals with a registration of the motor vehicles. Section 41 of the 1988 Act deals with procedure for registration of the motor vehicle. Section 56 of the 1988 Act deals with issuance of certificate of fitness of transport vehicles. Sub section (1) of section 56 clearly lays down that a transport vehicle shall not be deemed to be validly registered, for the purposes of section 39, unless it carries a certificate of fitness in the prescribed form. Section 59 of the 1988 Act deals with the power of the Central Government to fix the age limit of motor vehicle. Chapter V of the 1988 Act deals with general provision as to application for permits for different types of vehicles and procedure for making such application and grant of permits etc. Rule 22 of the Orissa Motor Vehicles Rules, 1993 (hereafter "1993 Rules") deals with issuance and renewal of fitness certificate. The role of an Inspector of Motor Vehicles or Junior Inspector of Motor Vehicles in the process of issuance and renewal of such certificates has been vividly laid down under this rule. It is the bounden duty of the owner or a person in control of the vehicle to produce the vehicle before the inspecting 11 authority on the date, time and place fixed for the inspection of the vehicles.
Thus in view of the 1988 Act and 1993 Rules, unless an Inspector or Junior Inspector of Motor Vehicles after physical verification of the vehicle grants fitness certificate, a transport vehicle cannot be validly registered.
Looking at the letter of RTO, Chandikhole dated 19.05.2016 regarding detail procedure for registration of tanker, it reveals that an application in Form 20, a sale certificate in Form 21 issued by dealer, road worthiness certificate in Form 22 issued by manufacturer, Form 22 A issued by bodybuilder, proof of address are required for registration. After receipt of such documents from the owner or on behalf of the owner, the Dealing Assistant (Junior Steno) after verifying the record, calculate the tax and fees. After deposit of the required tax and fees, he puts up the documents before the RTO with a note sheet giving his initial. Then the RTO forwards the records to IMV/ Junior. Then IMV inspects the vehicle and after inspection, the Data Entry Operator who assists IMV/Junior enters the criteria of compliance of Chapter VII of 1988 Act. The record is then sent to Smart Chips for detail entry in Vahan Software. After detail entry, the RTO verifies the entry to allow the Dealing Assistant for assignment of registration mark for the purpose of 12 registration and then the record is kept by the Dealing Assistant. After assignment of the registration number, the RTO pushes for print of RC smart card and particulars. After the cards are printed by a Smart Chip Operator, Asst. Programmer receives the smart cards and approve in key management system and return to SCL, from where it is despatched to the owner in the given address.
7. Taking a bird's eye view of the aforesaid provisions and procedure, it becomes crystal clear that both the petitioners have got vital roles to play in the process of registration of the tankers. From the materials available on record, it appears that the petitioner Braja Kishore Mishra who was the Junior Steno was also working as Registration Clerk as per the orders of RTO, Chandikhole since 2013 and at the threshold, he was supposed to verify the genuineness of the documents produced for the registration of the tankers. Prima facie it appears that he has deliberately neglected in his duties and without proper verification of the required documents for registration of the vehicle and accepting the fake documents, he had moved the file to the RTO after calculating the tax and fees. The other petitioner Ashok Kumar Sinha who was the Junior Inspector of Motor Vehicles without inspecting the tankers in actuality granted fitness certificates and put the fake engine and chassis 13 numbers as per the fake sale letters online for registration and fitness by using his personal ID even though such tankers did never exist.
8. Learned counsel for the petitioners contended that some of the co-accused persons have been granted bail under sections 438 Cr.P.C. and 439 Cr.P.C. and the petitioners stand on the similar footing and therefore, the bail applications be favourably considered on the ground of parity and equity. Learned counsel for the State on the other hand countered such submissions and contended that the case of the petitioners stands altogether in a different footing than the co-accused persons who have been enlarged on bail and therefore, the petitioners cannot claim parity with the other co-accused persons.
On perusal of the bail orders dated 24.06.2016 passed in BLAPL No.3540 of 2016 and BLAPL No.3588 of 2016 in respect of co-accused Amrik Singh and Sukadeva Parey respectively who were the owners of some of the offending tankers, it is seen that taking note of the submissions that owners of the vehicles have been enlarged on bail and their custody period since 31.05.2016, bail was granted.
Similarly on perusal of the anticipatory bail orders dated 05.05.2016 in respect of co-accused persons Chhaya Kar, 14 Khirod Chandra Patra, Mrutunjaya Kar, Prasanta Kumar Khuntia, Ashis Tiwari and Bharat Chandra Pradhan passed in ABLAPL Nos. 6472 of 2016, 6475 of 2016, 6477 of 2016, 6478 of 2016, 6479 of 2016 and 6480 of 2016 respectively, it is noticed that considering only the nature of offences alleged, anticipatory bail has been granted. The persons who have been granted anticipatory bail are also the owners of some of the offending vehicles.
Thus it is clear from the bail orders which have been produced by the learned counsels for the petitioners that none of the officials/staffs of the Office of Regional Transport Officer, Chandikhole have been enlarged on bail.
Doctrine of equality in bail matters in case of persons similarly situated flows from Article 14 of the Constitution of India. The grant of bail is not a mechanical act. A Judge is not bound to grant bail to an accused on the ground of parity where the order granting bail to the co-accused contains no cogent reasons. Such an order can never form the basis for a claim of parity. Parity is considered as one of the grounds but cannot be the sole ground for grant of bail. The desirability of consistency to grant bail to an accused may arise only when the Court finds that the case of the applicant is identically similar to the co- accused who has been enlarged on bail. Even then also, the 15 Court is not bound to grant bail, if after careful scrutiny, the Court is satisfied that after release of the co-accused similarly situated, some more clinching materials have been collected and some developments have been made in the investigation which justifies not to grant bail even though the State has not moved the higher Court for cancellation of the bail order in respect of the co-accused inasmuch as grant of bail at such a stage accepting the plea of parity would be prejudicial to the interest of law, a negation of rule of law and it will not be in consonance with the public interest.
After going through the bail orders produced by the learned counsels for the petitioners and carefully considering the nature of accusations leveled against the petitioners, I am of the view that the petitioners who are the Government Officials could have easily checked the commission of the crime by rejecting the fake documents produced for the registration of the vehicles and not granting fitness certificates. Their deliberate laches for obvious reasons resulted in opening the flood gate for commission of such offences in the office of the R.T.O., Chandikhole and therefore, the principle of parity for grant of bail as urged by the learned counsel for the petitioners would not be applicable to the petitioners and accordingly, such contentions are hereby rejected.
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9. So far as petitioner Braja Kishore Mishra is concerned, if after completion of so many years of service career in the R.T.O. Office, Chandikhole when he was entrusted with an important assignment as Registration Clerk, he should have been more duty conscious and should not have indulged in such type of illegal activities in passing fake documents produced before him for registration of tankers. Ailment of his wife as contended cannot be a ground to grant him bail at this stage.
Even though the petitioner Ashok Kumar Sinha was suffering from some ailment but it appears that jail authorities are taking his due care and producing him in the premier hospital of the State for his treatment and nothing has been alleged against the jail authorities for lack of their initiative to take care of his health. The misconduct and dereliction of the duty on the part of the petitioner is very serious and at this juncture, it would not be proper to grant him bail on the ground of his ailment.
10. After bestowing my anxious consideration to weigh and analyse the materials available on record with utmost care and caution, the nature of accusations, the punishment prescribed for the offences, prima facie availability of supporting materials to establish such accusations, the continuance of investigation which is likely to unearth many vital links, role 17 played by the petitioners in the entire episode, the impact of such offences on the society, the manner in which taking advantage of their position, the petitioners created their own heaven for their self interest by creating hell for others, without entering into the detailed examination of the materials on record and elaborate discussion on the merits of the case, I am of the view that at this stage, it would not be proper to release the petitioners on bail.
Accordingly, the bail applications filed by petitioners Braja Kishore Mishra and Ashok Kumar Sinha sans merits and hence stand rejected.
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S.K. Sahoo, J.
Orissa High Court, Cuttack The 8th July, 2016/Pravakar