Orissa High Court
Indrajit De vs Republic Of India (C.B.I.) ......... ... on 15 April, 2024
Author: S.K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLREV No.690 of 2023
An application under section 401 of the Code of Criminal
Procedure, 1973 in connection with S.P.E. No.05 of 2014 pending
in the Court of learned Special C.J.M. (C.B.I.), Bhubaneswar.
-----------------------------
Indrajit De ........ Petitioner
-Versus-
Republic of India (C.B.I.) ......... Opp. Party
For Petitioner: - Mr. Saurjya Kanta Padhi
(Senior Advocate)
Mr. Partha Mukherji
&
Ms. Shruti Jha
Advocates
For Opp. party: - Mr. Sarthak Nayak
Special Public Prosecutor
(C.B.I.)
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
........................................................................................................................ Date of Argument: 10.04.2024 Date of Order: 15.04.2024 ........................................................................................................................ S.K. SAHOO, J. The petitioner Indrajit De filed a petition on 02.11.2023 before the Special C.J.M. (C.B.I.), Bhubaneswar in S.P.E. No.05 of 2014 for temporary release of his original passport in his favour and to allow him to visit USA for two months.
The petitioner was charge sheeted under sections 120-B/420/409 of the Indian Penal Code (hereafter "I.P.C.") and sections 4, 5 & 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (for short '1978 Act') on the accusation that in the year 2009-2010, an amount of Rs.2.05 Crores was transferred to the bank account of M/s. Eden Infra Projects Pvt. Ltd., i.e., the company of the petitioner from the bank account of M/s. Tower Infotech Ltd. After cognizance of offences was taken, when in obedience to the summons issued by the learned trial Court, the petitioner appeared before the Court on 09.10.2023 and applied for bail, on the very day, he was directed to be released on bail with following terms and conditions:-
i) He shall furnish cash security of Rs.5,00,000/- (rupees five lakhs);
ii) He shall surrender his passport before the Court;
iii) He shall not tamper with the prosecution evidence in any manner whatsoever;
iv) He shall not default in personal attendance of Court as and when required.
CRLREV No.690 of 2023 Page 2 of 18 The petitioner deposited his original passport bearing no. Z6948595 and also complied with other terms and conditions and accordingly, his bail bonds were accepted.
The petitioner filed a petition on 02.11.2013 for temporary release of his original passport for a period of two months to visit USA to take care of his old ailing mother-in-law, who was almost in death bed. It is further stated that the wife and minor daughter of the petitioner were residing at USA and the petitioner was a regular visitor to USA and green card holder and during investigation, the petitioner visited USA on various occasions to meet his family and therefore, there is absolutely no chance of his absconding to evade trial and the presence of the petitioner with his family in USA was highly essential.
On behalf of the C.B.I., objection was filed to such petition, wherein it is stated that the petitioner has misappropriated public money and there is prima facie material against him for commission of economic offence and the petitioner was going abroad without appearing in the learned Court after service of summons and was stopped by Immigration Authority in the Kolkata Airport and that he had not intimated to the learned trial Court for such travelling and his conduct was highly suspicious and there was every chance on the part of the CRLREV No.690 of 2023 Page 3 of 18 petitioner not to return back to India once he is permitted to travel abroad.
The learned trial Court vide impugned order dated 06.12.2023 has been pleased to hold that in view of the ratio laid down by the Hon'ble Supreme Court in case of Aman Preet Singh -Vrs.- C.B.I. through Director reported in (2022) 13 Supreme Court Cases 764, condition was imposed for surrender of the passport of the petitioner as a condition for bail with intention to restrict him from fleeing from the reach of the Court by using his passport. It is further held that since the allegation against the petitioner is that he had misappropriated a huge amount of money received from the gullible investors, by entering into criminal conspiracy with other co-accused persons, he should not be allowed to move away from the reach of the Court. The Court further held that one of the conditions of the bail order of the petitioner was that he should not default in personal attendance in the Court as and when required and therefore, the passport of the petitioner could not be released for the purpose of his visit to USA for the period sought for or for any other purposes and accordingly rejected the petition filed by the petitioner.
CRLREV No.690 of 2023 Page 4 of 18
This criminal revision petition has been filed challenging the order dated 06.12.2023 passed by the learned trial Court in rejecting the petition dated 02.11.2023 filed by the petitioner.
Mr. Saurjya Kanta Padhi, learned Senior Advocate appearing for the petitioner being ably assisted by Mr. Partha Mukherji & Ms. Shruti Jha, Advocates placed reliance on the decisions of the Hon'ble Supreme Court in the case of Parvez Noordin Lokhandwalla -Vrs.- State of Maharashtra reported in (2020) 10 Supreme Court Cases 77 and Srikant Mohta -Vrs.- Republic of India (C.B.I.) reported in (2023) SCC Online Orissa 13 and in his inimitable elegant style contended that during pendency of investigation and even after submission of charge sheet, the petitioner had gone abroad and returned back to India and therefore, the apprehension on the part of the prosecution that he would flee away from the course of justice is totally baseless, misconceived and unsustainable. Even though there is a provision under section 10-A of the Passports Act, 1967 for suspension of passport in certain cases, if it is necessary in the public interest so to do, but no such step has been taken by the Central Govt. or any designated officer and since the petitioner is likely to CRLREV No.690 of 2023 Page 5 of 18 suffer irreparable loss and injury in case the passport is not released in his favour and he is not permitted to go aboard, the impugned order should be set aside and the passport of the petitioner be handed over to him giving permission to go aboard. He placed reliance on the case of Suresh Nanda -Vrs.- C.B.I. reported in (2008) 3 Supreme Court Cases 674.
Mr. Sarthak Nayak, learned Special Public Prosecutor appearing for the Republic of India (C.B.I.) filed counter affidavit to the revision petition wherein it is stated that the petitioner was one of the Directors of M/s. Eden Infra Projects Pvt. Ltd. and he, in criminal conspiracy with the Directors of accused company M/s. Tower Infotech Ltd., siphoned off the funds illegally collected by the accused company M/s. Tower Infotech Ltd. from the poor and gullible investors without having necessary permissions from the regulatory authorities to collect the funds and subsequently misappropriated the same in an unscrupulous way. He argued that in case the petitioner does not return back to India, the progress of trial would be hampered.
Adverting to the contentions raised by the learned counsel for the respective parties, it is not in dispute that on 26.12.2022 supplementary charge sheet was submitted against the petitioner before the learned trial Court under section 120-B CRLREV No.690 of 2023 Page 6 of 18 read with sections 420/409 of the I.P.C. and sections 4, 5 & 6 of the 1978 Act. During the course of investigation, it was found that the directors of the accused company M/s. Tower Infotech Ltd., in criminal conspiracy among themselves and with the petitioner and Amitava Patra, the Directors of M/s. Eden Infra Projects Pvt. Ltd., pursuant to a fraudulent agreement have dishonestly siphoned off the funds to the tune of Rs.2.05 Crores, which was collected illegally by the accused company M/s. Tower Infotech Ltd. from the poor and gullible investors without having necessary permissions from the regulatory authorities to collect the funds, with criminal intent to misappropriate the same. This illegally diverted money was subsequently channelized and routed back to the directors of the above mentioned two companies, in a pre-planned way. This act caused wrongful gain to the director of M/s. Tower Infotech Ltd. and the petitioner Indrajit De and corresponding wrongful loss to the investors whose invested money were deposited in the said bank accounts. In the charge sheet, the petitioner was shown as 'absconding'.
In the case of Parvez Noordin Lokhandwalla (supra), it is held as follows:
"14. The language of Section 437(3) Cr.P.C. which uses the expression "any condition..... otherwise in the interest of justice" has been CRLREV No.690 of 2023 Page 7 of 18 construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition"
for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.
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22. The private complaint which is the genesis of the present proceedings was instituted in January 2014. The gravamen of the allegation is that the appellant has forged and fabricated the power of attorney of 19-12-2011 of his brother Shalin. Mr Jha submits that, as a matter of fact, the power of attorney has not been used at any point; his brother was present in India at the time when conveyance was entered into; and that his brother has never raised any objection. However, we are not inclined to go into these factual aspects at the present stage. It would suffice to note that the co-accused was granted bail by the Sessions Judge, Thane on 16-4-2018. CRLREV No.690 of 2023 Page 8 of 18 We are called upon to decide only whether the appellant should be permitted to travel to the US for eight weeks. In evaluating this issue, we must have regard to the nature of the allegations, the conduct of the appellant and above all, the need to ensure that he does not pose a risk of evading the prosecution. The details which have been furnished to the Court by the appellant, indicate that he has regularly travelled between the US and India on as many as sixteen occasions between 2015 and 2020. He has maintained a close contact with India. The view of the High Court that he has no contact with India is contrary to the material on record. The lodging of an FIR should not in the facts of the present case be a bar on the travel of the appellant to the US for eight weeks to attend to the business of revalidating his Green Card. The conditions which a court imposes for the grant of bail in this case temporary bail have to balance the public interest in the enforcement of criminal justice with the rights of the accused. The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to CRLREV No.690 of 2023 Page 9 of 18 the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.
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25. Having regard to the genesis of the dispute as well as the issue as to whether the appellant is likely to flee from justice if he were to be permitted to travel to the US, we find, on the basis of the previous record of the appellant, that there is no reason or justification to deny him the permission which has been sought to travel to the US for eight weeks. The appellant is an Indian citizen and holds an Indian passport. While it is true that an FIR has been lodged against the appellant, that, in our view, should not in itself prevent him from travelling to the US, where he is a resident since 1985, particularly when it has been drawn to the attention of the High Court and this Court that serious consequences would ensue in terms of the invalidation of the Green Card if the appellant were not permitted to travel. The record indicates the large amount of litigation between the family of the appellant and the complainant. Notwithstanding or perhaps because of this, the appellant has frequently travelled between the US and India even after the filing of the complaint and the FIR. We CRLREV No.690 of 2023 Page 10 of 18 accordingly are of the view that the application for modification was incorrectly rejected by the High Court and the appellant ought to have been allowed to travel to the US for a period of eight weeks.
26. We accordingly permit the appellant to do so, subject to his furnishing an undertaking to this Court before the date of travel that he will return to India after the expiry of a period of eight weeks and that he shall be available on all dates of hearing before the court of criminal jurisdiction, unless specifically exempted from personal appearance. The undertaking shall be filed in this Court before the appellant undertakes travel. On the return of the appellant after eight weeks and if it becomes necessary for him to travel to the US, the appellant shall apply to the court concerned for permission to travel and any such application shall be considered on its own merits by the competent court. The appellant shall travel only upon the grant of permission and subject to the terms imposed. The passport of the appellant shall be handed over to the appellant to facilitate his travel, subject to the condition that he shall deposit it with the investigating officer immediately on his return."
In the case of Srikant Mohta (supra), this Court held as follows:
CRLREV No.690 of 2023 Page 11 of 18
"9. The question is, whether, the passport should be released with the permission to the petitioner to travel abroad? Undeniably, the petitioner has the freedom to pursue his professional career in the film production but as rightly said by Mr. Nayak, learned Special Counsel for CBI, such right is subject to restrictions as enumerated in Article 19(2) of the Constitution of India. As is known, the fundamental rights guaranteed under the Constitution of India are non-absolute. This is where the concept of reasonable restrictions in Article 19 of the Constitution of India does appear.
10. In the instant case, no doubt restrictions have been imposed against the petitioner with conditions but then at present, permission is sought for by him for release of passport to travel abroad for the reason stated. The petitioner was no doubt granted bail on medical ground. As earlier mentioned, it is not alleged at any point of time that the petitioner after release on bail ever misutilised the liberty. The petitioner is alleged to have received the consideration from BVC but under an agreement towards satellite television broadcasting rights.
Considering the totality of facts and circumstances of the case, the Court is of the view that since the petitioner is a known figure in the entertainment industry based at Kolkata, CRLREV No.690 of 2023 Page 12 of 18 there is a remote chance of his absconding and staying away from the limits of the court below and having regard to the fact that the investigation is concluded and there is no material placed on record to show that he had ever misutilised the liberty granted after release on bail, the passport should be released in his favour with a permission granted to him to leave Kolkata for the stated purpose by imposing necessary conditions."
In the case of Suresh Nanda (supra), the Hon'ble Supreme Court held as follows:
"12. In the present case, no steps have been taken under Section 10 of the Act which provides for variation, impounding and revocation of the passports and travel documents. Section 10-A of the Act which provides for an order to suspend with immediate effect any passport or travel document; such other appropriate order which may have the effect of rendering any passport or travel document invalid, for a period not exceeding four weeks, if the Central Government or any designated officer on its satisfaction holds that it is necessary in public interest to do without prejudice to the generality of the provisions contained in Section 10 by approaching the Central Government or any designated officer. Therefore, it appears that the passport of the CRLREV No.690 of 2023 Page 13 of 18 appellant cannot be impounded except by the Passport Authority in accordance with law. The retention of the passport by the respondent (CBI) has not been done in conformity with the provisions of law as there is no order of the Passport Authorities under Section 10(3)(e) or by the Central Government or any designated officer under Section 10-A of the Act to impound the passport by the respondent exercising the powers vested under the Act.
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17. In the present case, neither the Passport Authority passed any order of impounding nor was any opportunity of hearing given to the appellant by the Passport Authority for impounding the document. It was only the CBI authority which has retained possession of the passport (which in substance amounts to impounding it) from October 2006. In our opinion, this was clearly illegal. Under Section 10-A of the Act retention by the Central Government can only be for four weeks.
Thereafter it can only be retained by an order of the Passport Authority under Section 10(3).
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19. For the aforesaid reasons, we set aside the impugned order of the High Court and direct the respondent to hand over the passport to the CRLREV No.690 of 2023 Page 14 of 18 appellant within a week from today. However, it shall be open to the respondent to approach the Passport Authorities under Section 10 or the authorities under Section 10-A of the Act for impounding the passport of the appellant in accordance with law."
On perusal of supplementary charge sheet filed against the petitioner on 26.12.2022, it would be evident that the petitioner was shown as absconder and after taking cognizance of offences on such charge sheet, the learned trial Court issued N.B.W. against the petitioner. The petitioner filed a petition under section 482 of Cr.P.C. before this Court for quashment of the criminal proceeding and also challenged the issuance of N.B.W., which was registered as CRLMC No.1054 of 2023 and vide order dated 28.07.2023, orders relating to issuance of N.B.W. were quashed and the learned trial Court was directed to issue summons to the petitioner for appearance and accordingly, summons was issued to the petitioner and on receipt of such summons, he appeared before the learned trial Court on 09.10.2023 and applied for bail which was allowed and the observation in the bail order was that the petitioner in obedience to the summons appeared before the Court and had not attempted to flee from the process of law, which is an important factor that is to be kept in mind while adjudicating the CRLREV No.690 of 2023 Page 15 of 18 issue whether his prayer for release of the original passport would be allowed and whether he would be permitted to visit USA for a period of two months. Even though after release of the petitioner on bail, more than five months have already been passed, the learned Special Public Prosecutor has not pointed out anything against the petitioner to have flouted the terms and conditions of the bail order. It is not in dispute that the trial has not commenced as yet.
The apprehension of 'flight risk' of the petitioner, i.e. he might escape from the clutches of law, has to be objectively assessed and for objective assessment, the Court has to be alive to the facts and circumstances of the case. Merely because a person is accused of misappropriating or siphoning off public money, it does not make him a 'pre-trial convict'. The constitutional mandate read with the scheme of the Code of Criminal Procedure, 1973 augments that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law and the same is an integral part and fundamental principle of the Indian criminal justice system. The same principle is reflected through the legal maxim omnis indemnatus pro innoxio legibus habetur, which means that CRLREV No.690 of 2023 Page 16 of 18 everyone who has not been found guilty is deemed innocent by the law.
Notwithstanding the allegations levelled against the petitioner, if it is found that he has been thoroughly cooperative in the proceedings before the trial Court, there is hardly any reason for denying him his fundamental rights on the mechanical premise that the release of his passport involves flight risk. It has to be remembered that flight risk is not determined by the offences alleged against an accused, rather it is assessed by the conduct of the concerned accused.
The trial in the case has not commenced and nobody knows how many years it would take for conclusion of the trial and therefore, during this period, it is not expected of the accused to keep himself away from professional assignments and his obligations to his family. Another reason which has been assigned in the rejection order is that one of the conditions of the bail order was that the petitioner should not default in personal attendance of the Court as and when required, is also not valid a ground to reject the petition inasmuch as there is no material on record that at any point of time after being released on bail, the Court sought for the personal attendance of the petitioner and that he defaulted in complying the same. During CRLREV No.690 of 2023 Page 17 of 18 trial, if the Court requires the personal attendance of the petitioner, an order to that effect can be passed and the petitioner is bound to comply the same.
Conclusion:
In view of the foregoing discussions, the impugned order dated 06.12.2023 passed by the learned Special C.J.M. (C.B.I.), Bhubaneswar is hereby set aside. The original passport bearing no. Z6948595 of the petitioner which has been deposited before the learned trial Court in pursuance of the order dated 09.10.2023 shall be released in favour of the petitioner for a period of two months to facilitate his travel to abroad subject to submitting the itinerary/travel schedule and details of the duration and place of stay in the USA before the learned trial Court and the Court may impose such other conditions as would be found necessary and expedient. The petitioner shall strictly abide by the terms and conditions.
In the result, the criminal revision petition is allowed.
(S.K. Sahoo, J.) Orissa High Court, Cuttack The 15th April, 2024/M.K.Rout, AR-cum-Sr.Secy. Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Reason: Authentication Location: Orissa High Court Date: 15-Apr-2024 13:19:34 CRLREV No.690 of 2023 Page 18 of 18