Orissa High Court
Tapan Kumar Prusty vs State Of Odisha ...... Opp. Party on 4 April, 2024
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 146 of 2024
An application under Section 439 of the Code of Criminal Procedure,
1973
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BLAPL No. 146 of 2024
Tapan Kumar Prusty ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. S.S. Das, Senior Advocate
along with Mr. Bhabani
Prasad Pradhan, Advocate
For Opp. Party : Mr. S.S. Mohapatra, ASC
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BLAPL No. 10573 of 2023
Mohammad Sajid Hussain ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Ashutosh Mishra,
Advocate
For Opp. Party : Mr. S.S. Mohapatra, ASC
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BLAPL No. 10846 of 2023
Kartika Beriha ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Devashis Panda,
Advocate
For Opp. Party : Mr. S.S. Mohapatra, ASC
BLAPL No. 146 of 2024 Page 1 of 14
CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
04.04.2024 Savitri Ratho, J. These applications under Section 439 of Cr.P.C. have been filed for grant of bail to the petitioners in connection with Khordha Sadar P.S. Case No. 221 of 2023 corresponding to G.R. Case No. 706 of 2023 pending in the Court of the learned S.D.J.M., Khordha where preliminary chargesheet dated 02.10.2023 has been submitted against the petitioners for commission of offences under Sections 420, 465, 468, 471 , 120 B of the IPC and keeping the investigation open for arrest of other accused persons and examination of other students and seizure of documents.
2. These cases were listed before me as BLAPL No. 12016 of 2023 filed by Tapan Kumar Prusty had been disposed of by me on 05.12.2023.
3. The prayer for bail of the petitioner-Mohammad Sajid Hussain (in BLAPL No. 10573 of 2023) and petitioner-Kartika Beriha (in BLAPL No. 10846 of 2023) has been rejected on 11.09.2023 by the learned 1st Additional Sessions Judge, Khurda in BLAPL No. 414 of 2023. The prayer for bail of the petitioner-Tapan Kumar Prusty (in BLAPL No. 146 of 2024) has been rejected on 02.01.2024 by the learned 1st Additional Sessions Judge, Khurda in BLAPL No. 692 of 2023.
4. The prosecution allegation in brief is that the petitioner- Tapan BLAPL No. 146 of 2024 Page 2 of 14 Kumar Prusty (in BLAPL No. 146 of 2024) was working as a lecturer and the informant who had failed in the +2 Arts examinations, had gone to him for guidance regarding rechecking of papers. Instead of guiding him, the petitioner asked him for Rs.33,000/- to arrange a +2 pass certificate for him so that he could take admission in + 3 Course. The informant has paid him the amount through Phonepe App in two instalments. The logo of NIOS was present on the certificate. The informant became suspicious and checked the certificate on NIOS and found it to be fake. Co-accused Tapan Kumar Prusty asked for Rs 5,000/- for a transfer certificate but the informant did not pay the same as he had become suspicious. During investigation, it was found that the petitioner-Mohammad Sajid Hussain (in BLAPL No. 10573 of 2023) and petitioner-Kartika Beriha (in BLAPL No. 10846 of 2023) had taken money for procuring the fake certificate from one Raj Kumar Bonik of West Bengal and that they had opened an institute by the name of ACME in a rented house in Bhubaneswar and issued advertisement for issuing pass certificates to failed students and had made a huge amount of money by collecting money Rs 20,000/- each from about forty students all over Odisha and procured fake certificates for them from co-accused Raj Kumar Bonik by paying him Rs.7,500/- per certificate. From data retrieved from their phones and their confession, it could be ascertained that the petitioners Mohammad Sajid and Kartika Beriha had cheated at least ten more students. During investigation, BLAPL No. 146 of 2024 Page 3 of 14 accused Mohd Sazid Hussain and Kartika Behera did not receive the notice under Section - 41 A of the Cr.P.C on 09.08.2023, they were arrested and police seized their mobile phones and laptop amongst other articles. Chargesheet dated 02.10.2023 has been filed against the petitioners under Sections- 420/ 465/ 468/471 / 120-B of the I.P.C keeping investigation open for arrest of the other co-accused and for examination of other students and seizure of documents.
During further investigation, one Bikash Kumar Jena has been examined who has stated that he had given cash of Rs 20,000/- on Md. Sabir Hussain and Kartika Beriha for securing 10 th pass certificate. Similarly one Dipuna @ Soubhagya Barik has also stated that he got HSC certificate from Kartika Beriha and Mohd Sajid on payment of Rs 20,000/- . Efforts have been made to trace and apprehend accused Raj Kumar Bonik at Kolkotta.
6. Mr. Devashis Panda, learned counsel appearing for the petitioner- Kartik Beriha (in BLAPL No. 10846 of 2023) has submitted that the petitioner is in custody since 09.08.2023, he has not been named in the FIR and the claim of the I.O. that he refused the notice under Section 41 A of the Cr.P.C is incorrect. He has also submitted that investigation so far as the petitioner is concerned is over and the basis of his implication is the statement of the main accused Tapan Kumar Prusty and as all the offences BLAPL No. 146 of 2024 Page 4 of 14 alleged to have been committed by the petitioner are triable by a Magistrate, he should be released on bail.
Mr. S.S. Das, learned Senior Counsel appearing on behalf of the petitioner- Tapan Kumar Prusty (in BLAPL No. 146 of 2024) has submitted that the petitioner is in custody since 04.08.2023. The earlier application for bail of the petitioner had been rejected by this Court on 05.12.2023 and more than two months have elapsed in the meanwhile. In view of the directions of the Supreme Court in the case of Arnesh Kumar vrs. State of Bihar and Another: AIR 2014 SC 2756 & 2014 (8) SCC 27 and the nature of allegations against the petitioner, sufficient reasons have not been furnished to the Magistrate for arresting the petitioner, for which, he should have been released on bail. He has also submitted that the petitioner is willing to co-operate with further investigation.
Mr. Ashutosh Mishra, learned counsel appearing on behalf of the petitioner-Mohammad Sajid Hussain (in BLAPL No. 10573 of 2023) adopted the submission of the other two learned counsel and submitted that in view of the nature of allegations against the petitioner and as investigation has been completed so far as the petitioner is concerned and as he is willing to cooperate with investigation, he should be released on bail.
7. Mr. S.S. Mohapatra learned Additional Standing Counsel appearing for the State of Odisha in all the three cases, has vehemently opposed the BLAPL No. 146 of 2024 Page 5 of 14 prayer for bail submitting that the three petitioners are involved in a racket of providing fake certificates to students. Incriminating documents land articles have been seized from the office/workplace of the petitioners Mohammad Sajid Hussain and Kartika Beriha. None of the three petitioners deserve to be granted bail as because they have spoilt the career of students who have utilized fake pass certificates and marksheets to take admission in higher courses instead of appearing in back papers to pass their examinations. He has also submitted that the bank account statements of the petitioners Mohammad Sajid Hussain and Kartika Beriha are incriminatory. He has finally submitted as further investigation is on and co accused Raj Kumar Bonik is yet to be arrested and other students who have been cheated by the petitioners are being located and examined, the petitioners should not be released on bail as they may tamper with evidence and aid the co accused in avoiding arrest.
8. The Supreme Court in a catena of decisions has laid down the principles to be kept in mind while considering a prayer for bail.
In the case of in Mahipal vs. Rajesh Kumar: (2020) 2 SCC 118, the Supreme Court has held as follows:
"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No BLAPL No. 146 of 2024 Page 6 of 14 straight jacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused sub-serves the purpose of the criminal justice system.........."
In the case of Sanjay Chandra vrs. C.B.I.: (2012) 1 SCC 40, the Supreme Court has inter alia held :
". 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- BLAPL No. 146 of 2024 Page 7 of 14 convicted persons should be held in custody pending trial to secure their attendance at the 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. 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."
xxxxxxx "40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the BLAPL No. 146 of 2024 Page 8 of 14 Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh and Ors. Vs. State AIR 1978 SC 179 observed that two paramount considerations, while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses.
42. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
43. 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. 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 BLAPL No. 146 of 2024 Page 9 of 14 do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet..."
The relevant portion of the decision of the Supreme Court in Arnesh Kumar (supra) is extracted below:
"10. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC. The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is BLAPL No. 146 of 2024 Page 10 of 14 to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."
9. A person's right to life and liberty, which is guaranteed by Article 21 of the Constitution of India, cannot be curtailed merely because the person is accused of committing an offence. The purpose behind arresting and detaining a person in jail is mainly for ensuring his presence during trial and ensure that he/she does not flee from justice. Detention of an accused BLAPL No. 146 of 2024 Page 11 of 14 may also be necessary for the purpose of investigation, so that he / she does not tamper with evidence or interfere with the investigation but it cannot be punitive. Gravity of an offence is of paramount consideration but even that cannot be a reason to detain an accused in jail indefinitely.
10. In the instant case, all the offences alleged against the petitioners are triable by a Magistrate. It is true that by their alleged actions, the petitioners may have spoilt the career of many students, but without the allegations being proved in a trial, their further detention will amount to pre trial punishment. Preliminary chargesheet has been submitted against the petitioners almost six months back. Their further detention is therefore not going to help the prosecution in further investigation. Rather they can cooperate with further investigation if an appropriate condition is imposed while granting them bail. I am therefore inclined to allow the prayer for bail of the petitioners.
11. I have not examined the contention whether the learned Magistrate was correct in authorising the detention of the accused on account of alleged non compliance of the directions contained in the decision of Arnesh Kumar (supra), as I am allowing the prayer for bail of the petitioners , but will do so in an appropriate case.
12. The petitioners Mohammad Sajid Hussain, Tapan Kumar BLAPL No. 146 of 2024 Page 12 of 14 Prusty, and Kartika Beriha shall be released on bail by the learned Court in seisin over the matter subject to such terms and conditions as deemed fit, including the following conditions.
i) They will not indulge in any criminal activity after being released on bail .
ii) They will cooperate with investigation and report before the I.O.
as and when required for the purpose of further investigation.
iii) They will not tamper with evidence.
iv) They will not try to influence or intimidate prosecution witnesses.
v) They will furnish their mobile numbers and residential addresses to the Court which shall be verified by the I.O. / IIC Khurda Sadar Police Station before they are released on bail. In case of any change in their address or phone numbers, the same shall be intimated by them to the Court in writing within three working days. vi ) They will remain present in Court on each date it is fixed for trial, unless their appearance is dispensed with on any particular day by the learned trial Court .
vii) They will not leave the State of Odisha without prior permission of the learned trial Court.
13. Violation of any condition will entail in cancellation of bail / recall of this order.
BLAPL No. 146 of 2024 Page 13 of 14
14. BLAPL No. 146 of 2024, BLAPL No. 10573 of 2023 and BLAPL No. 10846 of 2023 are accordingly allowed.
15. No observation in this order should influence the trial court in any manner as they have been made for the sole purpose of deciding the bail applications.
16. Urgent certified copy of this order be granted on proper application.
17. Copy of this order shall be sent by Mr. S.S. Mohapatra, learned Additional Standing Counsel to the IIC, Khurda Police Station.
........................
(Savitri Ratho, J.) Orissa High Court, Cuttack.
4th April 2024, Puspa, Personal Assistant.
Signature Not Verified Digitally Signed Signed by: PUSPANJALI MOHAPATRA Reason: Authentication Location: Orissa High Court Date: 01-May-2024 12:10:51 BLAPL No. 146 of 2024 Page 14 of 14