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2014 Supreme(Ori) 339
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Pravata Kumar Tripathy – Petitioner
Versus
Union of India (C.B.I) - Opp. Party
BLAPL NO. 18388 OF 2014
Decided on: 20.10.2014
Advocate Appeared:
For Petitioner: M/s. Pitambar Acharya, B.K. Jena, J.P. Parida, Mrs. S. Upadhyay
For Opp. party: Mr. V. Narasingh
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Section 438 - Anticipatory bail - Case registered under Sections 120-B, 294, 341, 406, 420, 467, 468, 471, 506 read with Section 34 IPC and Section 3, 4, and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 - P.S. Case was not registered against the petitioner - Preliminary charge sheet and the second charge sheet have not been submitted against the petitioner - C.B.I. case has also not been registered against the petitioner - Whether in such a situation, the anticipatory bail is to be granted in favour of the petitioner? - Case relates to commission of economic offences - In economic offences, the discretion to grant anticipatory bail under the section should be exercised with utmost care and caution in as much as discretionary relief of anticipatory bail in such cases may hamper the proper and effective investigation - Demand of individual liberty has to be matched with larger interest of public and State - Held, prima facie case is available against the petitioner - The money trailing has not yet been traced by the C.B.I. to the fullest extent - The larger conspiracy angle is yet to be unearthed - In such a situation, if the petitioner who is a political and influential person is released on anticipatory bail then there cannot be any effective interrogation and the petitioner being well ensconced with a favourable order of pre-arrest bail is likely to conceal many useful informations and materials as apprehended by the C.B.I. - Anticipatory bail application rejected.
(Paras 8 to 17)
2. BAIL - Statement/confession of the co-accused - Adjudication of bail matter - Court has to look into the other materials available on record to see that whether in the context of the case, the co-accused statement gets some support from other evidence or not - Even if there are no other materials except the co-accused statement at the time of consideration of the bail application, in some cases that may not be itself a ground to grant either anticipatory bail or regular bail.
Custodial interrogation of the accused may be necessary for the Investigating Agency to unearth the link between such accused and the crime. The type of co-accused statement, the person who has recorded such statement, the type of involvement of the other accused persons as borne out from such statement, the connecting links which are likely to be established after the arrest of the accused and above all the other materials which are likely to be collected after custodial interrogation are all to be considered in the context of the facts and circumstances of a particular case by the Court while adjudicating a bail matter. In other words, no straight jacket formula can be formulated to say that in no case while considering an application for bail of a person, the Court cannot even look into the co-accused statement at all.
(Para 12)
3. CRIMINAL PROCEDURE CODE, 1973 - Section 438(1) - The section lays down a condition which has to be satisfied before grant of anticipatory bail - Condition that the applicant has reason to believe that he may be arrested on accusation of having committed a non-bailable offence - Such belief must be founded on reasonable grounds and not mere fear or vague apprehension.
(Para 10)
4. CONSTITUTION OF INDIA, 1950 - Article 21 - No person shall be deprived of his life or personal liberty except according to procedure established by law - Procedure must be fair and not formal and it should be reasonable, not vagarious, vague and arbitrary.
(Para 16)
5. ARREST - When the police is exercising his statutory power of arrest, it should be done in a fair manner in as much as nobody has right to play with the liberty of a person and if the exercise is arbitrary in nature then it violates fundamental rights guaranteed under Article 14 of the Constitution of India.
(Para 16)
6. CRIMINAL PROCEDURE CODE, 1973 - Section 438 - Power exercisable under the section is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.
(Para 16)
7. ANTICIPATORY BAIL - Considerations which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as an application to release on bail after arrest.
(Para 17)
8. BAIL - Bail is a rule and committal to jail is an exception and refusal of bail is restriction on the personal liberty of the individual guaranteed under Article 14 of the Constitution of India.
(Para 16)
Judgment
S.K. Sahoo, J.
“What light is to the eyes- what air is to the lungs- what love is to the heart, liberty is to the soul of man.”
-Robert Green Ingersoll
The petitioner who is a sitting M.L.A. of Banki Assembly Constituency in the Odisha Legislative Assembly has approached this Court in an application under section 438 Cr.P.C. apprehending arrest in connection with CBI/SCB/KOL Case No.RC. 47/S/2014 - Kol. dated 5.6.2014 registered under sections 120-B, 294, 341, 406, 420, 467, 468, 471, 506 read with section 34 Indian Penal Code and section 3,4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 which arises out of Kharvelnagar P.S. Case No. 44 dated 7.2.2013.
As it appears the aforesaid Kharvelnagar P.S. Case No.44 of 2013 was instituted on the First Information Report submitted by one Sri Sukumar Panigrahi before the Inspector-in-charge, Kharvelnagar Police Station, Bhubaneswar on 7.2.2013 and the case was registered under sections 420,120-B and 406 Indian Penal Code against 13 accused persons namely Pradeep Sethy, Manoj Pattnaik, Lakhia Sahoo, Satyabrat Padhi, P.K. Swain, Krushna Padhi, Sambit Lenka, Ashok Kar, Jhuma Chakrabarti, Partha Sarathi Mohapatra, Mrunmaya Sial, Jugajyoti Majhi and Abinash Pradhan.
It is the gist of the F.I.R. that the informant Sukumar Panigrahi deposited a sum of Rs.18.00 lakhs in Arthatatwa Multipurpose Co-operative Society Ltd. (hereafter for short “ATMPCS”) situated at SCR-29, Unit-III, Kharvelnagar, Bhubaneswar under monthly income plan of the said company phasewise by way of five cheques. The company returned rupees one lakh to the informant after much persuasion. The Company issued money receipts and monthly income plan bonds in favour of the informant authorizing him to receive 1% interest on the deposits monthly with understanding to give another 2% in the form of bonus i.e., total 3% on the deposits monthly. After the maturity period of one year, the bonds were to be surrendered and the principal amount would have to be paid back. The interest and the bonus were to be paid monthly till the maturity. It is the case of the informant that after paying interest for a few months, the company unilaterally stopped paying further interest on the plea of income tax raid and absence of Chief Managing Director Pradeep Kumar Sethy. Subsequently the Director of the company namely Pradeep Kumar Sethy and other important functionary Directors Manoj Pattnaik, Satyabrat Padhi, Lakhia Sahoo, P.K. Swain, Krushna Padhi, Sambit Lenka, Jhuma Chakrabarti, Jubajyoti Majhi and others absconded and the office of the company was closed. The informant was confirmed that the said company through its Chief Managing Director Pradeep Kumar Sethy and other Directors have cheated him dishonestly in deceitful manner and misappropriated Rs.17 lakhs by fraudulent means.
During investigation of Kharvelnagar P.S. Case No.44 of 2013, it revealed that a non-banking financial company under caption of “AT Group of Companies” with its headquarter at SCR-29, Unit-III, Kharvelnagar was running its business with its branch offices in various places in Odisha including Lewis Road, Bhubaneswar, Cuttack, Balasore, Baripada, Dhenkanal, Berhampur etc. and Mr. Pradeep Kumar Sethy was the President of the said Artha Tatwa Multi Co-operative Society Ltd., Artha Tatwa State Credit Co-operative Society. AT Group of Companies was also running its business through various Companies. The registration of the Atrha Tatwa Multi Purpose Co-operative Society was granted on 3.11.2011 by the Asst. Registrar of Co-operative Societies, Bhubaneswar Circle, Bhubaneswar. Artha Tatwa Multi State Credit Co-operative Society Ltd. was formed in September 2011. It was also found out that the Company made wide propaganda, awareness programme, distributed leaflets, circulated brochures through agents to attract investors to deposit money in different schemes floated by the Company. The aforesaid two Co-operative Societies collected funds from the
