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2016 Supreme(Ori) 104
IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Deepak Gupta - Petitioner
Versus
State of Orissa (Vig.) - Opposite Party
BLAPL No. 854 of 2015
Decided On : 28-03-2016
For the Petitioner: Sri Asok Mohanty, Gouri Mohan Rath, S.S. Padhy, S. Satpathy, S. Dwibedi
For the Opposite Party : Mr. Saurjya Kanta Padhi
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec.439 - Cognizance of offences u/ss. 409, 379, 420, 468, 411 read with Sec. 120-B IPC and Sec. 13 (2) read with Sec. 13 (1) (c) (d) of the P.C. Act, 1988 - Bail - Grant of - Held, adverting to the nature and seriousness of the accusation, its serious adverse impact on the fabric of the Society, misappropriation of huge amount of public money and substantial loss to Government Exchequer, availability of prima-facie materials against the petitioner, the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence and absence of any substantial change of circumstances or fresh grounds after the rejection of the earlier two bail applications by High Court, Court not inclined to reconsider the prayer for bail and release the petitioner on bail.
2 . BAIL - An accused has a right to make successive applications for grant of bail but successive bail applications are permissible under the changed circumstances - The change of circumstances must be substantial one which has a direct impact on the earlier decision and not merely cosmetic charges which are of little or no consequence - Details stated.
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. While entertaining such subsequent bail applications, the Court has a duty to consider the reasons and grounds on which the earlier bail applications were rejected and what are the fresh grounds which persuade it warranting the evaluation and consideration of the bail application afresh and to take a view different from the one taken in the earlier applications. There must be change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which the application for bail of an accused that has been rejected earlier can be reconsidered.
3. PENAL CODE, 1860 - Sec 409 - Accused persons who are non-public serbvants can also be prosecuted for abatement of the offence or being a party to criminal conspiracy along with the public servant concerned under the Section.
JUDGMENT :
S.K. Sahoo, J.
This is the third successive bail application of the petitioner Deepak Gupta under section 439 of the Code of Criminal Procedure, 1973 in connection with Balasore Vigilance P.S. Case No. 30 of 2013 corresponding to V.G.R. Case No.5 of 2013 pending in the Court of learned Special Judge (Vigilance), Keonjhar.
The petitioner was taken into custody on 5.9.2013 and first charge sheet was submitted on 31.12.2013 under section 13(2) read with section 13(1)(c) (d) of the Prevention of Corruption Act, 1988 and sections 120-B, 409, 379, 420, 468 and 411 of the Indian Penal Code against 25 accused persons including the petitioner. The further investigation was kept open under section 173(8) of Cr.P.C. On the basis of first charge sheet dated 31.12.2013, on 2.1.2014 the learned Special Judge (Vigilance), Keonjhar took cognizance of the offences under sections 409, 379, 420, 468, 411 read with section 120-B of the Indian Penal Code and section 13(2) read with section 13(1)(c), (d) of the Prevention of Corruption Act, 1988.
Even though at the time of moving the first bail application of the petitioner i.e., BLAPL No.25588 of 2013, contentions were raised regarding submission of charge sheet and release of the co-accused i.e. one of the erstwhile lessees on bail but the bail application was rejected on 29.01.2014 by Hon’ble Mr. Justice D. Dash on the following grounds:-
“11. Considering the nature of offence, its magnitude and ramification as alleged, materials available on record, and keeping in mind the principle of law laid down by the Hon’ble Apex Court and in the light of discussions made above, I am not inclined to accept the prayer for bail of the petitioner.
The BLAPL is dismissed.”
On 24.6.2014 supplementary/final charge sheet was submitted against four more accused persons under section 13(2) read with section 13(1)(c) (d) of the Prevention and Corruption Act and sections 420, 379, 468, 409, 411 read with section 120-B of the Indian Penal Code.
The second bail application of the petitioner i.e., BLAPL No.7277 of 2014 was moved, inter alia, on the ground that the petitioner was not concerned with any forgery or criminal breach of trust or cheating of any kind and was not in conspiracy with anyone. Further grounds were taken that the petitioner on good faith accepted the words of B.K. Mohanty that the renewal is to be granted as a matter of course and accordingly started the mining operation. Reliance was placed by the petitioner in the case of Sanjay Chandra Vs. C.B.I. reported in (2012) 51 Orissa Criminal Reports (SC) 128 and contentions were raised that in view of number of witnesses and voluminous documents, the culmination of the trial cannot be expected at an earliest. The bail application was rejected on 14.11.2014 by Hon’ble Mr. Justice D. Dash on the following grounds:-
“7. In view of aforesaid, considering the nature of offence, its magnitude as it reveals from the records placed as well as its ramification, the period of detention of the petitioner in custody in my considered view cannot be taken as the change of circumstance. Moreover, in this case the scope of this petitioner resorting to abscondance and avoiding the process of law clearly stands. In the facts and circumstances of the case and the progress as going on, the release of this petitioner on bail is likely to cause further delay in getting the case ripened for trial when also the likelihood of tampering of evidence at this stage is not altogether ruled out.
Therefore, regard being had to the law laid down and the facts and submissions, more particularly the nature of accusations, seriousness of the offences, the role of this petitioner and also the quantum of punishment, I am not inclined to release the petitioner on bail and as such the prayer for bail stands rejected.
The BLAPL is accordingly disposed of.”
The petitioner filed the present bail application (BLAPL No. 854 of 2015) before this Court on 12.2.2015 and while the matter was pending be
