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2016 Supreme(Ori) 1025
IN THE HIGH COURT OF ORISSA: CUTTACK
PRADIP MOHANTY AND BISWAJIT MOHANTY, JJ.
WRIT PETITION (CRIMINAL) NO. 81 of 2015
(Date of Judgment : 16.03.2016)
In the matter of an application under Articles 226 and 227 of the Constitution of India.
Manoj Kumar Dash … Petitioner
Versus
Republic of India & others … Opp.Parties
For Opp.Parties : Mr. Raghavacharyulu. Special Public Prosecutor, CBI And
Mr. V. Narasingh, Standing Counsel for the CBI
Headnote:1. WRIT - ‘Habeas Corpus’ - ‘Habeas Corpus’ is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment - If the detention appears to be in violation of the procedure established by law, the Court has no option but to allow his prayer -When physical restraint is put upon a person in accordance with law, there is no right to habeas corpus unless the law of unconstitutional or the order is ultra vires of the Statute.
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 438 - When an accused obtains an anticipatory bail for a lesser offence and thereafter during the investigation it surfaces that accused committed a graver offence and the Sections of the concerned FIR are altered or separate FIR is registered in a different police station, depending on the facts, the order of anticipatory bail obtained by accused for the lesser offence would not enure to his benefit and accused is not entitled to the protection granted under the Section.
3. FIRST INFORMATION REPORT - Petitioner has not challenged registration of second FIR by filing appropriate proceeding - In a proceeding of habeas corpus he cannot take the plea of illegality of second FIR for carrying out further investigation which according to him vitiates arrest/detention order - Even otherwise filing of second FIR is permissible.
4. CRIMINAL PROCEDURE CODE, 1973 - Sec. 309 (2) - No Magistrate shall remand an accused person to custody under the Section for a term exceeding fifteen days at a time - Term of remand can be extended in a number of spells/slots at a time but each spell/slot shall not exceed fifteen days.
JUDGMENT
PRADIP MOHANTY, J. - By means of this writ petition filed in the nature of habeas corpus, jurisdiction of this Court has been invoked to declare the detention of the petitioner pursuant to the order of remand dated 15.09.2014 passed in S.P.E. Case No. 42 of 2014 pending on the file of learned Special Chief Judicial Magistrate, C.B.I., Bhubaneswar as illegal and further to issue a writ of habeas corpus directing release of the petitioner forthwith from such illegal detention.
2.The facts giving rise to filing of the writ petition, succinctly put, are as follows:
On 07.02.2013, an FIR was lodged by one Sukumar Panigrahi at Kharvela Nagar Police Station, Bhubaneswar alleging therein that Pradip Sethy and others of Arthatatwa Multipurpose Co-operative Society Ltd. (for short “ATMPCS”) cheated him in a deceitful manner and misappropriated Rs. 17.00 lakhs from him by fraudulent means. The said FIR was registered as Kharvela Nagar P.S. Case NO. 44 of 2013 corresponding to C.T. Case No. 560 of 2013 on the file of S.D.J.M., Bhubaneswar. During investigation, it revealed that certain financial transactions took place between Arthatatwa Infra India Ltd. and Kamyab Television Pvt. Ltd., of which the petitioner was the Managing Director. The investigation agency called upon the petitioner to appear before it. Apprehending arrest the petitioner approached this Court for anticipatory bail in BLAPL No. 15350 of 2013. By order dated 25.06.2013 this Court directed that in the event of arrest the petitioner shall be released on bail by the arresting officer on such terms and conditions as would be deemed just and proper by the arresting officer.
While investigation in Kharvela Nagar P.S. Case No. 44 of 2013 was going on, various financial scams nicknamed as chit-fund scams, affecting a large number of depositors across the State of Odisha, came to limelight. As the role of some political and influential personalities behind the said scams was foreseen, predicting biased and perfunctory investigation by the State police agency, one Alok Jena filed Writ Petition (Civil) No. 413 of 2013 before the Apex Court seeking transfer of investigation from the State police agency to the Central Bureau of Investigation (CBI). The State Government on being noticed filed an affidavit inter alia stating therein that larger conspiracy angle was being examined in three cases, viz., (i) CID P.S. Case No. 39 dated 18.07.2012 registered against M/s Seashore Group of Companies; (ii) Kharvalenagar P.S. Case No. 44 dated 07.02.2013 registered against M/s Artha Tatwa Group of Companies; and (iii) EOW P.S. Case NO. 19 dated 06.06.2013 registered against M/s Astha International Ltd. It was also stated that although charge-sheets have been filed in these three cases, investigation has been kept open under Section 173(8), Cr.P.C. to investigate the larger conspiracy angle. Ultimately, the said writ petition came to be disposed of by the Apex Court on 09.05.2014 along with a batch of similar writ petitions filed in respect of the chit-fund scams which hit the States of West Bengal, Tripura and Assam {See Subrata Chattoraj V. Union of India and others, (2014) 58 OCR (SC)905}. The Apex Court, while directing transfer of cases from State Police Agency to CBI, observed as follows:
34. In the circumstances, we are inclined to allow all these petitions and direct transfer of the following cases registered in different police stations in the State of West Bengal and Odisha from the State Police Agency to the Central Bureau of investigation (CBI).
A. State of West Bengal:
1. All cases registered in different police stations of the State against Saradha Group of Companies including Crime No. 102 registered in the Bidhannagar Police Station, Kolkata (North) on 6th May, 2013 for offences punishable under Sections 406,409,420 and 120B of the IPC.
2. All cases in which the investigation is yet to be completed registered against any other company upto the date of this order.
3. The CBI
