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TMI Blog2015 (3) TMI 1440X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances of the case, nature of the offences committed, seriousness of economic offence, larger interest of the society and State and moreover taking into account the progress of investigation was pleased to reject the bail application. After rejection of the bail application on 12.11.2014 but during pendency of this bail application, charge sheet was submitted on 11.12.2014. 2. It reveals from the charge sheet that RC Case No. 47/S/2014-SCB/Kol. dated 5.6.2014 was registered treating the First Information Reports of eight cases as original FIR of the case pursuant to the direction of the Hon'ble Supreme Court dated 9.5.2014 passed in Writ Petition (Civil) No. 401 of 2013 filed by Sri Subrata Chattoraj and Writ Petition (Civil) No. 413 of 2013 filed by Sri Alok Jena. Those eight cases are Badambadi P.S. Case No. 5 of 2013 dated 5.1.2013, Kharvel Nagar P.S. Case No. 44(4) of 2013 dated 7.2.2013, Bhanjanagar P.S. Case No. 95 of 2013 dated 2.5.2013, Angul P.S. Case No. 282 of 2013 dated 3.5.2013, Bargarh Town P.S. Case No. 149 of 2013 dated 8.5.2013, Paralakhemundi P.S. Case No. 93 of 2013 dated 25.6.2013, Kujanga P.S. Case No. 262 of 2013 date 19.8.2013 and Cantonmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accounts of AT Group of Companies without any justification which indicates that the petitioner, in criminal conspiracy with accused Pradeep Kumar Sethy, parked the said amount of Rs. 1,17,83,000/- illegally collected by AT Group of Companies in her personal account and misappropriated the same. The charge sheet further revealed that the crime committed by the petitioner and other co-accused persons is not a crime against any individual but a crime against public at large having wide ramification over the society. The innocent depositors, being allured by the accused persons, invested their money with the AT Group and ultimately lost their hard earned life time savings due to the aforesaid acts of the accused persons. The charge sheet further revealed that from the materials emerged during investigation and from the circumstances of the case, it was prima facie established that the petitioner along with the co-accused persons entered into criminal conspiracy with each other and in pursuance thereof they formed different companies, collected money from the public with dishonest and fraudulent intention by alluring them of higher returns and thereafter they cheated public by depri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 1,17,83,000/- has not been utilized/spent by the petitioner for her personal purpose but utilized for payment of the dues/wages/salaries to various persons whosoever participated for the preparation, production and completion of the two TV serials through cheques. The learned counsel further contended that the names and addresses of all the beneficiaries in respect of Rs. 1,17,83,000/- along with the bank statements were duly furnished by the petitioner to CBI officer but with malafide intention those documents were neither taken note of nor were cited as documents in the charge sheet. It is further contended that the petitioner was neither the Director of AT Group of companies nor an agent nor a promoter/motivator nor she had played any role with regard to collection of any amount from the public by any of the AT Group of Companies. The learned counsel for the petitioner further contended that the petitioner is in custody since 10.10.2014 and in the meantime co-accused persons namely Ranjan Kumar Das and Pravat Kumar Tripathy who were also charge sheeted by the CBI have been released on bail by this Court in applications under section 439 Cr.P.C. Similarly another co-accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The learned counsel further contended that the co-accused persons who have been granted bail stand in different footings and the role of the petitioner is at par with the main accused. It is further contended by the learned counsel for the CBI that the petitioner is not a resident of State of Orissa and once she is released on bail, it would be difficult to secure her attendance. The learned counsel further contended that during interrogation the petitioner was specifically asked to produce the books of accounts relating to the expenditure made for the production of two TV serials but she has failed to produce the same. It is further contended that the money was transferred by the main accused Pradeep Kumar Sethy to the personal account of the petitioner out of which she had given Rs. 20 lakhs to her sister. It is further contended that no agreement between the petitioner and the main accused for production of the two TV serials was produced before the CBI authorities even though specifically asked for to the petitioner. The learned Special Public Prosecutor further contended that such agreement was ordinarily expected had the investment been made by the main accused for pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n taking the view which it did. In case of Twinkle Soni alias Rakesh Kumar Verma and Bablu Yadav Vs. The State of Jharkhand 2010 Criminal Law Journal 2213, where the matter was referred to a larger Bench to decide as to whether for filing a bail application before the High Court, is it necessary for the petitioner to move before the trial court for his bail again when his bail application was rejected earlier by the Hon'ble Court, a Division Bench of Jharkhand High Court held as follows:- "5. In view of the aforesaid decisions and looking to the provisions of Section 439 of the Code of Criminal Procedure, it is an option given to the petitioners, whether they want to approach the Sessions Court or to the High Court. Both the Courts have concurrent jurisdiction. When previously bail application is rejected by both the Courts i.e. by the Sessions Court as well as by this Court and if successive bail application is to be preferred second time or subsequent and if they approach directly the High Court, it cannot be held that such type of application is not tenable at law. On the contrary, it is tenable at law and it is in accordance with Section 439 of the Code of Criminal Proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sessions again but if he/she chooses not to do the same and to pursue the bail application pending before the High Court, it is to be decided on its own merits and during the hearing of the bail application, High Court can take note of the factum of submission of charge sheet and the materials which has come against the applicant in the chargesheet. It is a question of somebody's liberty which also touches the fundamental rights guaranteed under Article 21 of the Constitution of India. If a person in custody approaching the High Court for bail against the rejection order of the Court of Session during course of investigation is denied of his valuable right of adjudication of the bail on merit only on the ground of submission of charge sheet at the time of consideration of the bail application and is asked to approach the Court of Session again then certainly it would be a travesty of justice. There cannot be any rationale to show the door of Court of Session again to the applicant. Therefore, I am of the view that this bail application is maintainable. 6. Law is well settled that detailed examination of evidence and elaborate discussion on merits of the case need not be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es (Criminal) 674, it is held as follows:- "8.....While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or state and similar other considerations". In the case of Sanjay Chandra -V- CBI AIR 2012 SC 830, it is held as follows:- "25.........It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 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 tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience. In the case of Chandigarh Administration -v- Jagjit Singh [1995] 1 SCR 126, it is held as follows: "8...If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther relied upon the order dated 3.3.2015 of this Court passed in BLAPL No. 26077 of 2014 in respect of co-accused Pravat Kumar Tripathy wherein after noting down the prosecution case and the contentions raised by the learned counsel for both the sides from paragraphs 3 to 7 and the citations in paragraph-8 along with the contentions raised by the respective counsels, the learned court held in paragraph-9 of the order that considering the nature of accusations as against the said co-accused and the nature of evidence in support thereof, it was found to be a fit case for admitting the petitioner to bail subject to certain conditions. Pravata Kumar Tripathy was a member of Legislative Assembly of Odisha from Banki Constituency and he stated to have used his influence during registration of "Artha Tatwa Multi-Purpose Cooperative Society Ltd." and received money to the tune of Rs. 42 lakhs for patronizing the main accused Pradeep Kumar Sethy to run the illegal business. The learned counsel for the CBI on the other hand produced the order copy dated 23.12.2014 passed in BLAPL No. 21677 of 2014 wherein while considering the bail of co-accused Madhusudan Mohanty after submission of charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of co-accused Ashok Mohanty, Ranjan Kumar Das and Pravat Kumar Tripathy cannot be taken as parity for considering the bail application of the petitioner. A judgment of the Court is only an authority for what it actually decides and not every observation found therein nor what logically follows from it and judgment of the Court is not to be read mechanically as a Euclid's Theorem nor as if it was a statute. What is of the essence in a decision is its ratio. The ratio of any decision must be understood in the background of the facts of that case. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. In Padmasundara Rao -v- State of Tamilnadu AIR 2002 SC 1334, the Supreme Court had held as under: "8A. There is always a peril in treating the words of judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in setting of the facts of a particular case. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases". After going through the allegations as leveled in the charge she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of the statement of C.W.5 Reetish Nandan Padhy as well as the documentary evidence produced by the learned counsel for the CBI. Similarly there is no material to indicate that from the company account of Prism Heights, payments were made to different artists, writer, director, cameraman etc. of the two tele serials. The contention of the learned counsel for the petitioner that the petitioner had produced all the documents before the CBI authorities during course of her interrogation in support of the expenditure for the two tele serials has been denied by the learned counsel for the CBI. When it is the stand of the petitioner that on each date of interrogation she was accompanied by her Advocate Sri A.K. Singh to the CBI office at Bhubaneswar, it is not understood as to how she failed to obtain any receipt from the CBI authorities in token of the receipt of such valuable documents. There is no seizure list of any such documents. The charge sheet also does not indicate about the production of any such document by the petitioner before the CBI authorities. Therefore, it prima facie appears that it is an afterthought plea which cannot be accepted. The learned counsel for the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon whether the investigation reveals any criminal conspiracy among those promoting the companies that flourished at the cost of the common man and those who were supposed to prevent such fraud calls for a comprehensive investigation not only to bring those who were responsible to book but also to prevent recurrence of such scams in future. xx xx xx 28. An affidavit has been filed by the State of Odisha pursuant to the said directions in which the FIRs where the State Investigating Agency is examining the larger conspiracy angle, have been identified....... Larger conspiracy angle is according to the affidavit being examined in three cases. These are: xx xx xx (ii) Case No. 44 dated 7.2.2013 under the same provisions registered in Kharvelnagar Police Station (Bhubaneswar Urban Police District) against M/s. Artha Tatwa Group of Companies and xx xx xx 30. The factual narrative given in the foregoing paragraphs clearly establish the following:- 1. The financial scam nicknamed chit-fund scam that has hit the States of West Bengal, Tripura, Assam and Odisha involves collection of nearly 10,000 crores (approx.) from the general public especially the weaker sections of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y been filed." 10. There is no dispute that the case relates to commission of economic offences. In the case of Y.S. Jagan Mohan Reddy -v- CBI (2013) 55 Orissa Criminal Report (SC) 825, it is held as follows:- "15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 16. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of public/State and other similar considerations." In case of State of Gujarat -v- Mohan Lal Jitamalji Porwal AIR 1987 SC 1321, it is held as follows:- "5. xx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther than the High Court or Court of Session, to release a person on bail who has appeared or brought before the Court despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially. The overriding considerations in granting bail which are common both in Section 437(1) and 439(1) of Criminal Procedure Code are the nature and gravity of the offence, position and status of the accused with reference to the victim and the witnesses and likelihood of the accused fleeing from justice and tampering with witnesses etc. Bail is a matter of procedural privilege and not an accrued right until it is granted. The law is the sentinel of rights of the Society and of the individual. The cause of public justice and interest of society have to be zealously guarded compared to the rights of an applicant. If the offence is of such a nature which affects the vital interest of the society and has adverse effect on the social and family life, in such matters the issue is to be considered with reference to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is languishing in jail custody. The learned Special Public Prosecutor on the other hand submitted that the cool, calculated design of some unholy combinations which includes some politicians, police officials, executives and some influential persons was the main reasons for the Chit Fund scam and if petitioner is granted liberty by way of release from jail custody, the on-going investigations is likely to be hampered. Liberty means responsibility. Liberty is not folly, vice and madness for earning money by unethical means without restraint. Liberty may be at risk if one abuses liberty. In case of Neeru Yadav -v- State of U.P. 2014 (14) SCALE 59, it is held as follows:- "16.......We are not oblivious of the fact that liberty is a priceless treasure for a human being. It is founded on the bedrock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l account of the petitioner to the tune of Rs. 1,17,83,000/- from out of which she has given huge amount to her sister and brother-in-law. The contentions that the amount transferred from the accounts of AT Group of Companies to the account of the petitioner were utilized by Prism Heights Company for the payment of artists, directors, cameraman, staff etc. in the production of tele serials is not borne out of the charge sheet and there is also no documentary evidence in support of such contentions. The further contention of the learned counsel for the petitioner that names and addresses of the beneficiaries in respect of Rs. 1,17,83,000/- along with bank statements were furnished to the CBI officials is also not borne out of the record. No agreement between Pradeep Kumar Sethy and the petitioner for production of the two tele serials through Prism Heights Company or any books of accounts indicating production expenses of such serials were produced by the petitioner before the CBI. The materials on record further indicate that there was deep-rooted criminal conspiracy between the petitioner and some co-accused persons including accused Pradeep Kumar Sethy with the patronage of some ..... X X X X Extracts X X X X X X X X Extracts X X X X
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