w w w . L a w y e r S e r v i c e s . i n



Deepak Gupta v/s State of Orissa


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- DEEPAK INDIA PRIVATE LIMITED [Active] CIN = U24231RJ2000PTC016781

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- ORISSA CORPORATION PVT LTD [Dissolved] CIN = U15312OR1947PTC000123

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

Company & Directors' Information:- DEEPAK PVT. LTD. [Strike Off] CIN = U51109UP1951PTC001208

    Bail Application No. 1042 of 2020

    Decided On, 28 September 2020

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE S.K. SAHOO

    For the Appearing Parties: Santosh Kumar Mund, H.K. Mund, A.K. Dei, A. Padhi, S.C. Sahoo, Sagar Kumar Pandia, N.C. Panigrahi, Advocates.



Judgment Text

Whether right to speedy trial which flows from Article 21 of the Constitution of India is a remote control in the hands of prosecution prosecuting an accused in a criminal case, so that it can take the trial speedily whenever it desires and slow it down to create frightening moments for the accused to carry an impression that he is fighting an endless battle? Can an accused be left to become a puppet in the hands of the prosecuting agency? Will the trial Court remain as a silent spectator when either from the side of the prosecution or accused, dillydallying or shilly-shallying attitude is adopted for some oblique purposes? These are the package of questions with which the petitioner Deepak Gupta has knocked at the portals of this Court for the sixth time seeking for bail after his earlier five unsuccessful attempts before this Court and also twice before the Hon'ble Supreme Court.The petitioner is in judicial custody since 05.09.2013 and facing trial on being charged under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and sections 420, 468, 409, 379, 411 read with section 120-B of the Indian Penal Code in the Court of learned Special Judge (Vigilance), Keonjhar in T.R. Case No. 01 of 2014 (V.G.R. Case No.05 of 2013) which arises out of Balasore Vigilance P.S. Case No. 30 of 2013.The last bail application of the petitioner in BLAPL No. 1053 of 2019 was rejected as per order dated 07.08.2019 with a direction to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C., to take effective step to ensure the attendance of witnesses and it was further observed that if the trial is not progressed substantially with the examination of material witnesses by December 2019, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in accordance with law.The petitioner moved bail/interim bail before the learned trial court on 02.01.2020 which was rejected on 28.01.2020.The petitioner filed an application for interim bail in this bail application which was registered as I.A. No.268 of 2020 and this Court as per order dated 26.06.2020, granted him interim bail for a period of one month with certain conditions. Pursuant to the said order, the petitioner was released on bail and after availing the interim bail period, the petitioner has surrendered before the learned trial Court.2. The accusation against the petitioner in a nut shell is that he was the Director of M/s. Snehapusph Marketing Private Ltd. as well as of M/s. Deepak Steel and Power Ltd. A registered Power of Attorney was executed on 29.12.2003 by Sri B.K. Mohanty mining lease holder of Uliburu Iron Ore Mines in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner for conducting mining operation in the ML area of B.K. Mohanty located at Uliburu village over an area of 56.94 Ha. Another Power of Attorney was also executed by co-accused Sri Jagdish Mishra in favour of M/s. Snehapusph Marketing Private Ltd. duly represented by the petitioner on 17.04.2004 to manage his mines. After becoming the Power of Attorney holder of Sri B.K. Mohanty and also getting the Power of Attorney from Sri Jagdish Mishra, the petitioner having full knowledge about the Uliburu iron ore mines area, started excavating iron ore from the lapsed mining lease of Sri Jagdish Mishra which is adjacent to the ML area of Sri B.K. Mohanty and Uliburu reserve forest. During the period from 2004 to 2009, the petitioner stated to have dishonestly and fraudulently misappropriated Rs.1523,59,48,527.48 paisa by conducting illegal mining of iron ore in the lapsed ML area of Sri Jagdish Mishra and Uliburu Reserve Forest by entering into criminal conspiracy with the public servants of Mining Department, Forest Department and Revenue Department and thereby obtained pecuniary advantage to himself and causing equivalent loss to the Government exchequer. Though the petitioner in connivance with other coaccused persons illegally excavated a quantity of 65,25,741.438 MT of iron ore amounting to Rs.1520,39,64,049.60 but they had declared production of only 47,48,826 MT and thus suppressed the production of 17,76,915.438 MT during the period 2004 to 2009.The first charge sheet was submitted on 31.12.2013 and the final charge sheet was submitted on 24.06.2014.The charge against the petitioner in the trial Court was framed on 05.06.2017 and twenty five charge sheet witnesses have been examined so far during trial.3. Mr. Santosh Kumar Mund, learned counsel appearing for the petitioner argued that after rejection of the last bail application by this Court on 07.08.2019 in BLAPL No. 1053 of 2019, the evidence of one Debadutta Suranjita (P.W.18) who was working as Under Secretary, Steel & Mines, Secretariat, Govt. of Odisha has been recorded on 03.10.2019 and she stated in her cross-examination that the outstanding dues against the lessee upto 31.12.2012 was Rs.3,42,486/- and that the loss sustained by the State is the loss of royalty due to illegal mining. According to Mr. Mund, in view of the evidence of P.W.18, the prosecution case that the loss sustained to the State Exchequer was more than one thousand five hundred crores is absolutely unfounded and wholly misconceived. It is further argued that in the charge sheet dated 24.06.2014, it is mentioned that a sum of Rs.13,17,59,863/- has been debited from the two accounts of the lessee B.K. Mohanty to the Govt. accounts towards payment of royalty and other taxes during the period from 2004 to 2010 and therefore, there can be no question of loss of revenue to the State. It is further argued that as per the case of the prosecution, mining was done as per the mining plan approved by the Indian Bureau of Mines and in the charge sheet, it is mentioned that the petitioner who was the Power of Attorney holder of B.K. Mohanty had submitted mining plan and scheme of mining to Indian Bureau of Mines, Bhubaneswar which was approved by Regional Controller of Mines on 15.12.2004, 14.09.2007 and 05.08.2009. Investigation further revealed that the officials of Indian Bureau of Mines have conducted the MCDR inspections of the mines on various occasions and as per the prescribed law and procedure, it is mandatory on their part to examine and report as to whether the mining was performed in accordance with the terms of the lease deed. Though it is alleged that officers of IBM were negligent but for their negligence, the petitioner is in custody for seven years. It is further argued that similar allegation of illegal mining was found by the Central Empowered Committee (CEC) appointed by the Hon'ble Supreme Court and the amount in case of others was much more than what is alleged in this case, but all of them have not been prosecuted criminally, whereas the petitioner has been singled out and is kept in judicial custody for so many years. Apart from the penalty, the petitioner has been subjected to three more criminal cases, besides this case for the same cause of action, whereas the Hon'ble Supreme Court did not even direct investigation in the other cases of illegal mining. He further argued that the charge under section 409 of the Indian Penal Code because of which the petitioner has been denied bail is frivolous and totally misconceived. He emphatically contended that this Court has twice directed to the learned trial Court for expeditious trial with examination of material witnesses in BLAPL Nos.854 of 2015 and 1053 of 2019 but in spite of such direction, during the period of more than three years of framing of charge, the evidence of only twenty five witnesses have been recorded so far and therefore, it would be travesty of justice to keep the petitioner in custody for any longer period. According to Mr. Mund, the prosecution is deliberately flouting the orders of this Court repeatedly and therefore, the State has no right to oppose the application for bail as the detention has already become pretrial punishment. He further argued that the petitioner has deep roots in the society, with his business interests and he is a permanent resident of Barbil and he is neither a flight risk (having surrendered his passport to the investigating agency) nor has he been shown to have any propensity to tamper with evidence or influence any witnesses apart from the fact that the evidence are mostly documentary in nature which have already been seized by the Vigilance police and submitted in the trial court. His properties and properties of his family members including bank accounts, business concerns and factory to the tune of Rs.386 crores have been attached under the Criminal Law Amendment Ordinance, 1944. He further argued that by reason of his continued incarceration, the petitioner is unable to instruct his lawyers properly and thereby unable to effectively defend himself, in violation of his right to fair trial under Article 21 of the Constitution of India. Placing reliance in the case of P. Chidambaram -Vrs.- Directorate of Enforcement,2020 77 OCR 383 (SC), it is contended that since there is no chance of absconding of the petitioner or tampering with the evidence and he has also not flouted the terms and condition of interim bail granted by this Court in I.A. No.268 of 2020, the bail application deserves favourable consideration.Mr. N.C. Panigrahi, learned Senior Advocate appearing for the State of Orissa (Vigilance) on the other hand vehemently opposed the prayer for bail and contended that since the bail applications of the petitioner have been rejected earlier by this Court on five occasions as well as twice by the Hon'ble Supreme Court on merit, in the absence of any new or fresh ground, it is not open to this Court to reconsider the same material and to take a different view inasmuch as grant of bail to the petitioner would be virtually review of the earlier orders which is not permissible in law. He further argued that the petitioner in connivance and conspiracy with several public servants has committed an economic offence causing loss of around one thousand five hundred crores to the State exchequer and a strong prima facie case is available against the petitioner to show his involvement in such offence and in view of the severity of the punishment in case of conviction, incarceration of the petitioner for a period of seven years is no ground to release him on bail. He emphatically contended that the family members of the petitioner such as his father, mother, wife and brother, who are also accused in this case, are absconding since 2013. The petitioner is a highly influential and very rich person and therefore, tampering of evidence cannot be ruled out particularly when large numbers of witnesses are yet to be examined. It is further contended that since taking into account the delay of the trial and period of detention of the petitioner in judicial custody, the petitioner has already been granted interim bail for a period of one month which he had availed and surrendered before the learned trial Court, the same ground cannot be taken again in the main bail application to grant him bail and therefore, the bail application should be rejected.4. Before dealing with the rival contentions raised, let me take a bird's eye view of the previous bail applications of the petitioner.(i) The first bail application of the petitioner in BLAPL No.25588 of 2013 was rejected on 29.01.2014 considering the nature of offence, its magnitude and ramification as alleged and also the materials available on record.(ii) The second bail application of the petitioner in BLAPL No.7277 of 2014 was rejected on 14.11.2014 holding that there is no change of circumstance and the release of the petitioner on bail is likely to cause further delay in getting the case ripen for trial, likelihood of tampering of evidence, the nature of accusation, seriousness of the offences, role played by the petitioner and also the quantum of punishment prescribed for the offences.(iii) The third bail application of the petitioner in BLAPL No.854 of 2015 was rejected on 28.03.2016 with following observation:"The crime was committed continuously for years together in a cool, calculated and organized manner causing loss of thousand of crores to the Government exchequer. There are prima facie materials showing involvement of the petitioner in the deep rooted conspiracy with other co-accused persons including the public servants. A strong prima facie case is available against the petitioner to show that he in connivance with the mining, forest, revenue officials and mining lease holders by creating fake documents illegally and unauthorizedly excavated iron ore which caused pecuniary advantage to him, his family members and others and there was equivalent loss to the Government exchequer to the tune of more than one thousand five hundred crores. The involvement of the petitioner in the deep rooted conspiracy in the economic offences involving huge loss to Government exchequer is prima facie apparent."This Court while rejecting the bail application also took into account the nature and seriousness of 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 this Court. However, this Court observed as follows:-"The petitioner is in jail custody since 05.09.2013 and it is stated at the Bar that in the trial Court, the case is posted today for framing of charge. Keeping in view the period of detention of the petitioner in judicial custody even after the submission of the final charge sheet on 24.06.2014, the learned Trial Court is directed not only to take immediate and effective steps for framing of charge but also take all possible steps to proceed with the trial on day-to-day basis. The material witnesses may be identified and examined at the earliest. If the trial is not concluded within a period of one year from today for reasons not attributable to the petitioner, the petitioner will be at liberty to apply for bail afresh before the learned trial Court which may be considered in the light of the situation which may be then prevailing."(iv) The fourth bail application of the petitioner in BLAPL No.926 of 2017 was rejected on 24.08.2017 with following observations:-"The nature of accusation against the petitioner is that he in connivance with the mining, forest, revenue officials and mining lease holders by creating fake documents illegally and unauthorizedly excavated iron ore which caused pecuniary advantage to him, his family members and others and the State of Odisha which has the highest stake in mineral production in the country sustained equivalent loss to the Government exchequer to the tune of more than one thousand five hundred crores. The crime appears to have been committed in a cool, calculated and organized manner. A strong prima facie case is available against the petitioner to show his involvement in the economic offence. In view of the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence, absence of any substantial change of circumstances after rejection of bail applications by this Court thrice and particularly when the last bail rejection order of this Court was affirmed by the Hon'ble Supreme Court by dismissing the special leave petition, I am not inclined to reconsider the prayer for bail and release the petitioner on bail."(v) The fifth bail application of the petitioner in BLAPL No.1053 of 2019 was rejected on 07.08.2019 with following observations:-"8........On a conspectus of the order sheet, it is evident that after rejection of the bail order of the petitioner on 24.08.2017, the learned trial Court used to post the trial of the case on two or three dates each month and issued summons after summons but only sixteen witnesses so far could be examined and the evidence of some of the witnesses has remained incomplete for some reason or other. The delay has been caused after 24.08.2017 mainly due to laches of the prosecution in not producing the witnesses and on some occasion on account of cease work call given by the Bar Association. Though some witnesses have been examined and crossexamined for days together but no fault can be attributed to either of the parties for that. The learned trial Court seems to have not verified the status of the summons issued to the witnesses and has taken no coercive step to ensure the attendance of the witnesses who did not appear on receipt of summons. While rejecting the bail application on 28.03.2016, this Court directed the learned trial Court to take all possible steps to proceed with the trial on dayto-day basis. The learned trial Court has also not adhered to the provision under section 309 of Cr.P.C. and the prosecution has mostly contributed to the delay in the trial of the case after rejection of the last bail application of the petitioner perhaps forgetting that the delay might hamper the result and the justice which it is expecting due to loss of more than one thousand five hundred crores to the Government exchequer. The learned counsel for the State on instruction submitted that out of 178 charge sheet witnesses, the prosecution is likely to examine 147 witnesses. Since within a span of almost two years after rejection of the last bail application on 24.08.2017 by this Court, the prosecution has examined only sixteen witnesses i.e. on an average of eight witnesses per year in the sixty two dates the case was posted, nobody knows how many years it would take for the prosecution to conclude the examination of the rest of the witnesses and thereafter how much time would be consumed to conclude the trial and pronounce the judgment. Everything moves in the sphere of uncertainty and the sufferer is not only the accused but also the State of Odisha and the people who are eagerly awaiting to see the verdict in this multi-crores mining scam. I am satisfied that in the last two years, at least the accused persons have not played truancy with the criminal trial or corroded the sanctity of the proceeding rather the prosecution has made the trial a farcical one. The learned trial Court has also remained like a silent spectator to the lackadaisical attitude of the prosecution in ensuring the attendance of the witnesses on different dates and thereby causing mockery of the trial. It seems that the right of speedy trial which is a fundamental right under Article 21 of the Constitution of India and denial of this right corrode the public confidence in the justice delivery system, has not been properly taken care of either by the prosecution or by the learned trial Court."xx xx xx xx".........In the case in hand, the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and the petitioner has remained in custody for about six years and since at least for the last two years, the petitioner has not contributed to the delay, the detention has virtually became pre-trial punishment to him."xx xx xx xx"9......while not inclining to release the petitioner on bail in absence of any substantial change of circumstances after rejection of the last bail application by this Court except a further detention of about two years with slow progress of the trial, I direct the learned trial Court to expedite trial keeping in view the provision under section 309 of Cr.P.C., to take effective step to ensure the attendance of witnesses and if the trial is not progressed substantially with the examination of material witnesses by December 2019, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in accordance with law."5. This bail application of the petitioner being the sixth one before this Court, it is to be kept in mind the settled principle of law that successive application for grant of bail to an accused is permissible under the changed circumstances which must be substantial one and which has got a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence inasmuch as 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. Of Course, the principle of res judicata is not applicable while considering the successive bail application but the issues and grounds which have been canvassed earlier would not be ordinarily permitted to be reagitated. If some important aspects of the case could not be placed earlier inadvertently and the Court feels that such aspects have a direct bearing on the result of the case, in the interest of justice, the Court can consider the same in the subsequent application.The learned counsel appearing for the petitioner raised similar contention regarding absence of ingredients of the offence under section 409 of the Indian Penal Code in the previous bail applications, which have been dealt with and therefore, the same cannot be permitted to be re-agitated in this bail application in view of the principle laid down by Hon'ble Supreme Court in the case of Kalyan Chandra Sarkar -Vrs.- Rajesh Ranjan, (2005) 30 OCR 455 (SC). It is stated at the Bar that a separate petition has been filed by the petitioner before this Court challenging order of framing of charge against him by the learned trial Court which is subjudiced since 2017. I am of the humble view that any finding in this bail application whether the ingredients of the offence under section 409 of the Indian Penal Code are made out or not, is likely to cause prejudice to either the parties and may create an unconscious impression upon the trial Court, which has to ultimately decide the point after assessing the entire ocular and documentary evidence adduced during trial. Similarly whether the evidence of P.W.18 elicited in her cross-examination that the outstanding dues against the lessee upto 31.12.2012 was Rs.3,42,486/- which is the loss sustained by the State would be sufficient to discard the entire prosecution case that the loss sustained to the State Exchequer was more than one thousand five hundred crores, is also to be adjudicated by the learned trial Court and therefore, I refrain from detailing or discussing the evidence on that score.6. Coming to the issue of delayed trial, Article 21 of the Constitution of India guarantees for speed trial and an undertrial prisoner cannot be detained in jail custody for an indefinite period. The Court while exercising its discretionary jurisdiction while considering the application for bail has to maintain a balance between the valuable right of liberty of an individual and the interest of the society in general. If an accused is involved in the grave economic offences, the Court has to view it seriously as it involves deep rooted conspiracies and huge loss of public funds and affects the economy of the country as a whole and thereby poses serious threat to the financial health of the country.In the case of Hussain and Ors. -Vrs.- Union of India (UOI), (2017) 5 SCC 702, it is held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21. While deprivation of personal liberty for some period may not be avoidable, period of deprivation pending trial/appeal cannot be unduly long. It was further held that while a person in custody for a grave offence may not be released if trial is delayed, trial has to be expedited or bail has to be granted in such cases.In the case of P. Chidambaram (supra), it is held that the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. The gravity of the offence is an aspect which is required to be kept in view by the Court and the same has to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of 'grave offence' and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. It is further held that it is to be kept in perspective that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature or does the bail jurisprudence provides so. Ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial.7. While disposing of the previous bail application of the petitioner on 07.08.2019 in BLAPL No.1053 of 2019, I have held that in the last two years, at least the accused persons have not played truancy with the criminal trial or corroded the sanctity of the proceeding. I have further held that the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and the petitioner has remained in custody for about six years and since at least for the last two years, the petitioner has not contributed to the delay, the detention has virtually became pre-trial punishment to him.It appears that the aforesaid order dated 07.08.2019 was received by the learned trial Court on 22.08.2019. After the order of this Court was received, the learned trial Court posted the case on twelve dates till the end of December 2019 i.e. 05.09.2019, 19.09.2019, 03.10.2019, 17.10.2019, 30.10.2019, 31.10.2019, 01.11.2019, 15.11.2019, 16.11.2019, 29.11.2019, 13.12.2019 and 16.12.2019. On 05.09.2019, P.W.14 who was earlier cross-examined in part was present and he was further cross-examined by the learned counsel for one of the accused and it was deferred to 19.09.2019 for further cross-examination on a time seeking petition being filed by the said counsel. On 19.09.2019, cross-examination of P.W.14 was completed and he was discharged. On that very day, P.W.17 was examined, crossexamined and discharged. On 03.10.2019, P.W.18 was examined, cross-examined in part and her further crossexamination was deferred due to want of time. On 17.10.2019, no witness was present. On 30.10.2019, P.W.19 was examined, cross-examined in part and his further cross-examination was deferred on time seeking petitions filed by the learned counsel for two accused. On 31.10.2019, P.W.20 was examined, crossexamined in part and her further cross-examination was deferred on time seeking petitions filed by the learned counsel for two accused. On 01.11.2019, P.W.21 was examined, cross-examined and discharged. On 15.11.2019, further cross-examination of P.W.18 continued and she was discharged. On 16.11.2019, P.W.22 and P.W.23 were examined, cross-examined and discharged. On 29.11.2019, further cross-examination of P.W.20 continued and she was discharged. On 13.12.2019, further cross-examination of P.W.19 continued and he was discharged. On 16.12.2019 no witness was present. On 04.01.2020, P.W.24 and P.W.25 were examined, cross-examined and discharged. This aspect was considered in I.A. No.268 of 2020 and while granting interim bail to the petitioner for a period of one month, it was observed as follows:-"Thus the posting of the dates of trial after receipt of the order of this Court clearly reveal that the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observations of this Court passed in BLAPL No.1053 of 2019 in the order dated 07.08.2019 and also in BLAPL No.854 of 2015 in which this Court observed that the learned trial Court shall take all possible step to proceed with the trial on day-to-day basis. If the learned trial Court is also dealing with other cases for which it was not possible on its part to give more time to this particular case, the case could have been taken up during a particular time slot on each date keeping in view the mandate of section 309 of the Code. If any defence counsel after cross-examining a prosecution witness for some time filed a petition for time to defer the cross-examination, the learned trial Court should not have been so liberal in adjourning the case giving long dates without realizing the inconvenience likely to be faced by the official witnesses in attending the Court again and again. No special reasons have been assigned by the learned trial Court in adjourning the case to long dates in spite of the earlier orders of this Court. None of the parties has approached the Hon'ble Supreme Court against the order of this Court passed in BLAPL No.1053 of 2019 and thus the observations made therein attained finality and become binding on the trial Court. After receipt of the order of this Court by the learned trial Court on 22.08.2019, the counsel for the petitioner who is appearing for him has not sought for any adjournment. Therefore, the petitioner is no way responsible for the delayed trial. It cannot be lost sight of the fact that since last week of March 2020, there is no progress of trial in any Court in the State on account of situation arising out of the COVID-19 pandemic and only urgent matters are being taken up."During hearing of the bail application, as per order dated 07.09.2020, a report was called for from the learned trial Court as to whether the Court work has started functioning normally, whether any witness has been examined in the meantime and whether summons have been issued to the witnesses and what are the dates of posting of trial. The learned trial Court has submitted the status report which is dated 10.09.2020, in which it is stated as follows:".........In obedience to the kind order dated 07.09.2020, passed by the Hon'ble Court in BLAPL No.1042 of 2020 and communicated to this Court under Hon'ble Court's Letter No.13208 dated 10.09.2020, I am to humbly submit as follows:That so far only 25 (Twenty five) witnesses have been examined. The date of examination of the last witness was 04.01.2020.That my predecessor-in-office was transferred on 10.01.2020 and I joined her as Special Judge (Vigilance) on 23.03.2020.That in order to prevent the pandemic arising out of Covid-19 from spreading, lockdown was imposed in the State on 23.03.2020 and the same was extended from time to time.That as per the direction of the Hon'ble Court, as there was restricted functioning of the Subordinate Courts in the State, summons were not issued during the said period to the witnesses for which no other witnesses in VGR Case No.05 of 2013 were examined.That VGR Case No.05 of 2013 was posted today i.e. 10.09.2020 for trial. In pursuance of the Hon'ble Court's Notification No.XLIX-E04/2020/7817 (38) Dted.25.08.2020, this Court in order to resume and expedite the trial of the said case, issued summons to two witnesses, directing them to appear today and record their evidence. One of them appeared today.That in the meanwhile, the Registrar of Civil Courts, Keonjhar tested Covid-19 positive on 03.09.2020 for which covid tests on 41 staff including the Officers of the Civil Courts, Keonjhar were conducted on 06.09.2020 and 9 (nine) of them were detected on 07.09.2020 as Covid-19 carriers. Following this development, as per the order of the District Judge, Keonjhar, the Courts here at Keonjhar were closed down for 48 hours from 5 a.m. of 08.09.2020 to 5 a.m. of 10.09. 2020.That being not satisfied with the above duration of the closure of the Civil Courts, the members of the District Bar Association decided to abstain from work from 10.09.2020 to 15.09.2020. The decision was communicated to the District and Sessions Judge, Keonjhar under their Letter No.27 Dtd. 08.09.2020 which was communicated to my Office under District Office Memo No.4685(10) Dtd. 10.09.2020.That as the members of the Bar Association have abstained from the work today, the witness present today could not be examined. The case is now adjourned to 25.09.2020 with a direction to the office to issue summons to the witnesses to appear and record their evidence in the case.That in view of the above, the normal functioning of the Court has not been restored till today. It is humbly submitted that this Court shall make all endeavor to resume the trial in VGR Case No.05 of 2013 by procuring the attendance of the witnesses in the Court."While rejecting the last bail application of the petitioner in BLAPL No.1053 of 2019, it has already been held that the detention of the petitioner has virtually become pre-trial punishment to him as the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and moreover, the petitioner has not contributed to the delay. Though direction was given to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of witnesses but it seems that even after the said order was received by the learned trial Court, the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observation made by this Court while disposing of the earlier bail application. No special reason has been assigned by the learned trial Court in adjoining the case to long dates. Not a single witness has been examined after 04.01.2020 and the status report makes it clear how difficult it has become to proceed with the trial of the case at present.Mr. Panigrahi, leanred Senior Advocate placed the observation made by the Hon'ble Supreme Court in the case of Ranjan Dwibedi -Vrs.- C.B.I., (2012) AIR SC 3217, wherein it is held as follows:-"19........However, unintentional and unavoidable delays or administrative factors over which prosecution has no control, such as, overcrowded court dockets, absence of the presiding officers, strike by the lawyers, delay by the superior forum in notifying the designated Judge, (in the present case only), the matter pending before the other forums, including High Courts and Supreme Courts and adjournment of the criminal trial at the instance of the accused, may be a good cause for the failure to complete the trial within a reasonable time. This is only illustrative and not exhaustive. Such delay or delays cannot be violative of accused's right to a speedy trial and needs to be excluded while deciding whether there is unreasonable and unexplained delay..."Keeping in view the observation made by the Hon'ble Supreme Court in the aforesaid case, if the order sheet of the learned trial Court is perused from 05.09.2019 onwards till the end of December 2019, it cannot be said that the delay which was caused was unavoidable or on account of any administrative factors over which the prosecution has no control. During the said period, the trial court was functioning normally and no adjournment was sought for from the side of the petitioner and therefore, the delay which has been caused by the trial Court even after the receipt of the order this Court on 22.08.2019 passed in BLAPL No.1053 of 2019, in my humble view, is unreasonable and unexplained. Of course after the last two witnesses i.e. P.W.24 and 25 were examined on 4.01.2020, the Presiding Officer was transferred on 10.01.2020 and the new Presiding Officer joined on 23.03.2020 and then the lock-down was imposed in the State since 23.03.2020 which was extended from time to time and during the said period, there was restricted functioning of the Subordinate Courts in the State as per the direction of this Court and no summons were issued to witnesses during the said period and now the letter dated 10.09.2020 of the learned trial Court makes it clear that the normal functioning of the Court has not been restored. Since the learned trial Judge has made it clear in the said letter that he shall make all endeavor to resume the trial by procuring the attendance of the witnesses in the Court, it is expected that the observation made by this Court while disposing of BLAPL No.1053 of 2019 to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of the witnesses shall also be kept in mind. All possible steps shall be taken to proceed with the trial on day-to-day basis. Since the learned trial Court is also dealing with other cases, a particular time slot should be fixed on each date and the mandate of section 309 of Cr.P.C. shall be adhered to. The trial Court shall take all possible steps to stop the dillydallying or shilly-shallying attitude adopted either from the side of the prosecution or accused and ensure that the constitutional right of speedy trial of the accused as guaranteed under Article 21 of the Constitution of India is not flouted causing mockery of the trial. It seems unn

Please Login To View The Full Judgment!

ecessary lengthy cross examination has been made by different set of defence counsel to the witnesses to make it a gallery show, which needs to be regulated by the learned trial Court keeping in view the provisions under sections 146, 148, 150, 151, 152 and 165 of the Indian Evidence Act, 1872.8. In view of the foregoing discussions, in absence of any substantial change of circumstances after the rejection of the last bail application on merit and particularly since there is strong prima facie case against the petitioner relating to his involvement in the commission of grave economic offence, I am not inclined to reconsider his prayer for bail on merit and release him on bail pending disposal of trial. However, keeping in view the period of detention of the petitioner for seven years in judicial custody and snail speed at which the trial of the case has proceeded so far even after three years of framing of charge, the fact that the prosecution is likely to examine one hundred forty seven witnesses as submitted by the learned Senior Advocate appearing for the State of Orissa (Vigilance) and only twenty five witnesses have been examined so far, the fact that the petitioner is no way responsible for the delayed trial, the fact that no effective steps have been taken either by the prosecution or by the learned trial Court to expedite the trial in spite of repeated directions of this Court in the earlier bail applications and the orders of this Court in that respect have been flouted and the fact that the normal functioning of the trial Court has not been restored on account of situation arising out of COVID-19 pandemic as per the status report submitted by the learned trial Court and further taking into account the conduct of the petitioner in not flouting the terms and conditions of the interim bail order, I am of the humble view that the petitioner is entitled for grant of interim bail with the following terms and conditions:-(i) The interim bail period of the petitioner shall commence from 01.10.2020 and he shall surrender before the learned trial Court on 02.01.2021 positively without fail.(ii) He shall furnish cash security of Rs. 1,00,00,000/- (rupees one crore) in the shape of fixed deposit STDRs obtained from any nationalized bank and also furnish bail bond of Rs. 2,00,00,000/- (rupees two crores) with two local solvent sureties each for the like amount to the satisfaction of the learned trial Court with further terms and conditions as the learned Court may deem just and proper;(iii) He shall not leave the territorial jurisdiction of the trial Court without its prior permission;(iv) The petitioner shall, further, disclose his place of residence where he will be residing after his release on interim bail and also, disclose his phone numbers and e-mail address to the Vigilance Department.(v) The petitioner shall not try to tamper with the prosecution evidence in any manner nor shall he make any threat or inducement to any witness acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court.(vi) The petitioner shall surrender the passport, if possessed by him, before the trial Court. If he does not possess the passport, he shall file an affidavit before the trial Court to that effect.(vii) The petitioner shall personally appear before the trial Court on all the dates fixed for trial.(viii) The petitioner shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused.It is made clear that if the trial is not progressed substantially with the examination of material witnesses within six months after the first date fixed for trial on normal resumption of the Court work, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in accordance with law.A copy of the order be handed over to the learned counsel for the State of Orissa (Vigilance) and also be communicated forthwith to the learned trial Court for information and necessary action.Accordingly, the bail application as well as the connected pending interim applications stands disposed of.
O R