S.K. Sahoo, J.
1. The petitioner Preeti Bhatia has filed this application under section 439 Cr.P.C. seeking for bail in connection with RC Case No.47/S/2014-SCB/Kol. dated 5.6.2014 corresponding to SPE No.42 of 2014 pending in the Court of learned Special CJM, CBI, Bhubaneswar in which charge sheet has been submitted against her and others under sections 120-B, 294, 341, 406, 409, 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. The petitioner was taken into custody on 10.10.2014 and she moved an application for bail before the learned Sessions Judge, Khurda at Bhubaneswar in Bail Application No.1509 of 2014. The learned Sessions Judge vide order dated 12.11.2014 considering the facts 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 Cantonment Road P.S. Case No.76 of 2013 dated 24.9.2013.
The informants in those cases alleged that they along with other depositors paid huge amounts to Artha Tatwa (AT) Group of Companies for getting higher returns in terms of interests and incentives under various schemes floated by AT Group of Companies and cheap flats/plots under various projects undertaken by the AT Group of Companies represented by its Chief Managing Director Pradeep Kumar Sethy. The company neither returned the amount due to the depositors/investors as agreed upon nor constructed the flats as per agreement and also did not sell the alleged land to the investors/depositors. When the investors/depositors asked to refund the money paid to the company, accused Pradeep Kumar Sethy and other Directors of the company closed down the branch offices at various places of Odisha as well as Head Office of AT Group of companies located at SCR-29, Kharvelnagar, Unit-III, Bhubaneswar and vanished overnight after duping thousands of gullible investors to hundreds of crores of rupees. Investigation further revealed that accused Pradeep Kumar Sethy and others, in furtherance of a criminal conspiracy hatched among them, formed a number of companies within a short period in quick succession and registered the companies with the Registrar of Companies, Cuttack and also with Registrar of Companies, Mumbai. One of such eleven companies was PrismHeights Films and Entertainment Pvt. Ltd (hereafter for short "PrismHeights Company"). As per the Memorandum of Association and Article of Association, the main objective of PrismHeights Company was to carry on the business of production, marketing and distribution of feature films, telefilms, documentary films, advertisement films, television shows, TV serials, dramas, theatrical, arranging cultural shows and other entertainment programs and software related thereto in India and abroad.
The investigation further disclosed as per charge sheet that the petitioner was one of the Directors of PrismHeights Company. As a Director of AT Group of Companies, she was actively involved in the affairs of the AT Group and used to visit the Head Office of AT Group frequently to attend the meetings of its Directors. Investigation established that a sum of Rs.1,17,83,000/- (One Crore Seventeen Lakhs Eighty Three Thousand only) was illegally diverted to her personal account from the 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 depriving them of their eligible returns and also misappropriated the collected amount.
The investigation was kept open as per the provisions of section 173(8) Cr.P.C. as a lot of aspects of the case including the money trail as desired by the Hon'ble Supreme Court, the role of other accused persons/Directors, office bearers involved in Artha Tatwa Group of Companies/Society was being looked into and additional evidence/documents that might emerge during course of further investigation were to be submitted.
3. The learned counsel for the petitioner Mr. Ajaya Kumar Singh submitted that during course of investigation, the house of the petitioner and her parents were raided by CBI but no incriminating documents/materials pertaining to the Chit-Fund Scam was found. He further submitted that on receipt of notice under section 160 Cr.P.C., the petitioner attended the CBI office on 23rd September 2014 and on three subsequent dates and on each date she was properly interrogated by CBI. He further submitted that the petitioner stated before the CBI authorities during interrogations that as per the request of co-accused Pradeep Kumar Sethy, PrismHeights Company was registered before Registrar of Companies, Mumbai on 10.2.2010 and the copies of the Bye-laws and Articles of Association of the Company were also submitted to the CBI. It is further contended that the petitioner was no way connected in the alleged Chit-Fund Scam in any manner and in fact registration of PrismHeights Company was done much prior to the registration of all the AT Group of Companies of co-accused Pradeep Kumar Sethy. It is further contended that co-accused Pradeep Kumar Sethy being the Chief Managing Director of PrismHeights Company transferred a sum of Rs.1,17,83,000/- to the company account of PrismHeights Company and also to the account of the petitioner which were used/spent for production of two TV serials namely "Andaz Hamara Mastana" and "Hum Intezar Karenge" and 32 episodes pertaining to both serials were completed but those serials could not be telecast. It is further contended that series of 32 episodes were handed over to the CBI officer for verification during the interrogation. The learned counsel for the petitioner further contended that the petitioner herself had invested huge amount beyond that of Rs.1,17,83,000/- for completion of 32 episodes of TV serials and the amount 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-accused i.e., ex-Advocate General Sri Ashok Mohanty has also been released on bail under section 439 Cr.P.C. by the learned Sessions Judge, Khurda at Bhubaneswar. He further contended that that the petitioner is a lady and her father is aged about 75 years who is suffering from heart and other related diseases and is also bed ridden and her mother is also a patient and there is no male member in the family of the petitioner to maintain and look after them. It is further contended that no useful purpose would be served in keeping the petitioner in jail for indefinite period and taking into account the proviso to section 437(1) Cr.P.C., the petitioner's bail application should be favourably considered. He further contended that the petitioner is ready and willing to furnish bank guarantee as well as surety for her release on bail.
4. The learned Special Public Prosecutor Mr. K. Raghavacharyulu being ably assisted by Mr. V. Narasingh raising preliminary objection submitted that since the petitioner has not moved the learned Court below after submission of charge sheet, this bail application should not be entertained. It is further contended that there are overwhelming materials as borne out from the ongoing investigation which unerringly established the petitioner's complicity in the "money trailing" and "larger conspiracy" which were directed to be investigated by the Hon'ble Supreme Court and the materials on record established close nexus of the petitioner with co-accused Pradeep Kumar Sethy and the petitioner is one of the Director of AT Group of companies and it has also come during investigation that the main accused Pradeep Kumar Sethy in furtherance of the criminal conspiracy with other co-accused persons had formed number of companies "to park ill-gotten money of AT Group" and PrismHeights Company is one of such company in which the main accused and the petitioner are the Directors.
The learned counsel for the CBI drew the attention of this Court to the statements of C.W.5 Ritish Nandan Padhi, C.W.22 Umasankar Acharya and C.W.33 Sanischar Samal to establish the complicity of the petitioner. The learned counsel further contended that unearthing of further materials during the ongoing investigation against the petitioner cannot be ruled out and therefore at this stage if the petitioner is enlarged on bail, it would affect such further investigation. 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 producing TV serials and therefore the plea taken by the petitioner that the amount was transferred for producing tele serials was nothing but an afterthought story and from the inconsistent stand taken by the petitioner, it is clearly established that the amount was not spent for production of the tele serials as alleged but for her personal benefits.
The learned counsel for the CBI further submitted that one of the co-accused namely Madhusudan Mohanty who approached this Court for grant of bail in BLAPL No.21677 of 2014 has not been granted bail. He further submitted that it is an offence against the community which was designed very coolly and executed in a preplanned manner for which the poor and middle class families have lost their hard earned money and since it is an economic offence and money trailing is rather admitted by the petitioner, it was urged that at this stage it would not be proper to grant bail to the petitioner merely on the ground that she is a lady. It is strenuously urged that the doctrine of parity is remotely not applicable to the petitioner.
5. Let us first discuss the preliminary objection of the learned Special Public Prosecutor regarding maintainability of the bail application before this Court after submission of charge sheet. It is contended that since the petitioner has not moved the learned Court below for bail after submission of charge sheet, this bail application should not be entertained.
The Sessions Court as well as the High Court, both exercises concurrent powers under Section 439 Cr.P.C. to go into the merits of the matter so as to decide whether the applicant in judicial custody has shown sufficient reasons or grounds for being enlarged on bail. As a matter of practice, the applicant is required to approach the Court of Sessions in the first instance and if relief is denied, he approaches the High Court under section 439 Cr.P.C. itself, not as a superior Court sitting in appellate or revisional jurisdiction over the order of the Court of Session, but because the superior Court can still exercise its own jurisdiction independently. The application seeking bail before the High Court is accompanied by an order of the Court of Session rejecting a similar prayer. The idea is to provide the superior Court with an advantage of appraising itself with the grounds as considerations which prevailed with the Court of Session in taking the view which it did.
In case of Twinkle Soni alias Rakesh Kumar Verma and Bablu Yadav Vs. The State of Jharkhand reported in 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 Procedure. When the petitioners approach this Court, petitioners are losing a chance to approach the trial court otherwise the petitioners will have two chances, first to approach the Sessions Court and then to approach the High Court, but, if the petitioners are not choosing their option to approach the trial court, looking to their own case and looking to their previously rejected bail applications by the Hon'ble High Court, such a choice is vested in the petitioners to approach this Court. They may choose Hon'ble High Court or they may choose Sessions Court under Section 439 of the Code of Criminal Procedure. In view of this legal position under Section 439 of the Code of Criminal Procedure as well as looking to the aforesaid decisions, these applications preferred under Section 439 of the Code of Criminal Procedure, 1973 before this Court are tenable at law. They cannot be brushed aside as not maintainable, but, whenever they are approaching this Court, without approaching the Sessions Court, even after previous bail application is rejected, by this Court, it shall be obligatory on the part of the petitioners to point out on oath, in their memo of the bail application the stage of the trial, and the report filed under Section 173 of the Code of Criminal Procedure shall be presented before this Court so that the time can be saved in deciding the bail application".
Thus I am of the view that merely because during pendency of this bail application, charge sheet has been submitted, the petitioner cannot be asked to withdraw the bail application from this Court and to move again for bail in the Court of Special C.J.M., CBI, Bhubaneswar and then in the event of rejection, to approach the Sessions Judge, Khurda at Bhubaneswar and then after rejection of bail by the said Court, to approach this Court under Section 439 Cr.P.C. I am not inclined to accept the contentions raised by the learned counsel for CBI that this bail application is not maintainable as charge sheet has been filed. In a case where bail application under Section 439 Cr.P.C. is rejected by the Court of Sessions during course of investigation and the applicant applies for bail to the High Court and by the time of consideration of the bail application, charge sheet is filed, the applicant if he/she so likes has an option to withdraw the bail application from the High Court to move the Court of 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 undertaken for grant of bail. The Court has to indicate in the bail order, reasons for prima facie conclusion why bail was being granted, particularly, when the accused is charged of having committed a serious offence. In the case of Kalyan Chandra Sarkar -v- Rajesh Ranjan alias Pappu Yadav and Anr. reported in 2004 Supreme Court Cases (Criminal) 1977, it is held as follows:
"11....The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court to consider among other circumstances, the following factors also before granting bail:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the Court in support of the charge."
In the case of Ram Govind Upadhyay -v- Sudarshan Singh reported in 2002 Supreme Court Cases (Criminal) 688, it is held as follows:-
"3. Grant of bail though being a discretionary order but, however, calls for exercise of such discretion in a judicious manner and not as a matter of course. Order of bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is depended upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail. More heinous is the crime, the greater is the chance of rejection of the bail, though, however, depended on the factual matrix of the matter".
In the case of Prahalad Singh Bhati -v- NCT, Delhi reported in 2001 Supreme Court Cases (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 reported in 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 time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required".
7. Let us analyse the contentions raised by the respective parties keeping in mind the settled principles of law for consideration of bail application.
While it was urged by the learned counsel for the petitioner that two of the co-accused persons have been granted bail by this Court under section 439 Cr.P.C. and another was released on bail by the Court of Session under section 439 Cr.P.C. and the petitioner stands in the similar footing, it is countered by the learned Special Public Prosecutor that bail application of one of the co-accused has been rejected by this Court after submission of charge sheet and the petitioner's case stands in a different footing than the co-accused who have been enlarged on bail and therefore she cannot claim parity with those co-accused persons.
Parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting 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 reported in  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 or to pass another unwarranted order....The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition...Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law".
In case of Secretary, Jaipur Development Authority - v- Daulatmal Jain reported in (1997) 1 SCC 35, it is held as follows:
"24.....Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously, no."
The learned counsel for the petitioner placed the order of this Court dated 29.1.2015 passed in BLAPL No.20395 of 2014 where co-accused Ranjan Kumar Das was granted bail. Ranjan Kumar Das was an Advisor of AT Group of Companies and he was stated to be working on a monthly remuneration and he alongwith co-accused Pravata Kumar Tripathy played a vital role in the registration of the "Artha Tatwa Multi-Purpose Cooperative Society Ltd." It appears that the learned Judge in para-7 of the order considering the nature of alleged involvement of the said accused with AT Group of Companies and the amount said to have been diverted to the accounts of the said co-accused and his relatives together with his ailment for which he was suffering, allowed the prayer for bail. It is pertinent to note that in that case the co-accused Ranjan Kumar Das was suffering from Oral Submucous Fibrosis (OSF) which was likely to lead to cancer.
The learned counsel for the petitioner further 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 charge sheet, this Court has been pleased to observe in paragraph-13 that the involvement of the said co-accused in the commission of the crime is prima facie made out and if he is released on bail then there is every possibility of gaining over the witnesses. Considering the greater and larger interest of the State and society, this Court rejected the application for bail. Madhusudan Mohanty was the Managing Director of M/s Tilakraj Publications Pvt. Ltd. to whose accounts a sum of Rs.60,42,500/- was illegally diverted from the accounts of AT Group. He had also collected a sum of Rs.33,84,000/- through his employees from accused Pradeep Kumar Sethy.
The learned counsel for the CBI submitted that the ex- Advocate General Ashok Mohanty who was granted bail by the learned Sessions Judge, Khurda at Bhubaneswar stands in a different footing in as much as the allegation against him was that he had purchased a building located in Sector-11, Bidanasi, Cuttack from accused Pradeep Kumar Sethy and though the sale transaction was shown to be Rs.1,01,00,000/- but in fact co- accused Ashok Kumar Mohanty had paid an amount of Rs.70 lakhs and thereby misappropriated the remaining amount of Rs.31 lakhs.
The learned counsel for the CBI further submitted that the allegations against the petitioner on the other hand is that she was one of the Directors of PrismHeights Company and as a Director of AT Group of Companies, she was actively involved in the affairs of the AT Group and used to visit the Head Office of AT Group frequently to attend the meetings of its Directors and a sum of Rs.1,17,83,000/- was illegally diverted to her personal account from the accounts of AT Group of Companies without any justification because of the criminal conspiracy between the petitioner and accused Pradeep Kumar Sethy and the said amount has been misappropriated by her for which she is now taking a plea to have spent the amount in the production of two tele serials.
The learned Special Public Prosecutor further contended that co-accused Ranjan Kumar Das was granted bail, inter alia, mainly on the ground that he was suffering from serious ailments and in the order of co-accused Pravat Kumar Tripathy, no cogent reasons have been assigned for grant of bail and case of co-accused Ashok Mohanty is completely different and all of them stand in different footings and therefore the orders passed in 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 reported in 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 sheet against the co-accused persons who have been released on bail vis--vis allegations against the petitioner, I find that the petitioner stands in a different footing and therefore the principle of parity for grant of bail would not be applicable to the petitioner.
8. The learned counsel for the CBI placed the statement of C.W.5 Reetish Nandan Padhy who was the Branch Operations Manager, HDFC Bank, Bhubaneswar and he has stated as to on which dates right from 2009 till 2012, amount have been transferred to the account of the petitioner from the accounts of Artha Tatwa Food Mart Pvt. Ltd., Systematix Developers and Builders Pvt. Ltd., Artha Tatwa Infra India Ltd., Artha Tatwa Consultancy Pvt. Ltd., and from the accounts of Pradeep Kumar Sethy. The total amount transferred was Rs.1,17,83,000/- (One crore Seventeen lakh eightythree thousand).
The learned counsel for the CBI further placed the statement of C.W.22 Uma Sankar Acharaya who was Senior Territory Manager of AT Group from 2009 till May 2013 and he has stated that the petitioner Smt. Preeti Bhatia was one of the Directors in PrismHeights Company and she used to motivate the depositors to invest in AT Group of companies for higher return and she was visiting the Head Office of AT Group at Kharavelanagar quite frequently and crores of rupees have been parked in her personal account as well as in the accounts of her relatives.
The learned counsel for the CBI further placed the statement of C.W.33 Sanischar Samal @ Sanatan Samal who was a driver with AT Group of companies since 2009 till 2013 who has stated that the petitioner was one of the Directors of PrismHeights Company and she was frequently visiting Bhubaneswar to attend the meetings of the Directors of AT Group of Companies and he used to receive her at Biju Patnaik Air Port, Bhubaneswar and drop her at the Head office of AT Group of Companies at Kharvelnagar, Bhubaneswar and he has further stated that crores of rupees have been diverted to the personal account of the petitioner from the accounts of AT Group of Companies and those amounts have not been spent for any business activities of AT Group of Companies or PrismHeights Company.
The contentions raised by the learned counsel for the petitioner that the amount was transferred by Pradeep Kumar Sethy to the company accounts of PrismHeights also not found to be prima facie correct in view 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 PrismHeights, 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 petitioner submitted Xerox copies of the statement of accounts of PrismHeights and copy of the statement of account of the petitioner by way of a list of documents on 9.3.2015 and served the copy of such documents on the very day on the learned Special Public Prosecutor, CBI. The learned counsel for the CBI submitted that the matter is still under investigation and the Investigating Officer would certainly look into the relevancy of such copies of documents in the context of the case.
The learned counsel for the CBI further urged that the investigation so far disclosed that from different accounts of AT Group of Companies, there has been transfer of huge amount of money to the accounts of Indu Dewan, who is the sister of the petitioner and Bikram Dewan, who is husband of Indu Dewan. He further submitted that role of the sister and brother-in-law of the petitioner and their link with Artha Tatwa Group of Companies is also being carried out.
The learned counsel for the CBI submitted some more documents in a sealed cover and I have gone through those documents and since the matter is still under investigation, it would not be proper to discuss all those documents in this bail order.
9. Let us have a bird's eye view as to why investigations of Chit Fund Scam cases were transferred from the State Agencies to CBI. The Hon'ble Supreme Court in the case of Subrata Chattoraj -v- Union of India and Ors. reported in (2014) 58 Orissa Criminal Reports (SC) 905 held as follows:-
"18. More importantly, the question is whether this scam was confined only to those who actively managed and participated in the affairs of the companies or the same flourished on account of the support and patronage of others is an issue that has bothered us all through the hearing of this case.........
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19.......All that we need point out is that investigation into the scam is not confined to those directly involved in the affairs of companies but may extend to several others who need to be questioned about their role in the sequence and unfolding of events that has caused ripples on several fronts.
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22......Suffice it to say, that the scam of this magnitude is going on for years unnoticed and unchecked, is suggestive of a deep-rooted apathy if not criminal neglect on the part of the regulators who ought to do everything necessary to prevent such fraud and public loot. Depending 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.
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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 :
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(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
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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 the society which have fallen prey to the temptations of handsome returns on such deposits extended by the companies involved in the scam.
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5. That investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence.
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31. The question is whether the above feature call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative.
xx xx xx Investigation by the State Police in a scam that involves thousands of crores collected from the public allegedly because of the patronage of people occupying high positions in the system will hardly carry conviction especially when even the regulators who were expected to prevent or check such a scam appear to have turned blind eye to what was going on. The State Police Agency has done well in making seizures, in registering cases, in completing investigation in most of the cases and filing charge-sheets and bringing those who are responsible to book.
The question, however, is not whether the State Police has faltered. The question is whether what is done by the State Police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State Police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-State ramifications, which the Investigating Agencies need to examine but are handicapped in examining.
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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).
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B. State of Odisha: All cases registered against 44 companies mentioned in our order dated 26th March, 2014 passed in Writ Petition (C) No. 413 of 2013. The CBI is also permitted to conduct further investigations into all such cases in which charge sheets have already 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 reported in (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 Gujurat -v- Mohan Lal Jitamalji Porwal reported in AIR 1987 SC 1321, it is held as follows:-
"5. xx xx xx The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white colour crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest".
In case of Nimmagadda Prasad -v- CBI reported in (2013) 7 Supreme Court Cases 466, it is held as follows:-
"25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence have been deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
11. Let us consider the contention of the learned counsel for the petitioner regarding favourable consideration of bail of the petitioner being a woman in view of the proviso to section 437(1) Cr.P.C.
Under Section 437 (1) of the Code when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court and Court of Session, he may be released on bail by the Court subject to the conditions that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. The conditions of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the first proviso to sub- section (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a Court, other 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 and one of the consideration which has to be weighed for granting or refusing bail is the nature of the offence and its heinousness. Though the beneficial provision relating to release of an accused under the age of sixteen years or on the ground of being a woman or sick or infirm has to be kept in mind while considering his/her bail in spite of his/her involvement in an offence punishable with death or imprisonment for life but at the same time the Court should also give due weight to the other aspects like nature and gravity of the offence etc. and also the adverse impact of the offence committed on the society.
12. The learned counsel for the petitioner placed reliance in case of Sanjay Chandra -v- CBI reported in AIR 2012 SC 830 wherein it has been observed that since charge sheet was already submitted in the case in which the accused persons were charged with economic offence of huge magnitude, the presence of the accused persons in custody might not be necessary for further investigation. It is further observed that alleged huge loss to the State exchequer by itself should not deter the Court from enlarging the accused persons on bail when there was no serious contention that they, if released on bail, would interfere with the trial or tamper with the evidence. It is further observed that right to bail is not to be denied merely because of the sentiments of the community against the accused.
In my opinion, the case of Sanjay Chandra (supra) is distinguishable from the case in hand. Firstly because, the accused persons in that case were facing trial whereas in this case the further investigation is under progress. Secondly, the Hon'ble Court observed that charge in that case was that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating and using as genuine a forged document and the punishment of the offence is punishment for a term which may extend to seven years. Hon'ble Court further observed that in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. In the present case, charge sheet has been submitted, inter alia, for the offence under section 409 IPC which carries punishment for life imprisonment.
13. The learned counsel for the petitioner submitted that liberty of a woman has been curtailed for last five months and she 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 m
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oney by unethical means without restraint. Liberty may be at risk if one abuses liberty. In case of Neeru Yadav -v- State of U.P. reported in 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 civilized society. It is a cardinal value on which the civilization rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to one individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desire that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At this stage the Court has a duty. It cannot abandon its sacrosanct obligation and pass an order at its whim or caprice. It has to be guided by the established parameters of law". 14. Considering the submissions of the respective parties and on careful scrutiny of the materials available on record, it is found that the petitioner was one of the Directors of PrismHeights Company and she was directly involved in the affairs of the AT Group of Companies. The contentions raised by the learned counsel for the petitioner that the petitioner has not played any active role with regard to the collection of any amount from the public by AT Group of Companies is not acceptable in as much as it has come on record that the petitioner used to motivate the depositors to invest in AT Group of Companies for higher returns. The further contention of the learned counsel for the petitioner that she was neither the Director of AT Group of Companies nor connected in the alleged Chit-Fund Scam prima facie appears to be not correct as the materials on record indicate that the petitioner was frequently visiting Bhubaneswar to attend the meetings of the Directors of AT Group of Companies. There was money trailing from the accounts of AT Group of Companies to the personal 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 PrismHeights 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 PrismHeights 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 politicians, police officers, executives and other influential persons as a result of which innocent depositors were allured to invest their hard earned money with AT Group of Companies and the petitioner being a motivator has played crucial role in cheating the public and misappropriating more than a crore of rupees. After bestowing my anxious consideration to weigh and analyse the materials available on record with utmost care and caution, the nature of accusations, the punishment prescribed for the offences under which charge sheet has been submitted, prima facie availability of supporting materials to establish such accusations, the continuance of further investigation to unearth many vital links, role played by the petitioner in the entire episode, the impact of such economic offences on the society particularly on the common man who are poor, downtrodden, underprivileged and belong to the middle class families waiting with distraught tearful eyes and anguish to get back their investment in spite of setting up of Commission of Enquiry to probe multi-crore Chit-Fund Scam by the State Government since July, 2013 and creation of Corpus Fund for the protection of interest of the depositors, merely because the petitioner is a woman and merely because some of the co-accused persons have been released on bail, in the larger interests of public and State, I am not inclined to release the petitioner on bail at this stage. Accordingly, the bail application stands rejected.