The learned counsel for the petitioner has not disputed that the specimen voice of the petitioner was taken for comparison by the CBI. It is mentioned in the note of submission filed by the petitioner that when the CBI wanted the petitioner to give his voice specimen, the petitioner readily gave his voice specimen for comparison with that of the voice recorded in the purported audio CD. There is also no dispute that the Forensic Voice Examination Report of the Sr. Scientific Officer of Central Forensic Science Laboratory, CBI, New Delhi is admissible under section 293 Cr. P.C. Whether the CD that was sent for examination by the Superintendent of Police, CBI, Bhubaneswar to the Central Forensic Science Laboratory fulfills the guidelines expounded by the Hon'ble Supreme Court in case of Anvar P.V.-v- P.K. Basheer (supra) and Gujarat High Court in State of Gujarat -v- Shailndra Kamalkishore Pande (supra) and whether it is admissible or not and the effect of such evidence are all matters to be considered at the stage of trial by the trial Court and the trial Court will definitely keep in mind the ratio laid down in those decisions and other decisions on that point while appreciating the electronic record documentary evidence. At the time of consideration of the bail application, it is not at all necessary to ask the prosecution (CBI) to first satisfy the fulfillment of all the criteria laid down in case of Anvar P.V.-v- P.K. Basheer (supra) before taking into account the Forensic Voice Examination Report as well as transcription of the CD.
Equivalent Citation: 119(2015)CLT177, 2014(II)OLR941
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 18388 of 2014
Decided On: 20.10.2014
Pravata Kumar Tripathy Vs. Union of India (C.B.I.)
Hon'ble Judges/Coram:S.K. Sahoo, J.
"What light is to the eyes-what air is to the lungs-what love is to the heart, liberty is to the soul of man".
-Robert Green Ingersoll
1. The petitioner who is a sitting M.L.A. of Banki Assembly Constituency in the Odisha Legislative Assembly has approached this Court in an application under section 438 Cr. P.C. apprehending arrest in connection with CBI/SCB/KOL Case No. RC.47/S/2014-Kol. dated 5.6.2014 registered under sections 120-B, 294, 341, 406, 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 which arises out of Kharvelnagar P.S. Case No. 44 dated 7.2.2013.
As it appears the aforesaid Kharvelnagar P.S. Case No. 44 of 2013 was instituted on the First Information Report submitted by one Sri. Sukumar Panigrahi before the Inspector-in-charge, Kharvelnagar Police Station, Bhubaneswar on 7.2.2013 and the case was registered under sections 420, 120-B and 406 Indian Penal Code against 13 accused persons namely Pradeep Sethy, Manoj Pattnaik, Lakhia Sahoo, Satyabrat Padhi, P.K. Swain, Krushna Padhi, Sambit Lenka, Ashok Kar, Jhuma Chakrabarti, Partha Sarathi Mohapatra, Mrunmaya Sial, Jugajyoti Majhi and Abinash Pradhan.
It is the gist of the F.I.R. that the informant Sukumar Panigrahi deposited a sum of Rs. 18.00 lakhs in Arthatatwa Multipurpose Co-operative Society Ltd. (hereafter for short "ATMPCS") situated at SCR-29, Unit-III, Kharvelnagar, Bhubaneswar under monthly income plan of the said company phasewise by way of five cheques. The company returned rupees one lakh to the informant after much persuasion. The Company issued money receipts and monthly income plan bonds in favour of the informant authorizing him to receive 1% interest on the deposits monthly with understanding to give another 2% in the form of bonus i.e., total 3% on the deposits monthly. After the maturity period of one year, the bonds were to be surrendered and the principal amount would have to be paid back. The interest and the bonus were to be paid monthly till the maturity. It is the case of the informant that after paying interest for a few months, the company unilaterally stopped paying further interest on the plea of income tax raid and absence of Chief Managing Director Pradeep Kumar Sethy. Subsequently the Director of the company namely Pradeep Kumar Sethy and other important functionary Directors Manoj Pattnaik, Satyabrat Padhi, Lakhia Sahoo, P.K. Swain, Krushna Padhi, Sambit Lenka, Jhuma Chakrabarti, Jubajyoti Majhi and others absconded and the office of the company was closed. The informant was confirmed that the said company through its Chief Managing Director Pradeep Kumar Sethy and other Directors have cheated him dishonestly in deceitful manner and misappropriated Rs. 17 lakhs by fraudulent means.
During investigation of Kharvelnagar P.S. Case No. 44 of 2013, it revealed that a non-banking financial company under caption of "AT Group of Companies" with its headquarter at SCR-29, Unit-III, Kharvelnagar was running its business with its branch offices in various places in Odisha including Lewis Road, Bhubaneswar, Cuttack, Balasore, Baripada, Dhenkanal, Berhampur etc. and Mr. Pradeep Kumar Sethy was the President of the said Artha Tatwa Multi Co-operative Society Ltd., Artha Tatwa State Credit Co-operative Society. AT Group of Companies was also running its business through various Companies. The registration of the Artha Tatwa Multi Purpose Co-operative Society was granted on 3.11.2011 by the Asst. Registrar of Co-operative Societies, Bhubaneswar Circle, Bhubaneswar. Artha Tatwa Multi State Credit Co-operative Society Ltd. was formed in September 2011. It was also found out that the Company made wide propaganda, awareness programme, distributed leaflets, circulated brochures through agents to attract investors to deposit money in different schemes floated by the Company. The aforesaid two Co-operative Societies collected funds from the common people through various schemes. Pradeep Kumar Sethy, Chairman-cum-Managing Director of AT Group of Companies with his associates collected money by forming ATMPCS under the provisions of Orissa Co-operative Societies Act, 1962 (Orissa Act 2 of 1963) and used to enroll the depositors as members promising them to provide higher rate of interest on the deposits and since the schemes of AT Group were very attractive, the people in large number invested their money for better returns in comparison to other banks. After a few months, the Company unilaterally stopped paying interest to the depositors on the plea income tax raid and cheated the depositors by duping their hard earned money. On 10.7.2013 Inspector-in-charge, Kharvelnagar Police Station submitted preliminary charge sheet against accused persons namely Pradeep Kumar Sethy, Jagabandhu Panda, Sri. Krushna Padhi, Md. Hanif, Jhuma Chakrabarti and Munmaya Sial under sections 420, 406, 120-B Indian Penal Code read with sections 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978. The investigation was kept open for arresting the absconding accused persons namely Manranjan Nanda, Sambit Khuntia, Rahul Kanwal, Jyoti Prakash Jay Prakash, Chandrika Patnaik and others and for many other aspects of investigation like scrutiny of bank documents, verification of money trail, verification of genuineness of landed properties purchased by the Company from different persons, verification of legal status of the company and verification of land records etc..
While Kharavelnagar P.S. Case No. 44 of 2013 was under further investigation, writ petition seeking transfer of investigation from the State agencies to the Central Bureau of Investigation (CBI) was filed before the Hon'ble Supreme Court vide Writ Petition (Civil) No. 401 of 2013 and the case was decided on 9.5.2014 (Subrata Chattoraj -v- Union of India and others reported in MANU/SC/0453/2014 : (2014) 58 Orissa Criminal Reports (SC) 905). The relevant paragraphs are quoted herein below:-
"28. An affidavit has been filed by the State of Odisha pursuant to the said directions in which the F.I. Rs 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 and30. The factual narrative given in the foregoing paragraphs clearly establish the following:-
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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.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.
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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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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 brining 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."
2. As per the direction of the Hon'ble Supreme Court in Writ Petition (Civil) No. 401 of 2013 dated 9.5.2014, Superintendent of Police, CBI, SPE, SCB, Kolkata registered one F.I.R. vide CBI/SCB/KOL Case No. RC. 47/S/2014-KOL dated 5.6.2014 by treating all the original F.I. Rs (which were registered against the officials of Artha Tatwa Group of Companies at different Police Stations in Odisha State) as F.I.R. in the said case. The F.I.R. was registered under sections 120-B/294/341/406/409/420/467/
3. In spite of the order dated 9.5.2014 of the Hon'ble Supreme Court in Writ Petition (Civil) No. 401 of 2013 so also registration of F.I.R. in CBI/SCB/KOL Case NO. R.C. 47/S/2014-KOL dated 5.6.2014, the Investigating Officer in Kharvelnagar P.S. Case No. 44 of 2013 submitted second charge sheet on 21.6.2014 in continuation of the charge sheet submitted on 10.7.2013 for the offence under sections 420, 406, 120-B I.P.C. read with section 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 read with section 6 of Odisha Protection of Interests of Depositors (In Financial Establishments) Act, 2011 against Pradeep Kumar Sethy, Jagabandhu Panda, Srikrushna Padhi, Md. Hanif, Jhuma Chakrabarti, Munmaya Sial, Manoj Kumar Patnaik and Artha Tatwa Infra India Ltd. (ATIIL), Artha Tatwa Enterprises Pvt. Ltd. (ATEPL), Artha Tatwa Multi Purpose Co-operative Society Ltd. (ATMPCSL) and Artha Tatwa Multi State Credit Co-operative Society Ltd.(ATMSCCS) represented by MD/President Promod Kumar Sethy keeping the investigation open under section 173(8) Cr. P.C.
4. While the matter stood thus, CBI conducted three raids simultaneously in the residence of the petitioner at Cuttack, residence-cum-party office at Banki and his official quarters at Bhubaneswar on 16.8.2014 at different times in pursuance to the search warrant issued by learned Special C.J.M. (CBI), Bhubaneswar in connection with CBI Case No. RC. 47/S/2014-SCB/Kol. Some documents were seized in course of such search but the most relevant documents so far as this case is concerned is one file named as A-TATWA containing a bunch of miscellaneous documents/papers pertaining to Artha Tatwa (153 sheets) seized from the bed room of the petitioner in the official quarters at Bhubaneswar in absence of the petitioner and his family members.
Apprehending his arrest after the raid, the petitioner filed this anticipatory bail application on 10.9.2014. After filing of the anticipatory bail application, it is the case of the petitioner that on 16.9.2014 he was called to CBI office at Bhubaneswar over telephone without any service of notice or summons around 3.10 p.m. and he was directed to report within one hour. In compliance to the telephone call, the petitioner stated to have presented himself at the CBI office on the very day at around 4.30 p.m. and he was asked to wait for about six hours and around 9/9.30 p.m. he was asked some questions and thereafter allowed to go around 10.30 p.m. It is the further case of the petitioner that while coming out from the CBI office, he was hounded by the representatives of the visual media and no safety measures were taken by the CBI officials in and around the office of the CBI to provide protection to the petitioner. According to the petitioner not only his individual liberty and freedom have been violated but also the sacrosanct constitutional right guaranteed under Article 21 of the Constitution of India has been fragrantly infringed by the action of the CBI.
After filing of the bail application on 10.9.2014, the petitioner filed an Addl. Affidavit on 21.9.2014 highlighting, inter alia, his interrogation on 16.9.2014.
5. The matter was heard by this Court on 29.09.2014 and the following order was passed on 30.09.2014, relevant portion of which is extracted herein below:-
"30.9.2014.
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In course of hearing at the outset as regards the materials available so far against this petitioner, when learned counsel submitted that the prosecution is also more importantly placing reliance on the audio C.D. said to be containing the conversation of this petitioner with the principal accused Pradeep Kumar Sethy, the learned counsel for the CBI also contended that the same is one of the important materials. He further submitted that on 16.9.2014 when the petitioner pursuant to the call appeared in the office of the CBI, he was interrogated on that score and upon his denial that the audio C.D. did not contain his voice as regards the conversation and when he volunteered to render his specimen voice for comparison, the same has been so recorded.
Perusal of the case diary reveals that on 16.9.2014 after such denial by the petitioner and upon his volunteering to render his specimen voice, necessary arrangement having been done, the specimen voice of the petitioner has been recorded and required memorandum to that effect has also been prepared.
Learned counsel for the petitioner next submitted that it is a plot hatched out at the behest of some of the arch rivals of the petitioner for obvious reason to defame and humiliate him and to ruin his future career when also as yet no such materials have surfaced regarding parking/collection of money from that company and on verification of the petitioner's bank accounts etc., those have been released.
Learned counsel for the CBI in this light has record to the statement of principal accused besides one such statement of the witness that this petitioner was showing his anxiety for early completion of process of registration of a Cooperative Society under the banner of that company.
In the aforesaid state of affair the learned counsel for the CBI is directed to cause production of the authenticated voice identification report on the next date of listing, for the final hearing and disposal of this petition in the matter of consideration of grant of pre-arrest bail in accordance with law.
Taking into account, the submission as advanced and in view of the aforesaid, as an interim measure, it is directed that the petitioner shall not be arrested in the above case till 13.10.2014 subject to the adherence of the following conditions:-
i) that he shall make himself available for interrogation by the Investigating Agency as and when required and shall appear before them as and when called for;
ii) that he shall give prior intimation to the Investigating Agency in case of his leaving the State of Odisha, in case necessity so arises and shall give his contact address during the period;
iii) that he shall surrender his passport before the Investigating Agency in their office by tomorrow (01.10.2014);
iv) That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing any such facts;
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6. On 14.10.2014 the learned counsel for the CBI Mr. V. Narasingh produced the Forensic Voice Examination Report dated 9.10.2014 of the Central Forensic Science Laboratory, CBI, New Delhi in compliance to the order dated 30.9.2014.
The learned counsel for the petitioner filed further affidavit of the petitioner indicating therein that the petitioner in strict obedience to the order dated 30.9.2014 surrendered his passport before the Investigating Agency on being personally present on 1.10.2014. It was further indicated in the affidavit that in spite of the readiness of the petitioner to co-operate with investigation, the petitioner was never called by the CBI/Investigating Agency for interrogation after the order dated 30.9.2014. It was further indicated that the petitioner had neither left the State of Odisha nor flouted any terms and conditions those were imposed on him vide order dated 30.9.2014.
7. The learned counsel for the petitioner Mr. Pitambar Acharya, Sr. Advocate vehemently urged in his unique style that the petitioner has been elected to the Odisha State Legislative Assembly in the General Assembly Elections held in 1995, 2004, 2009 and 2014 from Banki Assembly Constituency and he has no criminal antecedent. He was also the Government Chief Whip of the ruling party and belongs to Biju Janata Dal (BJD). It was further contended that being envious of the popularity of the petitioner as a Peoples' representative, the political opponents of the petitioner have started maligning him in the esteem of the public by hatching a conspiracy against him and several defamatory statements/remarks were made against the petitioner in both print and electronic media by the political opponents of the petitioner making allegations of his link with Artha Tatwa. It is vehemently urged that the petitioner has neither any connection nor link nor association with Artha Tatwa and the media reports making scandalous allegations against him are without any basis and substance. It is further contended that no incriminating materials have been found during the raids conducted by the CBI officials on 16.8.2014 and the raids have been made purely on political consideration and the petitioner has been made victim of the situation. The learned counsel further submitted that even though there is no prima facie material against the petitioners but his apprehension of being arrest is genuine and based on reasonable belief and he apprehends that he will be harassed and humiliated by the CBI in the garb of interrogation. The learned counsel further submitted that the petitioner has no objection to co-operate with the Investigating Agency and to render all possible assistance to unravel the truth and in fact he appeared before the CBI officials on 16.9.2014 just on a receipt of a telephone call at the CBI office, Bhubaneswar and the petitioner being a respectable person and Peoples' representative and being a permanent resident of Cuttack, there is no chance of absconding. It is further contended that the petitioner has complied all the terms and conditions those were imposed on him by this Court vide order dated 30.9.2014 like surrendering his passport before the Investigating Agency on being personally present on 1.10.2014 and in not leaving the State of Odisha in the meantime which clearly shows that the petitioner is a law abiding citizen and he has due respect to the orders of the Court. He further submitted that all the bank accounts of the petitioner and one account of cultural body (Banki Mahosthov) were seized and since no incriminating materials were found out, those documents have been released by the C.B.I. The learned counsel emphasized the modus operandi of the CBI and submitted that the past conduct of the Investigating Agency gives reason to believe that the petitioner may be arrested in connection with some false accusations and as such he should be granted pre-arrest bail.
The learned counsel for the CBI Mr. V. Narasingh on the other hand submitted that the Hon'ble Supreme Court has categorically indicated in the judgment dated 9.5.2014 that the money trail has not yet been traced so also the larger conspiracy angle has not been made much headway because of the inter-state ramifications which the Investigating Agencies need to examine but were handicapped in examining. He further submitted that the investigation by the CBI is at a nascent stage and many important aspects are to be found out. It is contended that though the petitioner appeared before the CBI on 16.9.2014 but on being confronted with the audio CD purported to contain the conversation between the petitioner and the principal accused Pradeep Kumar Sethy, the petitioner denied that the audio CD contained his voice and he volunteered to render his specimen voice for comparison and accordingly necessary arrangement was made to have his voice identification. He further submitted that the voice identification report clearly indicates that the voice in the audio CD to be that of the petitioner and such report along with the transcription of the voice CD clearly points out prima facie complicity of the petitioner in the crime. He further submitted that the interrogation report of the principal accused Pradeep Kumar Sethy points out the involvement of the petitioner which need to be investigated further in the light of the direction of the Apex Court regarding "Money trail" and "larger conspiracy". He further contended that the accused persons who were neither named nor charge sheeted in Kharavelnagar P.S. 44 of 2013 and who were not the office bearers of Artha Tatwa Group of Companies namely Bikash Swain, Manoj Kumar Das, Madhusudan Mohanty, Deepak Parekh, Dharmendra Bothra and Miss Preeti Bhatia against whom allegations of similar nature have surfaced have been taken into custody. He further contends that since it is an economic offence and innocent gullible investors were hoodwinked of their life savings and the investigation by the CBI is at a nascent stage, if the petitioner who is a sitting MLA of the ruling party is insulated/ensconced by an order of the anticipatory bail then it would be difficult for the CBI to unearth "money trail" and "larger conspiracy angle" and ongoing investigation would be derailed. He further contended that the materials so far collected by the CBI establishes the prima facie involvement of the petitioner in the crime therefore the petitioner should not be granted anticipatory bail.
8. So far as the factual aspects are concerned, it is not disputed by the parties that Kharvelnagar P.S. Case No. 44 of 2013 dated 7.2.2013 was not registered against the petitioner. The preliminary charge sheet dated 10.7.2013 and the second charge sheet dated 21.6.2014 have not been submitted against the petitioner. It is also not disputed that the CBI Case No. RC.47/S/2014-SCB/Kol. dated 5.6.2014 has also not been registered against the petitioner. The learned counsel for the CBI Mr. V. Narasingh with all fairness submitted that the materials collected by the IIC, Kharvelnagar Police Station during investigation in Kharvelnagar P.S. Case 44 of 2013 do not implicate the petitioner in the commission of the offences. However he submitted that after the CBI took over investigation, the interrogation report of the main accused Pradeep Kumar Sethy, the Forensic Voice Examination Report coupled with the transcription of the voice CD, seizure of a file named as A-TATWA containing 153 sheets of documents seized on 16.8.2014 from the official quarters of the petitioner at Bhubaneswar and the statement of ARCS, BBSR Circle prima facie establishes the involvement of the petitioner.
9. Now the question is whether in such a situation, the anticipatory bail is to be granted in favour of the petitioner.
In Gurbaksh Singh -v- State of Punjab reported in MANU/SC/0215/1980 : AIR 1980 Supreme Court Cases 1632, it was held as follows:-
"21.
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To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case"
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22. By proposition No. 1 the High Court says that the power conferred by section 438 is "of an extraordinary character and must be exercised sparingly in exceptional cases only". It may perhaps be right to describe the power as of an extraordinary character because ordinarily the bail is applied for under section 437 or section 439 Cr. P.C. These sections deal with power to grant or refuse bail to a person who is in the custody of the police and that is the ordinary situation in which the bail is applied for. But this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. We will really be saying once too often that all discretion has to be exercised with care and circumspection, depending on circumstances justifying its exercise. It is unnecessary to travel beyond it and subject the wide power conferred by the legislature to a rigorous code of self-imposed limitations".
10. Section 438(1) Cr. P.C. lays down a condition which has to be satisfied before grant of anticipatory bail and such condition is that the applicant has "reason to believe" that he may be arrested on accusation of having committed a non-bailable offence. Such belief must be founded on reasonable grounds and not mere "fear" or "vague apprehension"
In view of the materials collected by the CBI as pointed out by the learned counsel for the CBI during course of argument, the three raids conducted by the CBI on 16.8.2014 and the arrest of number of persons by the CBI who were neither named nor charge sheeted in Kharvelnagar P.S. Case No. 44 of 2013, it can be said that the petitioner has every reason to believe that he might be arrested in connection with CBI/SCB/KOL Case No. RC.47/S/2014-Kol and his belief is founded on reasonable grounds and not mere "fear" or "vague apprehension".
11. There is no dispute that the case relates to commission of economic offences.
In case of Y.S. Jagan Mohan Reddy -v- CBI reported in MANU/SC/0487/2013 : (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 Jitamal Torwal reported in MANU/SC/0288/1987 : AIR 1987 SC 1321, it is held as follows:-
"5.
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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 State -v- Radhakrishnan reported in 2003(1) Current Tamil Nadu Cases 530, Hon'ble Justice C. Nagappan has held as follows:-
"21. The larger interest of the public and State demand that in economic offences the discretion to grant anticipatory bail under section 438 of Criminal Procedure Code should be exercised with utmost care and caution"
12. Now keeping these ratio in forefront of view, let us analyse the materials available on record against the petitioner.
The interrogation report of the principal accused Pradeep Kumar Sethy by the Inspector, CBI, SCB, SIT, Kolkata dated 3.9.2014 which was submitted by the learned counsel for the CBI in a sealed cover, on perusal reveals prima facie link between the petitioner with the main accused and also enlightens regarding "money trail' which was the prima facie consideration of the Hon'ble Supreme Court to be unearthed in this case. It would not be proper to discuss in detail about such interrogation report of the co-accused at this stage particularly when the investigation is at nascent stage.
The learned counsel for the petitioner placing reliance in case of Jayendra Saraswathi Swamigal -v- State of Tamil Nadu reported in MANU/SC/0017/2005 : AIR 2005 SC 716, submitted that the confession of a co-accused is a very weak type of evidence in view of section 30 of Evidence Act and it is not evidence in the ordinary sense of the term as defined in section 3 of Evidence Act. He further submits that the Court cannot start with the confession of a co-accused person but it must begin with other evidence adduced by the prosecution and after the Court has formed its opinion with regard to the quality and effect of the said evidence then only it would be permissible to turn to the confession in order to receive assurance to the conclusion. He further submits that in view of section 10 of the Evidence Act, there should first be a prima facie evidence that the person was a party to the conspiracy before the acts or statements can be used against his co-conspirators. Learned counsel highlighted that since such a statement is alleged to have been made by the main accused Pradeep Kumar Sethy long after his arrest, no reliance can be placed on the same.
Learned counsel for the CBI Mr. V. Narasingh on the other hand places reliance in the case of Kalyan Chandra Sarkar-v-Rajesh Ranjan @ Pappu Yadev reported in MANU/SC/0214/2004 : (2004) 7 Supreme Court Cases 528, wherein it is held as follows:-
"19. The next argument of the learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy........The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence.......Be that as it may, we think that this argument is too pre-mature for us to accept. The admissibility or otherwise of the confessional statement and effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial".
In case of State of U.P. -v- Amarmani Tripathi reported in MANU/SC/0677/2005 : (2005) 8 Supreme Court Cases 21, it is held as follows:-
"22. The contentions of the respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that that should be excluded from consideration, for the purpose of bail is untenable."
In case of Muraleedharan -v- State of Kerala reported in MANU/SC/0269/2001 : AIR 2001 SC 1699, it is held as follows:-
"4. According to the Sessions Judge "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused." He also observed that "I do not think any prejudice will be caused to the prosecution in the event of granting him anticipatory bail especially when the petitioner has not so far been arrayed as an accused in the case."
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"7.... We express our reprobation at the supercilious manner in which the Sessions Judge decided to think that "no material could be collected by the investigating agency to connect the petitioner with the crime except the confessional statement of the co-accused. Such a wayward thinking emanating from a Sessions Judge deserves judicial condemnation. No Court can afford to presume that the investigating agency would fail to trace out more materials to prove the accusation against the accused. We are at a loss to understand what would have prompted the Sessions Judge to conclude, at this early stage, that the investigating agency would not be able to collect any material to connect the appellant with the crime. The order of the Sessions Judge, blessing the appellant with a pre-arrest bail order, would have remained as a bugbear of how the discretion conferred on Sessions Judges under section 438 of the Cr. P.C. would have been misused."
In view of the law laid down by the Hon'ble Supreme Court, it cannot be said that the statement/confession of the co-accused cannot be looked into at all by the Court while adjudicating a bail matter. Of course the Court has to look into the other materials available on record to see that whether in the context of the case, the co-accused statement gets some support from other evidence or not. Even if there are no other materials except the co-accused statement at the time of consideration of the bail application, in some cases that may not be itself a ground to grant either anticipatory bail or regular bail. For example, in a case of dacoity where the case used to be registered against unknown persons and after one of the accused is arrested, his statement sometimes give clue to the Investigating Officer to nab the other accused persons. At that stage, obviously there would be neither any evidence like recovery and identification by the witnesses against the other accused persons. Such materials will only come after the arrest of the accused on the basis of such co-accused statement. The accused may give recovery of the stolen articles and he may also be identified in the test identification parade. Thus if the contention that "the co-accused statement is inadmissible and that should not be taken into consideration" is accepted then in almost every case of dacoity or offence of similar nature, the accused will be released either on anticipatory bail or regular bail. But that should not be. The reason is that the custodial interrogation of the accused may be necessary for the Investigating Agency to unearth the link between such accused and the crime. The type of co-accused statement, the person who has recorded such statement, the type of involvement of the other accused persons as borne out from such statement, the connecting links which are likely to be established after the arrest of the accused and above all the other materials which are likely to be collected after custodial interrogation are all to be considered in the context of the facts and circumstances of a particular case by the Court while adjudicating a bail matter. In other words, no straight jacket formula can be formulated to say that in no case while considering an application for bail of a person, the Court cannot even look into the co-accused statement at all. Accordingly the contention of the learned counsel for the petitioner that the interrogation report of the main accused Pradeep Kumar Sethy should not be considered while adjudicating the bail application of the petitioner is untenable.
13. So far as the Forensic Voice Examination Report and the transcription of the voice CD which were submitted by the learned counsel for the CBI during course of investigation indicate that the voice in the compact disc is the probable voice of the petitioner whose specimen voice was taken for comparison.
The learned counsel for the petitioner submitted that even if for the sake of argument it is taken that there was conversation between the petitioner and the main accused but it was just a request of the petitioner to the main accused to finance some amount for the cultural festival "Banki Mahostov" and it is not for any personal gain and when no documentary evidence has been found out by the investigating agency to show that any money has come to the account of the petitioner from Artha Tatwa Organisation at any point of time, it cannot be said that the ingredients of the offences under which the case has been registered is prima facie made out against the petitioner. He emphasized that the bank accounts of the petitioner and accounts of "Banki Mahostov" were seized and since no incriminating materials were found out, those documents were released.
The learned counsel for the petitioner further submitted that when the CBI wanted the petitioner to give his voice specimen, the petitioner readily gave his voice specimen, for comparison with that of the voice recorded in the purported audio CD.
The learned counsel for the petitioner refuted the genuineness and authenticity of the conversation in the audio CD and submitted that no evidentiary value can be attached to the audio CD and thereby the Forensic Voice Examination Report and the transcription of the CD which have been submitted by the learned counsel for the CBI should not be given any importance at all while adjudicating this bail application.
The learned counsel for the petitioner placed reliance on an unreported recent decision of the Hon'ble Supreme Court dated 18.9.2014 passed in Civil Appeal No. 4226 of 2012 (Anvar P.V. -v- P.K. Basheer) wherein it is held as follows:-
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under Sub-Section 2 are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of four conditions under section 65 B(2).
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14. Under section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceeding pertaining to an electronic record, it is permissible provided that the following conditions are satisfied:-
(a) There must be a certificate which identifies the electronic record containing the statement;15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and believe. Most importantly, such a certificate must accompany the electronic record like computer print out, Compact Disc (CD), Video Compact Disc (VCD), Pen drive etc, pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision etc. without such safe guards the whole trial based on proof of electronic records can lead to travesty of justice.
(b) The certificate must describe the manner in which the electronic record was produced;
(C) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under section 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. Only if the electronic record is duly produced in terms of section 65B of the Evidence Act, the question would arise as to the genuineness thereof and in that situation, resort can be made to section 45A-opinion of examiner of electronic evidence.
17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under section 65B of the Evidence Act are not complied with, as the law now stands in India."
The learned counsel for the petitioner further placed reliance in case of State of Gujurat -v- Shailendra Kamalkishor Pande reported in MANU/GJ/7518/2007 : 2008 Criminal Law Journals 953, wherein it is held as follows:-
"7.2 CD itself is primary and direct evidence admissible as to what has been said and picked up by the recorder. A previous statement made by a witness and recorded on tape can be used not only to corroborate the evidence given by the witness in the Court but also to contradict the evidence given before the Court as well as to test the veracity of the witness and also to impeach his impartiality.
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7.4 The weight to be given such evidence is however distinct and separate from the question of its admissibility. Assuming for the moment that the trial Court admits some evidence contrary to the rules of evidence or the provisions of the Evidence Act by merely exhibiting the same or by merely admitting the same, no final conclusion is drawn or decision is taken on such evidence. The defence is ultimately obliged to establish by cogent evidence as regards the genuineness of the CD, as to how the CD was prepared, by examining the person who prepared the CD and who authenticates the same as regards the true nature of the same.
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8. I also refer to the judgment of the Hon'ble Supreme Court in the case of Ram Singh -v-Col. Ramsingh reported MANU/SC/0176/1985 : AIR 1986 SC 3 particularly paragraph 32 on page 11 where the Hon'ble Apex court has laid down the principles regarding admissibility of a tape recorded statement. Paragraph 32 of the judgment reads as under:-
"Para-32. So far as this Court is concerned, the conditions for admissibility of a tape recorded statement may be stated as follows:-
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker, it will require very strict proof to determine whether or not it was really the voice of the speaker.The Court will also consider the aforesaid principles while considering the authenticity of the CD in this behalf."
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(4) The statement must be relevant according to rule of the Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by sounds or disturbances"
Considering the rival submissions, it is found that the learned counsel for the CBI on the other hand submitted that the question of admissibility or otherwise of the CD, Forensic Voice Examination Report and transcription of the CD are not to be assessed at this stage while considering the application for anticipatory bail particularly when the investigation is under progress.
The learned counsel for the petitioner has not disputed that the specimen voice of the petitioner was taken for comparison by the CBI. It is mentioned in the note of submission filed by the petitioner that when the CBI wanted the petitioner to give his voice specimen, the petitioner readily gave his voice specimen for comparison with that of the voice recorded in the purported audio CD. There is also no dispute that the Forensic Voice Examination Report of the Sr. Scientific Officer of Central Forensic Science Laboratory, CBI, New Delhi is admissible under section 293 Cr. P.C. Whether the CD that was sent for examination by the Superintendent of Police, CBI, Bhubaneswar to the Central Forensic Science Laboratory fulfills the guidelines expounded by the Hon'ble Supreme Court in case of Anvar P.V.-v- P.K. Basheer (supra) and Gujarat High Court in State of Gujarat -v- Shailndra Kamalkishore Pande (supra) and whether it is admissible or not and the effect of such evidence are all matters to be considered at the stage of trial by the trial Court and the trial Court will definitely keep in mind the ratio laid down in those decisions and other decisions on that point while appreciating the electronic record documentary evidence. At the time of consideration of the bail application, it is not at all necessary to ask the prosecution (CBI) to first satisfy the fulfillment of all the criteria laid down in case of Anvar P.V.-v- P.K. Basheer (supra) before taking into account the Forensic Voice Examination Report as well as transcription of the CD.
On perusal of the transcription of the CD, it is noticed that the contention of the learned counsel for the petitioner that the petitioner only asked the main accused Pradeep Kumar Sethy to do something for "Banki Mahotsav" is not correct. It contains something more which also establishes prima facie close link between the petitioner and the main accused and also Artha Tatwa.
The details of the transcription cannot be discussed at this stage since the investigation is under progress.
14. The learned counsel for the CBI also placed reliance on statement of one of witnesses which indicates that the petitioner was showing anxiety for early completion of process of registration of a Co-operative society under the banner of the Company of the main accused and in that respect the petitioner had made telephonic call to such witness to speed up the process of registration. The statement of the said witness further indicates that on being so pressurized by the petitioner, the strict compliance of the registration procedure was not followed.
Similarly the documents which were seized from the official quarters of the petitioner at Bhubaneswar which are 153 sheets contained inside a file name A-TATWA relates to Artha Tatwa. Whether those documents were meant for Assembly questions as submitted by the petitioner would only be assessed at the stage of trial.
15. The learned counsel for the petitioner submitted that the petitioner not only presented himself before the CBI officials for interrogation on 16.9.2014 but also co-operated with the Investigating Officer. He further contended that in terms of the order dated 30.9.2014 though the petitioner was available for interrogation by the Investigating Agency as and when required but he was never called by the CBI/Investigating Agency for interrogation even though more than two weeks have passed since the date of interim order with conditions. He further submitted that the petitioner is ready and willing to co-operate with the Investigating Agency and he is also ready for interrogation in future by the Investigating Agency and therefore there would be no justification not to grant anticipatory bail to the petitioner.
The learned counsel for the CBI on the other hand submitted that once the petitioner is insulated/ensconced by an order of anticipatory bail at the nascent stage of investigation, the interrogation which would be conducted thereafter by the CBI to unearth the "money trail" and "larger conspiracy angle" would be just a mere ritual and the petitioner will not answer the questions likely to be put forth to him particularly when his past conduct during interrogation held on 16.9.2014 giving evasive replies confirms the same. He further contended that the Forensic Voice Examination Report dated 9.10.2014 was received by the Investigating Officer recently for which the petitioner could not be called earlier for further interrogation after the order dated 30.9.2014.
The learned counsel for the CBI placed reliance in case of Enforcement Officer -v- Bher Chand Tikaji Bora reported in MANU/SC/0970/1999 : (1999) 5 Supreme Court Cases 720, wherein it is held as follows:-
"2......From a bare reading of the impugned order, it appears that the learned Single Judge is of the view that because the respondent was available for interrogation and the prosecution did not avail of that opportunity, there should not be any justification for not granting the anticipatory bail sought for. We have no hesitation to hold that the learned Judge has misread the decision of this Court referred to in the impugned order. The criteria and questions to be considered for exercising power under Section 438 of Cr. P.C. has been recently dealt with in Dukhishyam Benupani, Asst. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria. The white-collar criminal like the respondent against whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiction under Section 438 Cr. P.C. and granting anticipatory bail."
The learned counsel for the CBI further placed reliance in the case of State rep. by the CBI -v- Anil Sharma reported in MANU/SC/0947/1997 : (1997) 7 Supreme Court Cases 187, wherein it is held as follows:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders."
The learned counsel for the CBI also placed reliance in case of Dukhishyam Benupani -v- Arun Kumar Bajoria reported in MANU/SC/0872/1998 : (1998) 1 Supreme Court Cases 52, wherein it is held as follows:-
"6. Learned counsel for the respondent defended both orders on the premises that the respondent presented himself for being interrogated on many days subsequent to the High Court order and nothing incriminating was elicited from him so far and that the respondent is a sick person entitled to a pre-arrest bail order.
7..... It is not the function of the Court to monitor investigation process so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timing and the questions and the manner putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual."
The learned counsel for the petitioner while placed reliance in the case of Mrs. N. Ratnakumari -v- State of Orissa reported in MANU/OR/0233/2014 : (2014) 58 Orissa Criminal Report 1050 submitted that the existence of power of arrest is one thing but the justification for such exercise is quite another. Arresting officer must be able to justify the arrest apart from his power to do so. Arrest and detention of a person cannot be made in a casual or routine manner on the mere allegation of commission of offence.
The learned counsel for the petitioner further placed reliance in the case of Arnesh Kumar v- State of Bihar reported in MANU/SC/0559/2014 : 2014(58) Orissa Criminal Reports (SC) 999, wherein it was held that the police officer before arrest must put a question to himself, why arrest and whether it is really required and what purpose it would serve and what object it would achieve and only after these questions are addressed, the power of arrest need to be exercised.
In case of Parvinderjit Singh -v- State reported MANU/SC/4724/2008 : AIR 2009 Supreme Court 502, it is held as follows:-
"17. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of the interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence."
16. Law is well settled that power exercisable under section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. Article 21 of the constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Procedure must be fair and not formal and it should be reasonable, not vagarious, vague and arbitrary. When the police is exercising his statutory power of arrest, it should be done in a fair manner in as much as nobody has right to play with the liberty of a person and if the exercise is arbitrary in nature then it violates fundamental rights guaranteed under Article 14 of the Constitution of India. No doubt, it is often said that bail is the rule and committal to jail is an exception and refusal of bail is restriction on the personal liberty of the individual guaranteed under Article 14 of the Constitution of India.
In case of Sumit Mehta -v- State of N.C.T. of Delhi Reported MANU/SC/0935/2013 : (2013) 56 Orissa Criminal Reports 748, it is held as follows:-
"12. While exercising power under section 438 of the Code, the Court is duty bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police.
13. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.
14. While granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested."
The larger interest of public and State demand that in economic offences, the discretion to grant anticipatory bail under section 438 Cr. P.C. should be exercised with utmost care and caution in as much as discretionary relief of anticipatory bail in such cases may hamper the proper and effective investigation. Demand of individual liberty has to be matched with larger interest of public and State.
17. The materials so far collected by the CBI which were placed by the learned counsel for the CBI either during argument or by producing documents in sealed covers clearly raises the "pointing finger of accusation against the petitioner". The charges in this case are very serious and relates to commission of economic offences. Accused persons in this case have taken advantage of the depositors' quest to make quick and easy money and ultimately deprived them of their hard-earned money. The interrogation report of the main accused, the Forensic Voice Examination Report, the transcription of CD, the statement of the Co-operative Society Registering authority as well as the seizure of 153 sheets of documents of Artha Tatwa from the bed room of the official quarters of the petitioner at Bhubaneswar prima facie establishes link of the petitioner in the crime. Without entering into a detailed examination of evidence at this stage but on a brief examination of the materials, I find prima facie case is available against the petitioner. The "money trailing" has not yet been traced by the CBI to the fullest extent. The "larger conspiracy angle" is yet to be unearthed. In such a situation, if the petitioner who is a political and influential person is released on anticipatory bail then there cannot be any effective interrogation and the petitioner being well ensconced with a favourable order of pre-arrest bail is likely to conceal many useful informations and materials as apprehended by the CBI. The considerations which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as an application to release on bail after arrest. The apprehension expressed by the CBI that if anticipatory bail order is granted in favour of the petitioner, it would create an obstacle for finding out the "money trail" and "larger conspiracy angle" appears to be quite reasonable particularly considering the high position of the petitioner.
Liberty may be endangered by the abuse of liberty, but also by the abuse of power.
-James Madison
Accordingly, after bestowing my anxious consideration and considering the nature and gravity of the charge with utmost care and caution, I am not inclined to exercise the discretionary power under section 438 of the Code by granting pre-arrest bail to the petitioner. The anticipatory bail application is therefore rejected.
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