make successive applications for grant of bail but successive bail
applications are permissible under the changed circumstances.
The change of circumstances must be substantial one which has
a direct impact on the earlier decision and not merely cosmetic
changes which are of little or no consequence. Without the
change in the circumstances, the subsequent bail application
would be deemed to be seeking review of the earlier rejection
order which is not permissible under criminal law. While
entertaining such subsequent bail applications, the Court has a
duty to consider the reasons and grounds on which the earlier
bail applications were rejected and what are the fresh grounds
which persuade it warranting the evaluation and consideration of
the bail application afresh and to take a view different from the
one taken in the earlier applications. There must be change in
the fact situation or in law which requires the earlier view being
interfered with or where the earlier finding has become obsolete.
This is the limited area in which the application for bail of an
accused that has been rejected earlier can be reconsidered.
IN THE HIGH COURT OF ORISSA, CUTTACK
BLAPL NO. 854 Of 2015
An application under section 439 of the Code of Criminal
Procedure, 1973.
Deepak Gupta
V
State of Orissa (Vig.) ……
P R E S E N T:-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
Date of order- 28.03.2016
Citation:2016 ALLMR(CRI)JOURNAL482
S. K. SAHOO, J. This is the third successive bail application of the
petitioner Deepak Gupta under section 439 of the Code of
Criminal Procedure, 1973 in connection with Balasore Vigilance
P.S. Case No. 30 of 2013 corresponding to V.G.R. Case No.5 of 2
2013 pending in the Court of learned Special Judge (Vigilance),
Keonjhar.
The petitioner was taken into custody on 5.9.2013
and first charge sheet was submitted on 31.12.2013 under
section 13(2) read with section 13(1) (c) (d) of the Prevention of
Corruption Act, 1988 and sections 120-B, 409, 379, 420, 468
and 411 of the Indian Penal Code against 25 accused persons
including the petitioner. The further investigation was kept open
under section 173 (8) of Cr.P.C. On the basis of first charge
sheet dated 31.12.2013, on 2.1.2014 the learned Special Judge
(Vigilance), Keonjhar took cognizance of the offences under
sections 409, 379, 420, 468, 411 read with section 120-B of the
Indian Penal Code and section 13(2) read with section 13(1) (c)
(d) of the Prevention of Corruption Act, 1988.
Even though at the time of moving the first bail
application of the petitioner i.e., BLAPL No.25588 of 2013,
contentions were raised regarding submission of charge sheet
and release of the co-accused i.e. one of the erstwhile lessees on
bail but the bail application was rejected on 29.01.2014 by
Hon’ble Mr. Justice D. Dash on the following grounds:-
“11. Considering the nature of offence, its
magnitude and ramification as alleged, materials
available on record, and keeping in mind the
principle of law laid down by the Hon’ble Apex
Court and in the light of discussions made 3
above, I am not inclined to accept the prayer for
bail of the petitioner.
The BLAPL is dismissed.”
On 24.6.2014 supplementary/final charge sheet was
submitted against four more accused persons under section
13(2) read with section 13(1) (c) (d) of the Prevention and
Corruption Act and sections 420, 379, 468, 409, 411 read with
section 120-B of the Indian Penal Code.
The second bail application of the petitioner i.e.,
BLAPL No.7277 of 2014 was moved, inter alia, on the ground
that the petitioner was not concerned with any forgery or
criminal breach of trust or cheating of any kind and was not in
conspiracy with anyone. Further grounds were taken that the
petitioner on good faith accepted the words of B.K. Mohanty that
the renewal is to be granted as a matter of course and
accordingly started the mining operation. Reliance was placed by
the petitioner in the case of Sanjay Chandra -Vrs.- C.B.I.
reported in (2012) 51 Orissa Criminal Reports (SC) 128
and contentions were raised that in view of number of witnesses
and voluminous documents, the culmination of the trial cannot
be expected at an earliest. The bail application was rejected on
14.11.2014 by Hon’ble Mr. Justice D. Dash on the following
grounds:-4
“7. In view of aforesaid, considering the nature
of offence, its magnitude as it reveals from the
records placed as well as its ramification, the
period of detention of the petitioner in custody in
my considered view cannot be taken as the
change of circumstance. Moreover, in this case
the scope of this petitioner resorting to
abscondance and avoiding the process of law
clearly stands. In the facts and circumstances of
the case and the progress as going on, the
release of this petitioner on bail is likely to cause
further delay in getting the case ripened for trial
when also the likelihood of tampering of
evidence at this stage is not altogether ruled
out.
Therefore, regard being had to the law laid
down and the facts and submissions, more
particularly the nature of accusations,
seriousness of the offences, the role of this
petitioner and also the quantum of punishment,
I am not inclined to release the petitioner on bail
and as such the prayer for bail stands rejected.
The BLAPL is accordingly disposed of.”
The petitioner filed the present bail application
(BLAPL No.854 of 2015) before this Court on 12.2.2015 and
while the matter was pending before this Court, the petitioner
approached the Hon’ble Supreme Court of India against the
rejection of the second bail application in BLAPL No.7277 of 2014
vide order dated 14.11.2014 in Special Leave to Appeal
(Criminal) CRLMP No.237 of 2016 which was disposed of on
15.1.2016 with the following order:-5
“ Delay condoned.
The instant petition is disposed of, with a
request to the High Court to dispose of the
application for bail filed by the petitioner, which
we are informed has been pending for about one
year.
We hope and expect the High Court to
dispose of the bail application, within one month
of the submission of a certified copy of this order
to the High Court.
We make it clear, that we may not be
taken as have expressed any opinion on the
merits of the case, one way or the other.”
After the order of the Hon’ble Supreme Court, this
bail application was listed before Hon’ble Mr. Justice D. Dash on
10.2.2016 and on that day, His Lordship passed the following
order:-
“7. 10.2.2016. The matter is placed having
been listed in today’s supplementary list.
Mr. Ashok Mohanty, learned Senior
Counsel appeared on behalf of the petitioner and
Mr. S.K. Padhi, learned Senior Counsel appeared
on behalf of the opposite party. Both of them
submitted that the matter be taken up on
16.02.2016, so that they will advance their rival
submissions.
On earlier two occasion, this matter for
consideration of bail of the petitioner had come
before me and have accordingly been disposed
of.
In view of the above, it may be considered
by Hon’ble the Chief Justice for the matter being
assigned to some other Bench.
It may be placed before the Hon’ble the
Chief Justice for consideration.” 6
As per the minutes dated 3.3.2016 of the Hon’ble the
Chief Justice, the matter was placed before me.
2. The first charge sheet dated 31.12.2013 indicates
against the petitioner as follows:-
“Sri Deepak Gupta is the Director of M/s.
Snehapusph Marketing Private Ltd. as well as
Power of Attorney Holder of B.K. Mohanty mines,
is also a Director of M/s. Deepak Steel and
Power Ltd……
From the above facts, it is found that Sri
Deepak Gupta has actually raised a quantity of
65,25,741.438 MT amounting to
Rs.1520,39,64,049.60 but he has shown
47,48,826 MT and suppressed the production of
17,76,915,438 MT during the period 2004 to
2009 which indicates that Deepak Gupta, Sri
Haricharan Gupta, the lease holders and others
have also indulged the illegal theft of iron ore of
the suppressed quantity which has been
clandestinely sold amounting to
Rs.680,72,52,301.60 by entering into criminal
conspiracy with above noted mining, forest and
revenue officials without payment of royalty…….
Investigation further revealed that Sri
Deepak Gupta has dishonestly and fraudulently
sold the illegally extracted iron ore at a very low
price to his group of company M/s. Deepak Steel
& Power Ltd. where he is also a Director along
with Sri Haricharan Gupta which clearly indicates
that M/s. Deepak Steel & Power is the illegal
beneficiary of the stolen iron ore. In this process
Sri Deepak Gupta, Sri Haricharan Gupta and
other co-accused have suppressed a turnover of
Rs.270,12,71,492.00 on account of
undervaluation……..7
Sri Deepak Gupta and Sri Haricharan
Gupta and others through their companies have
indulged in illegal mining much beyond the
permissions given by the Mining Officials……..
Thus the loss towards cost of iron ore
raised illegally caused to Government is
Rs.1520,39,64,049.60. So also the lessee and
the Power of Attorney Holder have cheated the
Government by non-payment of royalty to the
tune of Rs.3,19,84,477.88 @ Rs.18/- per MT on
an average by falsifying records. Thus the total
loss is Rs.1523,59,48,527.48 and as such all are
liable u/s.13(2) r/w 13 (1) (c) (d) of P.C. Act,
1988 and section 120-B/409/379/420/468 and
411 IPC”.
The supplementary/final charge sheet dated
24.6.2014 indicates against the petitioner as follows:-
“Investigation also revealed that Sri Deepak
Gupta and other co-accused entered into
criminal conspiracy with the public servants of
Mining Department, Forest Department and
Revenue Department and in pursuance of the
said conspiracy, they have, dishonestly and
fraudulently, indulged in illegal mining from the
Reserve Forest Area, and Government land
much beyond the mining lease area of Sri B.K.
Mohanty (for which he was the Power of
Attorney Holder). Sri Deepak Gupta confessed
that he has indulged in illegal mining and has
shown the area near the mining lease area of Sri
B.K. Mohanty from where he has extracted the
iron ores. The said area has been demarcated
during joint physical verification by a team
consisting of Mining, Forest and Revenue
Officials and by conducting DGPS survey, and 8
taking DGPS readings of the demarcated points.
The DGPS Survey clearly proved that the mining
was done outside the lease hold area of Sri B.K.
Mohanty, i.e, in the Reserve Forest Area and in
the lapsed mining lease earlier granted to Sri
Jagadish Mishra. The survey also showed that
Sri Deepak Gupta and Sri Hari Charan Gupta and
other co-accused, through their companies M/s.
Snehapushp Marketing Pvt. Ltd and M/s Deepak
Steel and Power Ltd., illegally extracted, stored,
transported the iron ore from outside the lease
area and also violated the various provisions of
MMDR Act by utilizing the Government land for
keeping the stack dumps, transformers and for
carrying out other illegal mining activities. The
above evidence was further corroborated by the
evidence of the Raising Contractors and the
villagers and also SLES Report by the Mining
Department, Joint Enquiry Report by the team
appointed by the Collector, Keonjhar and others.
These Enquiries Reports further corroborated the
charges against Sri Deepak Gupta.
x x x x x x x
Sri Deepak Gupta has dishonestly and
fraudulently sold the illegally extracted iron ore
at a very low price to his group company M/s.
Deepak Steel and Power Ltd. (where he is also a
Director along with Sri Hari Charan Gupta).
Thereby, M/s Deepak Steel and Power Ltd.
became the illegal beneficiary of the stolen iron
ore. In the process, Sri Deepak Gupta, Sri Hari
Charan Gupta and other co-accused also evaded
a huge amount of Commercial Taxes to the tune
of Rs.44,86,21,101.14.
x x x x x x x
The accused persons i.e. Sri Deepak Gupta
and Sri Hari Charan Gupta and Sri Champak
Gupta and other co-Directors of the accused
Companies M/s Snehapushp Marketing Pvt. Ltd.
and M/s Deepak Steel & Powers Ltd. have 9
acquired a large number of assets in their names
as well as in the names of their group
companies. These assets have been procured
from the proceeds of crime obtained by the sale
of illegally extracted iron ore and have been
attached under the provisions of Criminal Law
Amendment Ordinance pending their forfeiture
in the event of the charges being proved against
the accused persons and the accused companies
in the Court of law.
x x x x x x x
Sri Deepak Gupta and Sri Hari Charan
Gupta and others through their companies have
indulged in illegal mining much beyond the
permissions given by the Mining officials.
Though, the mining lease holder has furnished
returns, (albeit in totally illegal manner), for
extraction of 47,48,826.000 MT of iron ore, it
was found that the accused persons have
extracted 65,25,741.438 MT of iron ore which
exceeds the shown extraction quantity by
17,76,915.438 MT. This will imply that the
accused persons have also indulged in illegal
theft of iron ore amounting to 17,76,915.438 MT
and valued of Rs.680,72,52,301.60
(Rs.746,30,43,000. 00 on current price), in
connivance with the accused public servants for
which they are liable. It was found further that
though co-Directors Smt. Kanta Devi Gupta and
Smt. Nitu Gupta were also part of the criminal
conspiracy and have illegally acquired assets in
their names from the proceeds of crime. Hence,
they are being prosecuted as co-accused. Thus,
the loss towards cost of the iron ore raised
illegally causing to Govt. is
Rs.1520,39,64,049.60
(Rs.839,67,11,748.00+Rs.680,72,52,301.60).
So also the lessee and the power of attorney
holder have cheated the Govt. by non-payment
of royalty to the tune of Rs.3,19,84,477.88 on 10
an average by falsifying the records. Thus, the
total loss of Rs.1523,59,48,527.48 and as such
all are liable U/s.13(2) r/w 13 (1) (c) (d) P.C.
Act, 1988/Sec.120-B/409/379/ 420/468/ 411
IPC.”
3. Mr. Asok Mohanty, Senior Advocate being ably
assisted by Mr. Gouri Mohan Rath, learned counsels appearing
for the petitioner emphatically contended that it is the
prosecution case that the petitioner acting as the agent/power of
attorney holder of two mining lessees namely B.K. Mohanty and
Jagdish Mishra has carried out illegal mining operation and sold
the mineral thereby making illegal gain and loss to the public
exchequer. It is contended that acting in good faith and
accepting the words of both the mining lessees that the renewal
of mining lease is a matter of course, the petitioner conducted
mining operation initially over the leasehold area of B.K.
Mohanty. Subsequently, there arose a boundary dispute between
B.K. Mohanty and another Jagdish Mishra who happens to be an
adjacent mining lessee. Such dispute having been resolved
among B.K. Mohanty and Jagdish Mishra after a joint physical
verification held in presence of representative of both the lesses
and mining officers of Joda, a power of attorney was executed by
Jagdish Mishra in favour of the petitioner. Therefore, the
petitioner as an agent followed the words of his principals who 11
are the mining lessees. The alleged benefit/usufruct, if any,
accrued out of the transaction also accrued to the said mining
lessees. Hence, the petitioner is a victim of misstatement of facts
represented to him by both the mining lessees.
Mr. Mohanty further contended that the basis for
believing that the renewal of mining lease will be a matter of
course is that the mining officials continue to provide mining
plan, permit, transit pass etc. as required under the law
necessary for carrying out the mining operation and there is no
evidence on record that the petitioner obtained all these
statutory permissions by any illegal means.
He further contended that the entire production,
dispatch and transportation has been intimated to the
Department and admissible royalty has been paid. The excess
amount of production and shortfall amount of royalty as alleged
by the prosecution is an exaggerated figure not based upon
proper reconciliation.
He further contended that the ingredients of the
offence under section 409 of the Indian Penal Code are not
attracted as against the petitioner as there was no entrustment
in favour of the petitioner and more so the prosecution allegation
is that by the time the Power of Attorney was executed in favour
of the petitioner by both the mining lessees, the mines in 12
question have already reverted back to the State by operation of
law. He further contended that criminal conspiracy theory as put
forth by the prosecution may at best be for illegal mining
operation or so to say theft of mineral with the knowledge of
mining officials without entrustment of the mines in favour of
anybody may attract at best the offences under section 379, 411
of Indian Penal Code or section 21 of the Mines and Minerals
(Development and Regulation) Act, 1957 (hereafter for short
‘MMDR Act’).
The learned counsel for the petitioner submitted that
all the documentary evidence and official records are in the
custody of the prosecution and most of the witnesses are
government officials and their statements have been recorded in
their official capacity and therefore, there is absolutely no chance
of tampering with the witnesses.
He further contended that all the movable and
immovable properties stand in the name of the petitioner or in
the name of business concerns with which the petitioner was
associated have been seized and attached by the order of
competent Courts and even the passport of the petitioner has
also been seized and therefore there is no chance of the
petitioner fleeing away from the clutches of the justice. 13
He emphasized on the detention period of the
petitioner behind bar to be more than 30 months and contended
that even though final charge sheet was submitted on 24.6.2014
but till date the police papers have not been supplied. He further
submitted that there are as many as 178 prosecution witnesses
to be examined in the matter and more than 50,000 pages of
documents have been relied upon by the prosecution and till
date the police papers have not been made available to the
petitioner and therefore there is no possibility of commencement
of the trial in the near future. The learned counsel relied upon
the case of Emperor –Vrs.- Keshav Vasudev Kortikar
reported in AIR 1933 Bombay 492, Sanghian Pandian
Rajkumar –Vrs.- CBI & Anr. reported in 2014 (4) SCALE
74, Vasanta Vinayak Bhagwat –Vrs.- State reported in AIR
1951 MP 104 where bail was granted on the ground of delay in
disposal of trial.
The learned counsel for the petitioner also contended
that the petitioner is the father of a five years old girl and both
of his parents are suffering from cancer and therefore on
humanitarian ground, the bail application be sympathetically
considered.
The learned counsel for the petitioner further
contended that the mining lessee B.K. Mohanty who is the 14
Principal of the petitioner has been admitted to bail so also the
co-accused persons namely Krutibash Giri, Rabindra Mohanta,
R.N. Sahoo, Haladhar Dash, Satyabrat Rout, Jagannath Mishra
and Bimal Prasad Acharya. It is the contention of the learned
counsel for the petitioner that the petitioner is entitled to be
released on bail on the ground of parity and equity.
While concluding his argument, the learned counsel
for the petitioner placed reliance in the case of Sanjay Chandra
–Vrs.- CBI reported in (2012) 51 Orissa Criminal Reports
(SC) 128 wherein it is held as follows:-
“28. We are conscious of the fact that the
accused as charged with economic offences of
huge magnitude. We are also conscious of the
fact that the offences alleged, if proved, may
jeopardize the economy of the country. At the
same time, we cannot lose sight of the fact that
the Investigating Agency has already completed
investigation and charge sheet is already filed
before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not
be necessary for further investigation. We are of
the view that the appellants are entitled to the
grant of bail pending trial on stringent conditions
in order to ally the apprehension expressed by
CBI.”
4. The learned counsel for the Vigilance Department Mr.
Saurjya Kanta Padhi, Senior Advocate on the other hand
contended that the petitioner as the power of attorney holder of
both Sri B.K. Mohanty and Sri Jagdish Mishra was in total control
and command of the illegal mining operation beyond the mining
lease area of B.K. Mohanty, Reserve Forest Area and lapsed
mining lease are of Sri Jagdish Mishra. It is the further
contention of the learned counsel that during investigation, the
other Director of M/s Snehapushp Marketing Pvt. Ltd. Sri
Champak Gupta, Directors of M/s Deepak Steel & Power Ltd., Sri
Haricharan Gupta, Smt. Kanta Devi Gupta and Smt. Nitu Gupta
who are all the family members of the petitioner did not produce
the relevant documents of B.K. Mohanty and M/s Deepak Steel &
Power Ltd. and other sister concerns and concealed the
documents and all those Directors are absconding and not
appearing before the learned Trial Court. It is further contended
that the family members of the petitioner filed anticipatory bail
applications before this Court in ABLAPL No.12342 of 2015 and
ABLAPL No.12345 of 2015 and this Court vide order dated
10.11.2015 rejected their prayer for anticipatory bail in view of
their conduct and absconding for a long period.
It is the contention of the learned counsel for the
opposite party that due to absconding of number of accused
persons who are especially the family members of the petitioner,
the learned Trial Court split up the trial on 8.7.2015 with ten
accused persons along with the petitioner and the case is posted
to 28.3.2016 for framing of charge. 16
It is the further contention that the prosecution is
relying upon voluminous documents and has supplied some
documents and requested the petitioner to deposit the cost of
supplying the rest of the documents which was paid by the
petitioner at a belated stage.
The learned counsel further contended that the bail
application of Manas Ranjan Mohanty, the Deputy Director of
Mines was rejected by this Court in BLAPL No.3748 of 2015
disposed of on 26.10.2015 and the case of the petitioner is still
worse than the said accused.
The learned counsel further contended that no fresh
cause of action has been canvassed by the petitioner and there
are also no supervening circumstances for reconsideration of his
bail application and there is also reasonable apprehension of
tampering with the evidence in case of release of the petitioner
on bail.
The learned counsel while concluding his argument
relied upon in case of Dr. Vinod Bhandari –Vrs.- State of M.P.
reported in (2015) 60 Orissa Criminal Reports (SC) 976,
wherein it is held as follows:-
“17. In the light of above settled principles of
law dealing with the prayer for bail pending trial,
we proceed to consider the present case.
Undoubtedly, the offence alleged against the 17
appellant has serious adverse impact on the
fabric of the society. The offence is of high
magnitude indicating illegal admission to large
number of undeserving candidates to the
medical courses by corrupt means. Apart from
showing depravity of character and generation
of black money, the offence has the potential of
undermining the trust of the people in the
integrity of medical profession itself. If
undeserving candidates are admitted to medical
courses by corrupt means, not only the society
will be deprived of the best brains treating the
patients, the patients will be faced with
undeserving and corrupt persons treating them
in whom they will find it difficult to repose faith.
In these circumstances, when the allegations are
supported by material on record and there is a
potential of trial being adversely influenced by
grant of bail, seriously jeopardising the interest
of justice, we do not find any ground to interfere
with the view taken by the trial Court and the
High Court in declining bail.
18. It is certainly a matter of serious concern
that the appellant has been in custody for about
one year and there is no prospect of immediate
trial. When a person is kept in custody to
facilitate a fair trial and in the interest of the
society, it is duty of the prosecution and the
Court to take all possible steps to expedite the
trial. Speedy trial is a right of the accused and is
also in the interest of justice. We are thus, of
the opinion that the prosecution and the Trial
Court must ensure speedy trial so that right of
the accused is protected. This Court has already
directed that the investigation be finally
completed and final charge sheet filed on or
before March 15, 2015. We have also been
informed that a special prosecutor has been
appointed and the matter is being tried before a 18
Special Court. The High Court is monitoring the
matter. We expect that in these circumstances,
the trial will proceed day to day and its progress
will be duly monitored. Material witnesses may
be identified and examined at the earliest.
Having regard to special features of this case,
we request the High Court to take up the matter
once in three months to take stock of the
progress of trial and to issue such directions as
may be necessary. We also direct that if the trial
is not completed within one year from today for
reasons not attributable to the appellant, the
appellant will be entitled to apply for bail afresh
to the High Court which may be considered in
the light of the situation which may be then
prevailing.”
5. Law is well settled that an accused has a right to
make successive applications for grant of bail but successive bail
applications are permissible under the changed circumstances.
The change of circumstances must be substantial one which has
a direct impact on the earlier decision and not merely cosmetic
changes which are of little or no consequence. Without the
change in the circumstances, the subsequent bail application
would be deemed to be seeking review of the earlier rejection
order which is not permissible under criminal law. While
entertaining such subsequent bail applications, the Court has a
duty to consider the reasons and grounds on which the earlier
bail applications were rejected and what are the fresh grounds
which persuade it warranting the evaluation and consideration of
the bail application afresh and to take a view different from the
one taken in the earlier applications. There must be change in
the fact situation or in law which requires the earlier view being
interfered with or where the earlier finding has become obsolete.
This is the limited area in which the application for bail of an
accused that has been rejected earlier can be reconsidered.
6. There is no dispute that the first bail application of
the petitioner was rejected in BLAPL No.25588 of 2013 vide
order dated 29.01.2014 after submission of the first charge
sheet dated 31.12.2013. Similarly the second bail application of
the petitioner was rejected in BLAPL No.7277 of 2014 vide order
dated 14.11.2014 which is after the submission of the
supplementary/final charge sheet dated 24.06.2014.
On perusal of both the rejection orders, it appears
that most of the grounds taken in this bail application were taken
earlier and my learned brother Hon’ble Mr. Justice D. Dash
elaborately dealt with all those points raised on behalf of the
petitioner and has been pleased to observe regarding existence
of prima facie case against the petitioner and also considering
the nature of offence, its magnitude, possibility of absconding
and tampering with the evidence has been pleased to reject the
bail applications.20
7. The submissions raised by the learned counsel for
the petitioner that the petitioner is a victim of misstatement of
facts represented to him by both the mining lessees B.K.
Mohanty and Jagdish Mishra has been raised in the second bail
application and the same cannot be prima facie accepted in view
of the documentary evidence available on record so also the
conduct of the petitioner while carrying out the illegal mining
operation.
The further contention that all the statutory
permissions were obtained while carrying out mining operation
and therefore the petitioner cannot be saddled with any
responsibility is also not acceptable prima facie inasmuch as
charge sheet has been submitted against the public servants of
Mining Department, Forest Department and Revenue
Department on the ground that they have entered into criminal
conspiracy with the petitioner and others and granted illegal
permissions and thereby facilitated the petitioner in dishonestly
and fraudulently carrying out illegal mining activities.
The further tactical contention that the ingredients of
the offence under section 409 of Indian Penal Code are not
attracted against the petitioner as he is neither a public servant
nor he was entrusted with the property by the State is also not
acceptable inasmuch as there are serious allegations against the 21
public servants who were to safeguard the valuable properties of
the State and being dominion over the property in the capacity
of public servants have failed to discharge their statutory duty
and entered into criminal conspiracy with the petitioner and
others and facilitated dishonest use and disposal of the property
and therefore committed criminal breach of trust.
Accused persons who are non-public servants can
also be prosecuted for abetment of the offence or being a party
to criminal conspiracy along with the public servants concerned
under section 409 of the Indian Penal Code as the crime was
allegedly committed in connivance with both the parties or after
entering into criminal conspiracy. (Ref: - AIR 1999 SC 2556,
P. Nallammal -Vrs.- State).
The crime was committed continuously for years
together in a cool, calculated and organized manner causing loss
of thousand of crores to the Government exchequer. There are
prima facie materials showing involvement of the petitioner in
the deep rooted conspiracy with other co-accused persons
including the public servants. A strong prima facie case is
available against the petitioner to show that he in connivance
with the mining, forest, revenue officials and mining lease
holders by creating fake documents illegally and unauthorizedly
excavated iron ore which caused pecuniary advantage to him, his 22
family members and others and there was equivalent loss to the
Government exchequer to the tune of more than one thousand
five hundred crores. The involvement of the petitioner in the
deep rooted conspiracy in the economic offences involving huge
loss to Government exchequer is prima facie apparent.
The contentions raised regarding ailment of the
parents of the petitioner and that the petitioner is the father of a
five years old girl are not sufficient in my humble opinion to
grant him bail in economic offences of this nature in view of the
larger interest of public and State.
The prosecution case as per first charge sheet and
supplementary/final charge sheet as extracted in paragraph 2
above clearly indicate that the allegations against the petitioner
are more serious in nature than the co-accused persons who
have been enlarged on bail and as such the petitioner stands in a
different footing and therefore the claim of parity and equity as
advanced by the learned counsel for the petitioner is not
accepted and accordingly the same is rejected.
8. Adverting to the nature and seriousness of
accusation, its serious adverse impact on the fabric of the
society, misappropriation of huge amount of public money and
substantial loss to Government exchequer, availability of prima
facie materials against the petitioner, the severity of punishment 23
in case of conviction, reasonable apprehension of tampering with
the evidence and absence of any substantial change of
circumstances or fresh grounds after the rejection of the earlier
two bail applications by this Court, I am not inclined to
reconsider the prayer for bail and release the petitioner on bail.
Accordingly, the bail application sans merit and
hence stands rejected.
9. The petitioner is in jail custody since 05.09.2013 and
it is stated at the Bar that in the Trial Court, the case is posted
today for framing of charge. Keeping in view the period of
detention of the petitioner in judicial custody even after the
submission of the final charge sheet on 24.06.2014, the learned
Trial Court is directed not only to take immediate and effective
steps for framing of charge but also take all possible steps to
proceed with the trial on day to day basis. The material
witnesses may be identified and examined at the earliest. If the
trial is not concluded within a period of one year from today for
reasons not attributable to the petitioner, the petitioner will be at
liberty to apply for bail afresh before the learned Trial Court
which may be considered in the light of the situation which may
be then prevailing.
It is made clear that observations made in this order
for rejecting the prayer for bail will not be treated as expression 24
of any opinion on merits of the case and the Trial Court may
decide the matter without being influenced by any such
observation.
10. In the result, the application for bail is accordingly
rejected and disposed of with the above observations.
A copy of this order be sent down to the learned Trial
Court forthwith for information and necessary action.
……………………………
S. K. Sahoo, J.
Orissa High Court, Cuttack
The 28th March, 2016/ Pravakar
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