Law Web: Orissa HC: Parameters for grant of the opportunity of hearing to victim/informant in an anticipatory bail application

I am of the view that in the absence of any provisions in Cr.P.C. in debarring an informant or de facto complainant or victim or an aggrieved party an opportunity of hearing in an application for anticipatory bail but keeping in view the criminal justice delivery system and public policy, it can be held as follows:--

"i. There is no mandate in law to issue notice to the informant/victim/aggrieved party by the Court before passing any interim order or final order in an application for anticipatory bail.

ii. While adjudicating an anticipatory bail application, if the Court feels that the informant/de facto complainant/victim/aggrieved party is required to be heard for an effective adjudication, then the Court can issue notice to such person for giving him a reasonable opportunity of hearing.

iii. If the informant/de facto complainant/victim/aggrieved party suo motu appears in Court in an application for anticipatory bail either to support or oppose such application and prays before the Court to give him an opportunity of hearing, the Court may accept such prayer if it feels the necessity of hearing such person in the interest of justice and for the just decision of the case.

iv. The counsel for the informant/de facto complainant/victim/aggrieved party can always appear during hearing of the anticipatory bail application and assist the State Counsel even if he is not awarded a right of audience in the matter by the Court. He can also assist the Court if any query is put forth to him.

v. Where it appears that there are a lot of aggrieved persons and all of them pray before the Court to give them an opportunity of hearing in an application of anticipatory bail, the Court may be reluctant to give them such opportunity if it feels that it would be a time consuming affair or in view of the time constraints, it would not be feasible to give each of them an opportunity of hearing or it would delay the disposal of such application. However if the Court feels in such cases to hear one of the aggrieved parties who can highlight the common grievances of all which is not properly addressed by the State Counsel, the Court can give an opportunity of hearing to such party.

vi. No particular category of cases can be enumerated as to where the informant/de facto complainant/victim/aggrieved party can be given an opportunity of hearing in an application for anticipatory bail inasmuch as it would depend upon the nature and gravity of the offences as well as the discretion of the Court which is to be exercised judiciously with reasonable care and caution.

vii. If a person is neither an informant nor victim but claims himself to be an aggrieved party and prays for an opportunity of hearing, the Court has to decide whether such person is an aggrieved party in the context of the case or not and if so, whether a right of hearing is to be given to him or not to take a right decision in the matter.

IN THE HIGH COURT OF ORISSA

B.L.A.P.L. No. 19817 of 2014

Decided On: 15.12.2014

Pramod Kumar Panda Vs. Republic of India

Hon'ble Judges/Coram:

S.K. Sahoo, J.

Citation:MANU/OR/0782/2014,

2015ALLMR(CRI)JOURNAL289

1. The petitioner who is posted as Deputy Superintendent of Police, District Intelligence Bureau (DIB), Nayagarh under the State Government has approached this Court in an application under S. 438, Cr.P.C. apprehending arrest in connection with CBI/SCB/KOL Case No. RC.47/S2014-KOL. dated 5-6-2014 registered under Ss. 120-B, 294, 341, 406, 420, 467, 468, 471, 506 read with S. 34, Indian Penal Code and Ss. 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 which arises out of Kharavelnagar P.S. Case No. 44 dated 7-2-2013 and other cases registered against the officials of Artha Tatwa Group of Companies at different police stations in the State of Odisha.

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 Ss. 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 Artha Tatwa Multi Purpose Co-operative Society Ltd. (hereinafter 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 authorising 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 Cooperative 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, Chair-man-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 rates 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 of 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 Ss. 420,406,120-B, Indian Penal Code read with Ss. 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 petitions seeking transfer of investigation of Chit Fund Scam Cases from the State agencies to the Central Bureau of Investigation (CBI) were filed before the Hon'ble Supreme Court. Writ Petition (Civil) No. 401 of 2013 was filed by one Subrata Chhattoraj and Writ Petition (Civil) No. 413 of 2013 was filed by one Alok Jena and both the cases were 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): (AIR 2014 SC (Cri) 1376). The relevant paragraphs are quoted hereinbelow:--

"28. An affidavit has been filed by the State of Odisha pursuant to the said directions in which the F.I.R's. where the State Investigating Agency is examining the larger conspiracy angle, have been identified.... Larger conspiracy angle is according to the affidavit being examined in three cases. These are:

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(ii) Case No. 44 dated 7-2-2013 under the same provisions registered in Kharvelnagar Police Station (Bhubaneswar Urban Police District) against M/s. Artha Tatwa Group of Companies and

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30. The factual narrative given in the foregoing paragraphs clearly establish the following:--

1. The financial scam nicknamed chit-fund scam that was hit the States of West Bengal, Tripura, Assam and Odisha involves collection of nearly 10,000 crores (approx.) from the general public especially the weaker sections of the society which have fallen prey to the temptations of handsome returns on such deposits extended by the companies involved in the scam.

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5. That investigation so far conducted reveals involvement of several political and other influential personalities wielding considerable clout and influence.

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31. The question is whether the above feature call for transfer of the ongoing investigation from the State Police to the CBI. Our answer is in the affirmative.

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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 bringing those who are responsible to book.

The question, however, is not whether the State Police has faltered. The question is whether what is done by the State Police is sufficient to inspire confidence of those who are aggrieved. While we do not consider it necessary to go into the question whether the State Police have done all that it ought to have done, we need to point out that money trail has not yet been traced. The collections made from the public far exceed the visible investment that the investigating agencies have till now identified. So also the larger conspiracy angle in the States of Assam, Odisha and West Bengal although under investigation has not made much headway partly because of the inter-State ramifications, which the investigating agencies need to examine but are handicapped in examining.

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34. In the circumstances, we are inclined to allow all these petitions and direct transfer of the following cases registered in different police stations in the State of West Bengal and Odisha from the State Police Agency to the Central Bureau of Investigation (CBI).

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B. State of Odisha: All cases registered against 44 companies mentioned in our order dated 26th March, 2014 passed in Writ Petition (C) No. 413 of 2013. The CBI is also permitted to conduct further investigations into all such cases in which charge-sheets have already been filed."

As per the direction of the Hon'ble Supreme Court in Writ Petition (Civil) No. 401 of 2013 and Writ Petition (Civil) No. 413 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 eight original F.I.R's. (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 Ss. 120-B/294/341/406/409/420/467/468/471/506/34, I.P.C. and Ss. 3, 4 and 5 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 against 48 named persons who were in the management/staff/agent of AT Group of Companies and against other staffs of AT Group and unknown others. The investigation was entrusted to Sri N.C. Sahoo, Inspector, CBI, SPE, SCB/SIT, Kolkata.

2. In spite of the order dated 9-5-2014 (reported in MANU/SC/0453/2014 : AIR 2014 SC (Cri) 1376) of the Hon'ble Supreme Court in Writ Petition (Civil) No. 401 of 2013 and Writ Petition (Civil) No. 413 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 Ss. 420,406,120-B, I.P.C. read with Ss. 4, 5 and 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 read with S. 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 S. 173(8), Cr.P.C.

3. While the matter stood thus, CBI officials conducted raid in the residential premises of the petitioner situated at Gayatri Nagar, Bamikhal, Bhubaneswar on 25-9-2014 in between 9.45 a.m. to 1.50 p.m. in connection with this case in presence of the witnesses. The petitioner was absent at his village Khantapada to attend the funeral ceremony of his father and the son of the petitioner namely Sri Millan Panda was present. The authorisation given by the I.O. under S. 165, Cr.P.C. for search was shown to the son of the petitioner. The petitioner was contacted over phone who informed about his inability to return to Bhubaneswar on account of his father's funeral ceremony. After observing all the legal formalities, C.B.I, officials conducted search and seized some documents during search but the most relevant documents so far as this case is concerned are mentioned in serial numbers 1, 2 and 3 of the search list. Those documents are as follows:--

"(i) one bunch of documents containing copy of F.I.R., charge-sheet filed against AT Group, agreement between AT Group and Jagabandhu Panda, letter dated 2-7-2011 of Jagabandhu Panda to Secretary, AT Group etc. (53 sheets) (seized from the room in the ground floor),

(ii) one visiting card of Dr. Pradeep Sethy, AT group

(seized from the bed room of the petitioner in the first floor),

(iii) one letter written by Pradeep to Mr. P.K. Panda, ZICA, Z Multimed, Saheed Nagar, Bhubaneswar, (two sheets)

(seized from the bedroom of the petitioner in 1st floor)"

4. The bail application was filed by the petitioner on 26-9-2014. During the midst of hearing of the bail application, on 19-11-2014 one Alok Jena filed an application for intervention vide Misc. Case No. 1553 of 2014. Copy of such intervention application was served on the learned counsels for the petitioner as well as the C.B.I. The learned counsel for petitioner and C.B.I, did not file any written objection to such application but Mr. Devasis Panda, learned counsel appearing for the petitioner vehemently opposed the application for intervention mainly on the ground that the proposed intervener has no locus standi and he is in no way connected with this case inasmuch as he is neither the informant nor an aggrieved party and, therefore, his application for intervention is liable to be rejected even at the threshold. He further contended that question of bail is to be decided only after hearing the petitioner's-counsel as well as the counsel for the C.B.I. and no opportunity of hearing is to be granted to the proposed intervener.

The learned counsel for the C.B.I, on the order hand submitted that if this Court feels the necessity of hearing the learned counsel for the proposed intervener for the just decision of the case then he has no objection.

5. Now the question is that who is this intervener Alok Jena? Whether he is an 'aggrieved party' as contended by his learned counsel? Whether in an application for anticipatory bail, an 'aggrieved party' can be given an opportunity of hearing?

As it appears, it is case of the proposed intervener Alok Jena that he is a public spirited person and whistle blower who filed a writ petition bearing Writ Petition (Civil) No. 413 of 2013 under Art. 32 of the Constitution of India before the Hon'ble Supreme Court of India praying therein to handover the investigation of multi thousand crores Chit Fund Scam cases from the State investigating agency to C.B.I, and also prayed before Hon'ble Court to monitor the same. According to the learned counsel for the proposed intervener, this high profile scam involves very powerful politicians including ministers, bureaucrats, high ranking police officers etc. and after filing of the case, while the proposed intervener was staying in a flat at Sahajanbad Society at Dwarka, on 19-1-2014 at 4.30 p.m. a person came and met the President of the Sahajanbad Society, namely Mr. Mohd. Zaffar and showed his identity card as police officer of Crime Branch and on query of Md. Zaffar, he told that he had come to meet a person who is staying in the society and a hardened criminal and taken some fraudulent loan and purchased a flat and demanded documents from the President relating to the transaction. The President of the society did not oblige him but informed the proposed intervener regarding the incident. The police officer after coming inside to the society tried to locate the flat where the proposed intervener was staying and took photographs of the flat. The proposed intervener and his wife became panic and lodged a report at Sector-9 Police Station, Dwarka. It is further contended that the petitioner also threatened him within Supreme Court campus on 20-1-2014 and asked him not to proceed with the writ application regarding Chit Fund Scam otherwise he would face dire consequence and on 22-1-2014 the petitioner again met the intervener outside the Court premises of the Supreme Court and threatened him to withdraw the case for which another F.I.R. was lodged at Tilak Marg Police Station, New Delhi on 22-1-2014. It is further stated that on 22-1-2014 the wife of the intervener was also threatened over mobile phone and in that connection also F.I.R. was lodged at Tilak Marg Police Station and different authorities were also appraised. The proposed intervener has also annexed some documents to his intervention application to substantiate his stand that he was threatened by the petitioner to withdraw the case while the matter was subjudiced in the Hon'ble Supreme Court.

According to the learned counsel for the proposed intervener, the petitioner was placed under orders of suspension by the State Government but after the judgment of Hon'ble Supreme Court, he was reinstated in the service and that the petitioner was on official tour to New Delhi and was staying in Odisha Bhawan during the period when the intervener was threatened to withdraw the case. It is further submitted that since at the instance of the proposed intervener, the Hon'ble Supreme Court handed over the investigation of the Chit Fund Scam cases to the C.B.I, and CBI/SCB/KOL Case No. RC. 47/S/2014-KOL dated 5-6-2014 was registered, he is the de facto complainant in the case. It is further contended that while the proposed intervener was fighting the case, the petitioner at the instance of some influential persons tried to prevent him from prosecuting the case and threatened him and, therefore, he is also an aggrieved person.

The learned counsel for the proposed intervener placed reliance on a decision of the Kerala High Court in case of Kunhiraman v. State of Kerala, reported in MANU/KE/0146/2005 : 2005 (2) Kerala Law Times 685 wherein in an application under S. 438, Cr.P.C. the bank who has lodged the complaint, prayed for being impleaded in the application for anticipatory bail which was objected to by the learned counsel for the petitioner in that case Discussing the provisions of S. 301, Cr.P.C. so also S. 438, Cr.P.C. it was held as follows:

"11. When can the Court "think it fit" to grant anticipatory bail? The Court will have to consider the relevant facts relating to the case to arrive at such satisfaction. Details of the case have to be obtained from the case diary which will be available with the prosecutor. The Court may look into the case diary produced by the prosecutor, though the section does not provide for perusal of documents. Though the section does not specify that a notice should be given to the Public Prosecutor, the Court normally gives notice to the Public Prosecutor. The Court hears petitioner and the prosecutor though the section does not state that they should be heard. But, all these are done with a view to ascertain the relevant facts which will help the Court to take a right decision in the matter. All these will be essential for the Court to 'think it fit' to invoke S. 438 and exercise the powers under the said section.

12. Therefore, no Court dispenses with a notice to the prosecutor in an application under S. 438 of the Code of Criminal Procedure, though the section does not distinctively contemplate issuance of notice to prosecutor or hearing of either the prosecutor or the petitioner. There is nothing in the section to indicate that the said power can be exercised by hearing the petitioner and the public prosecutor alone. So, if the Court feels that one more person viz., the injured or the aggrieved must also be heard, no provision in the Code prohibits the Court from doing so. Anyway, prohibition and restrictions in S. 301 and other related provisions apply not to an application under S. 438, Cr.P.C. The power vested in the Court under S. 438, Cr.P.C. can be exercised by hearing the petitioner as well as such other party as the Court may deem fit and proper, depending on the facts and circumstances of each case.

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16. All these give sufficient assurance to me to hold that an aggrieved can be heard. The right of hearing of an aggrieved police station person by the Court appears to be well-recognized. What guides the various Courts in such issues is the absence of any barrier in the relevant section or in any other law which inhibits a person from moving the Court to exercise the powers under the relevant section. In the above circumstances, I hold that in the absence of specific provisions barring the de facto complainant or the aggrieved to be heard in an anticipatory application, the de facto complainant can be heard in the matter.

17. Summing up my discussions, I hold that there is no legal bar for hearing the de facto complainant in an application for anticipatory bail. Theoretically of course, there is no provision in the Code for impleading a party, but nothing prevents the Court from hearing the de facto complainant or aggrieved in an application for anticipatory bail. In fit cases, the Court can afford to the aggrieved or the de facto complainant an opportunity of hearing. Technicalities shall not baffle the judicial mind. It cannot hinder course of justice, either. Principles of natural justice shall not remain a mere paper-philosophy. If adhered to, it can never spill over and tend to spoil justice delivery system. Court can hear the aggrieved and not bang its doors to the one who knocks. The Court exists to redress the grievance that of the accused or the aggrieved. After all, it is all for the purpose of taking a right decision in the case."

6. The learned counsel for the petitioner-Mr. Devasis Panda while drawing the attention of this Court to sub-section (1-A) of S. 438, Cr.P.C. submitted that no notice is required to be given either to a private person who may be an informant or victim or an aggrieved person. He further submitted that the aforesaid sub-section (1-A) mandates a notice to be given on the Public Prosecutor as well as the Superintendent of Police for the purpose of giving the Public Prosecutor reasonable opportunity of being heard before the application is finally heard by the Court and such a notice is to be given in the event an interim order under sub-section (1) of S. 438, Cr.P.C. is passed.

The learned counsel for the petitioner further submitted that under no stretch of imagination, the proposed intervener Alok Jena can be said to be a "victim" as defined under S. 2(wa) of Cr.P.C. The learned counsel further submitted that though the proposed intervener claims to be an aggrieved person but there is nothing on record to show as to how he was aggrieved and in what way. Mr. Panda further submitted that merely because on the basis of a writ petition filed by the proposed intervener, the investigation of Chit Fund Scam cases were transferred from the State Agency to CBI, it cannot be said that the proposed intervener is an "aggrieved person." He submitted that the informant Sukumar Panigrahi of Kharvela Nagar P.S. Case No. 44 of 2013 may be an aggrieved person. He further submitted that the dispute between the proposed intervener and the petitioner as highlighted in the Misc. Case appears to be private in nature which has been given a colour of public spirited nature. Mr. Panda further pointed out S. 301, Cr.P.C. and submitted that the role of the pleader of a private person in any Court in a case which is under enquiry, trial or appeal is very limited and the pleader so instructed by the private person has to act under the directions of the Public Prosecutor or Asstt. Public Prosecutor and with the permission of the Court can submit written arguments after the evidence is closed in the case. He submitted that such a pleader cannot be given any chance to conduct the prosecution. Mr. Panda further pointed out S. 302, Cr.P.C. and submitted that while any Magistrate is enquiring into the matter or trying the case, he may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector. Similarly no person other than the Advocate General or Government Advocate or a Public Prosecutor or Asstt. Public Prosecutor shall be entitled to conduct the prosecution without the permission of the Magistrate.

The learned counsel for the petitioner placed reliance in case of Sundeep Kumar Bapna v. State of Maharashtra, reported in MANU/SC/0239/2014 : (2014) 58 Orissa Criminal Report (SC) 219 : (AIR 2014 SC 1745) wherein it is held as follows:--

"25. The upshot of this analysis is that no vested right is granted to a complainant or informant or aggrieved party to directly conduct a prosecution. So far as the Magistrate is concerned, comparative latitude is given to him but he must always bear in mind that while the prosecution must remain being robust and comprehensive and effective, it should not abandon the need to be free, fair and diligent. So far as the Sessions Court is concerned, it is the public prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the public prosecutor in discharging his responsibility. The complainant or informant or aggrieved party, may, however, be heard at a crucial and critical juncture of the trial so that his interests in the prosecution are not prejudiced or jeopardized. It seems to us that constant or even frequent interference in the prosecution should not be encouraged as it will have a deleterious impact on its impartiality. If the Magistrate or Sessions Judge harbors the opinion that the prosecution is likely to fail, prudence would prompt that the complainant or informant or aggrieved party be given an informal hearing."

The learned counsel for the petitioner further placed reliance in case of Janata Dal v. Harinder Singh Chowdhary, reported in MANU/SC/0532/1992 : AIR 1993 SC 892, wherein it is held as follows:--

"107. It is thus clear that only a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the Court to wipe out the tears of the poor and needy, suffering from violation of their fundamental rights, but not a person for personal gain or private profit or political motive or any oblique consideration. Similarly, a vexatious petition under the colour of PIL brought before the Court for vindicating any personal grievance, deserves rejection at the threshold

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10. In the words of Bhagwati, J. (as he then was) "the Courts must be careful in entertaining public interest litigations" or in the words of Sarkaria, J. "the applications of the busybodies should be rejected at the threshold itself and as Krishna Iyer, J. has pointed out, "the doors of the Courts should not be ajar for such vexatious litigants."

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113. Mr. Jethmalani expostulating the objectives of PIL urged with vehemence and persistence that H.S. Chowdhary does not have any locus standi to initiate this litigation and as such his petition is liable to be rejected even at the threshold. According to him, the true Public Interest Litigation is one in which a selfless citizen having no personal motive of any kind except either compassion for the weak and disabled or deep concern for stopping serious public injury approaches the Court either for (1) Enforcement of fundamental rights of those who genuinely do not have adequate means of access to the judicial system or denied benefit of the statutory provisions incorporated the directive principles of State policy for amelioration of their condition, and (2) preventing or annulling executive acts and omissions violative of Constitution or law resulting in substantial injury to public interest.

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115. Mr. Anand Dev Giri, the learned Solicitor General stating that Public Interest Litigation is not in the nature of adversarial litigation and it is intended to promote and vindicate public interest which demands that violation of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position, should not go unnoticed and unredressed. According to him, the very litigation itself is not within the definition of Public Interest Litigation and moreso H.S. Chowdhary absolutely has no locus standi to approach the Court by filing the petition under Ss. 397 and 482 of the Code of Criminal Procedure by way of a revision of the order of the Special Judge and also quashing the criminal case filed against some known and unknown persons, involved in a series of criminal offences of conspiracy, criminal breach of trust, cheating and bribery. It is the submission of the learned Solicitor General that Mr. Chowdhary, wearing the insignia of a public interest litigant has preferred the quashing petition before the High Court for the glare of publicity. According to him, the petition by Mr. Chowdhary has been drafted in an ingenious way without mentioning as to who all are respondents besides the Union of India and it is an ignoble and unscrupulous action and, therefore, both the Special Judge and the learned Judge of the High Court were justified in rejecting this petition holding that Mr. Chowdhary does not even have the semblance of public interest litigant and as such he has no locus standi.

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117. After deeply and carefully considering the submissions of all the parties, we see much force in the submissions made by the learned Solicitor General, Mr. A.D. Giri and Mr. Jethmalani, senior counsel. A perusal of the petitions filed by H.S. Chowdhary before the Special Judge and the High Court clearly unfolds that Mr. Chowdhary appears to be very much concerned with the personal and private interest of the accused in the criminal case and there is absolutely no involvement of public interest. Can it be said that this litigation is in the nature of PIL to vindicate and effectuate the public interest? The emphatic answer would be 'Not even a single ray of the characteristic of public interest litigation is visibly seen'."

7. Section 438(1-A), Cr.P.C., reads as follows:--

"438.

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(1-A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court."

Sub-section (1) of S. 438, Cr.P.C. empowers the High Court or the Court of Session while considering an application for anticipatory bail to issue an interim order for grant of anticipatory bail. At the time of passing the interim order, the Court has to consider the factors which are enumerated under (i), (ii), (iii) and (iv) of S. 438(1), Cr.P.C. At the stage of passing the interim order, the Public Prosecutor can also be heard. If the Public Prosecutor seeks for time to produce the case records, criminal antecedents of the accused etc., the Court can grant appropriate time but at the same time, if the Court feels just and proper, it can pass interim order for grant of anticipatory bail. Obviously where the Court after hearing the learned counsel for the petitioner feels that in view of the factors as enumerated under (i), (ii), (iii) and (iv) of S. 438, Cr.P.C. the anticipatory bail application is to be rejected forthwith, there may not be any necessity of hearing the Public Prosecutor. Thus the Public Prosecutor has a right to get reasonable opportunity of hearing before the final order in an anticipatory bail application is passed. Even though at the first instance while hearing an anticipatory bail application from the learned counsel for the petitioner, the Court does not issue any interim order but directs the Public Prosecutor to obtain the case records as well as necessary instruction, in such cases also the Public Prosecutor has to be given an opportunity of hearing when the application is finally heard. After hearing the Public Prosecutor, the Court has discretion either to grant anticipatory bail finally or to reject such bail application.

Section 438, Cr.P.C. on the face of it nowhere states that an opportunity of hearing has to be given to any other party than the Public Prosecutor. Now the question is suppose a Court feels that an informant or de facto complainant or an aggrieved person or a victim should be heard before passing the final order in the matter of anticipatory bail application, whether the Court has power to notice such persons and hear such persons or not? Suppose in a case, the informant or de facto complainant or an aggrieved party or a victim suo motu appears through his counsel or in person and prays before the Court to give him reasonable opportunity of hearing before the interim order/final order is passed, whether the Court has power to give such persons an opportunity of hearing? Section 2(wa) of Cr.P.C. defines "victim" which is quoted hereinbelow:--

"2(wa) "Victim" means a person who has suffered any loss or injury caused by reason of act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."

Who is an "aggrieved person"? Aggrieved person has not been defined in Cr.P.C. An aggrieved person as per the Law Lexicon is a person who has suffered a legal grievance. The term includes any person who has a genuine grievance because an order has been made prejudicially affecting his interests, who is wrongfully deprived of his entitlement which he is legally entitled to receive. Aggrieved is somewhat wider term than injured. A person is aggrieved if a decision has been pronounced which has wrongfully refused him something which he had a right to demand. An aggrieved person is one who is adversely affected, cheated, damaged, defrauded, harassed, injured, offended, oppressed or wronged.

8. In case of Puran v. Rambilas, reported in MANU/SC/0326/2001 : AIR 2001 SC 2023, it is held as follows:--

"13. Mr. Lalit next submitted that a third party cannot move a petition for cancellation of the bail. He submitted that in this case the prosecution has not moved for cancellation of the bail. He pointed out that the father of the deceased had moved for cancellation of the bail. He relied upon the case of Simranjit Singh Mann v. Union of India, reported in MANU/SC/0058/1993 : AIR 1993 SC 280 and Janata Dal v. H.S. Chowdhary, reported in MANU/SC/0611/1991 : 1991 (3) SCC 756. Both these cases dealt with petitions under Art. 32 of the Constitution of India whereunder a total stranger challenged the conviction and sentence of the accused. This Court held that neither under the provisions of the Criminal Procedure Code nor under any other statute is a third party stranger permitted to question the correctness of the conviction and sentence imposed by the Court after a regular trial. It was held that the petitioner, who was a total stranger, had no 'locus standi' to challenge the conviction and the sentence awarded to the convicts in a petition under Art. 32. The principles laid down in these cases have no application to the facts of the present case. In this case the application for cancellation of bail is not by a total stranger but it is by the father of the deceased. In this behalf the ratio laid down in the case of R. Rathinam v. State by DSP, District Crime Branch, Madurai District, Madurai, MANU/SC/0071/2000 : AIR 2000 SC 1851, needs to be seen. In this case, bail had been granted to certain persons. A group of practising Advocates presented petitions before Chief Justice of the High Court seeking initiation of suo motu proceedings for cancellation of bail. The Chief Justice placed the petitions before a Division Bench. The Division Bench refused to exercise the suo motu powers on the ground that the petition submitted by the Advocates was not maintainable. This Court held that the frame of sub-section (2) of S. 439 indicates that it is a power conferred on the Courts mentioned therein. It was held that there was nothing to indicate that the said power can be exercised only if the State or investigating agency or a Public Prosecutor moves by a petition. It was held that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. It was held that the said power could also be exercised suo motu by the High Court. It was held that, therefore, any member of the public, whether he belongs to any particular profession or otherwise could move the High Court to remind it of the need to exercise its power suo motu. It was held that there was no barrier either in S. 439 of the Criminal Procedure Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. It was held that if the High Court considered that there was no need to cancel the bail then it could dismiss the petition. It was held that it was always open to the High Court to cancel the bail if it felt that there were sufficient enough reasons for doing so."

In case of R. Rathinam v. State, reported in MANU/SC/0071/2000 : AIR 2000 SC 1851, it is held as follows:--

"7. The frame of the sub-section indicates that it is a power conferred on the said Courts. Exercise of that power is not banned on the premise that bail was earlier granted by the High Court on judicial consideration. In fact the power can be exercised only in respect of a person who was released on bail by an order already passed. There is nothing to indicate that the said power can be exercised only if the State or investigating agency or even a Public Prosecutor moves for it by a petition.

8. It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can also be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in S. 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such consideration. It is open to the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law."

In case of Dr. Krishna Appaya Patil v. State of Maharashtra, reported in MANU/MH/0130/2014 : 2014 (1) Bom CR (Cri) 616 : 2014 All Mah LR (Cri) 833, it is held as follows:--

"3. Perused the applications and the documents annexed with those applications. It is true that both the applicants Vithhal Chavan and Chitra Salunkhe have sent letters to the Sr. Police Inspector, Azad Maidan Police Station and pointed out that excess amount in the nature of capitation fee is demanded and collected by the applicant/accused and thus, the offence is committed under the Act. However, these two persons are not the informants under S. 154 nor the complainants under S. 200 of the Cr.P.C. They may be called as whistleblowers or may be aggrieved persons. One lady Dr. Manjusha Mulavane is the first informant on whose information the impugned offence was registered by the Azad Maidan Police Station. There are cases in which many persons get adversely affected because of the commission of crime, however, they all cannot be heard. In the case of Puran v. Rambilas, reported in MANU/SC/0326/2001 : AIR 2001 SC 2023, wherein the Supreme Court has taken a view that the aggrieved person has locus and is to be heard and, therefore, the application made by the aggrieved person for cancellation of bail which is a regular bail under S. 439(2) of the Cr.P.C. is maintainable. However, in the case of anticipatory bail under S. 438 of the Cr.P.C. which is a pre-trial/pre-inquiry stage, such provision of locus cannot be made available to all the persons, who are aggrieved or affected by the act of me accused. In the case of Prem Kumar Sharma (supra), a learned single Judge of tins Court while referring to the judgment of this Court in the case Vinay Poddar v. State of Maharashtra & Ors. (MANU/MH/1433/2008 : 2009 (1) AIR Bom R 233), Criminal Application No. 2862 of 2008, has held that there is no such provision to hear the complainant as an intervener in the case of anticipatory bail. This Court has held thus:

16. From the above judgments what emerges is that the learned single Judge of this Court has held that the first informant/complainant has right to be heard in an application for anticipatory bail application filed by the accused and the position is different when it is comes to an application for bail filed by the accused. None of the judgments cited by the intervener deals with identical situation arising in the present case. Indisputably, none of the applicants is either the complainant or the first informant. I am in respectful agreement with the view taken by the learned single Judge in the case of Vinay Poddar (MANU/MH/1433/2008 : 2009 (1) AIR Bom R 233) (supra). No doubt, the interveners being members/account holders and depositors may be ultimately interested in the outcome of the investigation but this fact by itself would not be sufficient to give them locus in an application for anticipatory bail filed by the accused.

4. It is true that in this case, many students of the College were affected due to the policy of demand and collection of the capitation fee and, therefore, every student from whom the capitation fee or the excess fee are collected is an aggrieved person. Even in the cases registered under the MPID Act, many investors can come before the Court as the aggrieved persons when the application for anticipatory bail under S. 438 of the Cr.P.C. is filed by the applicant/accused. Undoubtedly, all these persons are aggrieved persons, however, if at all, they are heard, or only one such aggrieved person on a representative basis is heard then it may amount to discrimination and such hearing will consume a considerable time of the Court, which is not feasible in view of the time constraints. Moreover, the first informant Mrs. Moravale has not filed application as an intervener. Thus, it is expected that interest of the aggrieved person is to be represented by either the first informant or by the State and aggrieved persons may assist the State to bring out the correct information and true aspects of the commission of the crime.

5. In view of this, I am not inclined to allow the intervention applications. However, the learned counsel for the applicant/interveners may assist the Court if at all any query is put forth to them."

In case of Dr. Sunil Pati v. State of Chattisgarh, reported in 2006 (2) Chattisgarh Law Judgments 1, it is held as follows:--

"10. Admittedly, there is no provision made in the Code that a complainant or a third party can intervene and make any submissions independently in opposing the application for grant of anticipatory bail. Whatever is there, is in S. 301(2) of the Code. They are the provisions which are covered under Chapter XXIV which deals with the general provisions as to enquiries and trials. Sub-section (1) of S. 301 provides that the Public Prosecutor or Asstt. Public Prosecutor who is in charge of a case may appear and plead without any written authority before any Court in which that case is under enquiry, trial or appeal. Sub-section (2) of S. 301 further provides that if in any such case, a private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Asstt. Public Prosecutor in charge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Asstt. Public Prosecutor, and may with the permission of the Court submit written arguments after the evidence is closed in the case. This makes abundantly clear that there is no prohibition of law in permitting a private counsel engaged by the complainant to prosecute any person, but the area of his functioning has been limited by the mandate of law that is to say he may assist the Public Prosecutor in prosecuting a person, accused of a case, but he shall work and function under the directions of the Public Prosecutor and if so required, he may file written arguments with the permission of the Court, after the evidence is closed in the case. This all makes it very clear that the provisions of the aforesaid sections are that the complete charge of a criminal case cannot be handed over to the hands and entrustment of the private counsel engaged by a private party or the first informant of the case. The underlying principle appears to be embodied in the concept of a fair trial to the accused. As held by the Apex Court in the matter of Shiv Kumar's case MANU/SC/0533/1999 : (1999) 7 SCC 467, a private counsel engaged by a party, if allowed a free hand to conduct prosecution, would focus to bring the case to conviction even if it is not a fit case to be so convicted, but a Public Prosecutor is not expected to show a thirst to reach the case to the conviction somehow or the other irrespective of the true facts involved in the case. If we apply the similar analogy in a case filed under S. 438, Cr.P.C. the result comes that the private counsel engaged by the complainant or the aggrieved party can appear in such a case and the party can always make his representation, but the counsel so engaged would not be the complete in charge of the case and he would only work therein under the directions of the Public Prosecutor and shall assist the Public Prosecutor by providing more and more facts to him and at the most, he may with the permission of the Court, submit written arguments at the time of closure of hearing. I am in respectful agreement with the view taken by the single Judge of Delhi High Court in Smt. Indu Bala's (MANU/DE/0131/1990 : 1991 Cri LJ 1774 (Del)) case that the counsel for the complainant or the first informant has no right to be heard in a petition filed under S. 438, Cr.P.C. and he can brief the State Counsel and it is only the State Counsel who can be heard in opposing the bail application.

11. The arguments of the Sri. Counsel for the first informant regarding application of analogy of S. 173(2), Cr.P.C. in a proceeding under S. 438, Cr.P.C. cannot be accepted. In case of a Magistrate deciding that there is no sufficient ground for proceeding further and dropping a proceeding or taking the view that the proceedings would continue against some of the accused persons for the reason that there is no sufficient ground for proceeding against others mentioned in the first information report, the first informant would certainly be prejudiced because the FIR lodged by him would have failed of its purpose wholly or in part. Since the interest of the first informant is going to be prejudiced, it was held in Bhagwant Singh's (MANU/SC/0063/1985 : AIR 1985 SC 1285) case that the first informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. Indeed, the aforesaid situation is of (sic) end of the matter forever and in the said circumstances only, an opportunity of being heard to the first informant has been recognised. However, in a petition under S. 438, Cr.P.C. for grant of anticipatory bail, there is no question of any prejudice caused to the first informant, even if the applicant is granted anticipatory bail as no right or interest of the first informant is going to frustrate forever.

12. The other argument advanced, on behalf of the first informant, on the provisions of S. 439(2), Cr.P.C. can also not be accepted. The power under S. 439(2), Cr.P.C. is a power possessed with the Courts mentioned under the said provisions. For settling at motion the exercise of such a power, any person can invoke jurisdiction of the Court concerned and while doing so, that person would be entitled for hearing to convince the concerned Court regarding the need to exercise such powers. This is one of the ratios laid down by the Apex Court in the matter of Puran v. Rambilas (MANU/SC/0326/2001 : AIR 2001 SC 2023). This power vested with the High Court or the Court of Session under S. 439(2), Cr.P.C. cannot be equated with the power and jurisdiction under S. 438. The powers for cancellation of bail may be invoked by the first informant or the other aggrieved party, and in that situation, he or she would be entitled for audience under the aforesaid provisions, but in S. 438, the first informant or the aggrieved party has no role to invoke jurisdiction because in any case, in such a petition they may not be classified as an applicant. There is no force in this argument and the same is also turned down.

13. The next argument advanced by learned counsel for the first informant, based upon the principles laid down by the Apex Court in the matter of J.K. International's case MANU/SC/0126/2001 : 2001 Cri LJ 1264 is also misconceived. In the said case, the accused approached the High Court for quashing the criminal proceedings initiated by the complainant. The Apex Court held that it may not be that the complainant should have been made a party by the accused himself in the petition for quashing of the criminal proceedings as the accused has no such obligation when the case was charge-sheeted by the police. It is predominantly concern of the State to continue the prosecution, but when the complainant wishes to be heard when the criminal proceedings are sought to be quashed, it would be negation of justice to him if he is foreclosed from being heard even after he makes a request to the Court in that behalf. Here the case is not for quashing the complaint or the first information report and in fact, nothing is going to attain finality so far as the criminal prosecution is concerned and in the said situation, on the basis of the law laid down in the said matter, the first informant cannot be awarded right of audience in this matter.

14. The last argument advanced by the senior counsel for the first informant was about the encouragement to an effort to bring more facts on record with a view to give adequate decision in the case. The general rule about the right of audience cannot be befitted in the procedural framework of the Cr.P.C. This argument advanced on the concept of natural justice can possibly be made applicable, if we are bent upon to apply, to an area not covered by any law validly made. In fact, they do not and they cannot substitute the law. If the statutory provisions are clear and unambiguous and the field, for example the field of procedure as in this case, is already occupied by a procedural law, the general rule or prayer permitting hearing with an intention to bring more and more facts on record cannot be permitted. Here, whatever is to be done, is to be done in accordance with the Code of Criminal Procedure and once Code does not permit a right of audience to the complainant while hearing a case for grant of anticipatory bail to the applicant/accused that cannot be transplanted by making necessary implications based on principles of natural justice etc., there is no force in this argument advanced by learned counsel for the objector and the same can also not be accepted."

In case of Vinay Poddar v. State of Maharashtra, reported in MANU/MH/1433/2008 : 2009 Cri LJ 896, it is held that

"13. When an application for anticipatory bail is considered, the police may not place all factual details before the Court as the investigation in most of such cases is at a preliminary stage. Therefore, some role can be played by the complainant by pointing out factual aspects. In the circumstances, it is not possible to hold that the first informant or the complainant cannot be heard in an application for anticipatory bail. When the complainant appears before the Court in the course of hearing of an application for grant of anticipatory bail, the Court is bound to hear him. But the said right cannot be allowed to be exercised in a manner which will delay the disposal of an application for anticipatory bail. The delay in disposal of such application may adversely affect the investigation. Therefore, the right which can be spelt out in favour of the first informant or the-complainant is of making oral submissions for pointing out the factual aspects of the case, during the course of hearing of an application for anticipatory bail before the Court of Session. The said right is to be exercised by the complainant either by himself or through his counsel. This is not to say that the Sessions Court hearing the application for anticipatory bail is under an obligation to issue notice to the first informant or the complainant. There is no such requirement of issuing notice to the first informant or the complainant at the hearing of the application for anticipatory bail. However, if the complainant or the first informant appears before the Court, he cannot be denied a right of making oral submissions either in person or through his counsel. It must be noted here that the legal position on this aspect in the case of an application for regular bail may not be the same."

In case of C.S.Y. Sankar Rao v. State of Andhra Pradesh, reported in MANU/AP/0655/2009 : 2010 Cri LJ 1610, it is held that-

"16. Even though there is a danger of biased representation, the victims cannot be prevented from knocking the doors of the Court and making their submissions. It should not be forgotten that it is the victim who is put to injury, physical or mental suffering. The victim is the ultimate loser. He is put to pain, trouble, damage as a result of an offence. The victims are permanently deprived of their near and dear. In fact, no amount of compensation can bring back the lost life or limb. They are permanently deprived of their enjoyment and happiness of the company of the deceased. When, in a case, the deceased is the earning member, his wife and children would be driven to the streets. They may be deprived of their source of livelihood and they may not be in a position to fulfill their basic needs. Though. Section 357(3), Cr.P.C. empowers the Court to award compensation to the victims, such orders are made seldom.

17. In fact, victims are forgotten at every stage. They face many problems from the moment they report the matter to police. They are not being treated as victims. In some cases, the victim and witnesses are put to unnecessary harassment by the police. They are not informed about the progress in investigation. They are not informed about the progress of the trial. They may have to come to Court on several occasions to complete their evidence.

18. In view of the scope of the above referred sections and the scheme of the Code of Criminal Procedure and the public policy, I am of the view that though it is the primary duty of the State to conduct the prosecution, however, the victims are not totally barred in approaching the Court in appropriate cases and to represent their grievances. It is common knowledge that now-a-days, in many cases, the victims and the witnesses are not in a position to appear before the Court and depose without any fear or favour. The very criminal justice delivery system may fail and ultimately, justice may not be done in serious and heinous criminal offences if the witnesses are not allowed to depose freely without any fear or favour. In view of the same, though there is a limited scope, I feel that the victims and the de facto complainants can be heard at the stage of considering the bail applications or cancellation of bail with the permission of the Court and as supplementary to the arguments advanced by the Public Prosecutor. Whatever the de facto complainant or the victim has to say initially, they must act as per the directions and under the instructions of the Public Prosecutor. But, however, the Court may in appropriate cases, if comes to a conclusion that in the interest of justice, it is necessary to hear the de facto complainant or the victim, they may be heard. However, the discretion has to be exercised judiciously with reasonable care and caution."

Considering the submissions made by the respective parties and keeping in view the ratio laid down in the aforesaid decisions, I am of the view that in the absence of any provisions in Cr.P.C. in debarring an informant or de facto complainant or victim or an aggrieved party an opportunity of hearing in an application for anticipatory bail but keeping in view the criminal justice delivery system and public policy, it can be held as follows:--

"i. There is no mandate in law to issue notice to the informant/victim/aggrieved party by the Court before passing any interim order or final order in an application for anticipatory bail.

9. So far as the present case is concerned, there is no dispute that the intervener filed Writ Petition (Civil) No. 413 of 2013 before the Hon'ble Supreme Court seeking transfer of the Chit Fund Scam cases from State agency to C.B.I, which was allowed and all the cases registered against 44 companies were directed to be transferred in Odisha from the State Police agencies to Central Bureau of Investigation and in pursuance to the direction of the Supreme Court, CBI/SCB/KOL Case No. 47/S/2014-KOL, dated 5-6-2014 was registered. The intervenor has also brought materials before this Court by filing Misc. Case No. 1553 of 2014 as to how he was allegedly dissuaded by the petitioner from pursuing his case in the Supreme Court and how he was allegedly threatened from time to time. Without expressing any opinion on such allegation which is stated to be under investigation, it can be said that the proposed intervener has definitely played a crucial role in transferring the Chit Fund Scam cases from the State Agency to the CBI. The learned counsel for the CBI has also stated that the proposed intervener has been examined as a witness in the case and placed such statement for perusal. Considering the background of the case in which the CBI case has been registered, the role of the proposed intervener, the statement of the proposed intervener recorded by the CBI officials during course of investigation, it cannot be said that the intervener is a total stranger to the proceeding or he is a simple whistleblower rather he is the de facto complainant of the case. The way he is alleged to have been oppressed/harassed/injured while he was pursuing a genuine grievance, he can also be said to be an "aggrieved person" in the context of this case.

Thus considering submissions made by the respective parties, Misc. Case No. 1553 of 2014 filed by the intervener Alok Jena is allowed and the learned counsel for the intervener is given an opportunity of hearing to have his say on the application of anticipatory bail filed by the petitioner in the interest of justice and equity.

10. The learned counsel for the petitioner submitted that the documents seized from the residential premises of the petitioner on 25-9-2014 cannot be said to prima facie attract the ingredients of criminal conspiracy as required under S. 129-B, I.P.C. The learned counsel for the petitioner during initial stage of hearing of the bail application submitted that Jagabandhu Panda is related to the petitioner as his cousin (also mentioned in bail application) who was associated with the Artha Tatwa Group of Companies and through his cousin, the petitioner became acquainted with the main accused-Pradeep Kumar Sethy. At the subsequent stage, Mr. Panda submitted that Jagabandhu Panda is acquainted to him as the co-villager and the expression "cousin" has been used in that context. Mr. Panda submitted that when Jagabandhu Panda was arrested and taken into custody, his family members approached the petitioner and entrusted him with the job of engaging a lawyer for his bail and that is how the bunch of documents mentioned in Sl. No. 1 of the search list was found in his house. He further submitted that since the petitioner had got acquaintance with Pradeep Kumar Sethy through his cousin Jagabandhu Panda that is how the visiting card of Pradeep Kumar Sethy was found in his house. Mr. Panda further submitted that the letter written by Pradeep Kumar Sethy to the petitioner which is mentioned in Sl. No. 3 of the search list and found from the bedroom of the petitioner cannot be sufficient to draw an inference that there was criminal conspiracy between the petitioner and the main accused-Pradeep Kumar Sethy. Mr. Panda submitted that ZICA as mentioned in Sl. No. 3 is a franchise of Zee-Learn Computer Education at Janpath, Bhubaneswar which is run by petitioner's-wife Gitanjali Panda and petitioner does not look after the affairs of ZICA or he is in no way connected therewith. He further submitted that even though notices were sent to his residence on 3-11-2014 and 8-11-2014 by the Inspector of Police, CBI to appear before him for the purpose of answering certain questions relating to the case but on account of the obsequies of his father as the petitioner was absent at Allahabad, he could not appear which was duly intimated to the Investigating Officer. Mr. Panda submitted that though after 8th November, 2014, the petitioner was available for interrogation at Bhubaneswar and was ready to appear before the Investigating Officer but he was never summoned thereafter. Mr. Panda submitted that the documents mentioned in Sl. Nos. 1 to 3 of the search list are innocuous and cannot lead to an inference of conspiracy and no money was transferred from the accounts of Artha Tatwa to the account of the petitioner. He further submitted that the search was conducted in gross violation of the provisions under S. 165, Cr. P.C and local witnesses were not called for at the time of search and no search warrant was obtained and the guidelines in the CBI manual relating to search were also not followed. He further submitted that even the signatures of the family members of the petitioner were not taken on the search list which is a fundamental mistake committed by the CBI officials. He further submitted that since the documents alleged to have been collected on the basis of an illegal search, no importance is to be attached to such documents. The learned counsel for the petitioner highlighted that the notice issued to the petitioner does not mention as to under what provision it was issued and there is absolutely no material that there was any money trailing to ZICA account. He further submitted that there is no necessity of custodial interrogation of the petitioner and it would seriously prejudice the petitioner who is now serving as D.S.P., DIB, Nayagarh and intentionally the CBI authorities are conducting raids in the houses of the important personalities and issuing notices to them for their appearance before the Investigating Officer not only to humiliate a public servant like the petitioner but also to his employer, i.e. the State Government. He further submitted that the documents seized by way of search list dated 25-9-2014 are not of such a nature to come to a prima facie conclusion that the petitioner has got any nexus with Artha Tatwa or there was any money trailing from Artha Tatwa Group of Companies to the petitioner or that the petitioner has any role in the larger conspiracy angle. Mr. Panda highlighted the crime manual of the CBI particularly Chapters X to XIV to indicate as to how the CBI officials have violated the procedural aspects as laid down in the said manual. The learned counsel further submitted that the very fact that the petitioner being fully aware that the case has been transferred from the State Agency to CBI has kept the documents in question with him clearly reveals that he has no guilty intention otherwise he could have easily destroyed the same. The learned counsel further submitted that the manner in which CBI officials are interrogating the accused persons in the case clearly envisage that the right of freedom is completely lost and they are putting undue pressure and adopting 3rd degree method to extract something from the accused persons. The learned counsel further highlighted that in this case many of the accused persons were called for the purpose of interrogation on a number of occasions and all of a sudden they are being arrested after some dates and forwarded to Court. The conduct of the CBI officials in the past, according to the learned counsel for the petitioner creates a reasonable apprehension of arrest for which the anticipatory bail application should be liberally considered in favour of the petitioner.

11. Mr. V. Narasingh, the learned counsel for the CBI submitted that the petitioner's case comes within "other influential personalities wielding considerable clout and influence" as observed by the Hon'ble Supreme Court in paragraph 30.5 in case of Subrata Chattoraj v. Union of India (MANU/SC/0453/2014 : AIR 2014 SC (Cri) 1376). He further submitted that petitioner's wife is running an institution namely ZICA and the materials collected during investigation reveal that there was money trailing from the accounts of Artha Tatwa to the account of ZICA which is clear after the seizure of bank documents. He further submitted that nothing has been found till date that Jagabandhu Panda is in any way related to the petitioner in any manner and the stand taken by the learned counsel for the petitioner in the bail petition that Jagabandhu Panda is a cousin of the petitioner is an afterthought story which is clear from the pre-varicating stand taken by the learned counsel during hearing of the bail application. He further contended that the petitioner who claims to have a distinguished service record and investigated many important cases has been used by the main accused-Pradeep Kumar Sethy to get the bail for accused-Jagabandhu Panda. He further contended that the role of the petitioner is very suspicious and the visiting card of Dr. Pradeep Sethy which was seized from the house of the petitioner during search and the letter written by the main accused to the petitioner while in custody clearly reveals the intimacy between them. The learned counsel further highlighted the statement of intervener Alok Jena which prima facie indicates as to how the petitioner threatened him to withdraw the case from the Supreme Court and how his wife was also threatened by the petitioner. He further pointed out the statement of a travel agent which indicates that the main accused-Pradeep Kumar Sethy booked Air Tickets for the petitioner on a number of occasions. The learned counsel for the CBI further submits that twice notices were sent to the petitioner for appearance before the I.O. which was not complied with and the petitioner has never intimated to the I.O. after 8-11-2014 indicating his availability for interrogation or his readiness for interrogation as contended by the learned counsel for the petitioner. The learned counsel for the CBI further submitted that all the necessary formalities of search and seizure as prescribed under the Cr.P.C. as well as in the CBI manual have been duly followed. He further contended that the petitioner has not come up with a clean hand for seeking anticipatory bail inasmuch as the copy of the search list which has been filed by the petitioner in the bail petition is not the true copy of such search list which was supplied to the son of the petitioner Sri Millan Panda which he has received under the signature. Mr. V. Narasingh submitted that though the original search list contains the acknowledgment and signature of Milan Panda on the search list but such portion has not been deliberately xeroxed. The learned counsel for the CBI produced the search list in sealed cover which indicates the acknowledgment and signature of Millan Panda with date. The learned counsel for the CBI further submitted that if the petitioner who is a very influential person is well ensconced with a favourable order of pre-arrest bail then it would create obstacles for finding out the truth and stifle the investigation and in view of the previous conduct of the petitioner in threatening the intervener to withdraw the case from the Supreme Court, the close connection between the main accused and the petitioner, the air journey of the petitioner being financed by the main accused-Pradeep Kumar Sethy and the money trailing from Artha Tatwa to ZICA, it would not be proper to grant anticipatory bail to the petitioner and the custodial interrogation of the petitioner is very much necessary.

12. Now the question is whether in view of the available materials on record, the anticipatory bail is to be granted in favour of the petitioner.

In Gurbaksh Singh Sibbia v. State of Punjab, reported in MANU/SC/0215/1980 : AIR 1980 SCC 1632, it was held as follows:--

"21.

XXXX

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 S. 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 S. 437 or S. 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."

13. 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 raid conducted by the CBI on 25-9-2014 in the house of the petitioner, the nature of documents seized during such raid, the notices issued by the Inspector of Police, CBI to the petitioner for interrogation and the arrest of a number of persons by the CBI who were neither named nor charge-sheeted in Kharvelnagar P.S. Case No. 44 of 201, 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." The contention of the learned counsel for the CBI that the petitioner is a mere "suspect" and, therefore, his anticipatory bail application should not be entertained cannot be accepted in view of the guidelines enunciated in case of Gurbaksh Singh Sibbia (MANU/SC/0215/1980 : AIR 1980 SC 1632) (supra).

14. There is no dispute that the case relates to commission of economic offences. Such offences are "economic murder" of the entire community of people who invested their hard earned money in organizations with assurance of lucrative returns but lost their lives' savings. The victim is duped and thereby deprived of his economic life. The crime is no heinous than putting an end to the life of a person. Sometimes the loss is so heavy that it rocks the backbone of the investor for all time to come and he hardly gets any scope to come out of the trauma.

In case of Y.S. Jagan Mohan Reddy v. CBI, reported in MANU/SC/0487/2013 : (2013) 55 Ori Cri R (SC) 825 : (AIR 2013 SC 1933), it is held as follows:--

"15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

16. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of public/State and other similar considerations."

In case of State of Gujarat v. Mohan Lal 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 S. 438 of Criminal Procedure Code should be exercised with utmost care and caution."

Keeping in view the aforesaid proposition of law, it can be said that while dealing with an application for grant of anticipatory bail in an economic offence, apart from the nature and gravity of the accusation, the role played by the accused, the character of the accused, the antecedent of the accused, the possibility of the accused tampering with the witnesses or fleeing away from justice, likelihood of repetition of similar offences in future, reasonable possibility of securing the attendance of the accused at the time of trial are all to be seen with utmost care and caution and exceptional case has to be made out for grant of anticipatory bail particularly in economic offences.

15. 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 SCC 720 : (1999 AIR SCW 4951), 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 S. 438 of Cr.P.C. has been recently dealt with in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (MANU/SC/0872/1998 : AIR 1998 SC 696). 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 S. 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 C.B.I, v. Anil Sharma, reported in MANU/SC/0947/1997 : (1997) 7 SCC 187 : (AIR 1997 SC 3806), 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 S. 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information's 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 SCC 52 : (AIR 1998 SC 696), 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."

In case of Muraleedharan v. State of Kerala, reported in MANU/SC/0269/2001 : AIR 2001 SC 1699, wherein it is held as follows:--

"7. ...Custodial interrogation of such accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal conspiracies committed by the persons which ultimately led to the capital tragedy. 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 an 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 Judge under S. 438 of the Cr.P.C. would have been misused. It is heartening that the High Court of Kerala did not allow such an order to remain in force for long."

16. What is "custodial interrogation"? "Custody" means formal arrest or the deprivation of freedom to an extent associated with formal arrest. "Interrogation" means explicit questioning or actions that are reasonably likely to elicit an incriminating response. Questioning initiated by law enforcement officers after a person is taken into custody or otherwise deprived of his or her freedom in any significant way is called "custodial interrogation." The Court has to strike a balance between individual's right to personal freedom and the investigational rights of the police. On one hand, the Court has to prevent harassment, humiliation and unjustified detention of an accused, on the other hand it is to see that a free, fair and full investigation is not hampered in any manner. When an application for anticipatory bail of an accused is objected to by the State on the ground of necessity of custodial interrogation, the Court can scan the materials available on record and ask the State to satisfy as to in what way the custodial interrogation would benefit the prosecution. The satisfaction of the Court would depend upon several factors viz., the nature of offence, the stage at which the investigation is pending, the materials which could not be traced out by the Investigating Agency due to absence of custodial interrogation and the benefit which the prosecution would get on account of custodial interrogation of the accused. It cannot be stated that in which particular type of cases or particular type of accused, the custodial interrogation would be mandatory. It would all depend upon the facts and circumstances of each case. No strait-jacket formula could be laid down. When the accused makes out a case for anticipatory bail, it is not to be defeated by mere asking for custodial interrogation by the prosecution without satisfying the necessity for the same. Of course in terms of S. 438(2)(i), Cr.P.C. the Court can impose a condition on the accused to make himself available for interrogation by the Investigating Officer as and when required. Sometimes the custodial interrogation of suspects would give clue regarding criminal conspiracy and identity of the conspirators and it may lead to recovery of the incriminating materials. Sometimes at the crucial stage of investigation, the custodial interrogation Would be a boon to the Investigating Officer. The person in custody likely to be interrogated has a right to remain silent. On some questions, he may answer and on some questions, he may remain silent or refuse to answer. Nobody can be compelled to answer to a particular question. No third-degree method is to be adopted for elicitating any answer. It is illegal to employ coercive measures to compel a person to answer. The Investigating Officer is bound to provide the arrested accused to meet an advocate of his choice during interrogation though not throughout interrogation as required under S. 41-D, Cr.P.C.

17. The materials so far produced by the respective parties indicate the nature of accusations against the petitioner as follows:--

"(i) The petitioner allegedly threatened the intervener and his wife not to pursue the transfer of Chit Fund Scam cases from State agency to C.B.I.

(ii) A search was made in the house of the petitioner on 25-9-2014 in the absence of the petitioner but in the presence of his son namely Millan Panda who was provided with the copy of search list which he has received under due acknowledgment by putting his signature and date.

(iii) The necessary formalities of the provisions of search and seizure appears to have been prima facie complied with by the C.B.I. officials on 25-9-2014 during the search of the house of the petitioner.

(iv) Certain relevant documents as mentioned in Sl. Nos. 2 and 3 of the search list i.e., the visiting card and the contents of the letter written by the main accused-Pradeep Kumar Sethy to the petitioner while in custody which were seized from the house search of the petitioner on 25-9-2014 prima facie establishes the close link between the petitioner and the main accused Pradeep Kumar Sethy.

(v) The wife of the petitioner namely Geetanjali Panda was running an institution namely ZICA at Janpath, Bhubaneswar and the bank documents produced by the C.B.I. prima facie show that there was money trailing from the accounts of Artha Tatwa to the account of ZICA.

(vi) The petitioner was looking after the bail of one co-accused-Jagabandhu Panda who is in jail custody in connection with this case and has kept the documents of different cases instituted against the said co-accused as well as bail application copies of Jagabandhu Panda with him which were seized under search list as mentioned in Sl. No. 1.

(vii) The contention raised by the learned counsel for the petitioner that Jagabandhu Panda is a cousin of the petitioner appears to be pre-varicating.

(viii) The statement of the travel agent and documents produced by C.B.I, indicates that the main accused-Pradeep Kumar Sethy booked Air Tickets for the petitioner on some occasions and made payment for the same.

(ix) Notices issued to the petitioner on 3-11-2014 and 8-11-2014 were not responded to by the petitioner even after returning from performing the obsequies of his father."

Considering the submissions and counter-submissions expounded by the respective parties with reference to various provisions of law and materials available on record and in view of the nature and gravity of accusation and the role of the petitioner which has come out so far by way of oral and documentary evidence, it prima facie appears that the petitioner who is an influential personality and serving in an important post of police department under the State Government seems to have misutilised his official position for obvious reason. The "money trailing" to ZICA which is run by petitioner's-wife Gitanjali Panda at Janpath, Bhubaneswar from the accounts of Artha Tatwa appears to have been prima facie traced out by the Investigating Agency. The materials produced by the C.B.I. in sealed cover coupled with the statement of the intervener recorded during course of investigation as well as the documents produced by the intervener by way of an affidavit also prima facie establishes the involvement of the petitioner in the "larger conspiracy angle." The nature of accusations against the petitioner as discussed in the previous paragraph is also very clinching. The apprehension expressed by the learned counsel for the C.B.I, that in the event the petitioner who has got years of experience as a police officer and his stint with the Crime Branch is ensconced with a favourable order of pre-arrest bail then his interrogation would be a futile exercise appears to have sufficient force. The further apprehension of the C.B.I. that in the event the petitioner is protected with an order of anticipatory bail, there is reasonable apprehension of tampering with the witnesses and threat to the intervener who is now a witness for the prosecution in view of the past conduct of the petitioner has also got sufficient force. Though the investigation has progressed to some extent but according to the learned counsel for the C.B.I. there are many other aspects which are to be unearthed in the case and custodial interrogation of the petitioner may provide many useful information and materials to the Investigating Agency on such aspects and grant of anticipatory bail would cause serious prejudice to free, fair and full investigation. Without entering into a detailed examination of the materials available against the petitioner at this stage but on a brief examination of such materials and after evaluating the same with utmost care and caution, I am not inclined to exercise the discretionary power under S. 438 of the Code by granting pre-arrest bail to the petitioner. The anticipatory bail application is therefore rejected.

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Monday, 31 August 2020

Orissa HC: Parameters for grant of the opportunity of hearing to victim/informant in an anticipatory bail application

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