Chittaranjan Mallick vs State of Orissa

M.M. Das, J.—Several Vigilance cases have been instituted against the present Petitioner. Allegations in all the cases, except one, are for commission of alleged offence punishable under, Sections 120-B/420/467/468/472 Indian Penal Code read with Section 13 (2) and 13(i)(d) of the Prevention of Corruption Act, 1988.

The prosecution alleges that the then Managing Director of Orissa Rural Housing Development Corporation ''(for short, ''the Corporation'') in conspiracy with the other subordinate officials of the said Corporation and private builders sanctioned and disbursed loan amounting to crores of rupees by bifurcating the said money into small individual loans limited to Rs. 5,00,000/-. It is further alleged that in such method, as the money, which is meant for the rural poor people, was advanced to private builders who have also admittedly become chronic defaulters in repaying the said loans and, as such, the Corporation has sustained huge loss. The Petitioner admittedly was working as the Cashier on contractual basis in the said Corporation. It has been alleged against him that he was physically keeping the blank cheques as well as the cheques signed by the Managing Director, Shri Vinod Kumar, I.A.S. in his custody and he was physically handing over the cheques to the beneficiary builders with unusual delay.

The particulars of the aforementioned cases are as detailed below:-

Sl.No.

BLAPL No.

Bhubaneswar

Outstanding amounts Vigilance P.S.Involved in FIR Case No.

1

No.6945/07

No.49/22.12.06

Rs44,68,485/- (M/s Rashmi Mass Construction Pvt. Ltd.)

2

6946/07

No.54/23.12.06

Rs.81,49,505/- (M/s. GajananProp. Dealer & Construction Pvt.Ltd.)

3

6947/07

No.56/30.12.06

Rs.1 ,53,78,751/ - (M/s.Biswal Construction Pvt.Ltd.

4

6948/07

No.57/30.12.06

Rs40,62,041/- (M/s.Bhimika Builders Pvt.Ltd.)

5

6949/07

No.60 /30.12.06

Rs.1,57,19,9631/- (M/s.HomeLives Housing)

In each of the above cases, the Petitioner previously approached this Court u/s 438 Code of Criminal Procedure. for grant of anticipatory bail in BLAPL Nos. 1396, 1397,1141,1142 and 1399 of 2007. By Order Dated 28.3.2007, this Court declined to grant anticipatory bail to the Petitioner. The Petitioner again approached this Court in BLAPL Nos. 3414, 3415, 3416, 3418 and 3420 of 2007 for grant of anticipatory bail. The said bail applications were disposed of by this Court by a common Order Dated 23.4.2007 observing, inter alia, that no anticipatory bail order can be granted as the same has been rejected once and further observing that in the event, the Petitioner surrenders and moves for bail pursuant to the order passed in the earlier bail applications, the Court shall, as far as practicable, maintain parity. The Learned Counsel for the Petitioner in the said cases, later submitted that as the Petitioner has been directed to surrender and move for bail, he may also be given permission to move the higher forum in the event his bail applications are rejected. Considering such submission, this Court further directed that the bail applications of the Petitioner will be disposed of by the Trial Court in the first hour so that in the event of rejection, the Petitioner can move the higher forum on the same day. The records, if necessary, shall be transmitted to the higher forum at the cost of the Petitioner. An application for modification of the above order was filed in each of the bail applications, on consideration of which, this Court on finding that the Learned Counsel for the Petitioner is not in a position to specify the date on which the Petitioner intends to surrender directed that, the date of surrender shall be intimated to the Learned Counsel for the Vigilance Department prior to surrendering so that the case diary can be made available to the concerned Court.

While considering the anticipatory bail applications of the Petitioner, this Court rejected the same for the first time on 28.3.2007 holding as follows:

Considering the stage at which investigation is and the allegations made in the F.I.R., I am of the view that the Court should not exercise its discretion in granting anticipatory bail to the Petitioner. I, accordingly, dismiss the application and direct the Petitioner to surrender and move for bail.

It is no doubt true that in some of the other applications flied u/s 438 Code of Criminal Procedure. by the Petitioner, where similar allegations were made, this Court has granted anticipatory bail to the Petitioner. However, on rejection of the prayer for anticipatory bail of the Petitioner in the aforementioned cases and the observation made that if the Petitioner surrenders and moves for bail, the said bail application shall be disposed of during the first hour of the day, it is alleged by Mr Mohapatra, Learned Counsel for the Vigilance Department that the Petitioner neither surrendered before the Court below nor co-operated with the investigation. Consequently, the prosecution moved the Learned Special C.J.M., Bhubaneswar on 20.4.2007 for issuance of N.B.W. against the accused which was allowed. The said accused could not be apprehended and absconded. On 6.6.2007, the prosecution moved the Court below for issuance of proclamation and attachment under Sections 82 and 83 of the Code of Criminal Procedure. which was allowed. It was only then the accused surrendered on 2.7.2007. Mr. Mohapatra vehemently argued that even previously when the accused was granted interim protection by this Court for co-operating with the investigation, he did not do so and, as a matter of fact refused to give his specimen handwritings and answered to the queries made by the Investigating Officer in an evasive manner and even refused to give answer to some of the said queries. He also submitted that after the Petitioner surrendered, the Learned Special C.J.M. remanded the Petitioner to police custody for three days for interrogation. It has been candidly stated by Mr. Mohapatra that the then Managing Director of the Corporation, namely, Shri Vionod Kumar, IAS is also an accused in the cases under investigation along with the then F.A. and C.A.O. who has retired in the meantime. Mr. Mohapatra contended that the Petitioner is one of the prime accused in the case as at the instance of the Petitioner, the Managing Director, Shri Vinod Kumar, I.A.S. was signing the cheques. Mr. Mohapatra further contended that Bhubaneswar Vigilance P.S. Case No. 15 of 2004 has also been initiated against the Petitioner on allegation of holding dis-proportionate assets to the known source of his income. According to him, the Petitioner was employer in the Corporation on contractual basis with a meager consolidated salary but is found in possession of assets like buildings, mines, crusher units and vehicles including luxury cars standing either in his name or in the name of his family members, relatives and associates and his story is one of "Rags to Riches" akin to the Arabian Tales. He, therefore, submitted that from the above facts, it can be presumed that the Petitioner is involved in the ORHDC SCAM.

This Court, however, considering the above submissions and the fact that the Petitioner has been granted bail in the said dis-proportionate assets case, prima facie finds that basing on the above allegations, no presumption can be drawn that the Petitioner for the above reasons can be held to be involved in the ORHDC SCAM unless such case is prima facie made out against the Petitioner in the instant cases.

Mr. Sanjit Mohanty, Learned senior Counsel appearing for the Petitioner, on the contrary, submitted that pursuant to the orders passed by this Court in the previous bail applications, the Petitioner surrendered before the Learned Special C.J.M., Vigilance, Bhubaneswar on 2.7.2007 and filed applications praying for his release on bail, the said Court rejected the prayer of the Petitioner on the same day and the Petitioner moved applications for bail before the Learned Special Judge, Vigilance, Bhubaneswar u/s 439 Code of Criminal Procedure. on the same day. The said application being rejected vide Order Dated 3.7.2007, the Petitioner has filed the instant applications. He further submitted that in the entire exercise of sanctioning and ''disbursing of loans, the Petitioner has no role to play nor he was working in the loan Section. According to Mr. Mohanty, the Petitioner had no occasion to deal with the loan files in question at any point of time and there is no material brought out during investigation to show the involvement of the Petitioner in either sanctioning or disbursing the loans in question. The only allegation made by the prosecution against the Petitioner is that he physcially handed over the cheques to the beneficiaries/loanees and handing over the cheques already singed by the Managing Director of the Corporation cannot amount to an offence.

Considering the allegations made against the Petitioner and the submissions of Mr. Mohapatra, Learned Counsel for the Vigilance Department as well as the Learned Counsel for the Petitioner, this Court is of the view that at this stage of the case, it would be inappropriate to appreciate/assess the merits of the allegations made against the Petitioner which are to be gone into at the trial in the event a charge sheet is filed.

It has been submitted by Mr. Mohapatra that the other co-accused persons, namely, the then Managing Director as well as F.A. and C.A.O. of the Corporation have not been taken to custody as the cases are under investigation and they have fully cooperated with the Investigating Officer.

From the above submissions, it, therefore, appears that due to non cooperation of the Petitioner with the Investigating Officer, the prosecution has taken all necessary steps for forcing the Petitioner to surrender before the Court below. Admittedly, the Petitioner was remanded to police custody for interrogation for three days.

Mr. Mohapatra further submits that due to the offences committed by the Petitioner along with other accused persons, the Corporation having sustained heavy financial loss, the Petitioner is not entitled to be released on bail. He also submitted that the Supreme Court in the case of State represented by the State Rep. by the C.B.I. Vs. Anil Sharma, has held that custodial interrogation is more effective and apprehensions about the conduct of the accused is important and, further, the availability of the accused for interrogation is not a ground to grant bail. With regard to economic offences, Mr. Mohapatra relied upon the decision in the case of Narinderjit Singh Sahni and Another Vs. Union of India and Others, . It also appears from the above decision of the Supreme Court that the Supreme Court took note of the observation of the High Court in the impugned order that unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant. On the above observation of the High Court, the Supreme Court held that "the said observations are more germane while considering an application for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest."

In the case of State v. Anil Sharma (supra), the Supreme Court while considering an appeal filed by the C.B.I. against the order passed u/s 438 Code of Criminal Procedure. accepting the contention advanced on behalf of the C.B.I. held that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order u/s 438 Code of Criminal Procedure.

It is, therefore, clear that the Supreme Court was in seisin over an order passed by the High Court, u/s 438 Code of Criminal Procedure. and categorically distinguishing the facts to be considered in an application u/s 438 Code of Criminal Procedure. and on an application u/s 439 Code of Criminal Procedure. filed as above. The instant applications are u/s 439 Code of Criminal Procedure. and, therefore, in my considered view, the observations and conclusions in the aforesaid decision will have no application to the facts of the present case.

In the case of Enforcement Officer, Ted. Bombay v. Bher Chand Tikaji Bora and Anr. (2000) 18 OCR (S.C.) 109, the Supreme Court was also, considering the order of anticipatory bail granted by the Bombay High Court and relying upon the decision in the case of Dukhishyam Benupani Assistant Director Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) SCC (CRL) 261 observed that the white colour criminal like the Respondent against whom 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 the jurisdiction u/s 438 Code of Criminal Procedure. and granting anticipatory bail. The Supreme Court further observed that "in the facts and circumstances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking the jurisdiction u/s 438 Code of Criminal Procedure. and granting anticipatory bail to the Respondent".

For the reasons already stated above, the aforementioned decisions rendered by the Supreme Court cannot also be made applicable to the facts of the present case, as firstly, that was a case for anticipatory bail which was under consideration of the Supreme Court and, secondly, the offence alleged to have been committed was under FERA, whereas the facts of the present case are totally different and these bail applications u/s 439 Code of Criminal Procedure. do not relate to grant of anticipatory bail.

In the case of Narinderjit Singh Sahni and Anr. (supra), the Supreme Court was dealing with a batch of Writ Petitions under Article 32 of the Constitution where infraction of Article 21 of the Constitution was alleged by the Petitioner and the Petitioner therein prayed for grant of an order for bail in the nature as prescribed u/s 438 Code of Criminal Procedure. Several other points were raised in the said case before the Supreme Court.

Considering the facts of the said case which related to several alleged offences, the Supreme Court while holding that the petition under Article 32 of the Constitution is maintainable, came to the conclusion that the Petitioners are not entitled to any relief by reason of insufficiency of available materials on record as regards the issue of infraction article 21.

In my considered view, the said decision is of no assistance to the Learned Counsel for the Vigilance Department in the facts of the present case.

I have perused the materials available in the case diary produced by Mr. Mohapatra on the direction of this Court. From the statement of the accused. Bijay Kumar Mohapatra, the then F.A. and C.A.O. of the Corporation recorded u/s 161 Code of Criminal Procedure., it appears that the said B.K. Mohapatra, has categorically stated that at the instance of the Petitioner, the Managing Director was signing the cheques and the Petitioner was physically handing over the cheques to the beneficiary builders with unusual delay obviously with ulterior motive. The Petitioner was not doing any official duty during official hours and was hobnobbing with the prospective loanees and performing the role of the liason agent of the Managing Director.

The F.I. Rs in this case were lodged by the Deputy Superintendent of Police, Vigilance Cell before the Superintendent of Police, Vigilance, Bhubaneswar Division. It appears from the allegation made in the F.I. Rs that it was alleged that the Managing Director in connivance with his subordinate public servants including the Petitioner entered into a criminal conspiracy with each of the loanees and in furtherance of the same swindled away the amounts disbursed in favour of the loanees by ordinarily limiting each loan to a tune of Rs. 5,00,000/- which was the jurisdiction of the Managing Director and in this process, lakhs of rupees meant for rural poor were directed to be paid to urban builders jointly by the public servants of the Corporation by abusing their official position.

Considering the materials available in the case diary including the statement recorded u/s 161 Code of Criminal Procedure. of the above named Bijay Kumar Mohapatra, I am satisfied that there is no prima facie material with regard to allegation of the conspirecy between the Managing Director and the present Petitioner. It also prima facie appears that the present Petitioner could not have sanctioned or disbursed the loans if the same would not have been sanctioned by the Managing Director.

Considering the above materials and the fact that the Petitioner is in custody since 2.7.2007 and has been interrogated for three days while in custody and further in similar other cases, the Petitioner has been granted anticipatory bail, I do not find any reason as to why the Petitioner should not be enlarged on bail with stringent conditions.

I, therefore, while allowing these applications, direct that the Petitioner shall be released on bail on furnishing a bond of Rs. 50,000/- (Rupees fifty thousand) with two sureties each for the like amount to the satisfaction of the Learned Special Chief Judicial Magistrate, (Vigilance), Bhubaneswar in Vigilance G.R. Case Nos. 49, 54, 56, 57 and 60 of 2006 arising out of Bhubaneswar Vigilance P.S. Case Nos. 49, 54, 56, 57 and 60 of 2006 respectively subject to the following further conditions:-

(1) The Petitioner shall appear before the Investigating Officer for further interrogation/investigation, as and when required.

(2) If it is required by the I.O., the Petitioner shall give his specimen hand writing to him for comparison with the disputed hand writings.

(3) While on bail, the Petit5:09 PM 10/3/2011ioner shall not move out of the territory of Bhubaneswar city without giving prior intimation to the I.O. with regard to the place of visit. However, on no account, the Petitioner shall go out of the territory of the State of Orissa.

(4) In the event, a charge sheet is filed, on receiving summons from the Court below, he shall appear before the said Court on each of the dates to which the case is posted.

Violation of any of the conditions imposed above shall entail cancellation of this bail order.

All the BLAPLs are accordingly disposed of.

Bail Applications disposed of