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TMI Blog2020 (9) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... r bail after his earlier five unsuccessful attempts before this Court and also twice before the Hon'ble Supreme Court. The petitioner is in judicial custody since 05.09.2013 and facing trial on being charged under section 13(2) read with section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and sections 420, 468, 409, 379, 411 read with section 120-B of the Indian Penal Code in the Court of learned Special Judge (Vigilance), Keonjhar in T.R. Case No. 01 of 2014 (V.G.R. Case No.05 of 2013) which arises out of Balasore Vigilance P.S. Case No. 30 of 2013. The last bail application of the petitioner in BLAPL No. 1053 of 2019 was rejected as per order dated 07.08.2019 with a direction to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C., to take effective step to ensure the attendance of witnesses and it was further observed that if the trial is not progressed substantially with the examination of material witnesses by December 2019, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in accordance with law. The petitioner moved bail/interim bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the final charge sheet was submitted on 24.06.2014. The charge against the petitioner in the trial Court was framed on 05.06.2017 and twenty five charge sheet witnesses have been examined so far during trial. 3. Mr. Santosh Kumar Mund, learned counsel appearing for the petitioner argued that after rejection of the last bail application by this Court on 07.08.2019 in BLAPL No. 1053 of 2019, the evidence of one Debadutta Suranjita (P.W.18) who was working as Under Secretary, Steel & Mines, Secretariat, Govt. of Odisha has been recorded on 03.10.2019 and she stated in her cross-examination that the outstanding dues against the lessee upto 31.12.2012 was Rs.3,42,486/- and that the loss sustained by the State is the loss of royalty due to illegal mining. According to Mr. Mund, in view of the evidence of P.W.18, the prosecution case that the loss sustained to the State Exchequer was more than one thousand five hundred crores is absolutely unfounded and wholly misconceived. It is further argued that in the charge sheet dated 24.06.2014, it is mentioned that a sum of Rs.13,17,59,863/- has been debited from the two accounts of the lessee B.K. Mohanty to the Govt. accounts towards payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State has no right to oppose the application for bail as the detention has already become pretrial punishment. He further argued that the petitioner has deep roots in the society, with his business interests and he is a permanent resident of Barbil and he is neither a flight risk (having surrendered his passport to the investigating agency) nor has he been shown to have any propensity to tamper with evidence or influence any witnesses apart from the fact that the evidence are mostly documentary in nature which have already been seized by the Vigilance police and submitted in the trial court. His properties and properties of his family members including bank accounts, business concerns and factory to the tune of Rs.386 crores have been attached under the Criminal Law Amendment Ordinance, 1944. He further argued that by reason of his continued incarceration, the petitioner is unable to instruct his lawyers properly and thereby unable to effectively defend himself, in violation of his right to fair trial under Article 21 of the Constitution of India. Placing reliance in the case of P. Chidambaram -Vrs.- Directorate of Enforcement reported in (2020) 77 Orissa Criminal Reports (SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of offence, its magnitude and ramification as alleged and also the materials available on record. (ii) The second bail application of the petitioner in BLAPL No.7277 of 2014 was rejected on 14.11.2014 holding that there is no change of circumstance and the release of the petitioner on bail is likely to cause further delay in getting the case ripen for trial, likelihood of tampering of evidence, the nature of accusation, seriousness of the offences, role played by the petitioner and also the quantum of punishment prescribed for the offences. (iii) The third bail application of the petitioner in BLAPL No.854 of 2015 was rejected on 28.03.2016 with following observation: "The crime was committed continuously for years together in a cool, calculated and organized manner causing loss of thousand of crores to the Government exchequer. There are prima facie materials showing involvement of the petitioner in the deep rooted conspiracy with other co-accused persons including the public servants. A strong prima facie case is available against the petitioner to show that he in connivance with the mining, forest, revenue officials and mining lease holders by creating fake documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equivalent loss to the Government exchequer to the tune of more than one thousand five hundred crores. The crime appears to have been committed in a cool, calculated and organized manner. A strong prima facie case is available against the petitioner to show his involvement in the economic offence. In view of the severity of punishment in case of conviction, reasonable apprehension of tampering with the evidence, absence of any substantial change of circumstances after rejection of bail applications by this Court thrice and particularly when the last bail rejection order of this Court was affirmed by the Hon'ble Supreme Court by dismissing the special leave petition, I am not inclined to reconsider the prayer for bail and release the petitioner on bail." (v) The fifth bail application of the petitioner in BLAPL No.1053 of 2019 was rejected on 07.08.2019 with following observations:- "8.....On a conspectus of the order sheet, it is evident that after rejection of the bail order of the petitioner on 24.08.2017, the learned trial Court used to post the trial of the case on two or three dates each month and issued summons after summons but only sixteen witnesses so far could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution in ensuring the attendance of the witnesses on different dates and thereby causing mockery of the trial. It seems that the right of speedy trial which is a fundamental right under Article 21 of the Constitution of India and denial of this right corrode the public confidence in the justice delivery system, has not been properly taken care of either by the prosecution or by the learned trial Court." xx xx xx xx ".....In the case in hand, the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and the petitioner has remained in custody for about six years and since at least for the last two years, the petitioner has not contributed to the delay, the detention has virtually became pre-trial punishment to him." xx xx xx xx "9.....while not inclining to release the petitioner on bail in absence of any substantial change of circumstances after rejection of the last bail application by this Court except a further detention of about two years with slow progress of the trial, I direct the learned trial Court to expedite trial keeping in view the provision under section 309 of Cr.P.C., to take eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing the entire ocular and documentary evidence adduced during trial. Similarly whether the evidence of P.W.18 elicited in her cross-examination that the outstanding dues against the lessee upto 31.12.2012 was Rs.3,42,486/- which is the loss sustained by the State would be sufficient to discard the entire prosecution case that the loss sustained to the State Exchequer was more than one thousand five hundred crores, is also to be adjudicated by the learned trial Court and therefore, I refrain from detailing or discussing the evidence on that score. 6. Coming to the issue of delayed trial, Article 21 of the Constitution of India guarantees for speed trial and an undertrial prisoner cannot be detained in jail custody for an indefinite period. The Court while exercising its discretionary jurisdiction while considering the application for bail has to maintain a balance between the valuable right of liberty of an individual and the interest of the society in general. If an accused is involved in the grave economic offences, the Court has to view it seriously as it involves deep rooted conspiracies and huge loss of public funds and affects the economy of the country as a whole and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to the delay, the detention has virtually became pre-trial punishment to him. It appears that the aforesaid order dated 07.08.2019 was received by the learned trial Court on 22.08.2019. After the order of this Court was received, the learned trial Court posted the case on twelve dates till the end of December 2019 i.e. 05.09.2019, 19.09.2019, 03.10.2019, 17.10.2019, 30.10.2019, 31.10.2019, 01.11.2019, 15.11.2019, 16.11.2019, 29.11.2019, 13.12.2019 and 16.12.2019. On 05.09.2019, P.W.14 who was earlier cross-examined in part was present and he was further cross-examined by the learned counsel for one of the accused and it was deferred to 19.09.2019 for further cross-examination on a time seeking petition being filed by the said counsel. On 19.09.2019, cross-examination of P.W.14 was completed and he was discharged. On that very day, P.W.17 was examined, crossexamined and discharged. On 03.10.2019, P.W.18 was examined, cross-examined in part and her further crossexamination was deferred due to want of time. On 17.10.2019, no witness was present. On 30.10.2019, P.W.19 was examined, cross-examined in part and his further cross-examination was deferred on time seeking petitions file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt by the learned trial Court on 22.08.2019, the counsel for the petitioner who is appearing for him has not sought for any adjournment. Therefore, the petitioner is no way responsible for the delayed trial. It cannot be lost sight of the fact that since last week of March 2020, there is no progress of trial in any Court in the State on account of situation arising out of the COVID-19 pandemic and only urgent matters are being taken up." During hearing of the bail application, as per order dated 07.09.2020, a report was called for from the learned trial Court as to whether the Court work has started functioning normally, whether any witness has been examined in the meantime and whether summons have been issued to the witnesses and what are the dates of posting of trial. The learned trial Court has submitted the status report which is dated 10.09.2020, in which it is stated as follows: ".........In obedience to the kind order dated 07.09.2020, passed by the Hon'ble Court in BLAPL No.1042 of 2020 and communicated to this Court under Hon'ble Court's Letter No.13208 dated 10.09.2020, I am to humbly submit as follows: That so far only 25 (Twenty five) witnesses have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses in the Court." While rejecting the last bail application of the petitioner in BLAPL No.1053 of 2019, it has already been held that the detention of the petitioner has virtually become pre-trial punishment to him as the trial has not progressed much in spite of the earlier direction of this Court due to lack of sincere effort of the prosecution and moreover, the petitioner has not contributed to the delay. Though direction was given to the learned trial Court to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of witnesses but it seems that even after the said order was received by the learned trial Court, the learned trial Court has neither followed the provision under section 309 of Cr.P.C. nor kept in view the observation made by this Court while disposing of the earlier bail application. No special reason has been assigned by the learned trial Court in adjoining the case to long dates. Not a single witness has been examined after 04.01.2020 and the status report makes it clear how difficult it has become to proceed with the trial of the case at present. Mr. Panigrahi, leanred Senior Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the attendance of the witnesses in the Court, it is expected that the observation made by this Court while disposing of BLAPL No.1053 of 2019 to expedite the trial keeping in view the provision under section 309 of Cr.P.C. and to take effective step to ensure the attendance of the witnesses shall also be kept in mind. All possible steps shall be taken to proceed with the trial on day-to-day basis. Since the learned trial Court is also dealing with other cases, a particular time slot should be fixed on each date and the mandate of section 309 of Cr.P.C. shall be adhered to. The trial Court shall take all possible steps to stop the dillydallying or shilly-shallying attitude adopted either from the side of the prosecution or accused and ensure that the constitutional right of speedy trial of the accused as guaranteed under Article 21 of the Constitution of India is not flouted causing mockery of the trial. It seems unnecessary lengthy cross examination has been made by different set of defence counsel to the witnesses to make it a gallery show, which needs to be regulated by the learned trial Court keeping in view the provisions under sections 146, 148, 150, 151, 152 and 165 of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further, disclose his place of residence where he will be residing after his release on interim bail and also, disclose his phone numbers and e-mail address to the Vigilance Department. (v) The petitioner shall not try to tamper with the prosecution evidence in any manner nor shall he make any threat or inducement to any witness acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court. (vi) The petitioner shall surrender the passport, if possessed by him, before the trial Court. If he does not possess the passport, he shall file an affidavit before the trial Court to that effect. (vii) The petitioner shall personally appear before the trial Court on all the dates fixed for trial. (viii) The petitioner shall not give any press interviews nor make any public comment in connection with this case qua him or other co-accused. It is made clear that if the trial is not progressed substantially with the examination of material witnesses within six months after the first date fixed for trial on normal resumption of the Court work, the petitioner would be at liberty to move for interim bail in the trial Court which shall be considered in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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