'Life Without Liberty Is Like Bird With Crippled Wings': Orissa HC Releases Undertrial In Financial Frauds Case Citing Prolonged Detention

Giving weightage to liberty of the petitioner over onerous bail conditions previously imposed upon him, the Single Bench of Justice Sibo Sankar Mishra observed –

“Liberty is the breath of life. Sans it, it's like a bird with crippled wings…Inability to comply such bail condition despite repeated reduction of cash security amount by this Court on the application of the petitioner, itself speaks of the onerous nature of the bail condition. Condition of bail being a procedural facet of the matter, should not be allowed to prevail upon fundamental right to life and liberty of an accused.”

Case Background

Five cases were lodged against the petitioner by different persons alleging that as the proprietor/Managing Partner of M/s. Satyam Sai Infratech Real Estate, the petitioner lured them to pay lakhs of rupees in exchange of lands to be provided by him. However, he failed to provide them (informants/complainants) lands and also, he did not return the amount received from the gullible customers.

FIRs were lodged in the aforesaid five cases implicating the petitioners for commission of various offences under the IPC, i.e. Sections 420 (cheating and dishonestly inducing delivery of property), 468 (forgery for purpose of cheating), 471 (Using as genuine a forged document or electronic record), 294 (obscene acts), 506 (criminal intimidation), 34 (common intention) and Section 6 (default in repayment of deposits and interests honouring the commitment) of the Odisha Protection of Interest of the Depositors Act, 2011 ('OPID Act'). Subsequently, he was taken into custody in 2017 in connection with these cases.

The petitioner filed five separate bail applications before the High Court. He was granted bail in all the five cases but with the condition of furnishing specified cash security amounts. Being unable to furnish the prescribed amounts, he sought modifications. However, despite of modification in the amounts in cash securities, he still could not furnish the same and resultantly, remained in custody despite grant of bail.

After remaining in jail for more than seven years, he moved the trial Court for grant of regular bail. Apart from the grounds on merits of the individual cases, the petitioner precisely contended that as per the statutory stipulation under Section 436-A of the CrPC, he is entitled to be released on bail having undergone more than 50% of the maximum sentence prescribed for the offences he has been charged for and facing trial.

However, the trial Court rejected such prayer citing the orders of the High Court granting bail to the petitioner. It said that bails have already been granted to the petitioner but he remained in custody due to his inability to furnish the prescribed cash securities. Therefore, it held, the bail petition moved under Section 436-A CrPC is not maintainable in the eyes of law.

As a corollary, these criminal miscellaneous petitions were filed by the petitioner impugning the rejection order and seeking his release, especially on the ground of remaining in custody for more than required period prescribed for invocation of Section 436-A, CrPC.

Court's Observations

At the outset, the Court underlined that the most serious offence in terms of punishment, for which the petitioner has been implicated, is Section 6 of the OPID Act which provides for a maximum punishment of imprisonment up to ten years. Thus, it was clear that the petitioner, being in custody for seven years, has already undergone imprisonment for more than half of the sentence prescribed for the most serious offence.

Justice Mishra referred to the landmark ruling of the Apex Court in the case of Satender Kumar Antil v. CBI & Anr., wherein the importance of Section 436-A, CrPC was flagged and it was emphasized that the provision mandates an undertrial, who has undergone detention for one-half of the maximum prescribed sentence for the offence, to be released on personal bond, with or without sureties.

“The use of expression "shall" in the provision signifies its mandatory nature, eliminating the necessity for a formal bail application, particularly when delays are not attributable to the accused. The period of incarceration includes custody during investigation, inquiry, trial, appeal and revision,” it added.

It also cited the observations made in Vijay Madanlal Choudhary & Ors. v. Union of India & Ors., 2022 LiveLaw (SC) 633 wherein the top Court had observed that Section 436-A of the CrPC is a beneficial provision aimed at upholding the right to speedy trial under Article 21 of the Constitution.

“It is further held that the State has a duty to ensure that trials, particularly in cases with stringent bail conditions are concluded expeditiously, preventing prolonged incarceration without trial. While this provision does not apply to offences punishable with the death penalty, it functions as a statutory bail provision, akin to Section 167 Cr.P.C.,” Justice Mishra added.

The Single Bench, while highlighting the importance attached to Section 436-A of CrPC, also put reliance on Bhim Singh v. Union of India, wherein the Supreme Court ordered all jurisdictional Magistrates/CJMs/Sessions Judges to hold one sitting in a week in each jail/prison for two months for the purposes of effective implementation of the aforesaid provision.

Hence, the Court was of the considered view that Section 436-A, CrPC being a statutory provision akin to the provisions of default bail provided under Section 167 of CrPC, aims to safeguard the interests of undertrial accused in custody from the prolonged incarceration.

“In the present case, it is evident that the accused has been in custody for a prolonged period exceeding seven years and has not been released on bail due to the inability to fulfil the bail conditions… Continuing to detain the accused as an undertrial for such an extended period not only contravenes the statutory rights under Section 436A but also infringes the constitutional principles embodied in Article 21 of the Constitution of India, which along with personal liberty also includes the right to a speedy trial as an integral part of the right to life,” it observed.

Taking the above legal position vis-à-vis the facts of the case into account, the Court deemed it proper to give a 'go-bye' to the procedural entanglement in release of the petitioner for his apparent failure to comply with the bail conditions. Accordingly, he was ordered to be released on bail.

Case Title: Basudev Behera v. State of Odisha

Case No: CRLMC Nos. 2220, 2196, 2197, 2208 & 2224 of 2024

Date of Judgment: February 13, 2025

Counsel for the Petitioner: Mr. Bijay Kumar Mohanty, Advocate

Counsel for the State: Mr. Bibekananda Bhuyan, Advocate for OPID

Citation: 2025 LiveLaw (Ori) 26