Orissa High Court Comes Down Heavily On Two Magistrate Courts For Their Inaction Resulting In '9 Yrs Delay' In Remand

While granting bail, a Single Judge Bench of Justice Sashikanta Mishra observed,

"The lackadaisical manner in which the matter has been dealt with is a case for serious concern as it strikes at certain fundamental pillars of not only criminal procedure but also the Constitutional principles of liberty. This is a classic case where the petitioner, for no fault of his own, was deprived of making a legitimate prayer for being released on bail. Viewed differently, this is a case where the continued inaction of the concerned authority/Courts resulted in serious violation of fundamental right of the petitioner to seek his liberty. Whether bail is to be granted on merits or not is a different question, but to prevent a person from moving for bail and that too, purely on technical grounds is something that cannot meet with the sanction of law."

Facts of the Case:

The present petitioner, Mr. Pradeep Sethy is the CMD of a firm called 'Artha Tatwa'. It is alleged that he along with other employees conspired to lure gullible depositors to deposit money under different schemes floated by the said firm with the promise of handsome returns. Allegedly a sum of nearly 25 crores was collected thereby. Subsequently, when the deposited amounts along with the promised returns thereon were not repaid, the depositors wanted to meet the officers of the firm. While some of them were not traceable, the others conveyed that nothing would be refunded to them. Accordingly, an FIR was lodged against them on 10.05.2013.

On 25.06.2013, the Investigating Officer ('IO') of the case prayed before the S.D.J.M., Jagatsinghpur for remand of the present petitioner and the co-accused, Manoj Pattnaik as they were then in custody in connection with another case in Bhubaneswar. Accordingly, the S.D.J.M., Jagatsinghpur passed an order to send a W.T. Message to the S.D.J.M., Bhubaneswar asking whether the said accused could be spared to his court.

While the matter stood thus, charge sheet was submitted on 06.08.2013 under Sections 420/506/120-B/406/467/468/471/34, IPC read with Sections 4, 5 & 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 showing the petitioner as 'Remanded'. The case was adjourned from time to time for about 'nine years' for want of production of the accused, Pradeep Sethy and others.

Then, the petitioner preferred an application for bail on 24.01.2022 before the learned S.D.J.M., Jagatsinghpur, which came to be rejected on the same day. The petitioner thereafter approached the Court of Session for bail under Section 439 of Cr.P.C. The said application also came to be denied by an order dated 16.02.2022 passed by learned Sessions Judge, Jagatsinghpur on the ground that the accused had not been produced or remanded in the case at hand nor had surrendered before the Court and therefore, the petition under Section 439 Cr.P.C. is not maintainable. Thus, the petitioner moved the High Court seeking bail.

Contentions of the Petitioner:

Mr. Milan Kanungo, Senior Counsel for the petitioner, argued that though the FIR was registered on 10.05.2013, the petitioner was produced physically before the Trial Court only on 22.03.2022 but the same cannot be treated as the date of first production because the I.O. had prayed for his remand way back on 25.06.2013, but the Court had failed to act upon the same. He further submitted that on the prayer of the I.O., learned S.D.J.M., Jagatsinghpur passed an order for sending W.T. message to the learned S.D.J.M., Bhubaneswar to spare the accused but thereafter, everything came to a standstill till 22.03.2022. In the meantime, the petitioner has spent nearly nine years in custody.

He further argued that the offences being under the aforementioned Sections, the petitioner, if convicted, can be sentenced for a maximum term of 'seven years'. However, the petitioner has already spent about 'nine years' in custody. Assailing the finding of learned Sessions Judge that the petitioner was not physically produced, Mr. Kanungo has argued that the petitioner must be deemed to have been remanded in this case or deemed to be in custody in the present case.

Contentions of the Respondent:

Mr. P. Tripathy, Additional Standing Counsel for the State, argued that though the I.O. prayed for remand of the petitioner on 25.06.2013, yet the same was never acted upon. As per Section 439 Cr.P.C., bail can be granted to a person accused of an offence and in custody. Here, the petitioner has never been in custody in the present case being neither arrested nor remanded. His custody in another case cannot be treated as custody in so far as this case is concerned and therefore, the petition under Section 439 Cr.P.C. was rightly held by learned Sessions Judge as not maintainable.

Court's Findings:

The Court noted that to invoke the provision under Section 439 Cr.P.C., a person must be accused of an offence and in custody. Though attempt was made to take the petitioner into custody, it was never carried to its logical conclusion. As a result, the valuable right of the petitioner to move an application under Section 439 Cr.P.C. was automatically frustrated and as long as nine years passed by in the meantime.

The Court boldly observed that it is a serious infraction of the petitioner's fundamental right to liberty guaranteed under Article 21 of the Constitution of India. It iterated, only for the negligence and inaction of the concerned authorities, in this case the concerned Courts, the petitioner could not be remanded in this case though such a prayer was made by the I.O. way back on 25.06.2013.

The Court therefore, found substance in the submission of Senior Counsel that the petitioner's right to move for bail was seriously infringed. Having regard to the law laid down by the Apex Court in Government of Andhra Pradesh and Ors. v. Anne Venkatesware and Ors., as followed by the Full Bench of the Allahabad High Court in Shabbu and Ors. v. State of U.P. and Ors., the petitioner must be deemed to have been custody in connection with the case in question since the date of registration of the FIR, i.e., 10.05.2013, the Court decided.

The Court further observed that though it is true that unless a person is in custody, he cannot move an application under Section 439 Cr.P.C and therefore, he is to be either arrested/remanded and taken to custody thereby, but what would happen if he is in custody in some other case, which obviates the possibility of his physical surrender to the court. Indubitably, it held, he can only be produced and remanded in the case in question.

Accordingly, the Court held that the petitioner is deemed to have been in custody since 10.05.2013 and therefore, his application for bail under Section 439 Cr.P.C. is maintainable. Further, having regard to the fact that charge sheet has already been filed and the petitioner has spent more than nine years in custody by now in connection with the present case, the Court found no reason to detain him in custody any longer. The bail application was allowed.

Before parting with the case, the Court came down heavily on the errant S.D.J.M. Courts for their negligence and called for report with explanation as to why this avoidable delay happened.

"…this Court deems it proper to call for reports from learned S.D.J.M., Jagatsinghpur and learned S.D.J.M., Bhubaneswar explaining as to under what circumstances and for what reason the order dated 25.06.2013 passed by learned S.D.J.M., Jagatsinghpur was not acted upon for as long as nine years. The reports as above should be submitted to this Court by 4th August, 2022."

Case Title: Pradeep Kumar Sethy v. State of Odisha

Case No.: BLAPL No. 1670 of 2022

Order Dated: 14^th July 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioner: Mr. Milan Kanungo, Sr. Advocate along with M/s. G.R. Jena, C. Mishra & Ms. Chandana Das, Advocates

Counsel for the Respondent: Mr. P. Tripathy, Additional Standing Counsel

Citation: 2022 LiveLaw (Ori) 115

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