Sunday, 5 July 2015

When victim/informant/aggrieved party can be heard by court in hearing for grant of 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
39
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 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 in as much 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 claim
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, CUTTACK.
BLAPL NO. 19817 OF 2014
An application under section 438 of the Code of Criminal
Procedure.

Republic of India

-Versus- 
......... 
Pramod Kumar Panda

P R E S E N T :-
THE HONOURABLE MR. JUSTICE S.K. SAHOO
.
Date of Judgment-15.12.2014
Citation; 2015 ALLMR (CRI)JOURNAL289

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 section 438 Cr.P.C. apprehending arrest in connection with
CBI/SCB/KOL
Case
No.
RC.47/S/2014-KOL.
dated
5.6.2014

registered under sections 120-B, 294, 341, 406, 420, 467, 468,
471, 506 read with section 34 Indian Penal Code and Sections 3,
4 & 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 station 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 sections 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 Arthatatwa
Multipurpose
“ATMPCS”)
Co-operative
situated
at
Society
SCR-29,
Ltd.
(hereafter
Unit-III,
for
short
Kharvelnagar,
Bhubaneswar under monthly income plan of the said company
3
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 authorizing 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.
4
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 Co-operative Society. AT Group of Companies
was also running its business through various Companies. The
registration of the Atrha 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,
Chairman-cum-Managing Director of AT Group of Companies with
his associates collected money by forming ATMPCS under the
5
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 sections 420,406,120-B Indian Penal Code read with
sections 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
6
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 (2014) 58 Orissa Criminal Reports
(SC) 905). The relevant paragraphs are quoted herein below:-
“28. An affidavit has been filed by the State of
Odisha pursuant to the said directions in which
the F.I.Rs 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 :
xx
xx
xx
(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
xx
xx
xx
7
30. The factual narrative given in the foregoing
paragraphs clearly establish the following:-
1. The financial scam nicknamed
chit-fund scam that has 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.
xx
xx
xx
5. That
investigation
so
far
conducted reveals involvement
of several political and other
influential personalities wielding
considerable clout and influence.
xx
xx
xx
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.
xx
xx
xx
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
8
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.
xx
xx
xx
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).
xx
xx
xx
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
9
such cases in which charge
sheets have already been filed.”
2.
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.Rs
(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 sections 120-B
/294/341/406/409/420/467/468/471/506/34 I.P.C. and sections
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.
3.
In spite of the order dated 9.5.2014 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
10
the charge sheet submitted on 10.7.2013 for the offence under
sections 420, 406, 120-B I.P.C. read with section 4,5 and 6 of
Prize Chits and Money Circulation Schemes (Banning) Act, 1978
read with section 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 section 173
(8) Cr.P.C.
4.
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 authorization
given by the I.O. under section 165 Cr.P.C. for search was shown
to the son of the petitioner. The petitioner was contacted over
11
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
Ist floor)
5.
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
12
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 in as much 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 other 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.
6.
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?
13
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 Article 32 of the Constitution of India before the Hon’ble
Supreme Court of India praying therein to handover the
investigation of multithousand 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
14
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
15
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 leaned 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 2005(2) Kerala
Law Times 685 wherein in an application under section 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 section 301 Cr.P.C. so also 438
Cr.P.C., it was held as follows :
16
“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
Section 438 and exercise the powers under the
said section.
12. Therefore, no Court dispenses with a notice
to the Prosecutor in an application under Section
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 Section
301 and other related provisions apply not to an
application under Section 438 Cr.P.C. The power
vested in the Court under Section 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.
xx
xx
xx
17
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”.
7.
The learned counsel for the petitioner Mr. Devasis Panda
while drawing the attention of this Court to sub-section (1-A) of
section 438 Cr.P.C. submitted that no notice is required to be
18
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 section 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 section 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
19
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 section 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 Asst. 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 section 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 Asst. 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 Maharastra reported
in (2014) 58 Orissa Criminal Report (SC) 219 wherein it is
held as follows:-
20
“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 AIR 1993 Supreme Court 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.
21
Similarly, a vexatious petition under the colour
of PIL brought before the Court for vindicating
any personal grievance, deserves rejection at
the threshold.
xx
xx
xx
109. 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."
xx
xx
xx
113. My. 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 incorporating 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.
xx
xx
xx
115. Mr. Anand Dev Giri, the learned Solicitor
General stating that Public Interest Litigation is
not in the nature of adversorial litigation and it is
intended to promote and vindicate public
interest which demands that violation of
constitutional or legal rights of large number of
22
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 more
so 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.
xx
xx
xx
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
23
interest? The emphatic answer would be 'Not
even a single ray of the characteristic of public
interest litigation is visibly seen'.”
8.
Section 438 (1-A) Cr.P.C. reads as follows:-
“438.
xx
xx
xx
(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 section 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 Section 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
24
petitioner feels that in view of the factors as enumerated under
(i), (ii), (iii) and (iv) of section 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 no where 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?
25
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
herein below:-
“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,
26
cheated,
damaged,
defrauded,
harassed,
injured,
offended,
oppressed or wronged.
9.
In case of Puran-v-Rambilas reported in 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 vs. Union of India, reported in AIR
1993 SC 280 and Janata Dal, vs. H.S.
Chowdhary, reported in 1991 (3) S.C.C. 356.
Both these cases dealt with Petitions under
Article 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 Article 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 vs. State by DSP,
District Crime Branch, Madurai District,
Madurai 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 Section 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 Section 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 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.
28
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
Section 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 2014 (1) Bom CR (Cri) 616: 2014
All Maharastra Law Reporter (Criminal) 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
section 154 nor
the
Complainants
under
section 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 vs. Rambilas
reported in 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 section 439(2) of the Cr.P.C.
is maintainable. However, in the case of
anticipatory bail under section 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 the accused. In the case of Prem
Kumar Sharma (supra), a learned Single Judge of
this Court while referring to the judgment of this
Court in the case Vinay Poddar vs. State of
Maharashtra & Ors., 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 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 (supra). No doubt, the
Intervenors
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 section 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.”
31
In case of Dr. Sunil Pati –v- State of Chattisgarh
reported in 2006 (2) Chatisgarh 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
Section 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
Section 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
Section 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 (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 of the other irrespective
of the true facts involved in the case. If we apply
the similar analogy in a case filed Under
Section 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 case that the counsel for the complainant
or the first informant has no right to be heard in
a petition filed Under Section 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 Sr. Counsel for the first
informant regarding application of analogy of
Section 173(2) Cr. P.C. in a proceeding under
Section 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 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 end of the matter forever
and in the said circumstances only, an
opportunity of being heard to the first informant
has been recognized. However, in a petition
under Section 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
Section 439(2) Cr. P.C. can also not be accepted.
The power Under Section 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 ratio laid down by the Apex Court in
the matter of Puran v. Rambilas . This power
vested with the High Court or the Court of
sessions Under Section 439(2) Cr. P.C. cannot be
equated with the power and jurisdiction Under
Section 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 Section 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 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 Sr.
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
frame work of the Cr. P.C. This argument
advanced on the concept of natural justice can
possibly be made applicable, if we 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 2009 Criminal Law Journal 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 2010 Criminal Law Journal 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
looser. 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 a
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
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
nowadays, 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.
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
39
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 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 in as much 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 claim
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.
10.
So far as the present case is concerned, there is no dispute
that the petitioner 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.RC.47/S/2014-KOL. dated
41
5.6.2014
was
registered.
The
petitioner
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
whistle blower 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
42
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.
11.
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 section 120-B IPC. 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
43
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 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
44
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 section 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 was 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
45
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 Chapter 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
46
of interrogation on number of occasions and all on 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.
12. Mr. V. Narasingh, the learned counsel for the CBI submitted
that the
petitioner’s
personalities
wielding
case
comes
considerable
within
clout
“other
and
influential
influence”
as
observed by the Hon’ble Supreme Court in paragraph 30.5 in case
of Subrata Chattoraj –v- Union of India. He further submitted that
petitioner’s wife is running an institution namely ZICA and the
materials collected during investigation reveals 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
47
claims to have a distinguished service records and investigated
many importance 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
48
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 in as much 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
through 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
acknowledgement 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
49
the petitioner and the custodial interrogation of the petitioner is
very much necessary.
13.
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 AIR 1980 Supreme Court Cases 1632,
held as follows:-
“21.
xx
xx
xx
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”
xx
xx
xx
22. By proposition No.1 the High Court says
that the power conferred by section 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 section
437 or section 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
it was
50
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”.
14.
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 number of persons by the CBI
who were neither named nor charge sheeted in Kharvelnagar P.S.
Case No.44 of 2013, 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
51
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 (supra).
15.
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
(2013) 55 Orissa Criminal Report (SC) 825, 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
52
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 Gujurat –v- Mohan Lal Jitamal
Torwal reported in AIR 1987 SC 1321, it is held as follows:-
“5.
xx
xx
xx
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”.
53
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
section 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.
16.
The learned counsel for the CBI placed reliance in case of
Enforcement Officer –v- Bher Chand Tikaji Bora reported in
(1999) 5 Supreme Court Cases 720, wherein it is held as
follows:-
“2......From a bare reading of the impugned
order, it appears that the learned Single Judge
54
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
Section 438 of Cr.P.C. has been recently dealt
with in Dukhishyam Benupani, Asst. Director,
Enforcement Directorate (FERA) v. Arun Kumar
Bajoria. 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 Section 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 (1997) 7 Supreme Court Cases 187,
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 section 438 of the
Code. In a case like this, effective interrogation
of a suspected person is of tremendous
advantage
in
disinterring
many
useful
informations 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
55
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 (1998) 1 Supreme Court Cases 52, 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
AIR 2001 SC 1699, wherein it is held as follows:-
56
“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
Section 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.”
17.
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
57
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 facts
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 section 438 (2) (i)
58
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 section 41-D Cr.P.C.
18.
The materials so far produced by the respective parties
indicate the nature of accusations against the petitioner as
follows:-
59
(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 acknowledgement
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
60
shows 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 performing the obsequies of his father.
19.
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
61
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
62
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 the 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 section 438 of
the Code by granting pre-arrest bail to the petitioner. The
anticipatory bail application is therefore rejected.
..............................
S.K. Sahoo,J.
Orissa High Court, Cuttack
The 15th December, 2014/Pravakar
(2015) 60 OCR-660
63

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