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

The Orissa High Court has come down heavily on two Courts of Sub-Divisional Judicial Magistrates ('SDJM') for their apparent inaction/negligence, which resulted in about 'nine years' delay in grant of custody of accused to the investigating agency. Notably, the accused stayed in custody for all these years in connection with another case and his application for grant of bail was outrightly rejected as he was never in custody in connection with the instant case. While granting bail, a Single Judge Bench of Justice Sashikanta Mishra observed, "The lackadaisical manner in which the matter has been dealt with is a case for serious concern as it strikes at certain fundamental pillars of not only criminal procedure but also the Constitutional principles of liberty. This is a classic case where the petitioner, for no fault of his own, was deprived of making a legitimate prayer for being released on bail. Viewed differently, this is a case where the continued inaction of the concerned authority/Courts resulted in serious violation of fundamental right of the petitioner to seek his liberty. Whether bail is to be granted on merits or not is a different question, but to prevent a person from moving for bail and that too, purely on technical grounds is something that cannot meet with the sanction of law." Facts of the Case: The present petitioner, Mr. Pradeep Sethy is the CMD of a firm called 'Artha Tatwa'. It is alleged that he along with other employees conspired to lure gullible depositors to deposit money under different schemes floated by the said firm with the promise of handsome returns. Allegedly a sum of nearly 25 crores was collected thereby. Subsequently, when the deposited amounts along with the promised returns thereon were not repaid, the depositors wanted to meet the officers of the firm. While some of them were not traceable, the others conveyed that nothing would be refunded to them. Accordingly, an FIR was lodged against them on 10.05.2013. On 25.06.2013, the Investigating Officer ('IO') of the case prayed before the S.D.J.M., Jagatsinghpur for remand of the present petitioner and the co-accused, Manoj Pattnaik as they were then in custody in connection with another case in Bhubaneswar. Accordingly, the S.D.J.M., Jagatsinghpur passed an order to send a W.T. Message to the S.D.J.M., Bhubaneswar asking whether the said accused could be spared to his court. While the matter stood thus, charge sheet was submitted on 06.08.2013 under Sections 420/506/120-B/406/467/468/471/34, IPC read with Sections 4, 5 & 6 of Prize Chits and Money Circulation Schemes (Banning) Act, 1978 showing the petitioner as 'Remanded'. The case was adjourned from time to time for about 'nine years' for want of production of the accused, Pradeep Sethy and others. Then, the petitioner preferred an application for bail on 24.01.2022 before the learned S.D.J.M., Jagatsinghpur, which came to be rejected on the same day. The petitioner thereafter approached the Court of Session for bail under Section 439 of Cr.P.C. The said application also came to be denied by an order dated 16.02.2022 passed by learned Sessions Judge, Jagatsinghpur on the ground that the accused had not been produced or remanded in the case at hand nor had surrendered before the Court and therefore, the petition under Section 439 Cr.P.C. is not maintainable. Thus, the petitioner moved the High Court seeking bail. Contentions of the Petitioner: Mr. Milan Kanungo, Senior Counsel for the petitioner, argued that though the FIR was registered on 10.05.2013, the petitioner was produced physically before the Trial Court only on 22.03.2022 but the same cannot be treated as the date of first production because the I.O. had prayed for his remand way back on 25.06.2013, but the Court had failed to act upon the same. He further submitted that on the prayer of the I.O., learned S.D.J.M., Jagatsinghpur passed an order for sending W.T. message to the learned S.D.J.M., Bhubaneswar to spare the accused but thereafter, everything came to a standstill till 22.03.2022. In the meantime, the petitioner has spent nearly nine years in custody. He further argued that the offences being under the aforementioned Sections, the petitioner, if convicted, can be sentenced for a maximum term of 'seven years'. However, the petitioner has already spent about 'nine years' in custody. Assailing the finding of learned Sessions Judge that the petitioner was not physically produced, Mr. Kanungo has argued that the petitioner must be deemed to have been remanded in this case or deemed to be in custody in the present case. Contentions of the Respondent: Mr. P. Tripathy, Additional Standing Counsel for the State, argued that though the I.O. prayed for remand of the petitioner on 25.06.2013, yet the same was never acted upon. As per Section 439 Cr.P.C., bail can be granted to a person accused of an...

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

Jyoti Prakash Dutta

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