When discrimination is glaring, the State cannot take recourse to inadvertence in its action resulting in discrimination: Orissa High Court

IN THE HIGH COURT OF ORISSA CUTTACK BLAPL No. 2315 Of 2020 An application under section 439 of the Code of Criminal Procedure 1973 in connection with E.O.W. Bhubaneswar P.S. Case No.09 of 2019 corresponding to C.T. Case No.03 of 2019 pending on the file of Presiding Officer Designated Court O.P.I.D. Act Cuttack. Ambika Prasad Mohanty … Versus State of Odisha Opposite Party For petitioner: M s. U.C. Mishra Ashutosh Mishra J.K. Mohapatra For Opp. party: Mr. Bibekananda Bhuyan Mr. J.P. Patra P R E S E N T: THE HONOURABLE MR. JUSTICE S.K. SAHOO S. K. SAHOO J. The petitioner Ambika Prasad Mohanty has filed this application under section 439 of Code of Criminal Procedure seeking for bail in connection with E.O.W. Bhubaneswar P.S. Case No.019 corresponding to C.T. Case No.019 pending on the file of Presiding Officer Designated Court O.P.I.D. Act Cuttack for offences punishable under sections 467 468 471 420 406 120 B of the Indian Penal Code read with section 6 of the Odisha Protection of Interests of Depositors Act 2011of Cr.P.C. The petitioner moved an application for bail before the Court of learned Presiding Officer Designated Court O.P.I.D. Act Cuttack which was rejected on Mr. U.C. Mishra learned counsel appearing for the petitioner strenuously contended that the petitioner is in judicial custody since 26.06.2019 and as per the prosecution case the misappropriation amount was received by the Secretary of Andhra Bank Employees’ Housing Co operative Society in the society account and the role of the petitioner as the Director of M s. Hindustan Developers is very limited as on the request of the Secretary of the Andhra Bank Employees’ Housing Co operative Society he provided the land and accordingly sale deeds were executed between the vendor and the vendee and the petitioner has taken his commission. He further contended that the petitioner has not directly collected any money from the investors and there was no transaction between the petitioner with the customers in his personal capacity. He further contended that the ingredients of the offences are not attracted against the petitioner and the petitioner has not cheated any customers at any point of time and there is no criminal antecedents against the petitioner and the petitioner is a permanent resident of Basudev Nagar under Mancheswar police station Bhubaneswar where he is residing with his family and he has also got substantial landed properties and therefore there is no chance of absconding. He further contended that in view of the period of detention of the petitioner in judicial custody the bail application may be favourably considered. Learned counsel for the State on the other hand opposed the prayer for bail and submitted that co accused Prafulla Kumar Sarangi an employee of Andhra Bank formed a Co operative Society in the year 1995 namely Andhra Bank Employees’ Housing Co operative Society which was registered and he floated a plotting scheme in the name of Hindustan Valley to give the employees of the Andhra Bank and other known persons to have a litigation free residential plots in the project and in that process he collected rupees seven crores from different investors and engaged one Bhubaneswar based builder namely M s. Hindustan Developers in which the petitioner was the Director to provide five acres of land in Madanpur mouza and one Memorandum of Understanding was also signed. The petitioner and the Managing Director Manoj Kumar Mohapatra executed the sale deeds in the name of the customers but the possession of those land were never given to the customers. He further submitted that in connivance of the petitioner with the other co accused persons huge amount was collected by executing fake sale deeds to cheat the investors and accordingly the accused persons misappropriated hard earned money of the customers to the tune of rupees seven crores. He further submitted that even though the accused persons were having prior knowledge that they had no right title and interest over the land but all the same with an intention to deceive the customers they registered the land in the year 2009 and no boundary wall was constructed around the plot and in some cases there was no approach road to the plots and the accused persons absconded after misappropriating the deposited amount by closing their offices. It is further argued that from out of rupees ten crores and odd amount available in the account of Andhra Bank Employees’ Housing Co operative Society cash of rupees five crores and odd was withdrawn in the name of M s. Hindustan Developers. He further submitted that the petitioner being an influential person of the locality he is very likely to tamper with further investigation of the case which is under progress and therefore the bail application of the petitioner should be rejected. The accusation against the petitioner relates to commission of economic offences which are considered to be grave offences and are to be viewed seriously. Such offences use to have deep rooted conspiracy and it involves huge loss of public fund. It is committed with cool calculation and deliberate design solely with an eye on personal profit regardless of the consequence to the community. In such type of offences while granting bail the Court has to keep in mind inter alia the larger interest of public and State. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case and those aspects must squarely be dealt with by the Court while passing an order on bail applications.55 Orissa Criminal Reports 825 State of Gujurat Vrs. Mohan Lal Jitamalji Porwal reported in A.I.R. 1987 S.C. 1321 and Nimmagadda Prasad Vrs. C.B.I. reported in7 Supreme Court Cases In case of Kalyan Chandra Sarkar it is held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. In case of Rajesh Ranjan Yadav Vrs. C.B.I. reported in36 Orissa Criminal Reports183 it is held that it is true that Article 21 of the Constitution of India is of great importance because it enshrines the fundamental right to individual liberty but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time the Court has also to take into consideration other facts and circumstances such as the interest of the society. In case of Ash Mohammad Vrs. Shiv Raj Singh reported in9 Supreme Court Cases 446 it is held as follows: “17. We are absolutely conscious that liberty of a person should not be lightly dealt with for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of emphasize sacrosanctity of liberty is paramount in a civilized society. However in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such Regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined "it is regulated freedom”. 18. It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically to be responsible and not to disturb the tranquility and safety which every well meaning person desires. Not for nothing J. Oerter stated: “Personal liberty is the right to act without interference within the limits of the law.” 19. Thus analyzed it is clear that though liberty is a greatly cherished value in the life of an individual it is a controlled and restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized for the rational collective does not countenance an anti social or anti collective act. 30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of establishment of orderly society the duty of the Court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction of liberty of the accused.” Adverting to the contentions raised by the learned counsel for the respective parties and after carefully going through the materials available on record it appears that the petitioner has played a very vital role in misappropriation of huge amount of money which was collected from the employees of Andhra Bank and other persons to provide them litigation free residential plots. The vendors were having no right title and interest over most of the plots for which sale deeds were executed in favour of the customers and fake and fabricated documents were prepared to cheat the customers. In the charge sheet it is indicated as to how the vendors were not in physical possession of the plots which were sold to the vendee. The further investigation of the case is under progress to find out the involvement of other persons members of the said co operative Society. As appears from the charge sheet many more witnesses investors are yet to be examined and the certified copies of sale deeds as per requisition from Tahasil DSR office are to be collected movable and immovable properties in favour of co accused Prafulla Kumar Sarangi Andhra Bank Employees’ Co operative Society M s. Hindustan Developers and Managing Director Sri Manoj Mohapatra and that of the petitioner as well as its associates are to be traced. It further appears that the bank account statements in respect of the accused persons co operative society and partnership firm are to be scrutinized to ascertain the money trail. Without detailed examination of evidence on record and elaborate discussions on merits of the case but considering the nature and gravity of the accusation the nature of supporting evidence availability of prima facie case against the petitioner the severity of punishment in case of conviction and since huge amount of public money has been misappropriated and the investors have been duped of their hard earned money to the tune of rupees seven crores in a preplanned manner without being provided with litigation free residential plots and when further investigation of the case is under progress and taking into account the reasonable apprehension of the petitioner in tampering with the evidence and above all in the larger interest of society I am not inclined to release the petitioner on Accordingly the bail application sans merit and hence stands rejected. Orissa High Court Cuttack The 1st February 2021 RKM S. K. Sahoo J. 

Summary: The State cannot use inadvertence in its actions which result in prejudice when prejudice is blatant. In the case of a complaint against denying equal protection and the denial of such actions and of a direct effect on the plaintiff’s fundamental rights, a constructive approach is necessary to remove discrimination by placing the complainant in a position to be favoured by state authorities inadvertent treatment. The judgment was passed by The High Court of Orissa in the case of Snehalata Mallick Vs the State of Odisha and Ors. [W.P.(C) NO. 4242 of 2021] by Single Bench consisting of Hon’ble Shri Justice B.R.Sarangi. The facts of the case are that the petitioner, who is at present working as Assistant Professor in the Department of O &amp; G, Pandit Raghunath Murmu Medical College and Hospital, has filed this writ petition to quash the order passed by the opposite party and rejecting her representation for issuance of “No Objection Certificate” (NOC) to appear in the interview for the post of faculty at All India Institute of Medical Sciences (AIIMS), Bhubaneswar. Learned counsel for the petitioner argued emphatically that non-grant of “no objection certificate” to the petitioner to enable her to participate in the interview pursuant to the advertisement issued in Annexure affects her fundamental rights, inasmuch as, depriving her of participating in the process of selection is arbitrary, unreasonable and contrary to the provisions of law and, more particularly, is discriminatory one which violates Articles 14 and 16 of the Constitution of India. It is further contended that every person has a right to be considered for the choice post, pursuant to the advertisement issued by the authority and such consideration cannot be denied by the employer by rejecting the application for issuance of NOC and that itself amounts to arbitrary exercise of power by the authority concerned. Learned counsel for the respondent argued with vehemence by justifying the order rejecting the representation for NOC filed by the petitioner. It is contended that the representation for issuance of NOC, which was received by the Department of Health &amp; Family Welfare on the due date, on being forwarded by the Director of Medical Education and Training, was examined with reference to the dearth of faculties in the Department and contended that out of total sanctioned strength of 30 Professors in O&amp;G Discipline, the man in position is only 17. Therefore, the opposite party is well justified in rejecting the representation submitted by the petitioner for grant of NOC. Thereby, no illegality or irregularity has been committed so as to cause interference by this Court in the present application. While relying on the case of Rajasthan State Industrial Development and Investment Corporation v. Subhas Sindhi Co-operative Housing Society Jaipur, the apex Court examined the scope of discrimination. “A party seeking relief on the ground of discrimination must take appropriate pleadings, lay down the factual foundation and must provide details of the comparable cases, so that the court may reach a conclusion, whether the authorities have actually discriminated against that party; and whether there is in fact any justification for discrimination, assessing the facts of both sets of cases together.