Dismissed

Roshan@Babloo Yadav v. Republic of India

Orissa HC24 Jun 2019BLAPL/2747/2019

Case brief

AI extract

What is this about?

The High Court of Orissa rejected a bail application filed by a petitioner charged with cheating unemployed railway job seekers. The court held that the petitioner could not claim parity with co-accused whose bail orders violated Supreme Court precedents and noted the petitioner's history of absconding.

What did the court decide?

Bail application of the petitioner stands rejected.

Roshan@Babloo Yadav Vs Republic of India — Cheating and Forgery | Orissa HC (2019)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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BLAPL NO. 2747 OF 2019

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An application under section 439 of the Code of Criminal Procedure in connection with SPE Case No. 01 of 2011 pending in the Court of learned Special C.J.M., C.B.I., Bhubaneswar.

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Roshan @ Babloo Yadav …….. Petitioner

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Republic of India	-Versus- ……..Opp. Party
For Petitioner:	- M/s. Ranjit Kumar Panda B.K. Mohanty, S. Dash
For Opp. party: --------	- Mr. Anup Kumar Bose Asst. Solicitor General --------------------

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P R E S E N T:

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THE HONOURABLE MR. JUSTICE S.K. SAHOO

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………………………………………………………………………………………………………… Date of Argument: 20.06.2019 Date of order: 24.06.2019

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S.K. SAHOO, J . Unemployment is a social misery. For an unemployed

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person, everyday becomes a day of hardship, curse, restlessness and uncertainty. One, who cheats such a person in such a situation giving false assurance of providing job and takes away his hard acquired money, is perhaps the worst creature on this earth and he does not deserve a place in this beautiful world created by God.

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The petitioner Roshan @ Babloo Yadav has filed this application under section 439 of Cr.P.C. seeking for bail in connection with SPE Case No. 01 of 2011 pending in the Court of learned Special C.J.M., C.B.I., Bhubaneswar in which charge sheet has been submitted against the petitioner under sections 420, 467, 468 read with section 120-B of the Indian Penal Code which arises out of R.C. No.0152009A0023 dated 30.09.2009.

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The bail application of the petitioner has been rejected by the learned Sessions Judge, Khurdha at Bhubaneswar in Bail Application No.347 of 2019 vide order dated 13.03.2019.

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The First Information Report was lodged on the basis of source of information that Shri Fuldeo Oraon, while functioning as Station Superintendent, Kalchini Railway Station, Alipurduar Division, North-East Frontier Railways entered into criminal conspiracy during the year 2007-08 with accused Subash Chandra Roul, Sankarsan Sahoo, Sarat Kumar Rout, Papu and other unknown persons and in pursuance thereof, they prepared and issued false documents such as appointment letters purportedly issued by railways to a number of gullible candidates, falsely offering them appointment in the railway and in lieu thereof, they collected money from those prospective

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candidates to the tune of Rs.95,00,000/- (rupees ninety five lakhs). The Superintendent of Police, C.B.I., ACB, Bhubaneswar found prima facie case for commission of offences under sections 420, 467, 468, 471 read with section 120-B of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 and accordingly, registered the case and directed Shri K.P. Tripathy, Inspector, C.B.I., Bhubaneswar to take up investigation of the case.

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During course of investigation, it revealed that the accused Subash Chandra Roul was running a security agency in the name of “Security and Management Services” at Bhubaneswar and he himself or through his brother-in-laws accused Sarat Chandra Rout and Sankarsan Sahoo approached the unemployed candidates seeking jobs and allured them that accused Subash Chandra Roul was having contacts with some senior level officers in Railway Department/Ministry and with their help, he would be able to place the unemployed youths in various posts in Railway Department. To gain the confidence of the candidates, accused Subash Chandra Roul informed them that examinations were held by RRB, Kolkata and RRB, Guwahati in the year 2005-06 for filling up vacancies in various posts in the respective zones of Railway Department but since some of

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the candidates who were selected for appointment did not join, some posts remained vacant and he would be able to place those candidates against the vacant posts by showing their selection on back dates and in that process, he collected money from the candidates ranging from Rs.1.7 lakhs to Rs.2.5 lakhs each on installment basis on different dates. During course of investigation, the officials of different railway divisions/junctions were examined and the documents seized like call letters, appointment letters issued by the accused persons during investigation were shown to them and they proved that all those documents are false and fabricated and accordingly, the investigating officer was of the view that the accused persons prepared the documents dishonestly and fraudulently with intent to cheat the candidates for their personal gains. All the privilege passes which were given to the candidates by the accused persons were actually not issued from Railway Department and those were fabricated. One fake website was also created and it was used by the accused persons to cheat the candidates by displaying their fraudulent selection in the Railway Department. Efforts were made to trace out the printing press from where the forged identity card, railway privilege passes and other railway forms etc. issued to the candidates were printed by the accused

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persons. The candidates specifically stated that for getting employment, they paid money to accused Subash Chandra Roul. Accordingly, the first charge sheet was submitted on 30.12.2010 against accused Subash Chandra Roul and Sameer Kumar @ Pappu for commission of offences under sections 420, 467, 468 read with section 120-B of the Indian Penal Code keeping the investigation open under section 173(8) of Cr.P.C.

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During course of further investigation, it revealed that accused Biswakanta Sharma @ Parveen Kumar @ Fuldeo Oron @ Boss and the petitioner purchased an internet domain in the year 2008 from the websites and used to enter the list of candidates from whom they had collected money and printed internet result falsely showing the names of those candidates as successful for a job in the railways. The petitioner was found to be a key member of the team in which accused Biswakanta Sharma was the kingpin and they had cheated the candidates mainly of Bihar, U.P. and Uttarakhand. When the photographs of the petitioner were shown to the candidates, they identified him to have collected huge money for providing them jobs in the railways. The privilege passes which were given to the affected candidates were found to be fake and not issued by the Railway Department. It was found that the petitioner was actively

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involved in cheating of candidates along with co-accused Parveen Kumar @ Biswakanta Sharma @ Fuldeo Oraon @ Boss and since they were absconders, final charge sheet was submitted on 30.06.2011 against the petitioner and the said co-accused Parveen Kumar for commission of offences under sections 420, 467, 468 read with section 120-B of the Indian Penal Code.

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Mr. Ranjit Kumar Panda, learned counsel appearing for the petitioner contended that the petitioner is in judicial custody since 25.02.2019 and in the meantime similarly situated co-accused persons, namely, Papu @ Sameer Kumar @ Sriram, Praveen Kumar and Subash Chandra Roul have been released on bail and therefore, on the ground of parity and equity, the bail application of the petitioner may be favourably considered.

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Mr. Anup Kumar Bose, learned Assistant Solicitor General, on the other hand, vehemently opposed the prayer for bail and contended that the petitioner is a man from State of Bihar and he has played a vital role in the conspiracy in cheating innocent unemployed persons with assurance to give them employment in the Railway Department and collected huge amount from them and the petitioner never cooperated during investigation and charge sheet was submitted showing him as an absconder and almost about eight years after submission of the

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charge sheet against him, he was taken into custody. It is submitted that the ingredients of the offences under which charge sheet has been submitted are prima facie made out against the petitioner and if the petitioner is released on bail at this stage, it would be difficult to ensure his attendance at the stage of trial, in the event of which the poor people who have been cheated with their hard earned money would not get justice at an earliest which has already got delayed due to absconding of the petitioner.

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Adverting to the contentions raised by the learned counsel for the respective parties, it appears that even though the first charge sheet dated 30.12.2010 was not submitted against the petitioner but during course of further investigation, materials came against the petitioner and co-accused Praveen Kumar as to how they purchased an internet domain in the year 2008 from the websites and used to enter the list of candidates from whom they collected money and printed the internet result falsely showing the names of those candidates as successful for a job in Railway Department and further how they were actively involved in cheating the candidates through an organized racket and collected money to the tune of Rs.95,00,000/- (rupees

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ninety five lakhs) in connivance with other co-accused persons and they remained absconders.

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Let me analyse the contentions raised by the learned counsel for the petitioner relating to claim of parity keeping in mind the settled principles of law for consideration of bail application.

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It was urged by the learned counsel for the petitioner that three of the co-accused persons have already been granted bail in the meantime. Co-accused Pappu @ Sameer Kumar @ Sriram was released on bail by this Court in an application under section 439 of Cr.P.C. in BLAPL No.14337 of 2011 vide order dated 05.08.2011. Another co-accused Praveen Kumar approached this Court in an application under section 438 of Cr.P.C. in ABLAPL No.7827 of 2016 and vide order dated 15.09.2017, it was directed that on surrendering before the learned Court below and moving for bail, he shall be released on bail. Another co-accused Subash Chandra Roul approached this Court in an application under section 438 of Cr.P.C. in ABLAPL No.17757 of 2017 and vide order dated 04.12.2018, he was directed to surrender in the Court below and move for bail, in the event of which his claim of parity with other co-accused persons shall be considered in accordance with law and accordingly, the

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said co-accused surrendered before the learned Special C.J.M., C.B.I., Bhubaneswar on 03.01.2019 and moved for bail and he was directed to be released on bail.

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Parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has

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been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant facts essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the co-accused to whom similar role has been ascribed, has been released on bail earlier and the State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience.

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In the case of Chandigarh Administration -Vrs.Jagjit Singh reported in (1995) 1 Supreme Court Reporter

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126 , it is held as follows:

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“8...If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order....The illegal/unwarranted action must be corrected, if it can be done according to lawindeed, wherever it is possible, the Court should

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direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition...Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law”.

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In case of Secretary, Jaipur Development

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Authority -Vrs.- Daulatmal Jain reported in (1997) 1

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Supreme Court Cases 35 , it is held as follows:

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“24.....Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the same benefit. The rational relationship and legal back-up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead, nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously, no.”

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As per charge sheet dated 30.06.2011, the petitioner and co-accused Parveen Kumar stand on the similar footing inasmuch as investigation revealed that both of them purchased an internet domain in the year 2008 from the websites “www.rrbguw.org” and “www.irrpc.org” and used to enter the list of candidates from whom they had collected money and print the internet result falsely showing the names of those candidates as successful candidates for a job in railway. They cheated the candidates mainly from State of Bihar, U.P. and Uttarakhand and they were actively involved in cheating the candidates through an organized racket and both of them were absconding when the charge sheet was submitted.

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So far as accused Parveen Kumar is concerned, even though this Court has directed in ABLAPL No.7827 of 2016 and vide order dated 15.09.2017 that on surrendering before the learned Court below and moving for bail, he shall be released on bail but it appears that such directions are contrary to the ratio laid down by the Hon’ble Supreme Court in cases of Rashmi Rekha Thatoi and another -Vrs.- State of Orissa reported in (2012) 52 Orissa Criminal Reports (SC) 331 and Sudam Charan Dash -Vrs.- State of Orissa reported in 2013 (II)

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Orissa Law Reviews (SC) 936 .

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In the case of Rashmi Rekha Thatoi (supra), it is

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held as follows:

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“13. On a perusal of both the orders, it is perceivable that the commonality in both the orders is that while the High Court had expressed its opinion that though it is not inclined to grant anticipatory bail to the petitioners yet it has directed on their surrender, some of the accused Petitioners would be enlarged on bail on such terms and conditions as may be deemed fit and proper by the concerned Sub Divisional Judicial Magistrate and cases of certain accused persons on surrender shall be dealt with on their own merits.

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xx xx xx xx xx

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We have referred to the aforesaid pronouncements to highlight how the Constitution Bench in the case of Gurbaksh Singh Sibbia (supra) had analysed and explained the intrinsic underlying concepts under Section 438 of the Code, the nature of orders to be passed while conferring the said privilege, the conditions that are imposable and the discretions to be used by the courts. On a reading of the said authoritative pronouncement and the principles that have been culled out in Savitri Agarwal (supra), there is remotely no indication that the Court of Session or the High Court can pass an order that on surrendering of the

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accused before the Magistrate he shall be released on bail on such terms and conditions as the learned Magistrate may deem fit and proper or the superior court would impose conditions for grant of bail on such surrender. When the High Court in categorical terms has expressed the view that it is not inclined to grant anticipatory bail to the accused petitioners, it could not have issued such a direction which would tantamount to conferment of benefit by which the accused would be in a position to avoid arrest. It is in clear violation of the language employed in the statutory provision and in flagrant violation of the dictum laid down in the case of Gurbaksh Singh Sibbia (supra) and the principles culled out in the case of Savitri Agarwal (supra). It is clear as crystal the Court cannot issue a blanket order restraining arrest and it can only issue an interim order and the interim order must also conform to the requirement of the section and suitable conditions should be imposed. In the case of Gurbaksh Singh Sibbia (supra), the Constitution Bench has clearly observed that exercise of jurisdiction under Section 438 of the Code is an extremely important judicial function of a Judge and both individual and society have vital interest in the orders passed by the Court in anticipatory bail applications.

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31......In the case at hand, the direction to admit the accused persons to bail on their surrendering has no sanction in law and, in fact, creates a dent in the sacrosanctity of law. It is contradictory in terms and law does not countenance paradoxes. It gains respectability and acceptability when its solemnity is maintained. Passing such kind of orders, the interest of the collective at large and that of the individual victims is jeopardised. That apart, it curtails the power of the regular Court dealing with the bail applications. 32. In this regard, it is to be borne in mind that a Court of law has to act within the statutory command and not deviate from it. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power, a Court is bound to act within the four corners thereof.... 33. Judging on the foundation of aforesaid well settled principles, the irresistible conclusion is that the impugned orders directing enlargement of bail of the accused persons, namely, Uttam Das, Abhimanyu Das and Murlidhar Patra by the Magistrate on their surrendering are wholly unsustainable and bound to founder and accordingly, the said directions are set aside.

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In the case of Sudam Charan Dash (supra), relying

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upon the ratio laid down in Rashmi Rekha Thatoi (supra), it is held as follows:

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“2.......We notice that in the impugned order, the High Court has made a categorical observation that considering the nature of the allegations made against Respondent 2, it did not think it to be a fit case for grant of anticipatory bail. Surprisingly, however, the High Court gave a direction that in the event Respondent 2 surrenders before the learned S.D.J.M., Rayagada within four weeks and moves an application for bail, he shall be released on bail on such terms and conditions as the learned Magistrate deems fit and proper. Pursuant to this direction, Respondent 2 surrendered before the learned Magistrate and was released on bail on 11.06.2013.

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We have perused the order passed by the S.D.J.M., Rayagada granting bail to Respondent 2 pursuant to the impugned order. Obviously, the S.D.J.M. released Respondent 2 on bail solely on the ground that the High Court had issued the above mentioned direction. The S.D.J.M. had no alternative but to do so. Thus, there is no consideration of the application for bail filed by Respondent 2 on merits. We,

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therefore, quash the consequential order dated 11.6.2013 passed by the S.D.J.M., Rayagada..... 8. We direct the Registry of this Court to forward a copy of this judgment to the Chief Justice of the Orissa High Court. We request the Chief Justice of Orissa High Court to circulate a copy of this order to the learned Judges of the Orissa High Court.”

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Since the bail order of accused Parveen Kumar

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passed by this Court in ABLAPL No.7827 of 2016 is contrary to the ratio laid down by the Hon’ble Supreme Court in cases of

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Rashmi Rekha Thatoi (supra) and Sudam Charan Dash (supra), with due respect, I am unable to consider such order as a claim of parity for the petitioner.

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After bestowing my anxious consideration to weigh and analyse the materials available on record with utmost care and caution, the nature and gravity of the accusation, the manner in which the unemployed persons were cheated with assurance of providing them job in the Railway Department, the punishment prescribed for the offences under which charge sheet has been submitted, prima facie availability of supporting materials to establish such accusation, the role played by the petitioner in the entire episode, the impact of such offences on the society, the absconding of the petitioner for about eight

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years after submission of charge sheet against him, I am of the humble view that merely because some of the co-accused persons have been released on bail, the petitioner cannot claim parity with them.

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In view of the foregoing discussions, the bail application filed by the petitioner being devoid of merits, stands rejected.

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………………………… S.K. Sahoo, J.

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Orissa High Court, Cuttack The 24^th June 2019/RKM

Roshan@Babloo Yadav v. Republic of India

Case brief

What is this about?

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Roshan@Babloo Yadav v. Republic of India

Case brief

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