Orissa High Court
An Application Under Section 439 Of The … vs State Of Odisha …… Opp. Party on 5 March, 2025
Author: Savitri Ratho
Bench: Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No. 11529 of 2024
An application under Section 439 of the Code of Criminal Procedure,
1973
Kaifi Khan ...... Petitioner
-versus-
State of Odisha ...... Opp. Party
For Petitioner : Mr. Smruti Ranjan Rout,
Advocate
For Opp. Party : Smt. Siva Mohanty,
ASC
CORAM:
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
05.03.2025
Savitri Ratho, J. This is the fourth application of the petitioner under Section
439 of Cr.P.C. in connection with Mangalabag P.S. Case No.114 of
2023 corresponding to G.R Case No.334 of 2023, pending in the Court
of the learned J.M.F.C., Cuttack where the petitioner is facing trial
alongwith other co accused for commission of offences punishable
under Sections 419, 420, 403, 120 (B), 34 of IPC.
EARLIER BAIL APPLICATIONS
2. The first bail application of the petitioner i.e. BLAPL No.
14705 of 2023 was disposed of on 17.01.2024 granting the petitioner
liberty to file a fresh application for bail after returning the amount of
Rs.11,00,000/- to the informant. His second application i.e. BLAPL
BLAPL No. 11529 of 2024 Page 1 of 17
No. 2809 of 2024 had been dismissed on 02.05.2024 granting the
petitioner liberty to approach the learned court below for bail, if he was
so advised. His third application i.e. BLAPL No. 5169 of 2024 had
been dismissed on 23.05.2024 granting him liberty to move for bail
afresh after completion of further investigation or if there is undue in
completion of further investigation.
3. The petitioner thereafter moved the learned court below for
bail and the learned 2nd Additional Sessions Judge, Cuttack has rejected
his prayer in BLAPL No. 614 of 2024 vide order dated 16.05.2024
observing that the petitioner has similar criminal antecedents and has
not complied with the order of this Court.
PROSECUTION ALLEGATIONS
4. The prosecution allegation in brief are that the petitioner-
Kaifi Khan and his associates have cheated the informant of a total
amount of Rs.62 lakhs having taken various amounts on different
occasions. The informant had obtained most of the money by taking
gold loan from Muthoot Finance by handing over 17 tolas of gold .
Except for Rs 12,50,000/- the rest of the amount had been paid through
account transfer. When she tried to ask him for return of some of the
money, he avoided her calls and she found that he had used the money
to buy expensive cars and sports bike. During course of investigation,
BLAPL No. 11529 of 2024 Page 2 of 17
raid was conducted in the house of the petitioner and incriminating
articles along with duplicate diamond, gold like metal, lots of metal
lockets, several documents pertaining to bank accounts, cheque books,
bonds, mobile phones as well as different precious brands of wrist
watch, two luxurious cars along with one royal Enfield Bullet and cash
of Rs.2,76,410/- were seized from the possession of the petitioner.
5. Chargesheet dated 24.06.2023 had been submitted against
the present petitioner-Kaifi Khan, one Sk. Ismail and Amir Khan under
Sections 419, 420, 403, 120 (B), 34 of IPC keeping the investigation
open for collection of bank statements, arrest of other accused persons,
recovery of cheated amount, examination of more witnesses as well as
further evidence in this case. Thereafter chargesheet dated 22.12.2023
was submitted against the present petitioner-Kaifi Khan, Sk. Israel,
Amir Khan, Samir Khan and Md. Sakil for commission of offences
punishable under Sections 419, 420, 403, 120 (B), 506, 34 of IPC
keeping investigation open for collection of more evidence, arrest of
other accused persons . During further investigation one Sk. Aspak @
Mohammad Aspak was arrested.
STATUS REPORT
6. In the status report dated 21.01.2025 of the learned J.M.F.C.,
Cuttack in G.R. Case No. 334 of 2023 corresponding to Mangalabag
BLAPL No. 11529 of 2024 Page 3 of 17
P.S. Case No. 114 of 2023 , it is stated that on 07.01.2025 charge sheet
witness Joseph Ekka (Seizure witness) was examined, cross examined
and discharged. The petition filed under Section 311 Cr.P.C by the
learned APP for recalling the informant Sharmila Sen was allowed on
10.12.2024 and she was present in the Court on 07.01.2025 but the
learned defence counsel denied to cross-examine her as he had not
received the copies of documents which was filed by the learned . The
petition filed by the defence counsel for supplying the copies of the
documents had been allowed on 16.01.2025. Summons had been
issued to the chargesheet witnesses – Amit Kumar Mallik and S.
Babula for their appearance on 28.01.2025 to adduce the evidence and
the case was posted to 28.01.2025 for evidence.
SUBMISSION ON BEHALF OF THE PETITIONER
7. I have heard Mr. Smruti Ranjan Rout, learned counsel for
the petitioner , Ms Bini Mishra learned counsel appearing on behalf of
the informant and Ms Siva Mohanty learned counsel appearing on
behalf of the State .
8. Mr. Rout, learned counsel for the petitioner submitted that
the petitioner is in custody since 27.04.2023. While rejecting the prayer
for bail of the petitioner in BLAPL No. 5169 of 2024 dated 23.05.2024,
he had been granted liberty to move for bail afresh after completion of
BLAPL No. 11529 of 2024 Page 4 of 17
investigation. Referring to the provision in Section 436 (A) of Cr.P.C.,
he submits that as the petitioner has stayed in custody for almost 2 years
and the learned Magistrate can impose sentence maximum upto 3 years,
the petitioner should have been released on bail by the learned trial
Court. He also submitted that as per the provisions of Section 437 (6) of
the Cr.P.C. if the trial is not completed within two months of the
examination of the first witness, the accused should be released on bail.
He has also submitted that although it is stated that the petitioner has
five criminal antecedents, he has been granted bail in all the five cases.
In support of his submission, he relies on the following decisions : –
i) Javed Gulam Nabi Shaikh vrs. State of Maharashtra and Another
(Criminal Appeal No. 2787 of 2024 decided on 3rd July, 2024) ,
ii) BLAPL No. 5798 of 2024 and 5813 of 2024 Laxmi Narayan Das ve
State of Odisha decided on 07.11.2024: 2025 (1) OLR 106
SUBMISSIONOF THE COUNSEL FOR THE INFORMANT
9. Ms. Bini Mishra, learned counsel appearing on behalf of the
informant vehemently opposed the prayer for bail stating that the
petitioner cannot avail the benefit under Section 437 (6) of the Cr.P.C.
as the same is not mandatory and delay in trial can also be attributed to
the petitioner as the petitioner has not examined the witness who had
been recalled under Section 311 of Cr.P.C. She submitted that the
BLAPL No. 11529 of 2024 Page 5 of 17
petitioner should not be released on bail or granted the benefit of Section
436 (A) of the Cr.P.C. which is discretionary in nature and not
mandatory. Her further submission was that in view of the provisions
under Section 325 of the Cr.P.C., the learned Magistrate First Class has
the option to forward the case to the learned Chief Judicial Magistrate,
so it cannot be accepted that the petitioner should be released on bail as
he has remained in custody for more than one and half years. In view of
the nature of allegations against the petitioner, as he is a habitual
offender having five similar criminal antecedents, he does not deserve to
be released on bail. In support of her submissions , she has relied on the
following decisions in support of her submissions :-
i) The decision of the Bombay High Court at Aurangabad in the
case of Latabai WD/O Bhimsingh Jadhav vrs. State of
Maharashtra ( Bail Application No. 1547 of 2024 decided on
23.09.2024)
ii) The decision of the Madhya Pradesh High Court at Indore in
Misc. Crll Case No. 58222 of 2022 decided on 26th June, 2023 in
Raju @ Rajesh S/o Heeralal Goswami vrs. The State of Madhya
Pradesh through Police Station-Gandhi Sagar, District
Mandsaur (M.P.).
BLAPL No. 11529 of 2024 Page 6 of 17
SUBMISSION OF THE STATE COUNSEL
10. Ms. Siva Mohanty, learned Additional Standing Counsel, has
vehemently opposed the prayer for bail submitting that the petitioner
being a habitual offender should not be released on bail. She further
submits that the petitioner is in the habit of cheating people for which
five other cases are pending against him.
REVEVANT STATUTORY PROVISIONS
Section – 436 A Maximum period for which an undertrial prisoner
can be detained.–
“Where a person has, during the period of investigation, inquiry
or trial under this Code of an offence under any law (not being
an offence for which the punishment of death has been specified
as one of the punishments under that law) undergone detention
for a period extending up to one-half of the maximum period of
imprisonment specified for that offence under that law, he shall
be released by the Court on his personal bond with or without
sureties:
Provided that the Court may, after hearing the Public Prosecutor
and for reasons to be recorded by it in writing, order the
continued detention of such person for a period longer than one-
half of the said period or release him on bail instead of the
personal bond with or without sureties:
Provided further that no such person shall in any case be
detained during the period of investigation, inquiry or trial forBLAPL No. 11529 of 2024 Page 7 of 17
more than the maximum period of imprisonment provided for the
said offence under that law.
Explanation.–In computing the period of detention under this
section for granting bail, the period of detention passed due to
delay in proceeding caused by the accused shall be excluded.]”
Section 437 .When bail may be taken in case of non-bailable
offence.
….
(6) If, in any case triable by a Magistrate, the trial of a person
accused of any non-bailable offence is not concluded within a
period of sixty days from the first date fixed for taking evidence
in the case, such person shall, if he is in custody during the whole
of the said period, be released on bail, to the satisfaction of the
Magistrate, unless for reasons to be recorded in writing, the
Magistrate otherwise directs.”
CASE LAW
11. In the case of Javed Gulam Nabi Shaikh (Supra), the
Hon’ble Supreme Court has held as follows:
” 8. Having regard to the aforesaid, we wonder by what
period of time, the trial will ultimately conclude. Howsoever
serious a crime may be, an accused has a right to speedy
trial as enshrined under the Constitution of India.
9. Over a period of time, the trial courts and the High
Courts have forgotten a very well settled principle of law
that bail is not to be withheld as a punishment.
BLAPL No. 11529 of 2024 Page 8 of 17
10. In the aforesaid context, we may remind the trial courts
and the High Courts of what came to be observed by this
Court in Gudikanti Narasimhulu & Ors. v. Public
Prosecutor, High Court reported in (1978) 1 SCC 240. We
quote:
“What is often forgotten, and therefore warrants
reminder, is the object to keep a person in judicial
custody pending trial or disposal of an appeal. Lord
Russel, C.J., said [R v. Rose, (1898) 18 Cox] :
“I observe that in this case bail was refused for the
prisoner. It cannot be too strongly impressed on the,
magistracy of the country that bail is not to be
withheld as a punishment, but that the requirements as
to bail are merely to secure the attendance of the
prisoner at trial.”
11. The same principle has been reiterated by this Court
in Gurbaksh Singh Sibba v. State of Punjab reported in
(1980) 2 SCC 565 that the object of bail is to secure the
attendance of the accused at the trial, that the proper test to
be applied in the solution of the question whether bail should
be granted or refused is whether it is probable that the party
will appear to take his trial and that it is indisputable that
bail is not to be withheld as a punishment.”
In the case of in Mahipal vs. Rajesh Kumar: (2020) 2 SCC
118, the Supreme Court has held as follows:-
“12. The determination of whether a case is fit for the grant
of bail involves the balancing of numerous factors, among
which the nature of the offence, the severity of the
punishment and a prima facie view of the involvement of
BLAPL No. 11529 of 2024 Page 9 of 17
the accused are important. No straight jacket formula
exists for courts to assess an application for the grant or
rejection of bail. At the stage of assessing whether a case
is fit for the grant of bail, the court is not required to enter
into a detailed analysis of the evidence on record to
establish beyond reasonable doubt the commission of the
crime by the accused. That is a matter for trial. However,
the Court is required to examine whether there is a prima
facie or reasonable ground to believe that the accused had
committed the offence and on a balance of the
considerations involved, the continued custody of the
accused sub-serves the purpose of the criminal justice
system……….”
In the case of Laxmi Narayan Das (Supra), the two accused
persons were accused of committing offences punishable under
Sections – 417, 419, 420, 467, 468, 294, 506 & 120-B of the IPC, 1860
for taking Rs Four lakhs each from the informant and his friends for
providing them with jobs . One of the accused had agreed to deposit
Rs 3 lakhs . This court granted them bail , while directing one accused
to deposit Rs 3 lakhs which was to be kept in fixed deposit .
In the case of Latabai ( supra) , the accused was alleged
to have committed offences under Section – Sections 120-B, 182,
193, 419, 420, 468 read with Section 34 of the IPC. The High Court
turned down the contention that the petitioner should be released on
bail as the trial had not been concluded within sixty days of
BLAPL No. 11529 of 2024 Page 10 of 17
examination of the first witness , holding that the word shall used in
the Section 437 (6) was discretionary and not mandatory .The
relevant portions of the judgment are extracted below :
“13. Where the trial is not concluded within 60 days as
prescribed under Section 437(6) of Cr.P.C. that does not
give a right to bail for default. The term “shall” in the
said section is discretionary. The Court should exercise
such powers judiciously and consider other circumstances
as provided under Section 437 of the Code of Criminal
Procedure.
14. Both Courts have recorded the reasons for declining to
exercise the powers under Section 437(6) of the Cr.P.C.
Though the trial has been little bit delayed, and the Trial
Court was expecting a speedy trial, the reasons for not
exercising the discretion recorded by both Courts appears
to be correct, legal and proper. The applicant has no good
past. Hence, apprehension of her absconding is also
justifiable.”
In the case of Raju @ Rajesh S/o Heeralal Goswami (supra),
the accused was facing trial for commission of offences punishable
under Section – 420 and 201 of the I.P.C on the allegation of cheating
four complainants and others of Rs 9.71 lakhs . After examination of
two witnesses out of eighteen witnesses , the accused had filed an
application for releasing him on bail under Section 437 ( 6) of the
Cr.P.C . It had been rejected by the Magistrate holding that provisions of
BLAPL No. 11529 of 2024 Page 11 of 17
Section – 437( 6) of the Cr.P.C are not mandatory and considering the
gravity of the offence . He had challenged the same by filing an
application under Section 482 of the Cr.P.C . While dismissing the
application , the High Court held as follows :-
” Undoubtedly, under Section 437(6) of Cr.P.C. the accused
does not get absolute right to seek bail. Hence, the provisions
does not confer any indefeasible right as is provided under
Section 167(2) of Cr.P.C. While deciding the application
under Section 437(6) of Cr.P.C., the Court has to keep in mind
that the object behind such a provision is to speed up the trial
particularly when the accused is in detention. However, the
Magistrate is expected to keep in mind the gravity of the
offence, quantum of punishment, the manner in which the
accused is involved in the offence, whether the default is
attributable to the accused in prison, likelihood of his jumping
bail or any other special circumstances due to which the
Magistrate considers it expedient not to exercise discretionary
powers under Section 437(6) of Cr.P.C. Thus, in the end, it
can be concluded that the right conferred under Section 437(6)
of Cr.P.C. is not absolute, however, nonetheless, it is a right
which cannot be defeated easily and both the courts below
have not committed any grave error in rejecting the
application filed by the petitioner in this regard.”
In the case of Bhim Singh v. Union of India : (2015) 13 SCC
605 (2019), the Supreme Court after considering the plight of the under
BLAPL No. 11529 of 2024 Page 12 of 17
trial prisoners who were detained in jail for long periods without facing
trial , issued various directions after observing as follows :-
“5. Having given our thoughtful consideration to the
legislative policy engrafted in Section 436A and large number
of under-trial prisoners housed in the prisons, we are of the
considered view that some order deserves to be passed by us
so that the under-trial prisoners do not continue to be detained
in prison beyond the maximum period provided under section
436A’This Court in the case of Santosh Kumar Roul vs State of
Orissa: 2019 SCC OnLine Ori 248 : (2019) 128 CLT 689, has held as
follows :-
…”13. In the case of Rama Chandra Hansdah (supra), it is
held that even a single day delay in release of an undertrial
prisoner who is entitled to be released as per section 436-A of
Cr.P.C. would amount to serious violation of his right to life
under Article 21 of the Constitution of India and every
endeavour is to be made by the authorities to prevent breach
of Article 21 of the Constitution of India by implementation of
section 436-A of Cr.P.C. It is also the settled principle of law
that speedy trial is a fundamental right implicit in the broad
sweep and content of Article 21 of the Constitution of India
and if a person is deprived of his liberty under a procedure
which is not reasonable, fair, or just, such deprivation would
be violative of his fundamental right under Article 21 of theBLAPL No. 11529 of 2024 Page 13 of 17
Constitution of India. Section 436-A Cr.P.C. is a benevolent
provision which is incorporated by the legislature with a view
to ameliorate the conditions of the under trials who are
languishing in jail for a long period of time having undergone
more than half of the sentence which the offence carries. The
said provision cannot be interpreted in a manner so as to
deprive the benefit of such beneficial legislation to the under
trial”
In the case of Pradeep Kumar Sethy vs State of Orissa : 2022
(I) OLR-1063 , this Court relying on the decisions of Bhim Singh
(supra) and Santosh Kumar Roul (supra) , allowed the prayer for bail
of the accused observing as follows :
“13. It is of course necessary to note that Section -436 A
Cr.P.C also provides that the Court, may for reasons to be
recorded in writing and after hearing the Public Prosecutor ,
order for the continued detention of the accused for a period
longer than one-half of the maximum sentence or release him
on bail instead of personal bond with or without sureties .
14. After considering the submissions of the learned counsels,
, the mandate of Section 436 A of the Cr. P.C , the maximum
sentence prescribed for the offences under which chargesheet
has been filed, the period spent by the petitioner in custody the
view of the Supreme Court in the case of Bhim Singh ( supra) ,
and the fact that nothing has been brought to the notice of the
Court that trial has been delayed at the instance of the
petitioner , but without going into the merits of theBLAPL No. 11529 of 2024 Page 14 of 17
prosecution allegations, I am inclined to allow this
application and release the petitioner on bail .
ANALYSIS AND CONCLUSION
12. From a reading of the words “unless for reasons to be recorded
in writing, the Magistrate otherwise directs”, in Section – 436 ( 7) of the
Cr.P.C, it is apparent that the provision is not mandatory as the
Magistrate has the discretion not to release the accused on bail , but
recording of reasons for not doing so is mandatory. The decisions
referred to above are also in the same light .
13. But Section – 436 A of the Cr.P.C , is a beneficial provision and
protects the right of the accused to speedy trial under Article 21 of the
Constitution of India. That apart, as has been held in the case of
Gudikanti Narasimhulu (supra) and reiterated in a number of decisions
of the Supreme Court that the object of bail is to ensure that the
attendance of the accused is to be secured during trial and bail is not to
be withheld as a punishment. While deciding the application, it is of
course necessary to keep in mind other factors like nature and gravity of
the offence, the severity of the punishment and the materials showing the
involvement of the accused.
14. In view of the above discussion , considering the period spent by
the petitioner in custody, the punishments prescribed for the offences he
BLAPL No. 11529 of 2024 Page 15 of 17
is facing trial for and the amount involved, I am inclined to allow theprayer for bail, but subject to stringent conditions .
15. The petitioner-Kaifi Khan shall be released on bail on such
terms and conditions as the learned court in seisin over the matter in G.R
Case No.334 of 2023 may consider fit and proper, after verifying that he
has only the criminal antecedents as mentioned above, in which he has
been granted bail, as well as the following conditions:
(i) He will furnish cash security of Rs Fifteen lakhs.The amount
will be kept in fixed deposit in a nationalised bank (and renewed if
required ) and will abide by the result and decision in the trial .
(ii) He will not indulge in any criminal activity.
(iii) He will not leave Khurda District and Cuttack District, without
permission of the learned trial Court.
(iv) He will remain personally present in the learned trial court on
each date fixed for trial and co-operate for early disposal of the trial.
(v) He will appear before the Mangalabag Police on every alternate
Sunday between 5.00 pm to 6.00 pm unless permitted by the learned
trial court, to leave the State.
16. In the event of violation of any of these conditions or any
other condition that may be imposed by the learned Court in seisin over
BLAPL No. 11529 of 2024 Page 16 of 17
the matter, this order is liable to be recalled and / or the bail granted to
the petitioner cancelled.
17. Observations in this order have been made for purpose of
deciding the bail application and are prima facie views and should not
influence the learned trial court, which is to try the case strictly on the
basis of evidence led in the case.
18. The BLAPL is accordingly allowed.
19. Urgent certified copy of this order be granted on proper
application.
20. Copy of this order be supplied to Smt. Siva Mohanty,
learned Additional Standing Counsel for onward transmission to the IIC
of Mangalabag Police Station.
……………………
(Savitri Ratho, J.)
Orissa High Court, Cuttack.
5th March 2025,
Puspa, Personal Assistant.
Signature Not Verified
Digitally Signed
Signed by: PUSPANJALI MOHAPATRA
Reason: Authentication
Location: Orissa High Court
Date: 14-Mar-2025 13:27:02
BLAPL No. 11529 of 2024 Page 17 of 17
