Bail - transfer of case - Lower court granted bail in high scam - High court cancelled the bail - Apex court confirmed the high court order and transferred the case to other district =
The High Court order cancelled the bail granted to
the appellant herein in Crime No.13/2006 registered at the City Police
Station, Jalgaon. The appellant (alongwith 56 others) has been charged for
offences under Sections 120-B, 406, 409, 411, 420, 465, 466, 468, 471, 109
read with Section 34 of Indian Penal Code (I.P.C for short), and under
Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of
Corruption Act, 1988. The appellant is accused no.34 in that case. The
appellant was granted bail on 21.5.2012 by a common order below the
applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C.
by the Incharge Additional Adhoc District Judge No.1 and Additional
Sessions Judge, Jalgaon. It is this order which has been set-aside by the
High Court. The operation of the High Court has been stayed by this Court
on 7.8.2012.=
Although this appeal is not being entertained, what we find is
that the appellant along with 4 other accused who have been denied bail,
had made numerous attempts to intimidate the witnesses, and even threatened
the investigating officer.
Some of the witnesses are the employees of the
Jalgaon Municipal Corporation, and obviously the appellant and the 4
accused, though in jail, may still make every effort to influence them
hereafter, and vitiate the trial if it is conducted in Jalgaon.
Mr.
Kharde, learned counsel appearing for the State has submitted that it will
be in the fitness of things that the trial be transferred outside the
district. Mr. Savant, learned senior counsel appearing for the appellant
has no objection for the same.
Mr. Marlapalle and Ms. Kamini Jaiswal
appearing for the respondents No.2 to 4 have also supported this
submission.
We quite see the merit of this submission. A trial of this
nature, for that matter every trial, ought to be conducted in a free and
fearless atmosphere. Hence, in the facts and circumstances of the present
case we are of the view that the trial of this Sessions case ought to be
transferred outside that district.
The transfer to the district Dhule,
would be appropriate since that district is adjoining to the Jalgaon
district, and it also falls within the jurisdiction of the Aurangabad Bench
of the Bombay High Court.
32. Before we conclude we make it clear that the observations made
herein are for the purposes of deciding whether the High Court was in any
way in error in cancelling the bail granted to the appellant. This order is
being passed on the basis of the material that has been placed on record
for that purpose.
Needless to state, but we make it clear that as and when
the trial is conducted, it will be decided on the basis of the evidence,
which will be brought on record during the course of the trial.
The appeal is accordingly dismissed.
The appellant will
surrender to the City Police Station Jalgaon, within two weeks hereof. The
Sessions case arising out of Crime/FIR No.13/2006 registered at the City
Police Station Jalgaon on 3.2.2006 is hereby transferred to the Addl.
Sessions Judge, Dhule, incharge of cases under the Prevention of Corruption
Act, 1988.
The learned Addl. Sessions Judge, Jalgaon seized of this matter
will transfer the records of the concerned proceeding within four weeks to
the said Court.
Registrar General of the Bombay High Court is directed to
see to it that necessary follow up steps are taken forthwith. Registry to
send a copy of this Judgment to the Registrar General High Court Bombay,
District Judge, Jalgaon and District Judge, Dhule.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2113_/2013
(@ SPECIAL LEAVE PETITION (CRIMINAL) No. 6020 OF 2012)
Gulabrao Baburao Deokar … Appellant
Versus
State of Maharashtra & Ors. … Respondents
J U D G E M E N T
H.L. Gokhale J.
Leave granted.
2. This appeal seeks to challenge the judgment and order dated 6.8.2012
rendered by a Judge of the Bombay High Court at Aurangabad allowing the
Criminal Application No. 2522/2012 filed by the respondent Nos.2 to 4
herein under Section 439 (2) and 482 of Code of Criminal Procedure, 1973
(Cr.P.C. for short). The High Court order cancelled the bail granted to
the appellant herein in Crime No.13/2006 registered at the City Police
Station, Jalgaon. The appellant (alongwith 56 others) has been charged for
offences under Sections 120-B, 406, 409, 411, 420, 465, 466, 468, 471, 109
read with Section 34 of Indian Penal Code (I.P.C for short), and under
Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of
Corruption Act, 1988. The appellant is accused no.34 in that case. The
appellant was granted bail on 21.5.2012 by a common order below the
applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C.
by the Incharge Additional Adhoc District Judge No.1 and Additional
Sessions Judge, Jalgaon. It is this order which has been set-aside by the
High Court. The operation of the High Court has been stayed by this Court
on 7.8.2012.
3. Mr. A.V. Savant, learned senior counsel and Mr. Sudhanshu
Chaudhary have appeared for the appellant. Mr. Sanjay Kharde, learned
counsel has appeared for the first respondent-State of Maharashtra. Mr.
B.H. Marlapalle, learned senior counsel and Ms. Kamini Jaiswal, learned
counsel have appeared for the respondent Nos.2 to 4.
4. The above referred Crime/FIR No.13/2006 was registered at the City
Police Station, Jalgaon on 3.2.2006. The Charge-sheet therein came to be
filed after completion of the investigation much later on 25.4.2012. It is
essentially about the defalcation of public money resulting into a huge
loss of over Rs.169.60 crores to the Jalgaon Municipal Corporation in
Maharashtra. This Corporation was a Municipal Council until about January
2004. It had framed a housing scheme in the year 1997 named as ‘Gharkul’
(i.e. Small house) to construct 11,424 houses on the Municipal land for the
benefit of slum dwellers. As stated above, although there are 57 accused,
the main persons involved in this defalcation are stated to be two former
Presidents of the erstwhile Municipal Council, namely, one Shri Sureshdada
Jain and one Pradeep Raysoni, and two partners of a construction company
known as Khandesh Builders viz. Rajendra Mayur and Jagannath Vani. Shri
Sureshdada Jain is said to be the main share-holder of this company.
5. Shri Sureshdada Jain is stated to have been the President of
Jalgaon Municipal Council from May 1985 to July 1994. Thereafter he was
the Minister of Housing in the Shivsena–Bharatiya Janata Party (BJP)
Government, in the State, during 1995-2000. He is presently an MLA of
Nationalist Congress Party (NCP) from Jalgaon city. He was a minister in
the present Congress-NCP Government until recently. The appellant is also
an MLA of NCP from Jalgaon (Rural) Constituency, and on the date of the
impugned order he was a Minister of State in the State Government.
Subsequently he has resigned as a Minister. Out of the 57 accused persons 4
have died. Out of the remaining, 2 accused are absconding, and the above
referred 2 former Presidents and 2 contractors are in custody. Remaining
47 accused including the appellant have been granted bail.
6. In 1997 when he was a Minister of Housing, Shri Sureshdada Jain
persuaded HUDCO to give loan of about 66 crores to the Jalgaon Municipal
Council for the above Housing Scheme. He is said to have been instrumental
in constituting a ‘High Powered Committee’ in the Municipal Council which
was to supervise this work. The appellant was one of its members. The
scheme was to be completed in 9 months but has not been completed so far.
Pradeep Raysoni was the President of the Municipal Council during May 1996
to May 1997. As per the Charge-sheet the execution of the scheme was
entrusted to Khandesh builders, violating all norms, and statutory and
other legal requirements. They have been given huge interest-free
mobilization advances which amongst other reasons have led to this huge
liability. The work not having been completed, and the loan not having been
repaid, the liabilities for the Municipal Corporation towards the interest
amount have increased, and it will take quite a few years for the
Corporation to repay the loan.
7. The above referred Shri Sureshdada Jain was arrested sometimes
in March, 2012, and the charge-sheet has been filed on 25.4.2012. The
appellant was issued a notice dated 16.5.2012 under Section 160 of Cr.P.C.
to attend at the Jalgaon Police Station on 19.5.2012. Accused nos. 31 to
50 including the appellant applied for bail under Section 439(1), and they
were so released by the above referred order passed on 21.5.2012. This
order has been set aside by the impugned order of the High Court. We are
informed that the charges have been framed by the trial court, and the
recording of the evidence is yet to start. Out of various charges, the
charge under Section 409 has not been framed, but Mr. Sanjay Kharde,
learned counsel for the State, has informed us that the State is going to
apply for framing of the charge under this section also. A supplementary
charge sheet has also been filed on 2.6.2012.
8. The initial charge-sheet leading to the prosecution has been
placed on record. It runs into more than 268 pages and contains various
details. Shri Sureshdada Jain is said to have led the majority in the
Jalgaon Municipal Council at the relevant time under a group known as the
‘Shahar Vikas Aghadi’ (i.e. City Development Front). It is alleged that
Shri Sureshdada Jain in his capacity as the Minister decided to use the
lower income group scheme for wrongful gain, which has resulted into huge
liability to the Municipal Corporation, and wrongful gain for himself and
other conspirators. It is alleged that he arranged the funds from HUDCO
for this particular project, and saw to it that the contract is given to
Khandesh builders at exorbitant rates, ignoring the lower bid given by
another contractor. The councilors were made to approve all the decisions
of the above referred committee which was controlled by earlier referred
Pradeep Raysoni. The investigation revealed that the committee was only for
the namesake, and it was Raysoni who was taking all the decisions. No
written orders were passed. Large advances were released to the builders
under what was called as ‘Ummeed Manjuri’ (i.e. approval in anticipation),
and all the Municipal Councilors were made to sign those decisions.
9. When the accused no. 31 to 50 including the appellant moved for
bail under Section 439, the respondent No.2 herein appeared in the
proceeding and sought permission to assist the Special Public Prosecutor.
This is recorded in the order of the Sessions Judge. The order records the
objection that it was a serious economic offence involving public money,
and that the appellant was a powerful and influential person in Jalgaon,
and there was a possibility that he may misuse his liberty and tamper with
the prosecution. The learned Sessions Judge has however observed that
beyond the aforesaid apprehension nothing has been pointed out that the
appellant had misused his status. The learned Judge has then observed that
considering the nature of the offence, it may be said that the evidence to
be collected and available with the prosecution must be in the form of
documents, and the apprehension by pressurizing the prosecution witnesses
can be checked by imposing reasonable conditions. The learned Judge
therefore observed that there was no point in detaining the accused in jail
particularly in the circumstances when the investigation of the crime was
on the verge of completion. The Judge, therefore, released all those
accused nos. 31 to 50 on personal bonds in the sum of Rs.50, 000/- with one
solvent surety in the like amount.
10. The respondent Nos. 2 to 4 sought to set-aside this order by
filing Criminal Application No. 2522 of 2012 dated 11.6.2012, and the High
Court has allowed it, by passing the impugned order. The High Court has
noted in its order that:-
(i) The appellant was arrested on 21.5.2012 and was produced before the
Special Court along with some councillors on the same day with the remand
report. Bail application was moved on the same day.
(ii) In paragraph 14 of his order the learned Judge noted that under the
proviso to Section 439(1) of Cr.P.C. where the person concerned is accused
of an offence which is punishable with imprisonment of life (such as
Section 409 I.P.C. in the present case), the Sessions Judge has to give the
notice of the application for bail to the public prosecutor, unless for the
reasons to be recorded in writing, it is not practicable to give such
notice. In the instant case, no order was made giving notice to the public
prosecutor, nor reasons for the same were recorded in the order granting
bail. The only order made on the very day was “I.O. (i.e. investigation
officer) to say”. The matter was heard immediately there and then.
(iii) Even so, the special prosecutor had requested for police custody at
least for 2 days. The same was, however, refused. He then filed a reply
running into 8 pages to oppose the application, but the order passed by the
learned Session Judge did not refer to this reply or the contents thereof.
(iv) Paragraph 15 of the impugned order notes that the appellant was not
detained nor kept behind the bars even for a single day. This was in spite
of the fact that there was a record like giving 5 work orders to the
brother of the appellant, and during custodial investigation more material
could have been collected.
11. The learned Judge has noted in paragraph 16 of his order that
cogent and overwhelming circumstances are necessary for an order of
cancellation of bail already granted, as laid down by this Court from time
to time. He has referred to the judgment in Dolat Ram Vs. State of Haryana
reported in 1995 (1) SCC 349 in this behalf. He has, however, also observed
in paragraph 17 that if the order is by a wrong and arbitrary exercise of
discretion, it deserves to be cancelled. He has further observed that
nature and seriousness of the offence and impact on the society
particularly in economic offences are always important considerations in
such a case.
12. Mr. A.V. Savant, learned senior counsel appearing for the
appellant has relied upon various judgments to submit that cancellation of
bail is not something to be easily granted. He has drawn our attention the
judgment of this Court in Bhagirathsinh Vs. State of Gujarat reported in
1984 (1) SCC 284 where this Court has observed that very cogent and
overwhelming circumstances are necessary for an order seeking cancellation
of bail, and power to grant bail is not to be exercised as if it is a
punishment before the trial. The Court has held in that matter that the
material considerations in such a situation are whether the accused would
be readily available for his trial, and whether he is likely to abuse the
discretion granted in his favour by tampering with evidence.
13. Mr. Pandharinath Ramchandra Pawar, Deputy S.P., Jalgaon, who is
the investigating officer, has filed a detailed affidavit in reply, dated
28.9.2012, in this Court, placing on record voluminous material as to how
Shri Sureshdada Jain and some of the principal accused including the
appellant have resorted to pressure tactics at various stages of the case.
Amongst other statements against the appellant, he has specifically placed
on record the following material:-
(i) In paragraph 5 (iii) of his affidavit he has placed on record that
the appellant brought a ‘morcha’ (i.e. a procession to protest) on the
police station on 29.3.2006. He has stated therein as follows:-
“That right from the time when the crime was registered, the
petitioner-accused have tried to create pressure on investigation
machinery by bringing morcha on police station by the leadership of
petitioner and Suresh Jain and demanding arrest of themselves by
police, therefore, offence was registered against the Councillors
including the present petitioner as crime no.27/2006 on 29.3.2006.”
He has annexed the extract of the station diary entry dated 30.3.2006 as
Annexure R2 to this affidavit. This extract from the station diary records
that some of the Municipal Councillors including the appellant had moved a
no-confidence motion against the Municipal Commissioner, Mr. Praveen Gedam,
who had lodged the complaint leading to this prosecution, and then these
councillors created a ruckus in the Council Hall. Thereafter, they took out
a ‘morcha’ to the police station and held a demonstration. The appellant is
specifically named in this station diary entry, as a person leading the
‘morcha’.
(ii) Thereafter, he has placed on record that Sureshdada Jain and his
associates, including the appellant, on various occasions resorted to
pressure tactics like taking out the ‘morcha’, threatening the
investigation officer, slapping the civil surgeon and so on, and thereby
they created an atmosphere of terror in the city. Thereafter in this
connection he has stated in paragraph XXV and XXVI as follows:-
“[XXV] All the above conduct clearly shows that the petitioner
himself and through his supporters sent a message in society that
they are able to teach a lesson to the witnesses, the Complainant,
who is I.A.S. Officer, Investigation Officer, who is I.P.S. Officer,
Jailor, who is class one Officer and Dr. Rathod, who is also class
one Officer of Civil Hospital then, anybody may not dare to go
against them.
[XXVI] Moreover, they have created terrorized atmosphere in the
society of Jalgaon city. In fact, most of the witnesses in this
case are ordinary people and many witnesses are employee in Jalgaon
Municipal Corporation, in which, the party of this group is in
power. Therefore, considering, the human probabilities, witnesses
will not come forward to depose against the present accused and
other accused.”
14. Mr. A.V. Savant, learned senior counsel for the appellant
submitted that these allegations are essentially against Sureshdada Jain
and not so much against the appellant herein. It is difficult to accept
this submission. The station diary entry dated 30.3.2006 specifically
records the name of the appellant as amongst those who took out the
‘morcha’ to the police station. It is also clear from what the Deputy S.P.
has stated in his affidavit that the appellant was associated with Shri
Sureshdada Jain on different occasions when an attempt was made to take the
law into hands.
15. It is specifically stated in the paragraph 4 of the above
referred affidavit of Mr. Pawar that a detailed argument was made before
the Sessions Judge on behalf of the prosecution pointing out a prima facie
case against the appellant. It is also stated therein that the Jalgaon
Municipal Council had illegally given more than 30 contracts to Jalgaon
Construction Company belonging to the appellant as the beneficiary in the
conspiracy. The past conduct of the appellant after the registration of the
present crime was pointed out in detail, as well as his criminal
antecedents with proof, and also the fact that the bail applications of 3
of the main accused (i.e. Sureshdada Jain and others) had been rejected by
another Sessions Judge by the orders dated 17.5.2012 and 19.5.2012. That
there was a wrongful loss of about Rs.169 crores to Jalgaon Municipal
Council was also brought to the notice of the Court. The counsel for the
State of Maharashtra has, therefore, submitted that the order passed by the
Sessions Judge was a perverse order since none of these factors was
considered by the Court.
16. Mr. Savant, learned senior counsel appearing for the appellant
submitted that it is a well established proposition that “bail not jail” is
the rule of law, and cancellation of bail is not to be lightly resorted to.
He referred to the judgment of this Court in Bhagirathsinh (supra) where
the appellant facing the charge under Section 307 IPC, was granted bail by
the Sessions Judge, but the bail was cancelled by the High Court. In
paragraph 7 of the judgment this Court has observed as follows:-
“7. In our opinion, the learned Judge appears to have
misdirected himself while examining the question of directing
cancellation of bail by interfering with a discretionary order made
by the learned Sessions Judge. One could have appreciated the
anxiety of the learned Judge of the High Court that in the
circumstances found by him that the victim attacked was a social and
political worker and therefore the accused should not be granted
bail but we fail to appreciate how that circumstance should be
considered so overriding as to permit interference with a
discretionary order of the learned Sessions Judge granting bail. The
High Court completely overlooked the fact that it was not for it to
decide whether the bail should be granted but the application before
it was for cancellation of the bail. Very cogent and overwhelming
circumstances are necessary for an order seeking cancellation of the
bail and the trend today is towards granting bail because it is now
well-settled by a catena of decisions of this Court that the power
to grant bail is not to be exercised as if the punishment before
trial is being imposed. The only material considerations in such a
situation are whether the accused would be readily available for his
trial and whether he is likely to abuse the discretion granted in
his favour by tampering with evidence. The order made by the High
Court is conspicuous by its silence on these two relevant
considerations. It is for these reasons that we consider in the
interest of justice a compelling necessity to interfere with the
order made by the High Court.”
17. Thereafter he referred to the judgment in Fida Hussain Bohra
Vs. State of Maharashtra reported in 2009 (5) SCC 150 where in the case of
a charge involving criminal misappropriation of public funds some accused
were granted bail, but the High Court had cancelled the bail granted to the
appellant. This Court held that the appeal from an order granting bail had
to be considered differently. It is, however, material to note that this
Court also observed in paragraph 8 that correctness or otherwise of the
order passed by the Appellate Court setting aside an order granting bail or
an order of cancellation of bail had to be considered on particular facts
of each case.
18. The judgment of this Court in Siddharam Satlingappa Mhetre Vs.
State of Maharashtra and others reported on 2011 (1) SCC 694 was heavily
relied upon, wherein this Court has held that where the accused has joined
the investigation, is cooperating with the investigating agency, and is not
likely to abscond, custodial interrogation should be avoided.
19. These submissions were countered by the counsel for the
respondents. They referred to what this Court has observed in paragraphs 10
and 11 of Puran Vs. Rambilas and another reported in 2001 (6) SCC 338. In
paragraph 10 this Court has referred to Daulat Ram Vs. State of Haryana
(supra) which was also referred to by the High Court in the impugned order.
After referring to this judgment, this Court has noted that rejection of a
bail in a non-bailable case at an initial stage or a cancellation of bail
already granted had to be considered on different basis. Very cogent and
overwhelming circumstances are necessary for an order directing the
cancellation of the bail already granted. The Court has also noted that it
has been held that generally speaking the grounds for cancellation of bail
broadly are interference or attempt to interfere with the due course of
administration of justice or evasion or abuse of the concession granted to
the accused. Thereafter, this Court has observed in paragraph 10:-
“10…….. It is, however, to be noted that this Court has
clarified that these instances are merely illustrative and not
exhaustive. One such ground for cancellation of bail would be where
ignoring material and evidence on record a perverse order granting
bail is passed in a heinous crime of this nature and that too
without giving any reasons. Such an order would be against
principles of law. Interest of justice would also require that such
a perverse order be set aside and bail be cancelled. It must be
remembered that such offences are on the rise and have a very
serious impact on the society. Therefore, an arbitrary and wrong
exercise of discretion by the trial court has to be corrected.”
In paragraph 11, the Court has referred to the judgment in Gurcharan Singh
Vs. State (Delhi Administration) reported in 1978 (1) SCC 118, and
thereafter observed that the remedy under Section 439(2) to approach the
High Court is also available where the State is aggrieved by the Sessions
Judge granting bail on the basis of unjustified, illegal or perverse order.
This paragraph 11 reads as follows:-
“11. Further, it is to be kept in mind that the concept of setting aside
the unjustified illegal or perverse order is totally different from the
concept of cancelling the bail on the ground that the accused has
misconducted himself or because of some new facts requiring such
cancellation. This position is made clear by this Court in Gurcharan Singh
v. State (Delhi Admn. ((1978)1SCC118). In that case the Court observed as
under: (SCC p. 124, para 16)
“If, however, a Court of Session had admitted an accused person to
bail, the State has two options. It may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known
to the State and necessarily, therefore, to that court. The State
may as well approach the High Court being the superior court under
Section 439(2) to commit the accused to custody. When, however, the
State is aggrieved by the order of the Sessions Judge granting bail
and there are no new circumstances that have cropped up except those
already existing, it is futile for the State to move the Sessions
Judge again and it is competent in law to move the High Court for
cancellation of the bail. This position follows from the subordinate
position of the Court of Session vis-à-vis the High Court.”
(emphasis supplied)
20. The judgment of this Court in State of U.P. Vs. Amarmani
Tripathi reported in 2005 (8) SCC 21, was also relied upon in support. In
that matter the respondent and his wife were admitted to bail by an order
passed by the High Court on 29.4.2001 and 8.7.2004. Considering the
totality of the factors including that there was a clear possibility of the
respondents intimidating the witnesses, this Court cancelled the bail by
its order dated 26.9.2005 which was passed more than a year after the grant
of bail. What is relevant for our purpose is what this Court has observed
in paragraph 18 to the following effect:-
“18……While a vague allegation that the accused may tamper with
the evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he will
use his liberty to subvert justice or tamper with the evidence, then
bail will be refused…...”
(emphasis supplied)
21. Masroor Vs. State of Uttar Pradesh and another reported in 2009
(14) SCC 286 was referred wherein this Court has observed in paragraph 12
that this Court does not interfere with the order of High Court granting or
rejecting the bail but where there was a manifest error in the matter of
grant of bail, it required interference. In paragraph 15 this Court
observed as follows:-
“15. There is no denying the fact that the liberty of an individual
is precious and is to be zealously protected by the courts.
Nonetheless, such a protection cannot be absolute in every situation.
The valuable right of liberty of an individual and the interest of the
society in general has to be balanced. Liberty of a person accused of
an offence would depend upon the exigencies of the case. It is possible
that in a given situation, the collective interest of the community may
outweigh the right of personal liberty of the individual concerned….”
(emphasis supplied)
22. Paragraph 25 of Nimmagadda Prasad Vs. Central Bureau of
Investigation reported in 2013 (7) SCC 466 was brought to our notice
wherein with respect to the economic offences the Court has observed as
follows:-
“25. Economic offences constitute a class apart and need to be
visited with a different approach in the matter of bail. The economic
offence having deep-rooted conspiracies and involving huge loss of
public funds needs to be viewed seriously and considered as a grave
offence affecting the economy of the country as a whole and thereby
posing serious threat to the financial health of the country.”
(emphasis supplied)
23. We have noted the submissions of the counsel for the appellants
as well as the respondents. In the present case we are concerned with the
question as to whether High Court was in error in cancelling the bail
granted to the appellant. Having noted the above aspects we are clearly of
the view that the Sessions Court had not complied with the mandatory
proviso to Section 439(1). This proviso lays down that before granting
bail to a person who is accused of an offence which is punishable with
imprisonment for life, and which is exclusively triable by the Court of
Sessions, it shall give a notice of the application for bail to the public
prosecutor. In the instant case, the facts reveal that the appellant
appeared before the learned Sessions Judge on 21.5.2012, when his
application for bail was taken up for consideration. The Sessions Judge
passed an order ‘I.O. to say’. The matter was taken up there and then. The
prosecutor applied for remand of at least 2 days which was declined. The
notice under the proviso under the Section 439 (1) implies a proper and
full opportunity to the prosecutor to point out as to why bail should not
be granted. The initial chargesheet in the instant case was itself running
into more than 268 pages. The Sessions Judge ought to have granted adequate
time to the prosecutor to reply on the basis of this chargesheet, for him
to pass a considered order. Consequently the order of bail does not reflect
upon the contents of the charge sheet.
24. As pointed out by Mr. Pawar, Deputy S.P. in his affidavit
that although the matter was heard there and then, the prosecutor did make
a detailed argument pointing ought the prima facie case against the
appellant. The past conduct of the appellant after the registration of the
present crime was also pointed out in detail as well as his criminal
antecedents with proof, and also the fact that the bail applications of 3
of the main accused (i.e. Sureshdada Jain and others) had been rejected by
another Sessions Judge by the order dated 17.5.2012 and 19.5.2012. That
there was a wrongful loss of about Rs.169 crores to Jalgaon Municipal
Council was also brought to the notice of the Court. The counsel for the
State of Maharashtra has therefore rightly submitted that the order passed
by the Trial Court was a perverse order since none of these factors were
considered by the Court.
25. The appellant and the accused have been charged for an offence
which may result into the punishment for imprisonment for life. It is a
serious charge supported by a detailed charge-sheet running into over 268
pages. It is stated therein that the Jalgaon Municipal Corporation had
illegally given more than 30 contracts to Jalgaon Construction Company
belonging to the appellant as a beneficiary in the conspiracy. Obviously
the prosecutor required time to interrogate the accused, and the custodial
interrogation in such a situation, for at least two days, could not have
been denied. It could have aided the investigation by unearthing relevant
information. The bail order was however passed on the same day, there and
then. We are conscious of the fact that the liberty of a citizen even if
he is an accused is undoubtedly important, but at the same time when the
prosecutor had pointed out to the Court that the role of the appellant was
no less than that of the three others whose bail had been rejected, the
learned Judge ought to have considered these circumstances, justifying
custodial interrogation, with due diligence.
26. Thus it could certainly be said that the order passes by the
Sessions Judge was an order passed in breach of the mandatory requirement
of the proviso to Section 439(1) of Cr.P.C. It is also an order ignoring
the material on record, and therefore without any justification and
perverse. As held by this Court in Puran Vs. Rambilas (supra), the High
Court does have the power under Section 439 (2) of Cr.P.C. to set aside an
unjustified, illegal or perverse order granting bail. This is an
independent ground for cancellation as against the ground of accused mis-
conducting himself.
27. In the instant case, the attempts made by the appellant to
pressurize the witnesses and even the investigating officer are clearly
placed on record through the affidavit of the Deputy S.P. Mr. Pawar. On
that ground also it could be said that the appellant will be pressurizing
the witnesses if he is not restrained. This being the position, we cannot
find any fault with the order of the High Court cancelling the bail on that
ground also. The order does record the cogent and overwhelming
circumstances justifying cancellation of bail. The nature and seriousness
of an economic offence and its impact on the society are always important
considerations in such a case, and they must squarely be dealt with by the
Court while passing an order on bail applications.
28. We must note one more objection raised on behalf of the
appellant, namely, that respondent Nos. 2 to 4 had no locus to file an
application seeking cancellation of bail. It is contended that respondent
Nos. 3 and 4 had not even filed any application before the Trial Court.
They later on joined the respondent No. 2 to move the High Court by filing
SLP (Crl.) Application to quash and set aside the order granting bail. Mr.
Marlapalle, learned Senior Counsel and Ms. Kamini Jaiswal learned counsel
appearing for these respondents pointed out in reply that the Criminal
Application filed in the High Court was moved under Section 439(2) read
with Section 482 of Cr.P.C. Paragraph 2 of the said Criminal application
stated as follows:-
“2. The applicants submit that they are residents of
Jalgaon. They are citizens of India. They are tax payers. They are
beneficiaries of various policies and amenities provided by the
Municipal Corporation to the citizens of Jalgaon. The applicants are
victims of the offence committed by the Respondent No.2 alongwith other
accused. The applicants have locus standi to seek the cancellation of
the bail granted to the respondent No. 2 and the other accused
persons.”
29. It was submitted by these learned counsel that respondent No. 2
had appeared before the Sessions Judge to assist the prosecution, which is
recorded in the order passed granting bail. As far as filing of the
aforesaid Criminal Application before the High Court by respondent Nos. 2
to 4 is concerned, the same has not been specifically objected to in the
High Court, and therefore, there was no occasion for the High Court to look
into any such objection. Now, this objection is being raised in this
Court. The learned counsel submitted that the respondent Nos. 2 to 4 had
invoked the inherent jurisdiction of the High Court under Section 482 of
Cr.P.C., and the power of the High Court to entertain such an application
has been upheld by this Court in paragraph 17 of Puran Vs. Rambilas
(supra). In that matter bail had been granted by the Sessions Court, and
the bail order was cancelled by the High Court, not on any petition by the
State, but on one filed by the complainant invoking Sections 439 (2) and
482 of Cr.P.C.
30. In our view the objection raised by the appellant cannot be
sustained in view of what is observed by this Court in paragraph 17 in
Puran Vs. Rambilas (supra) which reads as follows:-
17. Further, even if it is an interlocutory order, the High Court’s
inherent jurisdiction under Section 482 is not affected by the
provisions of Section 397(3) of the Code of Criminal Procedure. That
the High Court may refuse to exercise its jurisdiction under Section
482 on the basis of self-imposed restriction is a different aspect. It
cannot be denied that for securing the ends of justice, the High Court
can interfere with the order which causes miscarriage of justice or is
palpably illegal or is unjustified (Madhu Limaye v. State of
Maharashtra (1977) 4 SCC 551 and Krishnan v. Krishnaveni (1997) 4 SCC
241)
(emphasis supplied)
For all these reasons, we do not find any merit in this appeal
and the same does not deserve to be entertained.
31. Although this appeal is not being entertained, what we find is
that the appellant along with 4 other accused who have been denied bail,
had made numerous attempts to intimidate the witnesses, and even threatened
the investigating officer. Some of the witnesses are the employees of the
Jalgaon Municipal Corporation, and obviously the appellant and the 4
accused, though in jail, may still make every effort to influence them
hereafter, and vitiate the trial if it is conducted in Jalgaon. Mr.
Kharde, learned counsel appearing for the State has submitted that it will
be in the fitness of things that the trial be transferred outside the
district. Mr. Savant, learned senior counsel appearing for the appellant
has no objection for the same. Mr. Marlapalle and Ms. Kamini Jaiswal
appearing for the respondents No.2 to 4 have also supported this
submission. We quite see the merit of this submission. A trial of this
nature, for that matter every trial, ought to be conducted in a free and
fearless atmosphere. Hence, in the facts and circumstances of the present
case we are of the view that the trial of this Sessions case ought to be
transferred outside that district. The transfer to the district Dhule,
would be appropriate since that district is adjoining to the Jalgaon
district, and it also falls within the jurisdiction of the Aurangabad Bench
of the Bombay High Court.
32. Before we conclude we make it clear that the observations made
herein are for the purposes of deciding whether the High Court was in any
way in error in cancelling the bail granted to the appellant. This order is
being passed on the basis of the material that has been placed on record
for that purpose. Needless to state, but we make it clear that as and when
the trial is conducted, it will be decided on the basis of the evidence,
which will be brought on record during the course of the trial.
33. The appeal is accordingly dismissed. The appellant will
surrender to the City Police Station Jalgaon, within two weeks hereof. The
Sessions case arising out of Crime/FIR No.13/2006 registered at the City
Police Station Jalgaon on 3.2.2006 is hereby transferred to the Addl.
Sessions Judge, Dhule, incharge of cases under the Prevention of Corruption
Act, 1988. The learned Addl. Sessions Judge, Jalgaon seized of this matter
will transfer the records of the concerned proceeding within four weeks to
the said Court. Registrar General of the Bombay High Court is directed to
see to it that necessary follow up steps are taken forthwith. Registry to
send a copy of this Judgment to the Registrar General High Court Bombay,
District Judge, Jalgaon and District Judge, Dhule.
…………………………………..J.
[ H.L. Gokhale ]
……………………………………J.
[ J. Chelameswar ]
New Delhi
Dated: December 17, 2013
The High Court order cancelled the bail granted to
the appellant herein in Crime No.13/2006 registered at the City Police
Station, Jalgaon. The appellant (alongwith 56 others) has been charged for
offences under Sections 120-B, 406, 409, 411, 420, 465, 466, 468, 471, 109
read with Section 34 of Indian Penal Code (I.P.C for short), and under
Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of
Corruption Act, 1988. The appellant is accused no.34 in that case. The
appellant was granted bail on 21.5.2012 by a common order below the
applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C.
by the Incharge Additional Adhoc District Judge No.1 and Additional
Sessions Judge, Jalgaon. It is this order which has been set-aside by the
High Court. The operation of the High Court has been stayed by this Court
on 7.8.2012.=
Although this appeal is not being entertained, what we find is
that the appellant along with 4 other accused who have been denied bail,
had made numerous attempts to intimidate the witnesses, and even threatened
the investigating officer.
Some of the witnesses are the employees of the
Jalgaon Municipal Corporation, and obviously the appellant and the 4
accused, though in jail, may still make every effort to influence them
hereafter, and vitiate the trial if it is conducted in Jalgaon.
Mr.
Kharde, learned counsel appearing for the State has submitted that it will
be in the fitness of things that the trial be transferred outside the
district. Mr. Savant, learned senior counsel appearing for the appellant
has no objection for the same.
Mr. Marlapalle and Ms. Kamini Jaiswal
appearing for the respondents No.2 to 4 have also supported this
submission.
We quite see the merit of this submission. A trial of this
nature, for that matter every trial, ought to be conducted in a free and
fearless atmosphere. Hence, in the facts and circumstances of the present
case we are of the view that the trial of this Sessions case ought to be
transferred outside that district.
The transfer to the district Dhule,
would be appropriate since that district is adjoining to the Jalgaon
district, and it also falls within the jurisdiction of the Aurangabad Bench
of the Bombay High Court.
32. Before we conclude we make it clear that the observations made
herein are for the purposes of deciding whether the High Court was in any
way in error in cancelling the bail granted to the appellant. This order is
being passed on the basis of the material that has been placed on record
for that purpose.
Needless to state, but we make it clear that as and when
the trial is conducted, it will be decided on the basis of the evidence,
which will be brought on record during the course of the trial.
The appeal is accordingly dismissed.
The appellant will
surrender to the City Police Station Jalgaon, within two weeks hereof. The
Sessions case arising out of Crime/FIR No.13/2006 registered at the City
Police Station Jalgaon on 3.2.2006 is hereby transferred to the Addl.
Sessions Judge, Dhule, incharge of cases under the Prevention of Corruption
Act, 1988.
The learned Addl. Sessions Judge, Jalgaon seized of this matter
will transfer the records of the concerned proceeding within four weeks to
the said Court.
Registrar General of the Bombay High Court is directed to
see to it that necessary follow up steps are taken forthwith. Registry to
send a copy of this Judgment to the Registrar General High Court Bombay,
District Judge, Jalgaon and District Judge, Dhule.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2113_/2013
(@ SPECIAL LEAVE PETITION (CRIMINAL) No. 6020 OF 2012)
Gulabrao Baburao Deokar … Appellant
Versus
State of Maharashtra & Ors. … Respondents
J U D G E M E N T
H.L. Gokhale J.
Leave granted.
2. This appeal seeks to challenge the judgment and order dated 6.8.2012
rendered by a Judge of the Bombay High Court at Aurangabad allowing the
Criminal Application No. 2522/2012 filed by the respondent Nos.2 to 4
herein under Section 439 (2) and 482 of Code of Criminal Procedure, 1973
(Cr.P.C. for short). The High Court order cancelled the bail granted to
the appellant herein in Crime No.13/2006 registered at the City Police
Station, Jalgaon. The appellant (alongwith 56 others) has been charged for
offences under Sections 120-B, 406, 409, 411, 420, 465, 466, 468, 471, 109
read with Section 34 of Indian Penal Code (I.P.C for short), and under
Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of
Corruption Act, 1988. The appellant is accused no.34 in that case. The
appellant was granted bail on 21.5.2012 by a common order below the
applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C.
by the Incharge Additional Adhoc District Judge No.1 and Additional
Sessions Judge, Jalgaon. It is this order which has been set-aside by the
High Court. The operation of the High Court has been stayed by this Court
on 7.8.2012.
3. Mr. A.V. Savant, learned senior counsel and Mr. Sudhanshu
Chaudhary have appeared for the appellant. Mr. Sanjay Kharde, learned
counsel has appeared for the first respondent-State of Maharashtra. Mr.
B.H. Marlapalle, learned senior counsel and Ms. Kamini Jaiswal, learned
counsel have appeared for the respondent Nos.2 to 4.
4. The above referred Crime/FIR No.13/2006 was registered at the City
Police Station, Jalgaon on 3.2.2006. The Charge-sheet therein came to be
filed after completion of the investigation much later on 25.4.2012. It is
essentially about the defalcation of public money resulting into a huge
loss of over Rs.169.60 crores to the Jalgaon Municipal Corporation in
Maharashtra. This Corporation was a Municipal Council until about January
2004. It had framed a housing scheme in the year 1997 named as ‘Gharkul’
(i.e. Small house) to construct 11,424 houses on the Municipal land for the
benefit of slum dwellers. As stated above, although there are 57 accused,
the main persons involved in this defalcation are stated to be two former
Presidents of the erstwhile Municipal Council, namely, one Shri Sureshdada
Jain and one Pradeep Raysoni, and two partners of a construction company
known as Khandesh Builders viz. Rajendra Mayur and Jagannath Vani. Shri
Sureshdada Jain is said to be the main share-holder of this company.
5. Shri Sureshdada Jain is stated to have been the President of
Jalgaon Municipal Council from May 1985 to July 1994. Thereafter he was
the Minister of Housing in the Shivsena–Bharatiya Janata Party (BJP)
Government, in the State, during 1995-2000. He is presently an MLA of
Nationalist Congress Party (NCP) from Jalgaon city. He was a minister in
the present Congress-NCP Government until recently. The appellant is also
an MLA of NCP from Jalgaon (Rural) Constituency, and on the date of the
impugned order he was a Minister of State in the State Government.
Subsequently he has resigned as a Minister. Out of the 57 accused persons 4
have died. Out of the remaining, 2 accused are absconding, and the above
referred 2 former Presidents and 2 contractors are in custody. Remaining
47 accused including the appellant have been granted bail.
6. In 1997 when he was a Minister of Housing, Shri Sureshdada Jain
persuaded HUDCO to give loan of about 66 crores to the Jalgaon Municipal
Council for the above Housing Scheme. He is said to have been instrumental
in constituting a ‘High Powered Committee’ in the Municipal Council which
was to supervise this work. The appellant was one of its members. The
scheme was to be completed in 9 months but has not been completed so far.
Pradeep Raysoni was the President of the Municipal Council during May 1996
to May 1997. As per the Charge-sheet the execution of the scheme was
entrusted to Khandesh builders, violating all norms, and statutory and
other legal requirements. They have been given huge interest-free
mobilization advances which amongst other reasons have led to this huge
liability. The work not having been completed, and the loan not having been
repaid, the liabilities for the Municipal Corporation towards the interest
amount have increased, and it will take quite a few years for the
Corporation to repay the loan.
7. The above referred Shri Sureshdada Jain was arrested sometimes
in March, 2012, and the charge-sheet has been filed on 25.4.2012. The
appellant was issued a notice dated 16.5.2012 under Section 160 of Cr.P.C.
to attend at the Jalgaon Police Station on 19.5.2012. Accused nos. 31 to
50 including the appellant applied for bail under Section 439(1), and they
were so released by the above referred order passed on 21.5.2012. This
order has been set aside by the impugned order of the High Court. We are
informed that the charges have been framed by the trial court, and the
recording of the evidence is yet to start. Out of various charges, the
charge under Section 409 has not been framed, but Mr. Sanjay Kharde,
learned counsel for the State, has informed us that the State is going to
apply for framing of the charge under this section also. A supplementary
charge sheet has also been filed on 2.6.2012.
8. The initial charge-sheet leading to the prosecution has been
placed on record. It runs into more than 268 pages and contains various
details. Shri Sureshdada Jain is said to have led the majority in the
Jalgaon Municipal Council at the relevant time under a group known as the
‘Shahar Vikas Aghadi’ (i.e. City Development Front). It is alleged that
Shri Sureshdada Jain in his capacity as the Minister decided to use the
lower income group scheme for wrongful gain, which has resulted into huge
liability to the Municipal Corporation, and wrongful gain for himself and
other conspirators. It is alleged that he arranged the funds from HUDCO
for this particular project, and saw to it that the contract is given to
Khandesh builders at exorbitant rates, ignoring the lower bid given by
another contractor. The councilors were made to approve all the decisions
of the above referred committee which was controlled by earlier referred
Pradeep Raysoni. The investigation revealed that the committee was only for
the namesake, and it was Raysoni who was taking all the decisions. No
written orders were passed. Large advances were released to the builders
under what was called as ‘Ummeed Manjuri’ (i.e. approval in anticipation),
and all the Municipal Councilors were made to sign those decisions.
9. When the accused no. 31 to 50 including the appellant moved for
bail under Section 439, the respondent No.2 herein appeared in the
proceeding and sought permission to assist the Special Public Prosecutor.
This is recorded in the order of the Sessions Judge. The order records the
objection that it was a serious economic offence involving public money,
and that the appellant was a powerful and influential person in Jalgaon,
and there was a possibility that he may misuse his liberty and tamper with
the prosecution. The learned Sessions Judge has however observed that
beyond the aforesaid apprehension nothing has been pointed out that the
appellant had misused his status. The learned Judge has then observed that
considering the nature of the offence, it may be said that the evidence to
be collected and available with the prosecution must be in the form of
documents, and the apprehension by pressurizing the prosecution witnesses
can be checked by imposing reasonable conditions. The learned Judge
therefore observed that there was no point in detaining the accused in jail
particularly in the circumstances when the investigation of the crime was
on the verge of completion. The Judge, therefore, released all those
accused nos. 31 to 50 on personal bonds in the sum of Rs.50, 000/- with one
solvent surety in the like amount.
10. The respondent Nos. 2 to 4 sought to set-aside this order by
filing Criminal Application No. 2522 of 2012 dated 11.6.2012, and the High
Court has allowed it, by passing the impugned order. The High Court has
noted in its order that:-
(i) The appellant was arrested on 21.5.2012 and was produced before the
Special Court along with some councillors on the same day with the remand
report. Bail application was moved on the same day.
(ii) In paragraph 14 of his order the learned Judge noted that under the
proviso to Section 439(1) of Cr.P.C. where the person concerned is accused
of an offence which is punishable with imprisonment of life (such as
Section 409 I.P.C. in the present case), the Sessions Judge has to give the
notice of the application for bail to the public prosecutor, unless for the
reasons to be recorded in writing, it is not practicable to give such
notice. In the instant case, no order was made giving notice to the public
prosecutor, nor reasons for the same were recorded in the order granting
bail. The only order made on the very day was “I.O. (i.e. investigation
officer) to say”. The matter was heard immediately there and then.
(iii) Even so, the special prosecutor had requested for police custody at
least for 2 days. The same was, however, refused. He then filed a reply
running into 8 pages to oppose the application, but the order passed by the
learned Session Judge did not refer to this reply or the contents thereof.
(iv) Paragraph 15 of the impugned order notes that the appellant was not
detained nor kept behind the bars even for a single day. This was in spite
of the fact that there was a record like giving 5 work orders to the
brother of the appellant, and during custodial investigation more material
could have been collected.
11. The learned Judge has noted in paragraph 16 of his order that
cogent and overwhelming circumstances are necessary for an order of
cancellation of bail already granted, as laid down by this Court from time
to time. He has referred to the judgment in Dolat Ram Vs. State of Haryana
reported in 1995 (1) SCC 349 in this behalf. He has, however, also observed
in paragraph 17 that if the order is by a wrong and arbitrary exercise of
discretion, it deserves to be cancelled. He has further observed that
nature and seriousness of the offence and impact on the society
particularly in economic offences are always important considerations in
such a case.
12. Mr. A.V. Savant, learned senior counsel appearing for the
appellant has relied upon various judgments to submit that cancellation of
bail is not something to be easily granted. He has drawn our attention the
judgment of this Court in Bhagirathsinh Vs. State of Gujarat reported in
1984 (1) SCC 284 where this Court has observed that very cogent and
overwhelming circumstances are necessary for an order seeking cancellation
of bail, and power to grant bail is not to be exercised as if it is a
punishment before the trial. The Court has held in that matter that the
material considerations in such a situation are whether the accused would
be readily available for his trial, and whether he is likely to abuse the
discretion granted in his favour by tampering with evidence.
13. Mr. Pandharinath Ramchandra Pawar, Deputy S.P., Jalgaon, who is
the investigating officer, has filed a detailed affidavit in reply, dated
28.9.2012, in this Court, placing on record voluminous material as to how
Shri Sureshdada Jain and some of the principal accused including the
appellant have resorted to pressure tactics at various stages of the case.
Amongst other statements against the appellant, he has specifically placed
on record the following material:-
(i) In paragraph 5 (iii) of his affidavit he has placed on record that
the appellant brought a ‘morcha’ (i.e. a procession to protest) on the
police station on 29.3.2006. He has stated therein as follows:-
“That right from the time when the crime was registered, the
petitioner-accused have tried to create pressure on investigation
machinery by bringing morcha on police station by the leadership of
petitioner and Suresh Jain and demanding arrest of themselves by
police, therefore, offence was registered against the Councillors
including the present petitioner as crime no.27/2006 on 29.3.2006.”
He has annexed the extract of the station diary entry dated 30.3.2006 as
Annexure R2 to this affidavit. This extract from the station diary records
that some of the Municipal Councillors including the appellant had moved a
no-confidence motion against the Municipal Commissioner, Mr. Praveen Gedam,
who had lodged the complaint leading to this prosecution, and then these
councillors created a ruckus in the Council Hall. Thereafter, they took out
a ‘morcha’ to the police station and held a demonstration. The appellant is
specifically named in this station diary entry, as a person leading the
‘morcha’.
(ii) Thereafter, he has placed on record that Sureshdada Jain and his
associates, including the appellant, on various occasions resorted to
pressure tactics like taking out the ‘morcha’, threatening the
investigation officer, slapping the civil surgeon and so on, and thereby
they created an atmosphere of terror in the city. Thereafter in this
connection he has stated in paragraph XXV and XXVI as follows:-
“[XXV] All the above conduct clearly shows that the petitioner
himself and through his supporters sent a message in society that
they are able to teach a lesson to the witnesses, the Complainant,
who is I.A.S. Officer, Investigation Officer, who is I.P.S. Officer,
Jailor, who is class one Officer and Dr. Rathod, who is also class
one Officer of Civil Hospital then, anybody may not dare to go
against them.
[XXVI] Moreover, they have created terrorized atmosphere in the
society of Jalgaon city. In fact, most of the witnesses in this
case are ordinary people and many witnesses are employee in Jalgaon
Municipal Corporation, in which, the party of this group is in
power. Therefore, considering, the human probabilities, witnesses
will not come forward to depose against the present accused and
other accused.”
14. Mr. A.V. Savant, learned senior counsel for the appellant
submitted that these allegations are essentially against Sureshdada Jain
and not so much against the appellant herein. It is difficult to accept
this submission. The station diary entry dated 30.3.2006 specifically
records the name of the appellant as amongst those who took out the
‘morcha’ to the police station. It is also clear from what the Deputy S.P.
has stated in his affidavit that the appellant was associated with Shri
Sureshdada Jain on different occasions when an attempt was made to take the
law into hands.
15. It is specifically stated in the paragraph 4 of the above
referred affidavit of Mr. Pawar that a detailed argument was made before
the Sessions Judge on behalf of the prosecution pointing out a prima facie
case against the appellant. It is also stated therein that the Jalgaon
Municipal Council had illegally given more than 30 contracts to Jalgaon
Construction Company belonging to the appellant as the beneficiary in the
conspiracy. The past conduct of the appellant after the registration of the
present crime was pointed out in detail, as well as his criminal
antecedents with proof, and also the fact that the bail applications of 3
of the main accused (i.e. Sureshdada Jain and others) had been rejected by
another Sessions Judge by the orders dated 17.5.2012 and 19.5.2012. That
there was a wrongful loss of about Rs.169 crores to Jalgaon Municipal
Council was also brought to the notice of the Court. The counsel for the
State of Maharashtra has, therefore, submitted that the order passed by the
Sessions Judge was a perverse order since none of these factors was
considered by the Court.
16. Mr. Savant, learned senior counsel appearing for the appellant
submitted that it is a well established proposition that “bail not jail” is
the rule of law, and cancellation of bail is not to be lightly resorted to.
He referred to the judgment of this Court in Bhagirathsinh (supra) where
the appellant facing the charge under Section 307 IPC, was granted bail by
the Sessions Judge, but the bail was cancelled by the High Court. In
paragraph 7 of the judgment this Court has observed as follows:-
“7. In our opinion, the learned Judge appears to have
misdirected himself while examining the question of directing
cancellation of bail by interfering with a discretionary order made
by the learned Sessions Judge. One could have appreciated the
anxiety of the learned Judge of the High Court that in the
circumstances found by him that the victim attacked was a social and
political worker and therefore the accused should not be granted
bail but we fail to appreciate how that circumstance should be
considered so overriding as to permit interference with a
discretionary order of the learned Sessions Judge granting bail. The
High Court completely overlooked the fact that it was not for it to
decide whether the bail should be granted but the application before
it was for cancellation of the bail. Very cogent and overwhelming
circumstances are necessary for an order seeking cancellation of the
bail and the trend today is towards granting bail because it is now
well-settled by a catena of decisions of this Court that the power
to grant bail is not to be exercised as if the punishment before
trial is being imposed. The only material considerations in such a
situation are whether the accused would be readily available for his
trial and whether he is likely to abuse the discretion granted in
his favour by tampering with evidence. The order made by the High
Court is conspicuous by its silence on these two relevant
considerations. It is for these reasons that we consider in the
interest of justice a compelling necessity to interfere with the
order made by the High Court.”
17. Thereafter he referred to the judgment in Fida Hussain Bohra
Vs. State of Maharashtra reported in 2009 (5) SCC 150 where in the case of
a charge involving criminal misappropriation of public funds some accused
were granted bail, but the High Court had cancelled the bail granted to the
appellant. This Court held that the appeal from an order granting bail had
to be considered differently. It is, however, material to note that this
Court also observed in paragraph 8 that correctness or otherwise of the
order passed by the Appellate Court setting aside an order granting bail or
an order of cancellation of bail had to be considered on particular facts
of each case.
18. The judgment of this Court in Siddharam Satlingappa Mhetre Vs.
State of Maharashtra and others reported on 2011 (1) SCC 694 was heavily
relied upon, wherein this Court has held that where the accused has joined
the investigation, is cooperating with the investigating agency, and is not
likely to abscond, custodial interrogation should be avoided.
19. These submissions were countered by the counsel for the
respondents. They referred to what this Court has observed in paragraphs 10
and 11 of Puran Vs. Rambilas and another reported in 2001 (6) SCC 338. In
paragraph 10 this Court has referred to Daulat Ram Vs. State of Haryana
(supra) which was also referred to by the High Court in the impugned order.
After referring to this judgment, this Court has noted that rejection of a
bail in a non-bailable case at an initial stage or a cancellation of bail
already granted had to be considered on different basis. Very cogent and
overwhelming circumstances are necessary for an order directing the
cancellation of the bail already granted. The Court has also noted that it
has been held that generally speaking the grounds for cancellation of bail
broadly are interference or attempt to interfere with the due course of
administration of justice or evasion or abuse of the concession granted to
the accused. Thereafter, this Court has observed in paragraph 10:-
“10…….. It is, however, to be noted that this Court has
clarified that these instances are merely illustrative and not
exhaustive. One such ground for cancellation of bail would be where
ignoring material and evidence on record a perverse order granting
bail is passed in a heinous crime of this nature and that too
without giving any reasons. Such an order would be against
principles of law. Interest of justice would also require that such
a perverse order be set aside and bail be cancelled. It must be
remembered that such offences are on the rise and have a very
serious impact on the society. Therefore, an arbitrary and wrong
exercise of discretion by the trial court has to be corrected.”
In paragraph 11, the Court has referred to the judgment in Gurcharan Singh
Vs. State (Delhi Administration) reported in 1978 (1) SCC 118, and
thereafter observed that the remedy under Section 439(2) to approach the
High Court is also available where the State is aggrieved by the Sessions
Judge granting bail on the basis of unjustified, illegal or perverse order.
This paragraph 11 reads as follows:-
“11. Further, it is to be kept in mind that the concept of setting aside
the unjustified illegal or perverse order is totally different from the
concept of cancelling the bail on the ground that the accused has
misconducted himself or because of some new facts requiring such
cancellation. This position is made clear by this Court in Gurcharan Singh
v. State (Delhi Admn. ((1978)1SCC118). In that case the Court observed as
under: (SCC p. 124, para 16)
“If, however, a Court of Session had admitted an accused person to
bail, the State has two options. It may move the Sessions Judge if
certain new circumstances have arisen which were not earlier known
to the State and necessarily, therefore, to that court. The State
may as well approach the High Court being the superior court under
Section 439(2) to commit the accused to custody. When, however, the
State is aggrieved by the order of the Sessions Judge granting bail
and there are no new circumstances that have cropped up except those
already existing, it is futile for the State to move the Sessions
Judge again and it is competent in law to move the High Court for
cancellation of the bail. This position follows from the subordinate
position of the Court of Session vis-à-vis the High Court.”
(emphasis supplied)
20. The judgment of this Court in State of U.P. Vs. Amarmani
Tripathi reported in 2005 (8) SCC 21, was also relied upon in support. In
that matter the respondent and his wife were admitted to bail by an order
passed by the High Court on 29.4.2001 and 8.7.2004. Considering the
totality of the factors including that there was a clear possibility of the
respondents intimidating the witnesses, this Court cancelled the bail by
its order dated 26.9.2005 which was passed more than a year after the grant
of bail. What is relevant for our purpose is what this Court has observed
in paragraph 18 to the following effect:-
“18……While a vague allegation that the accused may tamper with
the evidence or witnesses may not be a ground to refuse bail, if the
accused is of such character that his mere presence at large would
intimidate the witnesses or if there is material to show that he will
use his liberty to subvert justice or tamper with the evidence, then
bail will be refused…...”
(emphasis supplied)
21. Masroor Vs. State of Uttar Pradesh and another reported in 2009
(14) SCC 286 was referred wherein this Court has observed in paragraph 12
that this Court does not interfere with the order of High Court granting or
rejecting the bail but where there was a manifest error in the matter of
grant of bail, it required interference. In paragraph 15 this Court
observed as follows:-
“15. There is no denying the fact that the liberty of an individual
is precious and is to be zealously protected by the courts.
Nonetheless, such a protection cannot be absolute in every situation.
The valuable right of liberty of an individual and the interest of the
society in general has to be balanced. Liberty of a person accused of
an offence would depend upon the exigencies of the case. It is possible
that in a given situation, the collective interest of the community may
outweigh the right of personal liberty of the individual concerned….”
(emphasis supplied)
22. Paragraph 25 of Nimmagadda Prasad Vs. Central Bureau of
Investigation reported in 2013 (7) SCC 466 was brought to our notice
wherein with respect to the economic offences the Court has observed as
follows:-
“25. Economic offences constitute a class apart and need to be
visited with a different approach in the matter of bail. The economic
offence having deep-rooted conspiracies and involving huge loss of
public funds needs to be viewed seriously and considered as a grave
offence affecting the economy of the country as a whole and thereby
posing serious threat to the financial health of the country.”
(emphasis supplied)
23. We have noted the submissions of the counsel for the appellants
as well as the respondents. In the present case we are concerned with the
question as to whether High Court was in error in cancelling the bail
granted to the appellant. Having noted the above aspects we are clearly of
the view that the Sessions Court had not complied with the mandatory
proviso to Section 439(1). This proviso lays down that before granting
bail to a person who is accused of an offence which is punishable with
imprisonment for life, and which is exclusively triable by the Court of
Sessions, it shall give a notice of the application for bail to the public
prosecutor. In the instant case, the facts reveal that the appellant
appeared before the learned Sessions Judge on 21.5.2012, when his
application for bail was taken up for consideration. The Sessions Judge
passed an order ‘I.O. to say’. The matter was taken up there and then. The
prosecutor applied for remand of at least 2 days which was declined. The
notice under the proviso under the Section 439 (1) implies a proper and
full opportunity to the prosecutor to point out as to why bail should not
be granted. The initial chargesheet in the instant case was itself running
into more than 268 pages. The Sessions Judge ought to have granted adequate
time to the prosecutor to reply on the basis of this chargesheet, for him
to pass a considered order. Consequently the order of bail does not reflect
upon the contents of the charge sheet.
24. As pointed out by Mr. Pawar, Deputy S.P. in his affidavit
that although the matter was heard there and then, the prosecutor did make
a detailed argument pointing ought the prima facie case against the
appellant. The past conduct of the appellant after the registration of the
present crime was also pointed out in detail as well as his criminal
antecedents with proof, and also the fact that the bail applications of 3
of the main accused (i.e. Sureshdada Jain and others) had been rejected by
another Sessions Judge by the order dated 17.5.2012 and 19.5.2012. That
there was a wrongful loss of about Rs.169 crores to Jalgaon Municipal
Council was also brought to the notice of the Court. The counsel for the
State of Maharashtra has therefore rightly submitted that the order passed
by the Trial Court was a perverse order since none of these factors were
considered by the Court.
25. The appellant and the accused have been charged for an offence
which may result into the punishment for imprisonment for life. It is a
serious charge supported by a detailed charge-sheet running into over 268
pages. It is stated therein that the Jalgaon Municipal Corporation had
illegally given more than 30 contracts to Jalgaon Construction Company
belonging to the appellant as a beneficiary in the conspiracy. Obviously
the prosecutor required time to interrogate the accused, and the custodial
interrogation in such a situation, for at least two days, could not have
been denied. It could have aided the investigation by unearthing relevant
information. The bail order was however passed on the same day, there and
then. We are conscious of the fact that the liberty of a citizen even if
he is an accused is undoubtedly important, but at the same time when the
prosecutor had pointed out to the Court that the role of the appellant was
no less than that of the three others whose bail had been rejected, the
learned Judge ought to have considered these circumstances, justifying
custodial interrogation, with due diligence.
26. Thus it could certainly be said that the order passes by the
Sessions Judge was an order passed in breach of the mandatory requirement
of the proviso to Section 439(1) of Cr.P.C. It is also an order ignoring
the material on record, and therefore without any justification and
perverse. As held by this Court in Puran Vs. Rambilas (supra), the High
Court does have the power under Section 439 (2) of Cr.P.C. to set aside an
unjustified, illegal or perverse order granting bail. This is an
independent ground for cancellation as against the ground of accused mis-
conducting himself.
27. In the instant case, the attempts made by the appellant to
pressurize the witnesses and even the investigating officer are clearly
placed on record through the affidavit of the Deputy S.P. Mr. Pawar. On
that ground also it could be said that the appellant will be pressurizing
the witnesses if he is not restrained. This being the position, we cannot
find any fault with the order of the High Court cancelling the bail on that
ground also. The order does record the cogent and overwhelming
circumstances justifying cancellation of bail. The nature and seriousness
of an economic offence and its impact on the society are always important
considerations in such a case, and they must squarely be dealt with by the
Court while passing an order on bail applications.
28. We must note one more objection raised on behalf of the
appellant, namely, that respondent Nos. 2 to 4 had no locus to file an
application seeking cancellation of bail. It is contended that respondent
Nos. 3 and 4 had not even filed any application before the Trial Court.
They later on joined the respondent No. 2 to move the High Court by filing
SLP (Crl.) Application to quash and set aside the order granting bail. Mr.
Marlapalle, learned Senior Counsel and Ms. Kamini Jaiswal learned counsel
appearing for these respondents pointed out in reply that the Criminal
Application filed in the High Court was moved under Section 439(2) read
with Section 482 of Cr.P.C. Paragraph 2 of the said Criminal application
stated as follows:-
“2. The applicants submit that they are residents of
Jalgaon. They are citizens of India. They are tax payers. They are
beneficiaries of various policies and amenities provided by the
Municipal Corporation to the citizens of Jalgaon. The applicants are
victims of the offence committed by the Respondent No.2 alongwith other
accused. The applicants have locus standi to seek the cancellation of
the bail granted to the respondent No. 2 and the other accused
persons.”
29. It was submitted by these learned counsel that respondent No. 2
had appeared before the Sessions Judge to assist the prosecution, which is
recorded in the order passed granting bail. As far as filing of the
aforesaid Criminal Application before the High Court by respondent Nos. 2
to 4 is concerned, the same has not been specifically objected to in the
High Court, and therefore, there was no occasion for the High Court to look
into any such objection. Now, this objection is being raised in this
Court. The learned counsel submitted that the respondent Nos. 2 to 4 had
invoked the inherent jurisdiction of the High Court under Section 482 of
Cr.P.C., and the power of the High Court to entertain such an application
has been upheld by this Court in paragraph 17 of Puran Vs. Rambilas
(supra). In that matter bail had been granted by the Sessions Court, and
the bail order was cancelled by the High Court, not on any petition by the
State, but on one filed by the complainant invoking Sections 439 (2) and
482 of Cr.P.C.
30. In our view the objection raised by the appellant cannot be
sustained in view of what is observed by this Court in paragraph 17 in
Puran Vs. Rambilas (supra) which reads as follows:-
17. Further, even if it is an interlocutory order, the High Court’s
inherent jurisdiction under Section 482 is not affected by the
provisions of Section 397(3) of the Code of Criminal Procedure. That
the High Court may refuse to exercise its jurisdiction under Section
482 on the basis of self-imposed restriction is a different aspect. It
cannot be denied that for securing the ends of justice, the High Court
can interfere with the order which causes miscarriage of justice or is
palpably illegal or is unjustified (Madhu Limaye v. State of
Maharashtra (1977) 4 SCC 551 and Krishnan v. Krishnaveni (1997) 4 SCC
241)
(emphasis supplied)
For all these reasons, we do not find any merit in this appeal
and the same does not deserve to be entertained.
31. Although this appeal is not being entertained, what we find is
that the appellant along with 4 other accused who have been denied bail,
had made numerous attempts to intimidate the witnesses, and even threatened
the investigating officer. Some of the witnesses are the employees of the
Jalgaon Municipal Corporation, and obviously the appellant and the 4
accused, though in jail, may still make every effort to influence them
hereafter, and vitiate the trial if it is conducted in Jalgaon. Mr.
Kharde, learned counsel appearing for the State has submitted that it will
be in the fitness of things that the trial be transferred outside the
district. Mr. Savant, learned senior counsel appearing for the appellant
has no objection for the same. Mr. Marlapalle and Ms. Kamini Jaiswal
appearing for the respondents No.2 to 4 have also supported this
submission. We quite see the merit of this submission. A trial of this
nature, for that matter every trial, ought to be conducted in a free and
fearless atmosphere. Hence, in the facts and circumstances of the present
case we are of the view that the trial of this Sessions case ought to be
transferred outside that district. The transfer to the district Dhule,
would be appropriate since that district is adjoining to the Jalgaon
district, and it also falls within the jurisdiction of the Aurangabad Bench
of the Bombay High Court.
32. Before we conclude we make it clear that the observations made
herein are for the purposes of deciding whether the High Court was in any
way in error in cancelling the bail granted to the appellant. This order is
being passed on the basis of the material that has been placed on record
for that purpose. Needless to state, but we make it clear that as and when
the trial is conducted, it will be decided on the basis of the evidence,
which will be brought on record during the course of the trial.
33. The appeal is accordingly dismissed. The appellant will
surrender to the City Police Station Jalgaon, within two weeks hereof. The
Sessions case arising out of Crime/FIR No.13/2006 registered at the City
Police Station Jalgaon on 3.2.2006 is hereby transferred to the Addl.
Sessions Judge, Dhule, incharge of cases under the Prevention of Corruption
Act, 1988. The learned Addl. Sessions Judge, Jalgaon seized of this matter
will transfer the records of the concerned proceeding within four weeks to
the said Court. Registrar General of the Bombay High Court is directed to
see to it that necessary follow up steps are taken forthwith. Registry to
send a copy of this Judgment to the Registrar General High Court Bombay,
District Judge, Jalgaon and District Judge, Dhule.
…………………………………..J.
[ H.L. Gokhale ]
……………………………………J.
[ J. Chelameswar ]
New Delhi
Dated: December 17, 2013
