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Friday, December 20, 2013

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 = Gulabrao Baburao Deokar … Appellant Versus State of Maharashtra & Ors. … Respondents = published in judis.nic.in/supremecourt/filename=41116

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


























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