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Saturday, October 3, 2015

In Bhadresh Bipinbhai Sheth v. State of Gujarat and another[5], laying down the principles regarding cancellation of anticipatory bail in sub paras (vi) and (ix) of para 23, this Court has observed as under: - “(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.” xxx xxx xxx (ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.” Having considered the submissions made by learned counsel for the parties, and after considering the gravity of the offence, circumstances of the case, particularly, the allegations of corruption and misappropriation of public funds released for rural development, and further considering the conduct of the appellants and the fact that the investigation is held up as the custodial interrogation of the appellants could not be done due to the anticipatory bail, we are of the opinion that the High Court has rightly cancelled the anticipatory bail granted to the appellants by the Additional Sessions Judge, Jalgaon. Therefore, we are not inclined to disturb the same. Accordingly, we decline to interfere with the order of cancellation of anticipatory bail, passed by the High Court. All the four appeals are dismissed.

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS.1286-1287 OF 2015
             (Arising out of S.L.P. (Crl.) Nos. 1753-54 of 2015)

Sudhir                                             … Appellant

                                   Versus

The State of Maharashtra and another         …Respondents

                                    WITH

                       CRIMINAL APPEAL NO.1288 OF 2015
               (Arising out of S.L.P. (Crl.) No. 2365 of 2015)

Chandrakant                                  … Appellant

                                   Versus

State of Maharashtra and another             …Respondents

                                    WITH

                       CRIMINAL APPEAL NO.1289 OF 2015
               (Arising out of S.L.P. (Crl.) No. 2774 of 2015)

Chandrakant                                  … Appellant

                                   Versus

State of Maharashtra and another             …Respondents

                               J U D G M E N T


Prafulla C. Pant, J.


Leave granted.

All these four appeals are directed against common  order  dated  29.1.2015,
passed by the High Court of  Judicature  at  Bombay,  Bench  Aurangabad,  in
Criminal Application Nos. 4526 of 2013, 4527 of 2013, 4528 of 2013 and  4529
of 2013 whereby anticipatory bail granted by the Additional Sessions  Judge,
Jalgaon, to the appellants in connection with C.R. Nos. 71 of  2013  and  73
of 2013, registered at  Police  Station  Dharangaon,  relating  to  offences
punishable under Sections 409, 420, 467, 468, 477A read with Section  34  of
Indian Penal Code (IPC) and under Section 13(1)(d) read with  Section  13(2)
of Prevention of Corruption Act, 1988, is cancelled.


We have heard learned counsel for the parties  and  perused  the  papers  on
record.




Brief facts of the case are  that  appellants  Chandrkant  Wagh  and  Sudhir
Dahake are Executive Engineer and Sectional Engineer respectively  in  Rural
Water Supply Department of Zilla Parishad, Jalgaon.  Two  First  Information
Reports were  registered  against  them  with  the  serious  allegations  of
criminal misappropriation of funds released for  implementation  of  schemes
of drinking water in the villages of Waghlud  and  Sonwad  Khurd  in  Tehsil
Dharangaon.  C.R. No. 71 of 2013 relates to Waghlud and C.R. No. 73 of  2013
relates to village Sonwad Khurd.   The  FIRs  in  respect  of  these  crimes
appeared to have been  registered  only  after  enquiries  were  made  under
directions of Revenue Commissioner, by  Deputy  Commissioner  (Development),
Nasik  Region,  who  found  substance  in  the   allegations   against   the
appellants.  In C.R. No. 71 of 2013 there is allegation of  misappropriation
of Rs.28.35 lacs, and in C.R. No. 73  of  2013  the  allegations  relate  to
misappropriation of Rs.13.75  lacs.   In  respect  of  village  Waghlud  one
Mangal Ganpat Patil was shown as contractor,  but  no  such  contractor  was
found in existence.  Vouchers shown regarding  payment  of  Rs.  14.94  lacs
were found false, which related to construction of overhead  water  tank  in
Waghlud village which  was  already  in  existence  in  said  village  under
another scheme.  The amount of first installment of Rs.1.43 lacs and  second
installment of Rs.1.44 lacs for construction of public toilet was  found  to
have been made falsely, as no construction of public toilet was made in  the
village.  The amount was shown to have been  made  to  one  Rohitdas  Aawasu
Koli.  Two  measurement  books  were  kept  to  submit  exaggerated  revised
estimates.  Rs.1.30 lacs was shown to have been spent on erection of  barbed
wire in village Waghlud, but no work of fencing was  done  in  the  village.
In the village Sonwad Khurd (C.R. No. 73 of 2013) work included relating  to
digging of bore well, fixing of pump and  machinery,  construction  of  pump
house, and laying the pipeline.  Barbed fence was also one of the  works  to
be executed in village Sonwad Khurd.  Most of the  payments  in  respect  of
these works are shown to have been made in cash.


The High Court has taken note of the fact that initially Mr.  V.S.  Dikshit,
learned Additional Sessions Judge, Jalgaon, declined to  grant  anticipatory
bail  to  the  accused-appellants,  and  appellant  Chandrakant  Wagh  moved
Criminal Application Nos. 2908 and 2909 of 2013  in  connection  with  above
two FIRs before the High Court praying pre arrest  bail.   The  applications
were withdrawn  and  the  High  Court,  after  recording  statement  of  the
counsel,  disposed  of  the  two  applications  as  withdrawn.   Thereafter,
appellant Chandrakant Wagh moved fresh anticipatory  bail  application  Nos.
867 and 868 of 2013 before Mr.  D.P.  Surana,  learned  Additional  Sessions
Judge, and succeeded in obtaining the order of anticipatory bail.  The  High
Court took serious note of this fact in the impugned  order  passed  on  the
applications moved by the complainant for cancellation of  bail  before  it.
Appellant Sudhir Dahake, Sectional Engineer, also appears to  have  obtained
anticipatory bail from the Court  of  Additional  Sessions  Judge,  Jalgaon.
Allegations against him were specific as he was supervising the  work  under
appellant Chandrakant, the Executive Engineer.   Strangely,  the  State  did
not file any application for cancellation of  bail,  however,  it  supported
such application for cancellation of bail moved by  the  complainant  before
the High Court.




Learned counsel for  the  State  has  submitted  before  us  that  there  is
requirement of  the  custodial  interrogation  of  the  appellants.   It  is
further  submitted  that  the  investigation  could  not  progress  as   the
appellants could not be interrogated.




On the other hand, learned counsel for the appellants argued before us  that
the High Court has erred in law in cancelling the anticipatory bail  granted
to the appellants without there being any sufficient reason.  They  referred
to the  cases  of  Shri  Gurbaksh  Singh  Sibbia  and  others  v.  State  of
Punjab[1], and Ravindra Saxena v. State of Rajasthan[2].




In Ravindra Saxena (supra), the rejection of  application  for  anticipatory
bail by the High Court was set aside by this Court on the  ground  that  the
dispute between the complainant and the accused was in substance,  civil  in
nature, as it was a property dispute arising out of commercial  transaction,
and the alleged offences were punishable under Sections 448, 456, 457,  420,
467, 468, 471, 380, and 120B IPC.  In the present case before us, there  are
serious allegations of misappropriation of public funds, and corruption  and
the offences include one punishable under Section 409  IPC  and  also  under
Section 13 of Prevention of Corruption Act, 1988.   As  such,  the  case  of
Ravindra Saxena  (supra)  is  of  little  help  in  the  present  facts  and
circumstances of the case.




In Gurbaksh Singh (supra), the  Constitution  Bench  of  this  Court,  while
laying down the guidelines relating  to  grant  of  anticipatory  bail,  has
observed in paragraph 14 as under: -
“14. Generalisations on matters which rest on discretion and the attempt  to
discover formulae of universal application when facts are  bound  to  differ
from case to case frustrate the very purpose of  conferring  discretion.  No
two cases are alike on facts and therefore, courts  have  to  be  allowed  a
little free play in the joints if the conferment of discretionary  power  is
to be meaningful. There is no risk involved in entrusting a wide  discretion
to the Court of Session and the High Court  in  granting  anticipatory  bail
because, firstly, these are higher courts  manned  by  experienced  persons,
secondly,  their  orders  are  not  final  but  are  open  to  appellate  or
revisional scrutiny and above all  because,  discretion  has  always  to  be
exercised by courts judicially and not according to whim, caprice or  fancy.
On the other hand, there is a risk in foreclosing  categories  of  cases  in
which anticipatory bail may be allowed because  life  throws  up  unforeseen
possibilities and offers new challenges…….”

      The Constitution Bench in the above mentioned case, in  paragraphs  16
and 17, while observing that the relief of anticipatory bail cannot be  said
to be barred merely for the reason that the allegations relate  to  economic
offences or  corruption,  has  clarified  that  where  the  allegations  are
malafide, the prayer for anticipatory bail can be accepted.  In the  present
case, at this stage, there appears to be no malice on the  part  of  Revenue
Commissioner, who ordered enquiry, or  Deputy  Commissioner,  who  conducted
enquiry, before getting lodged the First  Information  Reports  against  the
appellants.


In State of A.P. v. Bimal Krishna Kundu and  another[3],  which  relates  to
offences punishable under Sections 420,  468  and  406  IPC  arisen  out  of
leakage of question paper in respect  of  examination  conducted  by  Public
Service Commission, this Court has made following observations: -
“12. We are strongly of the opinion that this is not a case  for  exercising
the discretion under Section 438 in favour of granting anticipatory bail  to
the  respondents.  It  is  disquieting  that  implications  of  arming   the
respondents,  when  they  are  pitted  against  this  sort  of   allegations
involving  well-orchestrated  conspiracy,  with  a  pre-arrest  bail  order,
though subject to some conditions, have not been taken into account  by  the
learned Single Judge. We have absolutely no doubt that  if  the  respondents
are equipped with such an order before they are interrogated by  the  police
it would greatly harm the investigation and would impede  the  prospects  of
unearthing  all  the  ramifications  involved  in  the  conspiracy.   Public
interest also would suffer as a consequence. Having apprised himself of  the
nature and seriousness of the criminal conspiracy and the adverse impact  of
it on “the career of millions of students”, learned Single Judge should  not
have persuaded himself to exercise the discretion which Parliament had  very
thoughtfully conferred on the Sessions Judges and the  High  Courts  through
Section 438 of the Code, by favouring  the  respondents  with  such  a  pre-
arrest bail order.”

In Siddharam  Satlingappa Mhetre v. State of Maharashtra and  others[4],  in
sub-para (viii) of para 112, this Court has held as under: -
“(viii) While considering the prayer  for  grant  of  anticipatory  bail,  a
balance has to be struck between two factors, namely,  no  prejudice  should
be caused to the free, fair and  full  investigation  and  there  should  be
prevention of harassment,  humiliation  and  unjustified  detention  of  the
accused;”

In Bhadresh Bipinbhai Sheth v. State of Gujarat and another[5], laying  down
the principles regarding cancellation of  anticipatory  bail  in  sub  paras
(vi) and (ix) of para 23, this Court has observed as under: -

“(vi) It is a settled legal position that the court which  grants  the  bail
also has the power to cancel it.  The discretion of  grant  or  cancellation
of bail can be exercised either at the instance of the accused,  the  Public
Prosecutor or the complainant, on finding new material or  circumstances  at
any point of time.”

            xxx              xxx             xxx

(ix)  No inflexible guidelines or straitjacket formula can be  provided  for
grant  or  refusal  of  anticipatory  bail  because  all  circumstances  and
situations of future cannot be clearly visualized for the grant  or  refusal
of anticipatory bail.  In consonance with legislative intention,  the  grant
or refusal of anticipatory bail should necessarily depend on the  facts  and
circumstances of each case.”


Having considered the submissions made by learned counsel for  the  parties,
and after considering the gravity  of  the  offence,  circumstances  of  the
case, particularly, the allegations of corruption  and  misappropriation  of
public funds released for rural development,  and  further  considering  the
conduct of the appellants and the fact that the investigation is held up  as
the custodial interrogation of the appellants could not be done due  to  the
anticipatory bail, we are of the opinion that the  High  Court  has  rightly
cancelled the anticipatory bail granted to the appellants by the  Additional
Sessions Judge, Jalgaon.  Therefore, we are  not  inclined  to  disturb  the
same.

Accordingly, we decline to interfere  with  the  order  of  cancellation  of
anticipatory bail, passed by the High  Court.   All  the  four  appeals  are
dismissed.


                                                           ..…………………..…………J.
                                                               [Dipak Misra]



                                                            …………………..……………J.
                                                          [Prafulla C. Pant]
New Delhi;
October 01, 2015.


                                                     -----------------------
[1]    (1980) 2 SCC 565
[2]    (2010) 1 SCC 684
[3]    (1997) 8 SCC 104

[4]    (2011) 1 SCC 694

[5]    2015 (9) SCALE 403



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