REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 348 OF 2012
(Arising out of S.L.P. (Crl.) No. 8995 of 2011)
Dipak Shubhashchandra Mehta ....
Appellant(s)
Versus
C.B.I. & Anr. .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) Leave granted.
2) This appeal is directed against the judgment and order
dated 20.10.2011 passed by the High Court of Gujarat at
Ahmedabad in Criminal Misc. Application No. 14224 of 2011
whereby the High Court rejected the application for regular
bail filed by the appellant herein.
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3) Brief facts:
(a) The appellant herein is the Joint Managing Director of
Vishal Exports Overseas Ltd., a Public Limited Company
(hereinafter referred to as "the Company") incorporated in the
year 1988 as a partnership firm which was converted into a
Public Limited Company in 1995 under the provisions of
Chapter IX of the Companies Act, 1956. The Company is
engaged in the business of import and export of diverse
commodities including agricultural products and diamonds.
According to the appellant, the Company was a Government of
India recognized Four Star Trading House with a turnover of
about Rs.3935 crores in the year 2005-2006. It is also his
claim that the Company has been accredited with many
awards and was ranked 1st in India under the merchant
exporter category in the years 2003-04 and 2005-06.
(b) Due to non-payment of advances from various banks,
complaints were filed against the Company as well as the
promoters and Directors. The FIRs filed by various banks are:
(i) In the year 2008, Punjab National Bank lodged an FIR
with CBI bearing No. RC-I(E)/2008/BSFC, Mumbai. In the
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said case, only Pradip Shubhashchandra Mehta (A-3) was
arrested. Remand was not granted by the Special CBI Court
at Ahmedabad and bail was granted within a span of one day.
The appellant herein was not arrested in this case and formal
bail was granted to him on filing charge sheet.
(ii) In the year 2009, UCO Bank lodged an FIR with the CBI
bearing No. RC 12(E)/2009 in which charge sheet was
submitted on 15.11.2010 and the appellant was arrested on
1.11.2010 and was released on temporary bail for various
durations.
(iii) Vijaya Bank had also lodged an FIR with the CBI bearing
No. RC11(E)/2008 and submitted charge sheet on 26.06.2010
in which the appellant herein was arrested after filing of the
charge sheet, he was also granted bail.
(iv) State Bank of Hyderabad has also lodged an FIR and the
same is under investigation. No charge sheet has been
submitted so far.
(c) State Bank of India and 17 other banks filed O.A. No. 11
of 2008 before the Debts Recovery Tribunal (DRT), Ahmedabad
seeking recovery of amount given by way of credit facilities
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under consortium arrangement to the Company. Ad-interim
orders have been passed on 28.02.2008 to secure the interest
of the banks and to ensure that the litigation does not become
meaningless by the time final order is passed.
(d) On 19.01.2010, the appellant herein filed Civil Suit No.
145 of 2010 seeking damages to the tune of Rs.786 crores
against the informant Andhra Bank and other banks before
the Ahmedabad City Civil Court. The Andhra Bank, Zonal
Office, Mumbai also lodged an FIR on 19.01.2010 which was
registered by the CBI BS & FC/MUM bearing No. 1(E)/2010
for commission of offences punishable under Sections 406,
420, 467, 468, 471 read with Section 120B of the Indian Penal
Code, 1860 (in short `IPC'). In connection with the said FIR,
the appellant herein was arrested on 31.03.2010 and
remanded to police custody till 03.04.2010 and thereafter in
the judicial custody. The appellant was granted temporary
bail on three occasions on medical ground. After completing
the investigation, the CBI submitted charge sheet on
10.06.2010 in which the appellant was arrayed as accused
No.4.
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(e) On 31.08.2010, the appellant preferred an application for
bail after charge sheet was filed before the Special Court vide
Criminal Misc. Application No. 141 of 2010 but the same was
dismissed.
(f) Being aggrieved by the said order, the appellant filed
Criminal Misc. Application No. 11415 of 2010 before the High
Court for regular bail in connection with the FIR lodged by
Andhra Bank, Zonal Office Mumbai bearing No. 1(E)/2010
which was dismissed by the High Court on 19.10.2010.
(g) After investigation in RC.12(E)/2009 lodged by UCO
Bank charge sheet was submitted on 15.11.2010 and the
appellant was arrested on 01.11.2010 and he was released on
temporary bail.
(h) Against the order dated 19.10.2010 passed by the High
Court, the appellant filed S.L.P.(Crl.)No. 83 of 2011 before this
Court and the same was disposed of on 29.04.2011 directing
the special Court to take all endeavour for an early completion
of the trial.
(i) As there was no progress in the trial, the CBI filed a
supplementary charge sheet on 02.02.2011 which was served
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on all the accused including the appellant herein only on
02.08.2011. Since the trial did not come to an end, the
appellant filed Criminal Misc. Application No. 195 of 2011 for
regular bail before the Special Court. In the meanwhile,
Additional Chief Judicial Magistrate, vide order dated
15.09.2011 in Misc. Application No. 17/2011 in Spl. Case No.
03/2010 granted temporary bail up to 20.10.2011 to the
appellant herein on the ground of medical exigencies. Again on
19.10.2011, considering the health of the appellant, the
Special Court extended the temporary bail till 30.11.2011.
Vide order dated 27.09.2011, Special Court rejected the
application for regular bail filed by the appellant herein.
(j) The appellant filed an application being Criminal Misc.
Application No. 14224 of 2011 before the High Court for
regular bail but the same was rejected. Again the said
application, the appellant has filed the above appeal by way of
special leave before this Court.
4) Heard Mr. Mukul Rohtagi, learned senior counsel for the
appellant and Mr. P.P. Malhotra, learned Addl. Solicitor
General for the CBI.
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5) The only point for consideration in this appeal is whether
the appellant herein has made out a case for regular bail and
whether the High Court is justified in dismissing his bail
application.
6) We are conscious of the fact that this Court should not
ordinarily, save in exceptional cases, interfere with the orders
granting/refusing bail by the High Court. We are also
provided with the facts and figures about the appellant's
involvement in similar other proceedings. In the case on
hand, out of four accused, A-1 is the Company and the
appellant-A-4 is the Joint Managing Director of the Company.
It is not in dispute that A-2 and A-3 were granted bail by the
High Court on medical grounds. Mr. Rohtagi, learned senior
counsel for the appellant apart from highlighting that the
appellant-A-4 is entitled for regular bail and also submitted
that he be considered on medical grounds because of his
various ailments as certified by leading doctors including the
Medical Officer, Central Jail Dispensary, Ahmedabad.
7) Insofar as the merits of the claim of the appellant is
considered, it is useful to refer the recent decision of this
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Court in Sanjay Chandra vs. Central Bureau of
Investigation, 2012 (1) SCC 40. Since in this decision, all the
earlier decisions of this Court relating to grant of bail in a
matter of this nature have been considered, we feel that no
other earlier decisions need be referred to. Those appeals were
directed against the common judgment and order of the
learned Single Judge of the High Court of Delhi dated
23.05.2001 in Sanjay Chandra vs. CBI by which the learned
Single Judge refused to grant bail to the appellant-accused
therein. The allegations against those accused appellants
were that they entered into a criminal conspiracy for providing
telecom services to otherwise ineligible companies and by their
conduct, the Department of Telecommunications (DoT)
suffered huge loss. The learned Special Judge, CBI, New Delhi
rejected the bail applications filed by them by order dated
20.04.2011. The appellants therein moved applications before
the High Court under Section 439 of the Code of Criminal
Procedure, 1973. The same came to be rejected by the learned
Single Judge by his order dated 23.05.2011. Aggrieved by the
same, the appellants approached this Court by filing appeals.
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8) After considering the entire materials, arguments of the
various senior counsel as well as the Addl. Solicitor General
for the CBI and marshalling the earlier decisions of this Court
and after finding that the trial may take considerable time and
the appellants who are in jail have to remain in jail longer
than the period of detention had they been convicted and also
keeping in mind the fact that the accused are charged with
economic offences of huge magnitude, ultimately this Court
granted bail to all the appellants by imposing severe
conditions.
9) It is also relevant to refer the order passed by this Court
on 29.04.2011 in SLP (Criminal) No. 83 of 2011 filed by the
appellant herein earlier. This Court directed as under:
"We have considered the rival contentions and also perused
all the relevant documents. In view of the fact that the other
two accused, namely, A-2 and A-3 were released mainly on
the ground of illness and old age and of the assurance by the
learned Additional Solicitor General that the trial will be
completed within a period of three months, we are not
inclined to accede to the request of the petitioner. However,
we make it clear that for any reason if the trial continues
beyond the period assured by the learned Additional Solicitor
General, the petitioner is free to move bail application before
the Special Court. In such event the Special Court is
permitted to consider it in accordance with law. We also
direct the Special Court to take all endeavour for an early
completion of the trial as suggested by the learned Additional
Solicitor General.
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10) Though on the last date of hearing, learned Addl.
Solicitor General assured this Court that the trial will be
completed within a period of three months, in view of various
reasons considering the magnitude of the issues involved,
frequent absence of the accused at the hearing dates due to
various reasons including health grounds, filing of petition for
discharge and also the pressure of work on the Special Court
hearing among other important matters, the fact remains that
the trial could not be concluded. In fact, it is pointed out that
though the prosecution has submitted charge sheet the
charges have not been framed due to various reasons as
mentioned above.
11) We have already pointed out that insofar as the present
case is concerned among the four accused A-1 is a Company,
A-2 and A-3 were granted bail on medical grounds. According
to the present appellant i.e A-4, he was arrested on
31.03.2010 by the CBI and was remanded to police custody
for three days. Since 03.04.2010, he is in the judicial custody
at Sabarmati Central Jail, Ahmedabad and on 15.09.2011, he
was granted interim bail up to 20.10.2011 and again on
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19.10.2011, considering his health conditions, the Special
Court extended his interim bail till 30.11.2011. As stated
earlier, the CBI has completed the investigation and submitted
the charge sheet on 10.06.2010 and the offences alleged in the
charge sheet are of the years 2006 and 2007.
12) Mr. Rohtagi, learned senior counsel, after taking us
through various proceedings by the Civil Court as well as DRT
under SARFESI Act submitted that entire properties of the
appellant and their companies/firms were attached by the
orders of the Court/Tribunal. According to him, before
entering into transaction with the banks, all those properties
have been mortgaged and as on date, the appellant cannot do
anything with those properties without the permission of the
Court/Tribunal. In such circumstances, he submitted that
there will not be any difficulty in realising the money payable
to the banks, if any. In addition to the above factual
information, it was pointed out that after the order of this
Court, on 29.04.2011 there is no progress in the trial. It is
also pointed out that the trial has not even commenced
inasmuch as a supplementary charge sheet has been served
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upon the appellant herein only on 02.08.2011. It is further
pointed out that the charge has not been framed till this date.
It is also brought to our notice that prosecution has relied
upon 286 documents and listed 47 witnesses in the charge
sheets filed by it.
13) In addition to the above information, Mr. Rohtagi has
also pointed out that at the time of arrest of the appellant on
31.03.2010, he was taken to the hospital and was diagnosed
for hypertension and acidity. According to him, no other
ailment was noted by the hospital in the discharge card.
While so, when he was in custody since 31.03.2010, the
appellant has suffered 40 per cent permanent partial disability
in his left arm as a result of surgery for abnormal bone
protrusion. It is also highlighted that on account of
uncontrolled high blood pressure while in custody the
appellant has suffered 30 per cent blindness in his right eye
and has undergone a surgery for vitreous hemorrhage. It is
further pointed out that the hemorrhage having re-occurred,
the doctors have advised a second surgery to save his eyes.
However, according to him, the said surgery could not be
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performed due to continuing uncontrolled high blood pressure
and resultant recurring bleeding in the vessel even after first
surgery. It is also pointed out that after passing of order by
this Court on 29.04.2011, the appellant while in custody has
contracted obstructive jaundice requiring long intensive
treatment. As a result of such obstructive jaundice, the
appellant is also unable to undergo other required surgeries.
Learned senior counsel has also pointed out that the appellant
is now suffering from further disability of loss of hearing which
can be corrected only through surgery. In support of the
above claim, various certificates issued by doctors of private
hospitals have been placed on record. In addition to the same,
Mr. Rohtagi by drawing our attention to the certificate dated
07.08.2011 issued by the Central Prison Hospital, Sabarmati,
Ahmedabad stated that even according to the Medical officer of
the Central Jail Dispensary, the appellant is suffering from
various ailments as mentioned in the certificate which reads
as under:
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"OUT NO. ACJD/346/2011
CENTRAL PRISON HOSPITAL
SABARMATI, AHMEDABAD
Date : 07.08.2011
CERTIFICATE
This is to certify that Mr. Dipak Shubhash Mehta is an
under trial prisoner of Central Jail, Ahmedabad with
prisoner NO. 4077.
He complains of continuous precordial chest pain
dullache like heaviness in chest, Gabharaman, giddiness,
chronic Rt. Hypochondriach pain in abdomen, bleeding P/R.
dimness of vision Rt. Eye vision deviation of Rt. Eye outward
since 1 -1/2 years.
Patient is a known case of uncontrolled blood pressure
since 4 years, chronic obstructive jaundice since 6 months
and fissure in anno with piles. Patient was sent to eye dept.
Civil Hospital Ahmedabad on 02.02.2011, seen by Dr. K.P.S.
(Ophthalmic Surgical Unit) and diagnosed as Rt. Eye
glaucoma, 3rd nerve palsy in Rt. Eye with vitreous
hemorrhage, macular degeneration and percentage of
blindness is 30%. CT report suggests Fatty replacement of
belly and distal tendinous insertion of superectus muscle on
Rt. Side.
On 25.03.2011, patient was operated for vitreous
hemorrhage in private hospital even though, on 17.06.2011
eye examination found fresh vitreous hemorrhage present
due to uncontrolled blood pressure and chronic obstructive
jaundice.
On 27.09.2010, patient was sent to U.M. Mehta
Institute of Cardiology & Research Centre for further
investigation and treatment where his Echocardiography was
done and report suggests Normal LV side and fair LV
function reduced LV compliance and 55%.
On 08.01.2011, patient was operated for tardy ulner
nerve paresis. It forearm and neurolysis done of Lt. ulner
nerve and advised regular physiotherapy. Dated 26.02.2011
CDMO, Govt. General Hospital, Sola certified that patient is
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a case of physically disabled and has 40% permanent
physical impairment in relation to his Lt. upper limb.
Patient needs to be under continuous observation
under treating doctor and follow up. He is advised to avoid
physical and mental stress to prevent any serious
complications.
This certificate is issued on the basis of available case
records at Central Jail Dispensary.
Date: 07.08.2011
Place: Ahmedabad Central Jail
Sd/-
Medical Officer
Central Jail Dispensary,
Ahmedabad."
14) Apart from the above certificate, the very same Medical
Officer, Central Jail Dispensary, Ahmedabad has issued
another Certificate on 08.09.2011. In the said Certificate,
after reiterating the very same complaints finally he concluded
"he needs treatment from the Specialist, Super Specialist,
Cardiologist and Gastroenterologist & Ophthalmologist for his
multiple problems".
15) The above information by a Medical Officer of the Central
Jail Dispensary, Ahmedabad supports the claim of the
appellant about his health condition. No doubt, Mr. P.P.
Malhotra, learned ASG by drawing our attention to various
details from the counter affidavit filed on behalf of the CBI
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submitted that in view of magnitude of the financial
involvement by the appellant with the nationalised banks, it is
not advisable to enlarge him on bail.
16) We have gone through all the details mentioned in the
counter affidavit of the Senior Superintendent of Police, CBI,
and Bank Securities and Fraud Cell, Mumbai. The appellant
has also filed rejoinder affidavit repudiating those factual
details. At this juncture, it is unnecessary to go into further
details. In the earlier order, we have noted the assurance of
the ASG for completion of the case within three months.
Admittedly, the same was not fulfilled due to various reasons.
It is also not in dispute that though the charge sheet and
additional charge sheet were submitted to the Court, the same
have not been approved and framed. In the meanwhile, apart
from absence of some of the accused on various dates, due to
some reasons or other including medical grounds, the
appellant herein has also filed a petition for `discharge'.
Further, even in the counter affidavit filed by the CBI, it is
stated that the accused persons moved applications under
Section 239 of the Code of Criminal Procedure, 1973 for
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discharge and the same are pending for hearing and disposal
and further the Madhao Merchantile Bank case is going on
day-to-day basis before the Special CBI Court and in addition
to the same, Sohrabuddin Fake Encounter case is also
pending for trial before the same Court. It is clear that the
said Special CBI Court is over burdened and in view of the
voluminous materials the prosecution has collected,
undoubtedly the trial may take a longer time.
17) This Court has taken the view that when there is a delay
in the trial, bail should be granted to the accused. [Vide
Babba vs. State of Maharashtra, (2005) 11 SCC 569, Vivek
Kumar vs. State of U.P., (2000) 9 SCC 443.] But the same
should not be applied to all cases mechanically.
18) The Court granting bail should exercise its discretion in a
judicious manner and not as a matter of course. Though at
the stage of granting bail, a detailed examination of evidence
and elaborate documentation of the merits of the case need
not be undertaken, there is a need to indicate in such orders
reasons for prima facie concluding why bail was being granted,
particularly, where the accused is charged of having
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committed a serious offence. The Court granting bail has to
consider, among other circumstances, the factors such as a)
the nature of accusation and severity of punishment in case of
conviction and the nature of supporting evidence; b)
reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant and; c) prima facie
satisfaction of the court in support of the charge. In addition
to the same, the Court while considering a petition for grant of
bail in a non-bailable offence apart from the seriousness of the
offence, likelihood of the accused fleeing from justice and
tampering with the prosecution witnesses, have to be noted.
Considering the present scenario and there is no possibility of
commencement of trial in the near future and also of the fact
that the appellant is in custody from 31.03.2010, except the
period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we
hold that it is not a fit case to fix any outer limit taking note of
the materials collected by the prosecution. This Court has
repeatedly held that when the undertrial prisoners are
detained in jail custody to an indefinite period, Article 21 of
the Constitution is violated. As posed in the Sanjay
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Chandra's case (supra) we are also asking the same question
i.e. whether the speedy trial is possible in the present case for
the reasons mentioned above.
19) As observed earlier, we are conscious of the fact that the
present appellant along with the others are charged with
economic offences of huge magnitude. At the same time, we
cannot lose sight of the fact that though the Investigating
Agency has completed the investigation and submitted the
charge sheet including additional charge sheet, the fact
remains that the necessary charges have not been framed,
therefore, the presence of the appellant in custody may not be
necessary for further investigation. In view of the same,
considering the health condition as supported by the
documents including the certificate of the Medical Officer,
Central Jail Dispensary, we are of the view that the appellant
is entitled to an order of bail pending trial on stringent
conditions in order to safe guard the interest of the CBI.
20) In the light of what is stated above, the appellant is
ordered to be released on bail on executing a bond with two
solvent sureties, each in a sum of Rs. 5 lakhs to the
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satisfaction of the Special Judge, CBI, Ahmedabad on the
following conditions:
i) the appellant shall not directly or indirectly make
any inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him to disclose such facts to the Court or to any other
authority.
ii) the appellant shall remain present before the Court
on the dates fixed for hearing of the case, for any reason
due to unavoidable circumstances for remaining absent
he has to give intimation to the Court and also to the
concerned officer of CBI and make a proper application
that he may be permitted to be present through counsel;
iii) the appellant shall surrender his passport, if any, if
not already surrendered and in case if he is not a holder
of the same, he shall file an affidavit;
iv) In case he has already surrendered the Passport
before the Special Judge, CBI, that fact should be
supported by an affidavit.
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v) liberty is given to the CBI to make an appropriate
application for modification/recalling the present order
passed by us, if the appellant violates any of the
conditions imposed by this Court.
21) The appeal is disposed of on the above terms.
...........................................J.
(P. SATHASIVAM)
...........................................J.
(J. CHELAMESWAR)
NEW DELHI;
FEBRUARY 10, 2012.
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