Madhya Pradesh High Court
Smt.Sheeba Khan vs The State Of Madhya Pradesh on 2 April, 2009
REPORTED AS 2009 CRI. L. J. 4276 : 2009 (4)
MPHT 301"Sheeba Khan v. State"
SPECIAL LEAVE PETITION PREFERRED AGAINST THE JUDGMENT AND REGISTERED AS
SLP(CRI.) NO.4892/2009 HAS BEEN DISMISSED BY THE APEX COURT ON 07.08.2009.
M.Cr.C. No.525/2009.
02.04.2009.
Shri K.N. Fakhruddin, Advocate for the applicant.
Shri J.K. Jain, Govt. Advocate for the respondent-State.
Arguments heard.
This is the fourth application for grant of bail. The first and the
second applications, registered as MCrC Nos.3763/2007 and
4583/2007 were rejected on merits, for the reasons recorded in the
orders-dated 14.05.2007 and 05.07.2007 respectively whereas the
third one (MCrC No.10691/2007) was dismissed on 13.05.2008 as
withdrawn with liberty to file afresh in the light of subsequent events.
After being arrested in connection with Crime No.122/2007
registered at P.S. Shahjahanabad Distt. Bhopal, in respect of the
offences punishable under Sections 381, 420, 467, 468 and 471 read
with S.34 of the IPC, the applicant is in judicial custody since
07.04.2007. The corresponding trial is pending as R.T. No.6157/2007
in the Court of Shri Anil Kumar Singh, ACJM, Bhopal.
As per the prosecution version, co-accused Mohd. Shoab Khan,
husband of the applicant, while working as Lower Division Clerk in the
office of the Deputy Welfare Commissioner (Bhopal Gas), withdrew a
total sum of Rs.72,77,456/- by forging signatures of the drawing and
disbursing authority on blank cheques stolen by him only and the
applicant rendered necessary assistance by opening a new account in
her name so as to facilitate misappropriation of an amount of
Rs.31,20,041/- deposited in the account through four cheques issued
by Shoab Khan in her favour.
Learned counsel for the applicant has submitted that, after
dismissal of the previous applications on merits, the following material
changes in the circumstances of the case have occurred -
(i) Co-accused Santosh and Nasir Khan have already been
enlarged on bail.
(ii) An early completion of the trial is not possible in view of
the fact that supplementary charge-sheet for the
offences punishable under Sections 381, 406, 407, 408,
420, 467, 468, 471, 411, 419, 120-B and 170 of the IPC
against as many as seven new co-accused has been
submitted on 07.03.2009 only.
Learned counsel for the applicant has further pointed out that
one of the co-accused namely Abdul Hanif Khan, the father-in-law of
the applicant, in whose account an amount of Rs.5,50,000/- was
allegedly deposited by Shoab Khan, was released on bail on usual
conditions by the Court of Session only.
While opposing the prayer for grant of bail, learned Govt.
Advocate has contended that the allegations against the applicant
clearly suggest that she had played a significant role in the
misappropriation of a huge amount payable to the gas victims. He is
further of the view that there is overwhelming documentary evidence
in the form of the bank records.
This being a repeat application, the onus is on the Court to
consider it by noticing the grounds on which earlier one was rejected
(Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav
(2004) 7 SCC 528 relied to).
As observed in the order-dated 05.07.2007 (supra), this is a
case altogether different from the cases of Chandraswami AIR
1997 SC 2575, Sandeep Jain AIR 2000 SC 714 and Ashok
Dhingra AIR 2000 SCW 3246 inasmuch as the subject-matter of
the offence is a considerably large sum payable as compensation to
the victims of the Bhopal Gas Tragedy.
It is true that co-accused Nasir Khan and Santosh have been
enlarged on bail upon the successive applications filed by them but a
bare perusal of the corresponding orders would reveal that facility of
release on bail was granted on the following grounds -
(i) Being charged with the offence punishable under
Section 411 of the IPC, which is punishable with
maximum sentence of three years imprisonment,
both of them have completed a period of nearly
two years as under-trial prisoners.
(ii) The respective subject-matters of the offence
comprising amounts of Rs.2,25,000/- and
Rs.4,65,000/- had already been recovered from
them.
(iii) Nasir's earlier bail application was rejected with
the observation that if the trial is not completed
by 29th November, 2008 and the delay is not
attributable to him, he shall be at liberty to re-
agitate the prayer.
Reference was also made to the settled principles governing
grant of regular bail requiring that -
(i) a balance has to be struck between liberty of
individual and the interests of the society at large
and
(ii) the Court has to ensure that that under the garb of
order rejecting bail, the accused is not detained
unnecessarily for an indefinite point of time.
Apparently, the applicant can not claim parity with co-accused
Nasir Khan and Santosh because firstly, she is charged with more
serious offences and secondly, out of the subject-matter thereof, only
an amount of Rs.34,000/- could be seized from her Bank Account.
This apart, while rejecting applicant's prayer for grant of bail on
the ground of parity with co-accused Abdul Hanif Khan, it was
observed by learned Sessions Judge only that, at the relevant point of
time, the applicant apparently had no source of income whereas Hanif
Khan was practicing as a lawyer in the Civil Court at Bhopal.
It is well settled that joint or separate trial is always in the
discretion of the trial Judge only (A.R. Antulay vs. R.S. Nayak AIR
1988 SC 1531 referred to). Accordingly, it is not obligatory to try
additional accused with the applicant and other persons arraigned as
accused in the main charge sheet.
In this view of the matter, the delay in trial, occasioned due to
other reasons, is the only change in the circumstances of the case af-
ter rejection of the previous application.
Bail, though not defined in the Code of Criminal Procedure, is a
conditional liberty. The relevant provision in the form of sub-section
1(a) of Section 439 of the Code provides that this Court may direct
that any person accused of an offence and in custody be released on
bail, and if the offence is of the nature specified in sub-section (3) of
section 437, may impose any condition, which it considers necessary
for the purposes mentioned in that sub-section. Further, sub-section
(3) of Section 437 of the Code, as amended by the Code of Criminal
Procedure (Amendment) Act, 2005 reads as under : -
437. When bail may be taken in case of non-bailable
offence.
.......
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(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chatter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions -
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person aquatinted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.
[Emphasis supplied] It is relevant to note that the charges framed against the applicant also relate to the offences falling under Chapter XVII of the IPC. This Court is also not oblivious of the well-settled legal position, as reiterated in Sandeep Jain's case (supra), that any condition to be imposed under sub-section (3) of Section 437 of the Code must be reasonable & judicious and must not tantamount to refusal of bail.
The Supreme Court in M. Sreenivasulu Reddy vs. State of T.N. (2002) 10 SCC 653, taking note of the fact that, in pursuance of the undertaking given by him, the applicant/accused had already deposited a sum of Rs.35 crores, proceeded to modify the condition requiring payment of balance sum of Rs.15 crores by directing that instead, he could furnish corporate guarantee. In a subsequent decision, rendered in Sureshchandra Ramanlal vs. State of Gujarat 2008 AIR SCW 4004, the Apex Court, while granting bail to ex-Vice Chairman of the Bank, who was charged with financial irregularities, has imposed a condition of depositing sum of Rs.40 lacs with the Bank.
It is true that these precedents relate to prayer for grant of anticipatory bail but they certainly provide illuminating guidelines for exercising discretion while incorporating conditions of a regular bail.
Taking into consideration the nature of allegations, character of the incriminating evidence, larger interests of the gas victims and other facts and circumstances of the case including the material aspect of interests of justice as contemplated in sub-section (3) [above], I am of the view that the applicant now deserves to be enlarged on bail subject to condition of depositing an amount of Rs.30 lacs without affecting the merits of her defence.
It is, therefore, directed that if applicant Smt. Sheeba Khan deposits an amount of Rs.30 lacs in the Bank Account of the Registrar, office of the Welfare Commissioner (Bhopal Gas) and furnishes a personal bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand) with a solvent surety in the like amount to the satisfaction of trial Magistrate for her appearance during trial, she shall be released on bail. Needless to say, nothing contained herein would, in any way, affect the merits of the case.
Certified copy as per rules.
(R.C. Mishra) JUDGE