Gujarat High Court
Rustom Jehangir Cama vs State Of Gujarat & on 11 March, 2016
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/20671/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
20671 of 2015
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RUSTOM JEHANGIR CAMA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1
MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 11/03/2016
ORAL ORDER
1. By way of present application under Section 439(2) of the Code of Criminal Procedure, the applicant-original complainant has challenged the judgment and order dated 29.09.2015 passed by the learned Additional Sessions Judge, Court No.18, City Civil and Sessions Court, Ahmedabad in Criminal Misc. Application No.3670 of 2015, by which, the learned Sessions Judge has exercised his powers under Section 439 of the Code and has enlarged the respondent- accused on bail during the pendency of the trial in connection with the FIR being C.R.No.I-27 of 2014 registered with Shahpur Police Station for the offences punishable under Sections 406, 408, 420, 465, 467, 468, 471, 120-B and 114 of the Indian Penal Code and Sections 65 and 66 of the Information Technology Act.
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R/CR.MA/20671/2015 ORDER
2. The brief facts of this case are that the applicant- original complainant approached the Commissioner of Police, Ahmedabad with his complaint, who in turn, relegated the applicant to the Shahpur Police Station which registered an FIR bearing C.R.No.I-27 of 2014 under Sections 406, 408, 420, 465, 468, 471, 120-B and 114 of the Indian Penal Code and Sections 65 and 66 of the Information Technology Act, wherein it is alleged that the accused named in the complaint conspired with each other with an ulterior intention of cheating and defrauding the complainant and his companies and have also committed breach of trust and in that process the accused herein has prepared false documents and indulged into offence of forgery and by manipulating the software installed in the Hotel caused deliberate deletions, modifications and alterations in the bills that were generated in the Hotels and thereby the present respondent-accused in collusion with the other accused has committed misappropriation worth crores of rupees. According to the applicant, the respondent No.2 herein/accused No.5 has played a pivotal role in the commission of the alleged offence as the respondent No.2 herein had supplied hotelier software which is a software deliberately designed for embezzlement of money generated in business giving rise to making of black money by the person, who installs, operates and controls the software as the software designed by the respondent No.2 allows deletion, modification, alteration, destruction of records which is not permissible. It is submitted that the software designed by the respondent No.2 was absolutely vulnerable to cyber crimes and which was tempered by the accused Nos.1 to 3 in collusion and connivance of the Page 2 of 5 HC-NIC Page 2 of 5 Created On Thu Mar 17 00:55:24 IST 2016 R/CR.MA/20671/2015 ORDER respondent No.2/accused No.5, which was resulted into embezzlement of money to the tune of approximately Rs.5 crores according to the applicant-original complainant.
2.1 The present respondent-accused came to be arrested on 16.09.2015 and he was subjected to police custody upto 21.09.2015. It was alleged against the respondent-accused that he was supplying hotelier software (server of the hotel) to the main accused. Subsequent to the remand, the present respondent-accused filed an application under Section 439 of the Code which was entertained by the Trial Court on several grounds including that the main accused, who were released on bail by this Court on certain terms and conditions. Hence, this application.
3. Mr.Zubin F.Bharda, learned advocate appearing for the applicant-original complainant, would submit that the trial court ought not to have released the respondent-accused on bail since the investigation was not over qua respondent- accused. He would further submit that he is the person, who has supplied such hotelier software to the main accused through which he was able to misappropriate huge funds of the complainant and, therefore, the order passed by the learned Trial Court in favour of the respondent-accused be quashed and set aside and the present application be allowed.
4. I have perused the papers of investigation as well as the order impugned in the application. It is not in dispute that the accused-respondent was arrested in the month of September, 2015 and on completion of remand, the application filed by the respondent-accused was entertained Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Mar 17 00:55:24 IST 2016 R/CR.MA/20671/2015 ORDER and he was released bail on 29th September, 2015. I have also considered the allegations levelled against the present respondent-accused. Since the respondent-accused was released on bail in the month of September, 2015, it is not the case of the applicant-original complainant that he has committed any breach of conditions and also considerable long time is passed.
5. Considering the parameters laid down by the Honb'le Apex Court in the case of Bhagirathsinh Judeja v. State of Gujarat [AIR 1984 SC 372] and Dolatram v. State of Haryana [1995 SCC (Cri.) 237] for exercise of powers under Section 439(2) of the Code, it cannot be said that other than legal consideration weighed with the learned Additional Sessions Judge for exercising powers and keeping in mind law laid down by the Honb'le Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra & Ors. reported in [(2011)1 SCC 694], the respondent - accused is granted bail, which do not make out a case for this Court to exercise powers under Section 439(2) of the Code of Criminal Procedure.
6. Considering the ratio laid down by the Hon'ble Apex Court in various decisions, powers of the learned Appellate Court are different than granting the same. In case of Dolatram and others V/s. State of Haryana, reported at 1995(1) SCC 439, Hon'ble Supreme Court has held that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Mar 17 00:55:24 IST 2016 R/CR.MA/20671/2015 ORDER the concession of bail during the trial. Therefore, I am of the opinion that when the respondent- original accused has been granted anticipatory bail and has not committed any breach of conditions imposed by the court, there are no reasons to exercise my power under section 439(2) of the Code of Criminal Procedure and cancel the bail granted in favour of respondent herein- original accused.
7. In view of the above, the present application is meritless and the same deserves to be dismissed and is accordingly dismissed. However, it is made clear that the observation made by this Court would not come in the way of either side at the time of trial.
(A.J.DESAI, J.) Ashish Tripathi Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Mar 17 00:55:24 IST 2016