Bombay High Court
The State Of Maharashtra vs Rajkumar Kunda Swami on 4 December, 2001
Equivalent citations: (2002)104BOMLR567
Author: V.K. Tahilramani
Bench: V.K. Tahilramani
JUDGMENT V.K. Tahilramani, J.
1. This is an application by the State for cancellation of bail as well as for granting of Police Custody Remand for a period of seven days.
2. Brief facts relating to this case, are as under :
The complaint was lodged by Shri Yuvraj Patil. The Assistant General Manager, Abhyudaya Co-Op. Bank Ltd., Vashi 'Branch, Sector 17, Navi Mumbai on 28.7.2001. The F.I.R. was registered against the respondent/accused uide C.R. No. 1-210/2001 under Sections 409, 420, 463, 464, 471, 477(A) of the Indian Penal Code and under Sections 43, 65, 66 and 73 of Information Technology Act, 2000. It has been stated by the complainant in the complaint that respondent/accused Rajkumar K. Swami was working as a clerk in Abhyudaya Co-Op. Bank Ltd., Vashi Branch, Sector 17, Navi Mumbai and looking after the maintenance and repair of the computers in the said Bank since 1997 and all the accounts and transactions were computerised in the Bank since 1995. The complainant has further stated that respondent/accused committed fraud to the extent of Rs. 81 lacs by opening fictitious accounts in his own name and manipulated the credit entries in the said accounts without depositing any amount, by tampering with the computer data in the computers, and he has withdrawn amounts from the said accounts and thus defrauded the Bank.
During the course of investigation, it was revealed that the respondent/accused not only opened the fictitious accounts in his own name but also opened accounts in the name of his mother i.e. Andal K. Swami. sister Apsara K. Swami, Kunda Swami and wife Yogita Raj in the same Bank and also opened two accounts in his own name and manipulated the credit entries by tampering computer data in the computers. He had shown the amounts deposited in those accounts and thereafter withdrawn the said amount from time to time and thereby defrauded the Bank to the tune of more than Rs. 2,27,33,574-76.
During the course of investigation. Mrs. Yogita wife of respondent/accused and Mrs. Andal. mother of the respondent/accused were arrested and thereafter released on bail, however the respondent/accused was absconding for more than 45 days and with great difficulty, he was arrested on 10.9.2001.
3. The respondent/accused was produced before the learned Judicial Magistrate F.C., Vashi, on 11.9.2001 and the police made the Remand Application praying for police custody for 14 days, however, learned Magistrate was pleased to pass an Order remanding the said respondent/accused herein to police custody till 18.9.2001 i.e. 7 days. During the said period, the accused was thoroughly interrogated. Since offence revealed was of peculiar nature, i.e. concerning the tampering of computer data in the computer and the accused was not co-operating with the investigating agency, a specialist from the Computer Company was called for, to ascertain the true facts as to manipulation of the entries made by the respondent/accused from time to time for a period of four years. The Investigating Officer was able to recover movable property in the nature of computer components which was purchased by the respondent/accused from the tainted amount worth Rs. 23,85,085/- at the instance of the respondent/accused.
4. On 18.9.2001 the respondent/accused was produced before the learned Magistrate and the Investigating Officer submitted remand application praying for further remand to the police custody for 14 days as the accused is involved in a serious offence of misappropriation of public funds to the extent of more than Rs. 2 crs. and for effective investigation and thorough interrogation, it was prayed in the said remand application that the respondent/accused be remanded to police custody for a further period of 14 days in order to enable the I.O. to recover further amount of about Rs. 2 crores.
5. The learned Magistrate by order dated 18.9.2001 rejected the application for police custody remand and instead the respondent/accused was remanded to magisterial custody. On the same day i.e. 18.9.2001 the respondent/accused also made an application for bail for releasing him on bail. The learned Public Prosecutor had strongly opposed the grant of bail by submitting his say on the said application. On the same day itself i.e. on 18.9.2001 the learned Magistrate granted bail to the respondent releasing the respondent-accused on P.R. bond and cash security of Rs. 20,000.
6. Being aggrieved by the said order of rejecting application for police custody, and releasing the accused on bail the State of Maharashtra preferred Criminal Revision Application being Cr. Revision Application No. 108 of 2001 in the Court of District and Sessions Judge, Thane.
7. The learned Additional Sessions Judge, Thane disposed of the said Revision Application by Judgment and Order dated 25.9.2001. In the Criminal Revision Application filed by the State of Maharashtra, the learned Sessions Judge gave findings that the impugned order passed by the learned Judicial Magistrate, F.C. is illegal and unjustified and improper to the extent of refusing to grant further police custody and the learned Sessions Judge granted police custody of the respondent. However, he granted police custody only for a day and the bail order was suspended till then. The learned Sessions Judge observed to the effect that the accused was arrested on 11.9.2001 and day on which the learned Sessions Judge passed order is dated 25.9.2001. Hence, the learned Sessions Judge has thus observed that "as per the provisions of Section 167(2) of the Code of Criminal Procedure, an accused can be remanded to police custody for a period of 15 days and such a period of 15 days has to be counted from the time when such accused is produced before the Magistrate". In the instant case, the respondent-accused was ploduced before the Magistrate on 11.9.2001 and therefore, he could have been remanded to police custody till 26.9.2001 till 4 p.m. and therefore, the impugned order of the learned Magistrate refusing to grant police custody remand and remanding the accused to M.C.R. will have to be set aside and the respondent-accused will have to be remanded to police custody till then. However, the learned Sessions Judge has further observed that the Investigating Officer does not allege any default in following the conditions imposed by the Magistrate upon the respondent - accused and therefore, it would not be proper to cancel the bail granted to the respondent.
8. Being aggrieved by the order passed by the learned Judicial Magistrate, F.C. on 18.9.2001. rejecting the application of police custody remand and granting bail and also the order passed by the learned Sessions Court on 25.9.2001, allowing the revision but granting police custody remand only for a day, and not cancelling the bail granted by the Magistrate, the applicant-State of Maharashtra has approached this Court under Section 482 of Criminal Procedure Code and in alternatively under Section 439(2) of Criminal Procedure Code.
9. Learned A.P.P. has submitted that the respondent/accused is involved in a serious offence of embezzlment of the public fund to the tune of over Rs. 2 crores and therefore, the Investigating Officer should have been given proper opportunity to investigate the matter thoroughly by interrogating the respondent-accused while in police custody. He has submitted that both the Courts below failed to appreciate the gravity and seriousness of the offences involved and specially the peculiar nature of the present case. The Courts ought to have appreciated the modus operandi used by the respondent-accused is unique in nature inasmuch it required skillful knowledge of computers due to which a specialist had to be called from the computer company who was able to unravel the program and to find out relating to the embezzlement by the respondent. He has further submitted that in the period of police custody remand granted by the learned Magistrate, out of over Rs. 2.27 crores, only amount of Rs. 26 lakhs was recovered and hence, further P.C.R. was very much necessary for the recovery of remaining property/amount.
10. In relation to the order passed by the learned Sessions Judge, he has submitted that the learned Sessions Judge misconstrued the provisions of Section 167 of the Code of Criminal Procedure that the period of P.C.R. can be granted only for first 15 days when the section provides that 15 days P.C.R. can be granted as a whole. He has stated that both the Courts below failed to appreciate that investigation was at a very crucial stage and in view of the gravity of the offence, the learned Magistrate ought not to have released the accused on bail as it substantially hampered the course of investigation. The learned Sessions Judge ought to have cancelled the bail and granted P.C.R. for seven days. The learned A.P.P. further submitted that accused had been misappropriating the amounts from time to time between the period 1997 and July 2001 and the same could not have been done by him without active connivance or assistance from other Bank staff and therefore to ascertain the whole racket further custodial interrogation of the accused was very much necessary. He submitted that both the Courts below ought to have appreciated that when the respondent/accused was absconding he had sent a correspondence addressed to the Bank Manager admitting that he has committed a serious offence and he has shown his readiness to pay Rs. 71 lakhs to the Bank and the balance amount in future from time to time.
11. The learned A.P.P. has submitted that as one of the Sections involved in this case i.e. Section 409 of the I.P.C. provides for punishment of life imprisonment, the learned Magistrate did not have the power to grant bail. He has placed reliance upon the judgment of this Court in State of Maharashtra v. Kashar Yasin Qaereshi and Anr. 1996(2) Mh. L.J. 485 : 1996 (5) Bom. C.R. 43. In the said judgment, this Court has held that if there are reasonable grounds for believing that a person is a guilty of an offence punishable with death or life imprisonment then, only the High Court or the Court of Sessions will have jurisdiction to grant bail to the person unless the person is below 16 years of age or is a woman or is a sick or infirm person. He has submitted that in this case, in view of the correspondence addressed by the respondent-accused to the Bank and especially in view of the fact that property worth Rs. 26 lakhs was recovered from the accused, it can definitely be said that there is a reasonable ground for believing that he is guilty of the said offences which offences included Section 409 of the I.P.C. Hence, in view of this judgment, he has submitted that learned Magistrate did not have the jurisdiction to grant bail and order would be a nullity in the eye of law.
12. Learned A.P.P. has placed reliance on a decision of the Apex Court in the case of Mahesh Kumar Bhawansinghka v. State of Delhi Cr. L.J. 2786. The said case was under Section 477A, 468 and 120B of the I.P.C. In the said case, the accused had embezzled an amount nearly reaching Rs. 1 crore. In the said case, the accused had been in jail since a long time and the Honourable Supreme Court held that in view of the fact that the amount embezzled was a staggering amount of almost Rs. 1 crore, the fact that the accused was in jail for a long time would not entitle him to bail.
13. Reliance was also placed on the decision of the Honourable Apex Court in the matter of Puran v. Rambilas and Anr. (2001) 6 SCC 338 : AIR 2001 SC 2023. In the said decision, it was held that an order granting bail based by ignoring evidence oil record and without giving reasons, would be perverse and contrary to the provisions of law. Such an order would itself provide a ground for moving application for cancellation of bail. Such a ground for cancellation is different from the ground that the accused misconducted himself or some new facts call for cancellation. It was urged that in the present case, the learned Magistrate has observed that "two accused persons are already on bail and he (Respondent) was in P.C.R. for about 8 days, the alleged offences are pertaining to the Bank record, therefore, it is convenient for the police to go on with the investigation with the concerned Bank and its record. So far as the present accused is concerned, no purpose may be served by keeping him in custody". It was urged by learned A.P.P. that the learned Magistrate did not touch upon the aspect of recovery at all which was the reason stated in the remand application for seeking further P.C.R. It was also the main ground stated by the prosecution for not granting bail to the respondent-accused. The learned Magistrate has not considered that aspect at all and has not given any reasons on this aspect of the matter. It was further stated that the learned Magistrate has ignored the material and evidence on record and therefore, such an order would provide for a ground for moving application for cancellation of bail. It was stated that learned Sessions Judge ought to have considered these grounds and ought not to have rejected the application for cancellation of bail only on the ground that there was no default in following the conditions imposed by the Magistrate. At this stage, it can be stated that conditions imposed by the Magistrate was of reporting between 11 a.m. to 1 p.m. till further orders and that respondent accused should not leave New Bombay without permission of the Court.
14. It was also contended that looking to the magnitude of the crime and the fact that the accused was absconding for almost 45 days, the learned Magistrate ought not to have released the respondent-accused on bail and specially only on P.R. bond and cash security of Rs. 20.000/- without any sureties.
15. On behalf of the respondent-accused, it was submitted that the orders of the learned Magistrate and learned Sessions Judge are perfectly just and legal. It was further submitted that as the period of 15 days from the date of first remand is over long back the accused cannot be remanded to P.C.R. in view of provisions of Section 167(2) of the Code of Criminal Procedure. I have carefully gone through the said provisions. 1 find considerable merits in the say of the respondent-accused in this regard.
16. However, I am of the opinion that looking to the nature of this case and fact that the respondent-accused was working in the Bank and has committed criminal breach of trust in respect of public funds invested in the Bank by various members of the public and the fact that amounts embezzled run over more than 2 crores and the fact that in this case a very small part of the amount was recovered from the present accused, the learned Magistrate was in serious error in not granting further P.C.R. This has seriously hampered the investigation of the case. Further P.C.R. of the respondent-accused was very much necessary for the recovery of such property which the respondent-accused has misappropriated. In the facts and circumstances of this case, remanding the present respondent to M.C.R. is illegal, unjust and improper. However, looking to the fact that the said period of 15 days expired long time back, now it would not be possible to grant P.C.R. of 7 days as prayed for.
17. The learned advocate has drawn my attention to a case reported in AIR 1994 SC 1147. The facts relating to that case, however, are not similar to those in the present case arid in this view of the matter. I am of the opinion that at this stage, P.C.R. cannot be granted.
18. On behalf of the respondent-accused, it was submitted that Section 409 of the I.P.C. provides for life imprisonment and imprisonment which may extend to 10 years and fine and therefore, the learned Magistrate did have the jurisdiction to grant bail to the respondent-accused. In this regard, it would be useful to point out a decision in the matter of Akhil Anand Arya v. K.V. Satya Murthi and Anr. 1987 Mh. L.J. 138. The said case was mainly under Section 307 of the I.P.C. It was held by this Court that the Magistrate has no power to release the person accused of offence punishable with death or life imprisonment. The said case was a case for cancellation of bail. In the said case, bail granted to the accused who was involved in an offence under Sections 143, 144, 146, 147, 148, 149 and 307 of the I.P.C. was cancelled by this Court. In this view of the matter, the submissions made on behalf of the respondent-accused that Section 409 of the I.P.C. provides for life imprisonment or imprisonment for a period which may extend to 10 years and fine, would have no merit as the punishment under Section 307 of the I.P.C. is the same to that of the offence under Section 409 of the I.P.C.
19. Thus, in my opinion, in view of the above decision rendered in the matter of Akhil Anand Arya (supra), the learned Magistrate did not have the jurisdiction to grant bail in the present case.
20. Learned advocate for the respondent-accused has further submitted that the respondent has been attending the concerned police station and he has not left the limits of New Bombay without permission of the Court i.e. according to the learned advocates, the conditions imposed on the respondent-accused by the Magistrate are being scrupulously followed by him. On this aspect, the learned A.P.P. has submitted that accused is attending the police station, however he is not: co-operating with the investigating agency and therefore, just simpliciter attending the police station is of no use and it cannot take the investigation any further. Moreover, looking to the fact that the respondent-accused was absconding for a period of almost 45 days earlier and the fact that accused has a huge amount of money i.e. almost more than Rs. 1 crore 85 laksh with him, the respondent accused can easily abscond at any time.
21. From the facts and circumstances of this case, it is crystal clear that there are reasonable grounds to believe that respondent-accused is involved in the offence specially offence punishable under Section 409 of the I.P.C. and apart from that the fact that whether a prima facie case is made out. Some of the factors which are to be borne in mind in deciding the question of grant of bail are the gravity/magnitude of the offence and whether there is any likelihood of the accused person absconding. In the instant case, both the considerations militate against the respondent-accused.
22. In the facts and circumstances of the present case. I am of the opinion that the order passed by the learned Magistrate was absolutely perverse, apart from being illegal. Such order cannot be sustained in law. It was reasonable for the Magistrate to think that the police should have sufficient time to investigate the alleged offence. He should not have refused to grant P.C.R. and he should not have been in such a hurry, to release the respondent-accused on bail. The learned Magistrate should have realised that bail orders passed in such ugly haste are bound to hamper investigation thereby resulting into miscarriage of justice.
23. I am aware that considerations for cancellation of bail are different from those refusing to grant bail. I am also aware that grant or refusal of bail is a discretion vested in the Court. But such discretion has to be exercised judicially and not in the manner in which it was exercised by the learned Magistrate. Ordinarily, I would not have interfered with the order of granting bail to the accused in the order is so arbitrary, capricious, illegal and perverse. I feel it is the bounden duty of the High Court to reverse such an order. Moreover, I feel that the ratio of the judgment in the case of Puran v. Rambilas and Anr. (supra) would also be applicable to this case.
24. In view of the decision in the matter of Akhil Anand (supra) the question of jurisdiction goes to the root of the matter. It renders the order a nullity in law. If this Court were to condone and sustain the bail orders passed by the Subordinate Courts which have 110 jurisdiction to pass them, it would be abetting judicial anarchy.
25. Further, in my opinion, looking to the facts of this case and that the amount of more than Rs. 2.27 crores involved and the fact that the accused had been absconding for almost 45 days the learned Magistrate ought not to have released the respondent-accused on P.R. bond with cash security of Rs. 20.000/- without sureties.
26. In this view of the matter, the order dated 18.9.2001 granting bail to the respondent -accused by the learned Judicial Magistrate, F.C., Vashi in C.R. No. 1-210 of 2001 of Vashi, New Bombay Police Station, is quashed and set aside. The respondent accused is directed to surrender himself before the Trial Court on or before 5th December, 2001. It is made clear that if the respondent-accused does not surrender by 5th December 2001 before the Trial Court, it is open to the investigating agency to rearrest the respondent-accused and take him in custody forthwith.
This application stands disposed of in the above terms.
The respondent-accused Rajkumar Kunda Swami is present before the Court and he is made aware of the above order.
Parties to act on the copy of this order duly authenticated by the Shirastedar of this Court.