Bombay High Court
Hareshwar Pagdhare vs The State Of Maharashtra And Anr on 19 July, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1328 OF 2022
Mahendra P. Patil Applicant
versus
The State of Maharashtra Respondent
WITH
INTERIM APPLICATION NO.2313 OF 2022
IN
CRIMINAL BAIL APPLICATION NO.1328 OF 2022'
Hareshwar Pagdhare Intervener
In the matter between :
Mahendra P. Patil Applicant
versus
The State of Maharashtra Respondent
Mr.Hrishikesh Mundargi i/by Ms.Swarali Joglekar, Advocate for
applicant in Bail Application.
Ms.Yogita Deshmukh, Advocate for applicant in I.A.
Mr.A.D.Kamkhedkar, APP, for State.
CORAM : PRAKASH D. NAIK, J.
DATE : 19th July 2022
PC :
1. The applicant is seeking bail in CR No.I-112 of 2018 registered
with Palghar Police Station for offence under Sections 406, 420, 467,
468, 471 of Indian Penal Code and under Section 3 of Maharashtra
Protection of Interest of Depositors (in Financial Establishments) Act,
1999 (`MPID Act').
2. The case of prosecution, in short, is that the applicant is a
builder/developer in the name and style as Oriental Enterprises. He
Digitally
signed by
SAJAKALI
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date:
2022.08.12
19:59:40
+0530
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introduced scheme of booking/investment in the flats to be
constructed by him over land bearing Gat Nos.82/6, 99/2, 100/2
and 118/4 of revenue village Tembhode, Taluka and District Palghar.
The purchasers/investors are alleged to have paid amounts to the
applicant as per scheme introduced by him and the same is alleged
to have been acknowledged by applicant by issuing receipts,
promissory notes in his own name and under his own signature. It is
It is alleged that accused had accepted Rs.3,70,74,000/-, which
included cash of Rs.2,42,75,200/- and cheque of Rs.1,27,98,800/-
from several purchasers/investors. The flats were not provided to
the purchasers/investors. Initially FIR was registered under Sections
406 ad 420 of IPC and u/s.3 of MPID Act as well as under Sections
3,4 and 8 of Maharashtra Ownership Flats (Regulation of the
promotion of construction, sale, management and transfer) Act,
1963. Vide order dated 17th July 2018 the additional provisions were
invoked u/s.465, 467, 468, 471 of IPC and Section 4 of MPID Act.
The charge sheet was filed.
3. The previous application preferred by applicant was rejected
by this Court by order dated 8th February 2019.
4. Vide order dated 8th June 2022 the Trial Court was requested
to forward status report of trial. The report dated 22 nd June 2022
has been received, which indicate that matter is pending at the stage
of framing of charge.
5. Learned advocate for applicant submitted as follows :
(a) The applicant is in custody from 25 th May 2018. There
is no progress in the trial;
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(b) Previous application was rejected by this Court on 8th
February 2019. The period of about three years has lapsed
thereafter. The trial has not proceeded;
(c) The punishment for offence under Section 406 IPC is
three years. The maximum punishment for offence under Section
420 of IPC is Seven Years. Section 465 IPC is punishable with
imprisonments of two years. The allegations in respect to the offence
u/s.467 and 471 of IPC is that applicant gave duly signed
acknowledgments of the amounts received by him and that he gave
registered sale deeds with promissory notes bearing his signatures to
the investors as proprietor of Orient Plaza. Assuming the allegations
to be true, the offence u/s/467, 468 and 471 of IPC could not be
made out. The sufficient ingredients as to forgery defined u/s.463 r/
w 464 of IPC are not made out. The person who makes the
document with his signature and in his own capacity and under his
own authority, such document cannot be termed as forgery;
(d) Reliance is placed on the decision of Hon'ble Supreme
Court in the case of Mohammed Ibrahim and others Vs. State of
Bihar and another1 wherein it is held that condition precedent for
offence u/s.467 and 471 is forgery. The condition precedent for
forgery is making a false document;
(e) There is no evidence in the charge sheet to show that
applicant has created any false document;
(f) Incarceration of a person in custody for prolonged
period affects his right under Article 21 of Article of India;
(g) There are no statutory restrictions for grant of bail for
the offence invoked in the present case;
(h) The applicant is entitled for bail in accordance with
1 (2009)8-scc-751
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Section 436-A of Cr.P.C. Most of the offences are punishable with
maximum punishment of seven years. The prosecution has also
invoked Section 467 of IPC which is punishable with life
imprisonment, however, the said provision is not applicable in the
present case.
6. Learned counsel for applicant placed reliance on following
decisions :
(i) Satender Kumar Antil Vs. CBI and another2;
(ii) Sachin Atmaram Vartak Vs. The State of Maharashtra3;
(iii) Union of India Vs. K.A.Najeeb4.
7. Learned APP submitted that there is sufficient evidence against
applicant. Offence is of serious nature. Merely on the ground that
applicant is in custody from 2018, bail may not be granted to the
applicant. The offence of forgery is made out. The previous
application was rejected by this Court by assigning reasons. No
ground to reconsider the application for bail is made out.
8. Learned advocate for complainant opposed the application for
bail. It is submitted that trial is delayed by the applicant and other
accused. The applicant preferred several applications for bail which
were rejected. The Trial Court is required to deal with application
for bail and could not proceed with trial. The roznama indicate that
case was adjourned on several occasions at the instance of accused.
The applicant has not annexed other orders passed by Sessions Court
rejecting bail applications. The case involves misappropriation of
2 Misc.Application No.1849 in SLP (Cri.) No.5191, decided on 11-7-2022
3 Bail Application No.430 of 2021 decided on 5-1-2022
4 Criminal Appeal No.98l of 2021 arising out of SLP (Cri.).11616/2019, dtd.1-2-2021
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huge amount. The accused has cheated investors to the tune of Rs.4
crores. The accused is involved in forgery. He has prepared
documents to induce investors to invest money. There were about 33
investors. Bail should not be granted to the applicant. There were
lapses in investigation. Police did not carry out effective
investigation.
9. The primary ground urged by the applicant for being released
on bail is that he is being incarcerated in custody for a period of
more than four years. There is no progress in the trial. It is not clear
as to when the trial would be concluded. The report submitted by
trial Court mentions that applicant preferred applications for bail.
There was pandemic. Matter remained pending at the stage of
framing of charge. The fact remains that applicant is in jail since 25 th
April 2018. Previous application for bail was rejected on merits.
However, period of three years has passed thereafter.
10. In the recent decision of Supreme Court in the case of
Satender Kumar Antil Vs. CBI and another (supra), the Hon'ble
Supreme Court has observed that innocence of a person accused of
an offence is presumed through a legal fiction, placing onus on the
prosecution to prove the guilt before Court. Thus, it is for that
agency to satisfy the Court that arrest made was warranted and
enlargement on bail is to be denied. The rate of conviction in
criminal cases in India is abysmally low. It appears that this fact
weighs on the mind of the Court while deciding the bail application
in a negative sense. Courts tend to think that the possibility of a
conviction being never to rarity, bail applications will have to be
decided strictly, contrary to legal principles. We cannot mix up
consideration of a bail application, which is not punitive in nature
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with that of a possible adjudication by way of trial. On the contrary,
an ultimate acquittal with continued custody would be a case of
grave injustice. Criminal Courts in general with trial Courts in
particular are the guardian angels of liberty. Liberty as embedded in
the code has to be preserved, protected, and enforced by the criminal
Courts. Any conscious failure by the criminal Courts would constitute
an affront to liberty. It is the pious duty of the criminal Court to
zealously guard and keep a consistent vision in safeguarding the
constitutional values and ethos. A criminal Court must uphold the
constitutional thrust with responsibility mandated on them by acting
akin to a high priest.
11. In the case of Shaheen Welfare Association Vs. Union of India
and others5, it was observed by Supreme Court that it was necessary
to grant relief to those persons who have been deprived of their
personal liberty for a considerable length of time without any
prospect of trial being concluded in the near future. Undoubtedly,
the safety of the community and of the nation needs to be
safeguarded looking to the nature of the offences these undertrials
have been charged with. But the ultimate justification for such
deprivation of liberty pending trial can only be their being found
guilty of the offences for which they have been charged. If such a
finding is not likely to be arrived at within a reasonable time some
relief becomes necessary. The Court was dealing with the cases
registered under the provisions of TADA Act. The Court was
conscious of the fact that there is embargo for release of prisoners
prosecuted for the offences of TADA u/s.20(8) of the said Act. The
Supreme Court divided the undertrial prisoners under TADA based
on their role/hard core criminals into various classes and by adopting
5 (1996)2-SCC-616
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pragmatic and just approach relief was directed to be granted
considering gravity of the charges. The Courts were given discretion
to consider grant/refusal of bail based on antecedents and on
conclusion that there is no likelihood of harm to lives of complainant
and others in the event of their release.
12. In the case of Sanjay Chandra Vs. CBI6, it was observed that
object of bail is to secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be considered
a punishment, unless it can be required to ensure that an accused
person will stand his trial when called upon. The courts owe more
than verbal respect to the principle that punishment begins after
conviction, and that every man is deemed to be innocent until duly
tried and duly found guilty. From the earliest times, it was
appreciated that detention in custody pending completion of trial
could be a cause of great hardship. Apart from the question of
prevention being the object of a refusal of bail, one must not lose
sight of the fact that any imprisonment before conviction has a
substantial punitive content and it would be improper for any Court
to refuse bail as a mark of disapproval of former conduct whether the
accused has been convicted for it or not or to refuse bail to an un-
convicted person for the purpose of giving him a taste of
imprisonment as a lesson. The grant or denial is regulated to a large
extent by the facts and circumstances of each particular case. But at
the same time, right to bail is not to be denied merely because of the
sentiments of the community against the accused. The primary
purposes of bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping him,
6 AIR-2012-SC-830
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pending the trial, and at the same time, to keep the accused
constructively in the custody of the Court, whether before or after
conviction, to assure that he will submit to the jurisdiction of the
Court and be in attendance thereon whenever his presence is
required.
13. In the case of Thana Singh Vs. Central Bureau of Narcotics 7, it
was observed that the accused was languishing in prison for more
than 12 years and awaiting his trial for the offences under the
provisions of NDPS Act. He was consistently denied bail. The
maximum punishment for the offence was 20 years and he remained
in detention for the period exceeding one half of the maximum
period of imprisonment. The Court issued directions on various
issues, which would be of assistance to conclude trials pending in
Courts expeditiously.
14. In the case of Hussain and another Vs. Union of India 8, it was
observed that the Supreme Court has given directions in number of
cases about speedy conclusion of trials. Speedy trial is part of
reasonable, fair and just procedure guaranteed under Article 21 of
Constitution of India. Deprivation of personal liberty without
ensuring speedy trial is not consistent with Article 21. While
deprivation of personal liberty for some period may not be avoidable,
period of deprivation pending trial/appeal cannot be unduly long. If
the accused is in custody for a grave offence such person may not be
released if trial is delayed. While a person in custody for a grave
offence may not be released if trial is delayed, trial has to be
expedited or bail has to be granted in such cases. The Court issued
7 (2013)2-SCC-590
8 (2017)5-SCC-702
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directions and one of them was, as a supplement to Section 436-A
but consistent with the spirit thereof, if an undertrial has completed
period of custody in excess of the sentence likely to be awarded if
conviction is recorded, such undertrial must be released on personal
bond. Such an assessment must be made by the Trial Courts
concerned from time to time. Timely delivery of justice is a part of
human rights. Denial of speedy justice is a threat to public
confidence in the administration of justice.
15. In Abdul Rehman Antulay Vs. R.R.Nayak (1992)1-SCC-225,
while holding that speedy trial at all stages is part of right under
Article 21. In the case of Hussainara Khatoon Vs. State of Bihar
(1995)5-SCC-326, it was observed that general orders for release of
undertrials without reference to specific fact situations in different
cases may prove to be hazardous. While there can be no doubt that
undertrial prisoners should not languish in jails on account of refusal
to enlarge them on bail, for want of their capacity to furnish bail,
these are matters to be dealt with on case to case basis keeping in
mind guidelines laid down by Court. Sympathy for undertrials who
are in jail for long time on account of the pendency of cases, has to
be balanced having regard to the impact of crime.
16. In Vivek Kumar Vs. State of U.P. (2000)9-SCC-443, bail was
granted to accused by Supreme Court on the ground that it is quite a
long period that he is in custody. In Babba Vs. State of Maharashtra
(2005)11-SCC-569, the accused was in custody for a long period for
offence under TADA Act. In Paramjit Singh Vs. State (NCT of Delhi),
the Supreme Court granted bail. The accused was prosecuted under
TADA Act. Earlier the application was rejected and trial was
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expedited. There was no progress in trial. In the case of Angela
Sontakke Vs. State of Maharashtra (2021)3-SCC-723, the Supreme
Court granted bail to the accused facing prosecution under UAPA Act
on the ground that accused is in custody for five years.
17. In the case of Union Of India Vs. K. A. Najeeb (supra) the
Supreme Court has considered the stringent conditions for grant of
bail under Section 43-D(5) of UAPA Act. The bail granted by High
Court on the ground that the accused was under incarceration for
long period unlikelihood of trial.
18. In the case of Supreme Court Legal Aid Committee (supra), the
Court had directed proviso for grant of bail that benefit of direction
in clause (ii) and (iii) shall not be available to those persons who are
in the opinion of the Trial Court for the reasons to be stated in
writing likely to tamper with evidence or influence the prosecution
witnesses. In the case of Shaheen Welfare Association (supra), it was
cautioned that bail can be granted unless Court comes to conclusion
that their antecedents are such that releasing them may be harmful
to the lives of complainant, family members of complainant or
witnesses. In the case of Hussainara Khatoon, it was observed that
sympathy for undertrials who are in jail for long terms on account of
pendency of cases, has to be balanced having regard to impact of
crime. The Division Bench of this Court, in the case of NIA Vs. Areeb
Majeed has observed that in cases under Special Acts, parameters for
grant of bail are more stringent and they remain in custody. The
courts are required to perform balancing act, so as to reach a golden
mean in between the rights of an individual and those of society at
large. The court has to look into those aspects while granting bail
even on the ground that the undertrial is in prolonged custody. In
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the light of observations of Supreme Court and this Court as stated
above, the Court has to perform balancing act. The sympathy for
undertrials who are in custody has to be balanced with
gravity/magnitude of crime, likelihood of threat to witnesses. The
analysis may be based on facts of each case.
19. The settled principle of law is that prolonged custody affects
fundamental rights under Article 21 of Constitution of India. There
is no debate that incarceration in custody for long period without
trial or completion of trial affects personal liberty guaranteed under
Article 21 of Constitution of India.
20. Thus, considering the above circumstances that applicant is in
custody for a period of four years and it is not clear as to when the
trial would be concluded, bail can be granted to applicant.
ORDER
(i) Criminal Bail Application No. 1328 of 2022 is allowed and stands disposed of.
(ii) Applicant is directed to be released on bail in connection with C.R. No. I-112 of 2018 registered with Palghar Police Station on executing P.R. Bond in the sum of Rs. 50,000/- with one or more sureties in the like amount.
(iii) Applicant shall report concerned police station once in a month on every first Saturday between 11.00 am to 1.00 pm till further order.
(iv) Applicant shall not tamper with the evidence.
(v) Applicant shall attend the trial Court on every date of hearing of the case unless exempted by the Court;
(vi) Applicant shall deposit the passport with the investigating 12 of 12 6.BA.1328.2022.doc officer. If he does not have passport he shall file affidavit in that regard before the trial Court while executing bail bond.
(vii) Applicant shall not leave India without prior permission to the trial Court.
(viii) Trial is expedited.
(xi) The trial Court shall make an endevour to conclude the trial within a period of two years from the date of receipt of this order.
(x) Interim Application is disposed of.
(PRAKASH D. NAIK, J.) MST