Karnataka High Court
Shri. Sandeep Gururaj vs State Of Karnataka on 25 September, 2020
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
CRIMINAL PETITION No.3179/2020
BETWEEN:
Shri. Sandeep Gururaj
S/o S.V.Gururaj
Aged about 39 years
Presently Residing at
B-04, V.K.Residency,
Dr. Shivramkaranth Road
Chikkalsandra,
Bengaluru-560 004.
...Petitioner
(By Sri. Ashok Haranahalli, Senior Counsel for
Sri Gautam Shreedhar Bharadwaj, Advocate)
AND:
1. State of Karnataka
through the Station House Officer
Cubbon Park Police Station
Represented by State Public Prosecutor
High Court Building
Bengaluru-560 001.
2. Mr. Vatheswaran S.,
CEO and Director,
Manipal Education and Medical Group
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15th Floor, JW Marriott Hotel,
24/1, Vittal Mallaya Road,
Bengaluru-560 001.
(Amended vide Court Order dated 12.08.2020)
...Respondents
(By Sri V.M.Sheelavanth, SPP for R1;
Sri Mukul Rohatgi, Senior Counsel for
Sri Ismail M. Musba, Advocate for R2)
This Criminal Petition is filed under Section 439 of
Cr.P.C praying to enlarge the petitioner on bail in Crime
No.257/2018 of Cubbon Park Police Station, Bengaluru
City, for the offences punishable under Sections 120(B),
406, 408, 409, 420, 465, 467, 468, 471, 477(A), 506 and
201 r/w Section 34 of Indian Penal Code.
This Criminal Petition having been heard and
reserved on 09.09.2020 coming on for pronouncement of
Orders 'through Video Conference' this day, the Court
made the following:-
ORDER
Petitioner-accused No.1 has filed this petition under Section 439 of Cr.P.C. to release him on bail in Crime No.257/2018 of Cubbon Park Police Station, (CC No.7559/2019) pending on the file of IV Additional Chief Metropolitan Magistrate, Bengaluru, for the offences punishable under Sections 120(B), 406, 408, 409, 465, 467, 468, 471, 477(A), 506, 201 and 420 of IPC. -3-
2. I have heard the learned Senior Counsel Sri.Ashok Haranahalli for Gautam Shreedhar Bharadwaj virtually and Sri.V.M.Sheelavanth, the learned SPP for respondent No.1-State and Sri.Mukul Rohatgi, the learned Senior Counsel for Sri.Ismail M.Musba for the complainant respondent No.2 virtually.
3. The genesis of the complaint is that Sri Viatheeswaran, Chief Executive Officer of Manipal Integrated Services Private Limited filed the complaint against the accused persons alleging that accused No.1 was working as Deputy General Manager in the said Company. He wrongfully diverted certain amount of Manipal Group Companies and also personal account of the Chairman of Manipal Group Companies in favour of accused Nos.2 to 5. It is further alleged that accused Nos.3 to 5 have colluded with accused No.1 in committing such offence. The auditors were asked to look into the accounts relating to Manipal Group Companies and the -4- personal account of the Chairman. On the basis of the interim report dated 16.11.2018 they confirmed the diversion of funds from various bank accounts to the accounts of wife of accused No.1 and to his personal account maintained in the State Bank of India as well as to the account of the firm M/s.Beehive Advisors, of which accused Nos.1 and 2 were partners. The audit report disclosed that the accused persons have cheated the complainant to an amount of Rs.7,65,31,564/-. On the basis of the said complaint, a case has been registered.
4. It is the submission of the learned Senior Counsel that earlier the petitioner-accused approached this Court for grant of bail. This Court by order dated 5.9.2019 dismissed the bail application and subsequently on 14.9.2019 supplementary charge sheet has been filed. It is the further submission of the learned Senior Counsel that the petitioner-accused No.1 approached the Hon'ble Apex Court in petition for Special Leave to Appeal (Criminal No.4719/2019) and after hearing the learned counsels the -5- petition came to be dismissed on 20.3.2020 by observing that it declined to interfere in the special leave petition and dismissed the petition. But however, liberty has been given to the petitioner-accused to file fresh bail application after final charge-sheet is filed and the same shall be decided on its own merits in accordance with law uninfluenced by the observations made in the impugned judgment. It is his further submission that the complaint has been filed on 26.12.2018. The first charge-sheet has been filed on 26.3.2019 and supplementary charge-sheet has been filed on 14.9.2019. Since 26.12.2018 the petitioner-accused is in custody. Even though before the Hon'ble Apex Court it is submitted that the investigation is likely to conclude shortly and should not take more than three months for filing the final charge-sheet, till date, the charge sheet has not been filed and now the respondents have come up with a version that because of Covid-19 the investigation has not been completed and as such the final charge-sheet has not been filed. It is his further submission that Covid-19 is -6- not a ground for the purpose of extension of the investigation and filing of the charge-sheet. In order to substantiate his said contention he has relied upon the decision in the case of S.Kasi Vs. State Through the Inspector of Police Samaynallur Police Station reported in 2020 SCC OnLine SC 529. It is his further submission that in the charge-sheet totally nine accused persons were there. Except accused Nos.3, 6 and 9, all other persons have been granted bail. It is his further submission that there is limping of investigation and there are no changed circumstances after 14.9.2019. It is his further submission that the nature of all allegations are only with reference to the bank transactions and for having committed a fraud. All the documents and records will be available and there is no question of tampering of the prosecution evidence. It is his further submission that the amount has been freezed to the tune of Rs.2,44,02,680/- and the same has been paid to the complainant company by virtue of an order on the application filed under Section 457 of Cr.P.C. It is his -7- further submission that right to speedy investigation is a fundamental right of the accused and there is no question of tampering of the prosecution evidence. It is further submitted that the basic rule is to grant the bail and not the jail. If there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles, they are only be illustrative cases, wherein bail can be rejected. In order to substantiate his said condition, he relied upon the decision in the case of State of Rajasthan Jaipur Vs. Balchand Alias Baliay reported in (1977) 4 SCC 308. It is his further submission that speedy trial is manifest under Article 21 of the Constitution and if the investigation has not been completed and the trial has also not been started, then it is going to affect the fundamental rights of the petitioner-accused. In that light he relied upon the decision in the case of P.Ramachandra Rao Vs. State of Karnataka reported in (2002) 4 SCC 578. It is his further submission that while considering the bail application, the delay in concluding the trial has also to be -8- kept in mind. Article 21 of the Constitution is basis of all the fundamental rights and that should not be allowed to be violated while deciding the bail application. In that light he relied upon the decision in the case of State of Kerala Vs. Raneef reported in (2011) 1 SCC 784. It is his further submission that the role played by the accused and similarly placed accused being already released on bail and delay in commencement of trial, consumption of sufficient time in examining the main witnesses in concluding the trial are some of the factors which the Court has to keep in mind while granting the bail. In that light, he relied upon the decision in case of H.D.Harsha S/o Late Devendrappa Vs. The State of Karnataka reported in 2015 SCC OnLine Kar 6731. It is his further submission that grant of bail is a rule and refusal is an exception. While granting the bail any condition may be imposed and delay in trial is one of the criteria for grant of the bail. In that light he relied upon the decision in the case of P.Chidambaram Vs. Directorate -9- of Enforcement reported in 2019 SCC OnLine SC 1549. At paragraph 23 it reads as under:
"23. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is
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prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial."
5. It is his further submission that if the delay is occurring in the trial or investigation, under such circumstances the Court can grant the bail. In that light he has relied upon the decision in the case of Sanjay Chandra
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Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40. At paragraphs 39 and 45 it reads as under:
"39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. xxxx xxxx xxxx xxxx
41. xxxx xxxx xxxx xxxx
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42. xxxx xxxx xxxx xxxx
43. xxxx xxxx xxxx xxxx
44. xxxx xxxx xxxx xxxx
45. In Bihar Fodder Scam (Laloo Prasad case [Laloo Prasad v. State of Jharkhand, (2002) 9 SCC 372] ) this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pretrial prisoners would not serve any purpose."
6. He has also relied upon another decision in the case of Babanrao Tukaram Ranjane Vs. State of Maharashtra reported in (2006) 9 SCC 422. At paragraph No.9 it reads as under:
"9. It is not for this Court at this stage to go into a detailed discussion of the scope of MCOCA or discuss in detail the materials against the appellant and the arguments for and against on merits. But we have necessarily to keep in mind
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the magnitude of the alleged crime and the consequences that have flowed from such a crime. As far as the appellant is concerned, at this stage we have only to consider whether he has made out a case for grant of bail. We can neither be carried away by the catchy submission that "bail and not jail" is the rule, nor can we ignore the principle reflected by that catchphrase. On a consideration of the relevant circumstances obtaining and taking note of the period during which the appellant has been in custody, we are satisfied that it is a fit case for grant of bail to the appellant. Therefore, we, in reversal of the order of the Special Court, direct that court to enlarge the appellant on bail on his furnishing security to the satisfaction of that court in a sum of Rs.1 lakh with two solvent sureties for the like amount and on his fulfilling the other conditions of Section 438(2) of the Code. We also impose a further condition that he should report before the investigating officer between 10.00 a.m. and 12.00 noon every third Saturday of the month and surrender his passport, (or file affidavit, if he has none) before the Special Court if it is already not in its custody."
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7. It is his further submission that the petitioner- accused is ready to abide by any reasonable conditions that may be imposed by this Court and ready to offer the sureties. On these grounds he prayed to allow the petition and to release the petitioner-accused No.1 on bail.
8. Per contra, it is the submission of the learned SPP that this Court after considering merits of the case has disposed of the matter and the same has been confirmed by dismissing the Special Leave Petition by the Hon'ble Apex Court. It is his further submission that in the said order liberty has been given to the petitioner-accused to file the bail application only after final charge-sheet is filed. Now there is no cause of action as the final charge-sheet has not yet been filed. It is his further submission that though accused No.9 was released on bail, he has jumped the bail and now he is absconding by traveling to abroad. It is his further submission that this Court on similar facts and circumstances cannot take a contrary view to the one which has been already delivered on the same set of facts.
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It is his further submission that the petitioner-accused and other accused persons are not co-operating to complete the investigation. Many passwords and secret transactions are to be ascertained and in that light the investigation is going on. The petition filed in the present form is not maintainable, the same is liable to be dismissed.
9. It is the submission of the learned Senior Counsel for the complainant that the present petition is not maintainable, in view of the order of the Hon'ble Apex Court. If at all the petitioner-accused wants to file the bail petition, he has to make a request before the Hon'ble Apex Court. Until and unless permission has been granted by the Hon'ble Apex Court, no right accrues to file this petition. It is his further submission that the order of the Hon'ble Apex Court unless varied, this petition cannot lie before this Court in the present form for grant of bail. It is his further submission that there are no changed circumstances to file this petition. This Court has passed well conceived order and three accused persons are
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absconding who are closely associated and relatives to accused No.1. It is his further submission that they have involved in a financial scam and one of the accused has gone to abroad and absconded and the huge money has been sent out of India and has been invested in their personal proprietary concern. It is his further submission that the passwords, other transactions and money have to be recovered from the absconding accused. It is his further submission that the petitioner-accused is also involved in one more case registered in Crime No.139/2018 and accused No.3 is a habitual offender. It is his further submission that an amount of Rs.8.6 Crores has been returned by accused No.1, that itself is a confession for having committed the alleged crime and he is the kingpin for the alleged crime. It is his further submission that the files which have been stolen are from the police custody and that will not be a ground to grant the bail. It is his further submission that the petitioner-accused has not
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made out any good grounds so as to release him on bail. On these grounds he prayed to dismiss the petition.
10. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
11. Though the learned Senior Counsel for the petitioner-accused by relying upon the decisions quoted supra contended to release the petitioner-accused No.1 on bail, it is the specific contention of the learned counsels appearing for the respondents that in view of the order of the Hon'ble Apex Court the petition is not maintainable, as the order of the Hon'ble Apex Court is a conditional order. It is not in dispute that earlier the petitioner-accused approached this Court for grant of bail in Criminal Petition No.3791/2019 and against the said order the petitioner- accused preferred the petition for Special Leave to Appeal (Criminal No.4719/2019) and the Hon'ble Apex Court by order dated 20.3.2020 dismissed the said petition. Those
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facts are not in dispute. For the purpose of brevity, I quote the order of the Hon'ble Apex Court in petition for Special Leave to Appeal (Crl.No.4719/2019) which reads as under:
"We decline to interfere in the special leave petition. The special leave petition is accordingly dismissed.
However, the petitioner will be at liberty to file fresh bail application after final charge- sheet is filed which shall be decided on its own merits in accordance with law uninfluenced by the observations made in the impugned judgment.
We record the statement of the learned Solicitor General appearing for the State that the investigation is likely to conclude shortly and should not take more than three months hence for filing the final charge-sheet.
Pending application shall also stand disposed of."
12. It is the specific contention of the learned counsel for the respondents that in view of the order of the Hon'ble Apex Court the present petition is not maintainable. But it is the specific contention that within three months the final
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report has not been filed and as such the bail petition is maintainable. The only point which remains for consideration before this Court is whether the petitioner has got a right to file the present petition afresh before this Court? On close reading of the order of the Hon'ble Apex Court, quoted supra, it has been observed that it declined to interfere in the Special Leave Petition and accordingly the petition came to be dismissed, but the liberty has been given to file a bail petition only after the final charge-sheet is filed and that shall be decided on its own merits in accordance with law uninfluenced by the observations made in the impugned judgment. If the letter and spirit of the order, if it is seen, then the right to file the bail application afresh arises to the petitioner only after filing of the final charge-sheet. Admittedly, in the instant case on hand no final charge-sheet has been filed yet and even the supplementary charge-sheet which has been filed on 14.9.2019 was available while disposing of the Special Leave Petition by the Hon'ble Apex Court. Now there are no
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new changed circumstances to decide the case on merits by reviving or reconsidering the said material which has been already considered and decided by this Court. In that light, I am of the considered opinion that the present petition appears to be pre-matured and not sustainable in law.
13. Though it is contended by the learned Senior Counsel for the petitioner-accused that the Solicitor General appearing for the State has submitted that the investigation is likely to conclude shortly and should not take more than three months and already three months has been lapsed, but that is only a submission made and if the charge-sheet has not yet been filed, then alternative remedy is left open to the petitioner to seek direction either from the Hon'ble Apex Court in the same petition or by filing a separate petition, if he is advised to do so.
14. Though several contentions have been raised by the learned counsels appearing for the parties, I am of the
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considered opinion that the detailed discussions are not necessary at this juncture. In that light, they have been kept to be dealt with, if subsequently a right has been accrued to the petitioner-accused and if he moves this Court for grant of bail.
15. Taking into consideration the above said factual matrix and the discussion as held by me above, the petition is liable to be dismissed and accordingly it is dismissed.
Sd/-
JUDGE *AP/-