Jharkhand High Court
Md. Afsar Ali @ Afshar Ali @ Afsu Khan vs The Union Of India Through The ... on 30 August, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
IN THE HIGH COURT OF JHARKHAND, RANCHI
B.A. No. 8244 of 2023
Md. Afsar Ali @ Afshar Ali @ Afsu Khan ...Petitioner
Versus
The Union of India through the Directorate of Enforcement, Government
of India, Zonal Office, Ranchi. ...Opposite Party
---
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
---
For the Petitioner : Mr. Nilesh Kumar, Advocate
Ms. Alka Kumari, Advocate
For the E.D. : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
---
22/30.08.2024 Heard the learned counsel for the petitioner as well as the learned
counsel for the respondent Directorate of Enforcement.
2. The petitioner is seeking regular bail in connection with ECIR Case No. 01 of 2023 which is arising out of ECIR/RNZO/18/2022 dated 21.10.2022, for the offence registered under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 initially the case arising out of Bariatu P.S. Case No. 141 of 2022 lodged for the offence under Sections 420, 467, and 471 of the Indian Penal Code, pending in the court of learned Additional Judicial Commissioner-I-Cum-Special Judge, PMLA, Ranchi.
3. The ECIR case is registered alleging therein that ECIR No. RNZO/18/2022 was recorded on 21.10.22 based on FIR No.141/2022 dated 4.6.22 registered by Bariatu Police Station for the offence under sections 420, 467 and 471 of the Indian Penal Code against one Pradeep Bagchi, resident of Ward No. 21, Flat No.101 Lotus Garden Complex, Block 'B', P.S. Bariatu, District- Ranchi, based upon a complaint of Dilip Sharma, Tax Collector, Ranchi Municipal Corporation.
It has been alleged that said Pradeep Bagchi submitted forged papers and documents obtaining holding numbers and after verification the same was found fake. It has been alleged that fake, forged and fictitious documents were used to obtain the holding numbers. The matter regarding the reasons of opening holding number of the property bearing M.S. Plot No.557 Mouza Morabadi was investigated under PMLA 2002 1 of 13 B.A. No. 8244 of 2023 and it was revealed that Pradeep Bagchi obtained above holding numbers and prepared a fake Deed No.4369/1932 of the property M.S. Plot No.557, Mouza Morabadi measuring 4.55 acres from the office of Registrar of Assurances, Kolkata and sold it to one Company M/s. Jagatbandhu Tea Estate Pvt. Ltd., surveys were conducted u/s 16 of the PMLA 2002 at the office of the Registrar of Assurances, Kolkata and the forgery was identified. It was informed by the Registrar of Assurances, Kolkata that a four- men committee was formed to enquiry the forgery of the fake deeds which surfaced during the course of survey conducted by this office and the four men committee conducted enquiry and submitted their report that the Deed No.4369/1932 was fake and subsequently a FIR No.137/2023 dated 10.5.23 u/s 120B/465/467/468 and 471 of the IPC was registered at Hare Street Police Station, Kolkata and during enquiry and survey it has been alleged that several other accused persons are also involved in preparation of the aforesaid documents and accordingly present case has been instituted as against Thirteen named accused persons and Companies including this petitioner who has been made accused at Serial No.6.
4. Learned counsel appearing for the petitioner submits that the petitioner is neither the accused in Bariatu P.S. Case No. 141 of 2022 nor in ECIR Case No. 18 of 2022 which was instituted on 21.10.2022. He further submits that only on suspicion and so called confession of the co- accused, the petitioner has been implicated in the present case. He submits that the petitioner has got no concern with the entire prosecution of land in question. He further submits that the petitioner is a Government servant working at Rajendra Institute of Medical Sciences, Ranchi as a Radiographer since last several years. According to him, the petitioner is having no criminal antecedent prior to the present case. However, subsequently, the petitioner has been implicated in two cases.
5. To strengthen the argument, learned counsel appearing for the petitioner draws the attention of the Court to Paragraph 9.6.1 of the complaint of the Directorate of Enforcement and submits that only a sum of Rs. 25 lakhs has been transferred in the account of Pradeep Bagchi and rest of the declared payment of Rs. 6.75 crores are said to be sham. He 2 of 13 B.A. No. 8244 of 2023 submits that not even a single farthing has been received in the account of the petitioner. The only allegation is made that the petitioner has helped in transferring the land in question to one Jagatbandhu Tea Estate owned by Dilip Kumar Ghosh. He further submits that all the accounts have been verified not only of this petitioner but of his entire family members but no incriminating material was found. By way of referring the complaint, he submits that there are no allegations that the petitioner accumulated or collected huge amount or any disbursement amount from the proceeds of crime. He submits that the only allegations are there of transaction of Rs. 14,80,000/- with one of the co-accused Pradeep Bagchi and Rs. 5,50,000/- was alleged shown in the account of the petitioner's wife. He submits that Pradeep Bagchi is known to the petitioner since long and as a family friend both persons share money to each other sometimes and in view of that the amount was transferred in the account of the wife of the petitioner. According to him even if that is said to be proceeds of crime the said amount is very less than one crore and in view of that Section 45 of the Prevention of Money Laundering Act, 2002 is not coming in the way of the petitioner to enlarge him on regular bail. According to him there is no direct evidence as against this petitioner that he has manufactured or prepared any individual document save and except to vague confession of co-accused having no evidentiary value in the eyes of law. He then submits that the petitioner is not the accused so far as any schedule offence as required and mandatory to implicate a person for the offence of Prevention of Money Laundering Act, 2002. On these facts, he submits that the petitioner deserves bail as one of the co- accused namely Dilip Kumar Ghosh @ Dilip Ghosh has been granted regular bail in B.A. No. 7233 of 2023 by a co-ordinate Bench of this Court. He submits that the case of the petitioner is on identical footing and in view of that the regular bail may kindly be granted to him.
6. Further elaborating his argument, learned counsel for the petitioner place the Judgment of Hon'ble Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement reported in 2024 SCC online SC 1920 and he refers to paragraph nos. 28, 29, 34, 49, 51, 52, 53. Relying on the above, learned counsel for the petitioner submits that the petitioner 3 of 13 B.A. No. 8244 of 2023 is in jail custody since 15.04.2023 and 17 months period have already elapsed and no witnesses have been examined and in the light of the observations made by the Hon'ble Supreme Court in the case of Manish Sisodia (Supra), the petitioner deserves to be released on bail. On the same point, he further relied in the case of Kalvakuntla Kavitha Vs. Directorate of Enforcement arising out of SLP (Criminal) Criminal No. 10778 of 2024 and he placed reliance on paragraph nos. 11, 12 and 13 of the said judgment and learned counsel for the petitioner submits that Manish Sisodia's Case has been considered in paragraph nos. 11 and 12 and in paragraph 13 it has been held that bail is the rule and the jail is the exception. In view of that observation Kalvakuntla Kavitha (Supra) has been provided regular bail and the case of the petitioner is on identical footing as such the regular bail may kindly be granted to the petitioner. He further relied in the case of Jalaluddin Khan Vs. Union of India reported in 2024 SCC Online SC 1945 relied on paragraph 18 which is quoted herein below:-
"18. Now, we come to Section 20 of UAPA, which reads thus:
"20. Punishment for being member of terrorist gang or organisation.- Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine."
Terrorist gang has been defined in Section 2(L), which reads thus:
"2 Definitions.- ................................................. (L) "terrorist gang" means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act;
..............................................................." There is not even an allegation in the charge sheet that the appellant was a member of any terrorist gang. As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule."
4 of 13 B.A. No. 8244 of 2023
7. Relying on the above judgment, learned counsel for the petitioner submits that in that case also it was considered that the bail is rule and jail is the exception which is settled law and even in the stringent conditions are there and if a case of bail is made out, the High Court is required to pass appropriate order of bail. Learned counsel appearing for the petitioner lastly relied in the case of Prem Prakash vs. Union of India (through the Directorate of Enforcement) reported in 2024 INSC page 637 and he refers to paragraphs 12, 13, 15, 27, 29, 32, 33, 37, 46 of the said judgment. Relying on the above judgment, learned counsel appearing for the petitioner submits that any statement under Section 50 of the Prevention of Money Laundering Act, 2002 to the same Investigating Agency is inadmissible against the maker and the other aspects have been considered in the case of Prem Prakash (supra) and in view of that the case of the petitioner is covered and the petitioner may kindly be enlarged on bail. In the last whim of his argument he submits that the Section 19 of Prevention of Money Laundering Act, 2002 has not been considered. And the grounds of arrest have not been disclosed to the petitioner as such on that ground the petitioner deserves regular bail. On these grounds, he submits that the regular bail may kindly be granted to the petitioner.
8. Per contra, Mr. A.K. Das, learned counsel for the Directorate of Enforcement draws the attention of the Court to the complaint particularly paragraph 3.6 and submits that it has come that there were ongoing litigations regarding the possession of the property between Army and purported claimant Jayant Carnard who had sold the land to 14 persons by way of 16 deeds on strength of the order obtained from the High Court of Jharkhand by concealing and manipulating facts. It has further revealed that Prem Prakash is very close to Mr. Chhavi Ranjan, the Ex-deputy Commissioner, Ranchi and Amit Kumar Agarwal, who was very influential person in Ranchi. In connivance with Prem Prakash and Amit Kumar Agarwal, Mr. Chhavi Ranjan influenced the officials of Circle Office and District Sub Registrar, Ranchi and managed to procure a favorable report from Pradeep Bagchi and the property was subsequently acquired in a dishonest manner by Jagatbandhu Tea Estate 5 of 13 B.A. No. 8244 of 2023 Private Limited and in making all these deeds this petitioner was the main culprits. This petitioner has created many fake deeds identifying the Government touch and the modus operandi is explained in paragraph no. 9.6.3 of the complaint. He further draws the attention of the Court about the role of the petitioner as disclosed in paragraph no. 11 at page 165 of the complaint that is in tabular form and the role of the petitioner has been disclosed. It has come that the property having commercial value of Rs. 41,51,68,390/- is situated at MS Plot No. 557, Mouja Morabadi Ranchi at measuring 4.55 acres as per the minimum effective value per decimal fix by District Registrar Ranchi effective from 01.08.2021 in addition to the above proceeds of crime amounting to Rs. 25 lakhs received from the Jagatbandhu Tea Estate Pvt. Ltd. on the directions of Afsar Ali, who is the petitioner. He gave Rs. 1 Crore to Accused Chhavi Ranjan for undue favours. He submits that from the house of the petitioner several forged documents have been recovered which has also found in the investigation and part of the complaint in page no. 80 is in the tabular form and there are 27 forged deeds which were prepared by the petitioner and the petitioner was the gang leader of creating such forged deeds and the modus operandi to manage through the office of the Registrar of Assurances at Kolkata and in the said documents photographs are also a part of the complaint case. He submits that there is a serious allegation against the petitioner of creating forged documents. And he has further been implicated in two cases being the ECIR Cases. On these grounds, he submits that the case of the petitioner is not coming within the facts of the cases relied by learned counsel for the petitioner in the case of Manish Sisodia, Kalvakuntla Kavitha, Jalaluddin Khan and Prem Prakash (Supra). He submits that those cases are distinguishable to the facts and circumstances of the present case. He further submits that a coordinate Bench of this Court has rejected the bail application of Chhavi Ranjan in B.A. No. 9247 of 2023, of Talha Khan in B.A. No. 10296 of 2023 and of Amit Agarwal in B.A. No. 7343 of 2023. On these grounds, he submits that the bail application may kindly be rejected. He further submits there are only 31 witnesses and there is every likelihood that the 6 of 13 B.A. No. 8244 of 2023 trial will be concluded very soon. In view of that a regular bail may kindly be rejected.
9. In view of the above submission of the learned counsel of the parties, the Court has gone through the material on records including the complaint filed by the Directorate of Enforcement. In paragraph 9.6.1 of the complaint it has come that though the consideration amount was declared to the tune of Rs. 7 crores only one payment amounting Rs. 25 lakhs made into the account of Pradip Bagchi and rest of the declared payment of Rs. 6.75 crores was sham. The amount of Rs. 25 lakhs was received by accused Pradip Bagchi in his State Bank of India account on 6.10.2021. The scrutiny of bank account of Pradip Bagchi has revealed that Rs. 25 lakhs received by him and Rs. 15 lakhs was transferred to Imtiaz Ahmad on 11.10.2021 in his HDFC bank account which was opened on 24.09.2021. Another payment amounting to Rs. 9.50 lakhs was paid by Pradip Bagchi to Imtiaz Ahmad on 28.10.2022. It has been further disclosed that Imtiaz Ahmad is a part of an organized racket habitually involved in making fake deeds of property falsification of original records available at Circle Offices and other Land Revenue Offices at Ranchi, Jharkhand and its suburbs. The properties which are acquired in such manner are then sold to different persons including some influential persons who even have full knowledge of the nature of property and the fraud committed to acquire them. The trial into the transfer of the above mentioned amount of Rs. 15 lakhs and Rs. 9.5 lakhs from the account of Pradip Bagchi to Imtiaz Ahmed led to the identification of other activities of the group namely Afshar Ali @ Afsu Khan, who is the petitioner and he said to be a government employee of RIMS. The details of said fake Kolkata deeds have disclosed in paragraph 9.6.2 in a tabular chart which is 35 in numbers. In paragraph 9.6.3 it has been disclosed that the registration of landed properties of Bihar (Jharkhand was part of Bihar) state were joined at Kolkata at the office of Registrar of Assurances. This continued till 1991 after which the registration of Bihar Properties, which included the present Jharkhand, became mandatory to the concerned/jurisdictional land registration offices. The accused persons thus, deliberately manufactured back dated 7 of 13 B.A. No. 8244 of 2023 deeds of the targeted landed properties, from Kolkata and planted it in original registers available at the records of Registrar of Assurances (Records), Kolkata. After planting such fake deeds, the accused persons used to obtain the certified copies of those deeds and then used to dispose them in connivance with each other. During course of searches, the mobile phone of Md. Saddam Hussain, accused no. 7 was recovered and seized. The analysis of the mobile phone led to the discovery of one image in which it was found that the accused persons are in possession of old original register of Registrar of Assurances Kolkata and they are trying to forge it. The same image is the part of the said paragraph. The forgery of acquiring the properties is said to be visible and further the said forged deed has also been recovered from the residence of Afshar Ali who is the petitioner. Further there are allegations of proceeds of crime of Rs. 41,51,68,390/- and only Rs. 25 lakhs is said to be transferred. Thus there is serious allegation against the petitioner and learned counsel for the Directorate of Enforcement has stated at Bar that very soon 31 witnesses will be examined.
10. So far as the judgment relied by the learned counsel for the petitioner in Manish Sisodiya (Supra) is concerned, this Court is in agreement that the jail is an exception and the bail is rule that is the consideration in these cases by the Hon'ble Supreme Court. In the facts and circumstances, this Court finds that in the case of Manish Sidsodia, in the earlier the Directorate of Enforcement had informed the Hon'ble Supreme Court that within the stipulated period the trial will be concluded however the trial was not concluded and Sidsodia was behind bar since 17 months and on these grounds Manish Sisodia was granted bail by Hon'ble Supreme Court. The facts of the present case are otherwise. In this case, there is no assurance to the Court by the Directorate of Enforcement that it will be concluded very soon. It has been informed at Bar by the learned counsel for the Directorate of Enforcement that very soon the trial will be concluded. Thus, if the trial is not concluded within the stipulated period or within a reasonable time, the case of Manish Sidsodia may help the petitioner. So far as the case of the Kalvakuntla Kavitha (supra) is concerned the consideration was of 8 of 13 B.A. No. 8244 of 2023 proviso of Section 45 of the Prevention of Money Laundering Act, 2002 which speaks that a person who is under the age of 16 years, or is a woman or is a sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees] may be released on bail if Special Court so directs. Admittedly, Kalvakuntla Kavitha (supra) is a lady and applying that proviso she had been enlarged on bail. Thus, that judgment is not helping the petitioner. So far as the judgment relied by learned counsel for the petitioner in the Jalaluddin Khan (supra) is concerned Hon'ble Supreme Court has granted bail considering that there is no allegation in the charge sheet of the Jalaluddin Khan that he was a member of any terrorist gang and the Hon'ble Supreme Court found that on plain reading of the charge sheet, it is not possible to record a conclusion that there was reasonable grounds for believing that the allegation against the Jalaluddin Khan of commission of offences punishable under the UAPA is prima facie true and he was in jail custody since two years and in that background the bail was granted. The case of the petitioner is in different footing and that the judgment is also not helping the petitioner. Further, in the case of Prem Prakash relied by the learned counsel appearing for the petitioner is concerned that is distinguishable in light of paragraph nos. 16, 35, 36, 42 and 43 of the said judgment, which are as under:-
"16. The contention of the prosecution is that (i) the appellant connived with accused persons, namely, Afshar Ali, Saddam Hussain and others who created a forged Sale Deed No. 184 of 1948, and on the strength of the sale deed the property was sold by Rajesh Rai (associate of Afshar Ali) to Punit Bhargava a close associate of the appellant;
(ii) that Rs. 25 lakhs were transferred to the bank account of Rajesh Rai and later Rs. 18 lakh (out of the 25 lakhs) was transferred to the bank account of M/s Green Traders, a firm controlled by Md. Saddam Hussain even though the sale consideration was Rs. 1,78,55,800/-; (iii) that the appellant is aware of the forgery committed by Afshar Ali & others and intentionally acquired the property in the name of Punit Bhargava, who later sold the property within 2 months to Bishnu Agarwal for Rs. 1.80 crore and out of the said amount, Rs. 1,01,57,400/- was transferred by Punit Bhargava to M/s Jamini Enterprises, a firm controlled and beneficially owned by the appellant; (iv) that the accused persons had full knowledge of the transaction, inasmuch as
9 of 13 B.A. No. 8244 of 2023 though the sale deed was executed in favor of Punit Bhargava through accused Rajesh Rai on 06.02.2021, payment was made on 12.02.2021 and that only 25 lakh was paid to Rajesh Rai and mutation was done and thereafter sold to Bishnu Agarwal and all payments were received by Punit Bhargava; (v) that no subsequent payments were to be made further, as according to the prosecution, all concerned knew that the deeds were fake, and (vi) that Bishnu Agarwal made the payment in the month of April and June 2021, but the registration was done on 1st April, 2021 and as such the registration was done before consideration.
35. The appellant was not named in FIR No. 399 of 2023. It appears from the complaint of the respondent-
Enforcement Directorate at para 6 that Afshar Ali, Saddam Hussain, Imtiaz Ahmad were arrested on 14.04.2023 in ECIR/RNZO/18/2022 though in the summary of the statements at para 8.12 it is mentioned that Afshar Ali was arrested on 14.04.2023 read with prayer (c) of the complaint it appears that the arrest that is referred to in para 8.12 is the arrest in ECIR/RNZO/18/2022.
36. Accused Afshar Ali was arrested on 14.04.2023 in ECIR/RNZO/18/2022 (a different ECIR) and his statement was recorded on 17.04.2023 in the present ECIR. Afshar Ali is supposed to have stated that since he came to know that the land was under vigilance by the Police and the land had certain disputes. He met with the appellant and the appellant was informed about the disputes and the vigilance of the Police. According to the statement of Afshar Ali, the appellant took stock of the status of the land and called the then Deputy Commissioner - Chhavi Ranjan and told him that the registry of the Cheshire Home property was to be done after removing the vigilance observed by the Police. Thereafter, the appellant fixed the consideration of Rs. 1.5 crores and after accepting the consideration as fixed, he requested the appellant to arrange for unblocking the two plots of land, which were blocked by the Deputy Commissioner Office. That the appellant demanded Rs. 1 crore for the above work and the amount was adjusted in the said consideration and that it was appellant who asked to do the registration in the name of Punit Bhargava. He also stated that it was the appellant who fixed the deal with Bishnu Kumar Agarwal.
42. We, prima facie, find that from the statements of the appellant and also from the other statements and other material relied upon by the investigating agency, there is nothing to indicate that the petitioner was involved in the creation of the forged deed nor had any knowledge of the forged sale deed of 1948. In the order enlarging Bishnu Kumar Agarwal on bail it was observed that-it was a plausible view to hold that Bishnu Kumar Agarwal was a 10 of 13 B.A. No. 8244 of 2023 bonafide purchaser of the property concerned in the present matter. It has also been held therein that no criminality could have been found against Bishnu Kumar Agarwal in the making of the sale consideration later and registration of the sale earlier. Support has been drawn from Section 54 of the Transfer of Property Act. The same order also makes a reference to para 10.6.6 of the complaint filed by the ED where it has been mentioned that the investigation of the Enforcement Directorate has revealed that complainant in FIR No. 399 of 2022, Umesh Kumar Gope was himself frivolously exerting his claim over the said property. Be that as it may, the order of bail granted to Bishnu Kumar Agarwal has attained finality.
43. Moreover, there is no material placed on record to show as to on what basis it is claimed that the beneficial interest in M/s Jamini Enterprises lies with the appellant. Hence, the statements relied upon do not prima facie make out a case of money laundering against the appellant."
11. In the paragraph no. 39 of the aforesaid judgment, the Hon'ble Supreme Court has found the statement of Afshar Ali (the petitioner) does not prima facie indicate anything about the role of Prem Pakash. Considering that aspect Prem Pakash was granted bail. In view of paragraphs 35 and 36 (supra) the case of the present petitioner is further distinguishable with the fact of Prem Prakash as such the case of Prem Prakash is further not helping the petitioner.
12. So far as the contentions of the learned counsel appearing for the petitioner with regard to section 19 of the Prevention of Money Laundering Act, 2002 is concerned the Court is not accepting the said argument as at the time of remand the petitioner has not complained that the ground of remand has not been served and this plea is being taken after 17 months. Initially it was not challenged by way of filing petition.
13. In the identical situation a coordinate Bench of this Court has rejected the bail application of the co-accused Farhan Khan in B.A. No. 10296 of 2023, Chhavi Ranjan in B.A. No. 9247 of 2023 and of Amit Kumar Agrawal in B.A. No. 7347 of 2023.
14. When a serious offence of such a magnitude mere fact that accused was in jail for long time inconsequential besides such casual approach would undermine trust of public in integrity of Investigating Agency. Further, bail is the rule and jail is an exception but competing forces need 11 of 13 B.A. No. 8244 of 2023 to be carefully measured before enlarging the accused on bail. Socio economic offences constituted a class apart and need to be visited with different approach in the matter of bail since socio economic offences have deep-rooted conspiracies affecting moral fibre of society and causing irreparable harm. Moreover, investigating agency was in process of expediting the trial. The reference may be made to the case of Christian Michel James Versus Directorate of Enforcement reported 2022 SCC Online Del 731 paragraphs 37 and 38 two of the Hon'ble Supreme Court judgment was considered by the Delhi high court which is as under:-
"37. In respect of the considerations relevant to the grant of bail, this Court deems it profitable to advert to the decision in Anil Kumar Yadav case, where it has been observed as follows:-
"17. While granting bail, the relevant considerations are : (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. No doubt, this list is not exhaustive. There are no hard-and-fast rules regarding grant or refusal of bail, each case has to be considered on its own merits. The matter always calls for judicious exercise of discretion by the Court."
38. Recently, the principles governing grant of bail were considered by the Supreme Court in P.Chidambaram v. Central of Investigation reported as. Relevant extract from the decision is reproduced hereunder:-
"21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:
(i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution;
ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;
(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence;
(iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused;
12 of 13 B.A. No. 8244 of 2023
(v) larger interest of the public or the State and similar other considerations.
22. There is no hard-and-fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that "flight risk"
of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straitjacket formula so as to deny bail to the one who is before the court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved."
15. So far as the bail of Dilip kumar Ghosh is concerned, he was allowed bail as he was the purchaser and protected under Section 54 of the Transfer of Property Act as such the allowing the bail of Dilip kumar Ghosh @ Dilip Ghosh is on different footing.
16. In view of the above there is no hard and fast rule regarding grant or refusal of bail, each case has to be considered on the facts and circumstances of each case and on its own merit. The discretion of court has to be exercised judiciously and not in an arbitrary manner.
17. In the facts and circumstances as well as the allegations so far as the petitioner is concerned, this Court is unable to accept the argument of the learned counsel appearing for the petitioner that bail is the rule and the jail is an exception. In view of the above facts reasons and analysis, this Court finds that no case of regular bail is made out as such the prayer for the regular bail of the petitioner is, hereby, rejected.
(Sanjay Kumar Dwivedi, J.) MM A.F.R. 13 of 13 B.A. No. 8244 of 2023