Gujarat High Court
Meenadevi W/O Rajkumar Harpatlal ... vs State Of Gujarat on 24 April, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/CR.MA/3515/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 3515 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
================================================================
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India,
1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? No
================================================================
MEENADEVI W/O RAJKUMAR HARPATLAL SHRIVASTVA ....Applicant
Versus
STATE OF GUJARAT .... Respondent
================================================================
Appearance:
MR SUDHANSU S PATEL, ADVOCATE for the Applicant
MR HARDIK SONI, ADDITINOAL PUBLIC PROSECUTOR for the Respondent
MR APURVA A DAVE, ADVOCATE for the Original Complainant
================================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 24/04/2014
ORAL JUDGMENT
1. The present is the fourth successive application preferred by the applicant under Section 439 of Page 1 of 20 R/CR.MA/3515/2014 JUDGMENT the Code of Criminal Procedure, 1973, for grant of bail in connection with FIR, being C.R.No.I 18/2009, registered with Vapi Udyognagar Police Station, Valsad, for offences punishable under Sections 406, 420, 465, 466, 467, 468, 471, 474, 484, 485, 120B, and 114 of the Indian Penal Code.
2. The first bail application, being Criminal Miscellaneous Application No.9454 of 2009, was rejected by this Court vide judgment dated 09.10.2009. The applicant filed a second successive bail application, being Criminal Miscellaneous Application No.14628 of 2009, which was rejected by judgment dated 04.02.2010. The applicant thereafter preferred Criminal Miscellaneous Application No.17913 of 2011, that also came to be rejected vide judgment dated 15.02.2013. The judgment dated 15.02.2013, passed in Criminal Miscellaneous Application No.17913 of 2009, was challenged by the applicant before the Supreme Court. However, by an order dated 26.07.2013, passed in Petition(s) for Special Leave to Appeal (Crl.) .... 2013, CRL.M.P. No(s).14880/2013, the Supreme Court Page 2 of 20 R/CR.MA/3515/2014 JUDGMENT condoned the delay but dismissed the Petition for Special Leave to Appeal with the following observations:
".... However, we grant liberty to the petitioner to file an appropriate application before the High Court for grant of bail after six months. If and when such an application is filed, the High Court would consider the same in accordance with law. We hope and trust that the High Court will consider the application most sympathetically."
Under the circumstances, the applicant has preferred the present application for grant of bail before this Court.
3. Mr.Sudhansu S.Patel, learned advocate for the applicant, has made elaborate submissions, the gist of which is as follows:
(I) The role attributed to the applicant is only to the extent that there is an allegation that the money from the sale proceeds of the property, was deposited in her Bank account, out of which certain properties have been purchased Page 3 of 20 R/CR.MA/3515/2014 JUDGMENT in her name.
(II) There is no allegation of forgery against the applicant, in the Chargesheet. Such allegations are only against accused Nos.1 to 5.
Accused No.5, Ajaykumar Sachidanand Mishra, who is one of the main accused, has been enlarged on bail by the Supreme Court vide order dated 29.04.2011, passed in Petition for Special Leave to Appeal (Crl.) No.1710 of 2011. Accused No.4, Jagdish Kantilal Vora, has also been released on bail by the Apex Court, vide order dated 09.08.2012, passed in Petition for Special Leave to Appeal (Crl.) No.3163 of 2012. This Court has released accused No.3 - Anupkumar Bipinchandra Bhatt, by an order dated 06.11.2009, passed in Criminal Miscellaneous Application No.9844 of 2009. Looking to the role attributed to the applicant and the fact that other coaccused persons have been released on bail, especially, accused No.5, the Bank Manager, who is purported to have played a very serious role in the entire incident, the applicant deserves to be released on bail on the ground of parity. This aspect was Page 4 of 20 R/CR.MA/3515/2014 JUDGMENT not brought to light before the Court in the earlier bail applications filed before this Court on behalf of the applicant, therefore, there was no occasion for the Court to look into the same.
(III) There are 90 witnesses to be examined in the Trial and only one has entered into the witnessbox, so far. There is every likelihood that the Trial will take a very long time before it is concluded.
(IV) In the case of Sanjay Chandra v. Central Bureau of Investigation - (2012)1 SCC 40 (popularly known as "2G Spectrum" case), the Supreme Court has held that in determining whether to grant bail or not, both the seriousness of the charge and the severity of the punishment should be taken into consideration. In the present case, the applicant has been in custody ever since 04.03.2009, and has served five years, one month and twenty days in jail as on today. Looking to the evidence on record, there is no material to Page 5 of 20 R/CR.MA/3515/2014 JUDGMENT connect the applicant with the alleged forgery. There is no allegation in the Chargesheet regarding forgery, against the applicant. This aspect has also not been highlighted before the Court in the earlier bail applications filed on behalf of the applicant, therefore, it has not received the consideration of the Court in the earlier orders.
(V) Learned advocate for the applicant has further relied upon judgment in the case of Sunil K.Sinha v. State of Bihar - AIR 1999 SC 1533, wherein the Supreme Court has held that where there is a long incarceration of the appellant and Trial is likely to consume time, bail ought to be granted.
(VI) Reliance has also been placed upon a judgment of the Supreme Court in Mehmood Mohammed Sayeed v. State of Maharashtra - AIR 2002 SC 482, wherein the appellant was released on bail as the investigation was complete and the Chargesheet was laid and it was not certain how long the Trial would take.
Page 6 of 20
R/CR.MA/3515/2014 JUDGMENT (VII) Learned advocate for the applicant
further relied upon Babanrao Tukaram Ranjane v. State of Maharashtra - AIR 2006 SC 3604, (popularly known as the "Telgi case") wherein, the Supreme Court directed the release on bail, of the accused who was in custody for more than two years and three months, as no Charge was framed against him till the hearing of the bail application.
(VIII) Reference has also been made to the case of Ibrahim Nazeer v. State of Tamil Nadu & Anr. AIR 2006 SC 3606 (popularly known as "counterfeit stamp" case) wherein the Supreme Court released the accused on bail as he was in jail for more than two years and nine months and the Trial was likely to take several years. (IX) Learned advocate for the applicant has further pressed into service, a judgment dated 28.03.2013, of the Supreme Court in the case of Sanghian Pandian Rajkumar v. Central Bureau of Investigation & Anr. Criminal Appeal No.698 of 2014 with Criminal Appeal No.699 of 2014, Page 7 of 20 R/CR.MA/3515/2014 JUDGMENT which is a case of the Police officers accused in the Tulsiram Prajapati fake encounter case. Learned advocate for the applicant has relied on Paragraph22 of the said judgment, wherein the Supreme Court has recorded that it was inclined to consider the claim of the accused for bail, as many of the coaccused were granted bail by the Trial Court/ High Court and the Supreme Court and the appellants therein were in custody for nearly seven years pending Trial and it would not be possible for the Special Court to conclude the Trial within a reasonable period of time.
(X) Learned advocate for the applicant submits that the applicant is a semiliterate lady and has no understanding of business affairs. Her name has been used by accused No.1, her husband, to open the Bank accounts and to purchase properties, whereas she is not involved in the acts that have allegedly led to the conspiracy and the crime. It is submitted that in view of the above submissions, the application be released on bail.
Page 8 of 20
R/CR.MA/3515/2014 JUDGMENT
4. Mr.Hardik Soni, learned Additional Public Prosecutor, has opposed the grant of bail to the applicant by submitting that this is the fourth successive application and there are no new circumstances to warrant the grant of bail to the applicant, therefore, the application may be rejected.
5. Mr.Apurva A.Dave, learned advocate, who has appeared for the complainant, with the permission of the Court, has opposed the grant of bail to the applicant on the ground that the present is a fourth successive bail application and there are no changed circumstances warranting the grant of bail. That, in the earlier three orders passed by this Court, reasons have been given for rejecting the bail application which still stand, therefore, the Court may not consider the grant of bail to the applicant. That, as noted by this Court in the order dated 09.10.2009, passed in Criminal Miscellaneous Application No.9454 of 2009, the fact that the applicant is a lady who has been married for 30 years and has six children, would Page 9 of 20 R/CR.MA/3515/2014 JUDGMENT not mitigate the gravity of the offences, therefore, the application may be rejected.
6. At this stage, it would be appropriate to briefly trace the factual background of the case of the prosecution. Five accused persons are allegedly involved in the commission of the offences. The applicant, who is accused No.2, is the wife of accused No.1. It is the case of the prosecution that the applicant and other co accused persons are involved in hatching a conspiracy and executing the same, as a result of which the complainant was induced to part with a huge sum of money in cash, by Cheques and Demand Drafts. A substantial part of this money ultimately came to be deposited in the Bank account of accused No.1, who transferred it to the Bank account of the applicant. The applicant has allegedly operated the said Bank account and has purchased several movable and immovable properties, entailing large sums of money, in her name. It is further the case of the prosecution that accused No.1, husband of the applicant, in collusion with accused No.5, Page 10 of 20 R/CR.MA/3515/2014 JUDGMENT Ajaykumar Sachidanand Mishra, who was the General Manager of Dena Bank, Vapi Branch, at the relevant period of time, hatched a conspiracy, assuring the complainant and two others that Dena Bank had a charge over certain properties which are to be auctioned by an order of the High Court of Gujarat. Investigation revealed that the said order of the High Court was a forged and fabricated one and the signatures of the Hon'ble Judge, who is purported to have passed the order, as well as that of the Assistant Registrar, were also forged. On the basis of the said order, the complainant and two others were assured by the accused persons that they would be given charge of the property, after making the payment of money. The complainant, therefore, parted with an amount of Rs.8,73,40,000/ in cash, Demand Drafts and Cheques, which amount was deposited in the account of accused No.1, in the name of R.K.Engineering, at Dena Bank, Vapi. From this account, huge sums of money were transferred to the account of the applicant and purchases of Page 11 of 20 R/CR.MA/3515/2014 JUDGMENT properties made.
7. The main accused persons are accused No.1, husband of the applicant, and accused No.5, the Bank Manager. The Chargesheet reveals that the role attributed to the applicant is that she has purchased properties in her name out of the funds transferred to her Bank account by accused No.1. Accused No.5, Bank Manager, has been released on bail by the Apex Court vide order dated 29.04.2011, passed in Petition for Special Leave to Appeal (Crl.) No.1710 of 2011. This aspect was not highlighted before this Court by learned counsel for the applicant in the previous applications filed on her behalf.
8. Though this is the fourth successive bail application, it may be kept in mind that the applicant has been in jail for over five years already. One of the main coaccused as well as two other coaccused (three in all) have been released on bail, either by the Supreme Court or this Court.
9. In Sanjay Chandra v. Central Bureau of Page 12 of 20 R/CR.MA/3515/2014 JUDGMENT Investigation (supra), the Supreme Court has held as below:
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 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 tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of 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. The grant or refusal to grant bail lies within the discretion of the Court. 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 Page 13 of 20 R/CR.MA/3515/2014 JUDGMENT 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, 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.
41. This Court in Gurcharan Singh and Ors. v. State (Delhi Admn.) (1978)1 SCC 118: 1978 SCC (Cri) 41, observed that two paramount considerations, while considering petition for grant of bail in nonbailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair Trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
... ... ...
43. There are seventeen accused persons. Statement of the witnesses run to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice Page 14 of 20 R/CR.MA/3515/2014 JUDGMENT that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the chargesheet.
44. This Court, in the case of State of Kerala v. Raneef (2011) 1 SCC 784 : (2011)1 SCC (Cri) 409, has stated: (SCC p.789, para 15) "15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dickens' novel A Tale of Two Cities, who forgot his profession and even his name in the Page 15 of 20 R/CR.MA/3515/2014 JUDGMENT Bastille."
45. In Bihar Fodder Scam (Laloo Prasad case) - (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 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.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the chargesheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
(emphasis supplied)
10. In the abovequoted judgment, the accused were in jail for economic offences of a huge magnitude which ran into about one lakh crore Page 16 of 20 R/CR.MA/3515/2014 JUDGMENT rupees. The Supreme Court has balanced the gravity of the offences with the requirements of Article 21 of the Constitution of India, considering the length of incarceration and the period of time that the Trial may take before completion. Comparing the gravity of the offences of the present case with the above quoted case, the offences alleged to have been committed by the applicant are of a much lesser gravity.
11. It is not disputed that the investigation is over and all the necessary documents are in the possession of the prosecution agency. Learned Additional Public Prosecutor has not expressed any apprehension that if released, the applicant would pressurize witnesses or tamper with evidence. Though a submission to this effect has been made by learned advocate for the complainant, no reason for substantiating the same has been shown, except that the applicant has written several letters from jail to various authorities, which can hardly be taken to mean that the applicant would threaten witnesses, if Page 17 of 20 R/CR.MA/3515/2014 JUDGMENT released on bail.
12. Having heard learned counsel for the respective parties and upon consideration of the submissions advanced at the Bar, the judgments cited by the rival parties and the material on record, this Court is of the considered view that the role attributed to the applicant in the forgery is not as serious as the role attributed to the coaccused, accused No.5, who has already been released on bail by the Apex Court. Considering the above aspect and the fact that the applicant has been in jail for five years, one month and twenty days, and there is every likelihood that the Trial will take a long time before completion, the prayer made by the applicant can be considered favourably for exercise of discretion.
13. Accordingly, the application is allowed. The applicant is ordered to be released on bail, in connection with FIR, being C.R.No.I18/2009, registered with Vapi Udyognagar Police Station, Valsad, on her executing a personal bond of Page 18 of 20 R/CR.MA/3515/2014 JUDGMENT Rs.50,000/ (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the Trial Court, subject to the conditions that she shall:
(a) not take undue advantage of her liberty or abuse her liberty in any manner;
(b) not act in a manner injurious to the interest of the prosecution and not tamper with the evidence or intimidate the witnesses;
(c) maintain law and order and cooperate the investigating officers;
(d) not leave the local limits of the State of Gujarat without the prior permission of the concerned Trial Court;
(e) remain present on every date of hearing before the Trial Court (unless exempted by that Court);
(f) not change her residence without the prior permission of the Trial Court;
(g) surrender her Passport, if any, to the
Page 19 of 20
R/CR.MA/3515/2014 JUDGMENT
Trial Court within one week;
14. In case breach of any of the above conditions is committed, the Trial Court shall be free to issue warrants or take appropriate action in the matter.
15. Bail before the Trial Court having jurisdiction to try the case. It would be open to the Trial Court to give time to furnish the solvency certificate, if prayed for.
16. It is made clear that no observation made by this Court shall be construed as having any bearing on the merits of the case, at the time of Trial. The Trial Court shall proceed in accordance with law, unaffected and uninfluenced by any observation contained in this order.
17. Rule is made absolute. Direct Service is permitted.
(SMT. ABHILASHA KUMARI, J.) sunil Page 20 of 20