Madhya Pradesh High Court
Manjri Choudhary vs Union Of India Through Central Bureau Of ... on 16 August, 2018
1
HIGH COURT MADHYA PRADESH ; INDORE BENCH
M.Cr.C. No.31520/2018
(Manjri Choudhary Vs. Union of India)
Indore dated :16.08.2018
Ms. Isha Goyal, learned counsel with Shri Sudhanshu Vyas,
learned counsel for the petitioner.
Shri Deepak Rawal, learned counsel for then
respondent/CBI.
Heard.
This is first bail application under Section 439 of Cr.P.C. For grant of bail. Applicant Manjri Choudhary was implicated in connection with Crime No.RC BDI/2014/E/0008 registered by CBI, BS & FC, New Delhi, through CBI, Indore for an offence punishable under Sections 420, 467, 468, 471 and 120-B of IPC.
2. The alleged FIR was registered against the applicant and other co-accused persons on 12/11/2014. The applicant had duly appeared and joined the investigation and co-operated with the respondent. She was never taken in custody. After investigation, on 29/05/2015, charge-sheet was filed. At the time of filing of charge-sheet she was not present before the Competent Court and, therefore, the learned trial Court issued Non-bailable warrant against her. Immediately after coming to know about the issuance of Non-bailable warrant she filed applications for grant of anticipatory bail which were dismissed from time to time on 11/08/2017 and 16/01/2018 respectively. Meanwhile, proceedings under Section 82 of the Code of Criminal Procedure, 1973 was initiated against her. In the aforesaid proceeding, she has been declared as Proclaimed Offender. She challenged the said order in W.P.(Cri) No.109/2018 before the Hon'ble Supreme Court on 2 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) 14/05/2018. The aforesaid writ petition was permitted to be withdrawn by order dated 14/05/2018 which reads as under :-
14.05.2018 Mr. Mukul Rohatgi, learned Senior Counsel appearing for the petitioner,submits that the petitioner be permitted to withdraw this writ petition as the petitioner would like to move fresh application for anticipatory bail in view of the subsequent event, viz., vide order dated 25.04.2018, the husband of the petitioner has been granted regular bail.
The writ petition stands dismissed as not pressed.
3. In view of the liberty granted on 14/05/2018, the applicant filed an application before this Court which was disposed of on 12/07/2018, passed in M.Cr.C. No.19593/2018. Para 4 to 10 of order dated 12/07/2018 reads as under :-
4. Learned counsel for the applicant has submitted that the application for grant of bail of her husband was allowed by order dated 25/04/2018 and after grant of interim bail, she filed an application before the learned trial Court to recall or close the proclamation proceedings and also gave her appearance before the learned trial Court. The learned trial Court marked her appearance on 22/06/2018 and 3/07/2018, but the application for recalling has not been decided as respondent/CBI took time to file reply.
5. The factum of presence of applicant before the learned trial Court on 22/06/2018 and 3/07/2018 is not disputed by Shri Rawal, learned counsel for the respondent. He has submitted that once the order has been passed in proceedings under Section 82 of the Cr.P.C. 1973, the present 3 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) application is not maintainable and prays for dismissal of the application.
6. Per Contra, learned counsel for the applicant has drawn my attention to the law laid down by the Apex Court in para - 32 in the case of Vimalben Ajitbhai Patel v. Vatslabeen Ashokbhai patel & Others decided in Case No.Appeal (Civil) 2003 of 2008 decided on 14/03/2008 and submitted that after order dated 17/01/2018 she marked her presence before the learned trial Court and, therefore, the present application is maintainable. Para 32 of the judgment reads as under :-
32. The provisions contained in Section 82 of the Code of Criminal Procedure were put on the statute book for certain purpose. It was enacted to secure the presence of the accused.
Once the said purpose is achieved, the attachment shall be withdrawn. Even the property which was attached, should be restored. The provisions of the Code of Criminal Procedure do not warrant sale of the property despite the fact that the absconding accused had surrendered and obtained bail. Once he surrenders before the Court and the Standing Warrants cancelled, he is no longer an absconder. The purpose of attaching the property comes to an end. It is to be released subject to the provisions of the Code. Securing the attendance of an absconding accused, is a matter between the State and the accused. Complainant should not ordinarily derive any benefit therefrom. If the property is to be sold, it vests with the State subject to any order passed under Section 85 of the Code. It cannot be a subject matter of execution of a decree, far less for executing the decree of a third party, who had no right, title or interest thereon.
7. It is further submitted by the learned counsel for the applicant that once she(applicant) appeared before the Court and filed an application for recalling of order, she is 4 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) no longer an absconder. The purpose of attaching property comes to an end and prays that her application be allowed and interim protection granted to her on 17/05/2018 be continued.
8. On merits, learned counsel for the applicant has submitted that co-accused Vijay Madanlal Choudhary and Sharad Kabra are the main accused. The present petitioner is a sleeping director of the company and there is no prima facie complaint against her and as both the aforesaid co-accused persons have been enlarged on bail, she prays that this application be allowed and as interim protection was granted to her on 17/05/2018 the same shall be continued for a period of 30 days. She also placed reliance on order dated 11/07/2018 passed by the Apex Court in the W.P. (S) (Criminal) No(s)157/2018 in the case of Shrestha Yadav v. Central Bureau of Investigation which reads as under :-
We are not inclined to entertain this petition on merits, in exercising the jurisdiction under Article 32 of the Constitution of India. The petitioner should approach the Trial Court in the first instance. At the same time, having regard to the facts and circumstances, we pass the following directions :
The petitioner has been issued summons with a direction to appear before the Trial Court tomorrow i.e. on 12.07.2018. having regard to the fact that the petitioner has filed this writ petition, we agree with the request of the learned senior counsel for the petitioner and give him liberty to appear before the Trial Court on or before 19.07.2018.
2. The petitioner shall be at liberty to file bail application. Such application shall be considered by the trial Court forthwith. Even if the application is rejected, the petitioner shall not be arrested for a period of 30 days in order to enable him to approach the High Court/higher forum.
The writ petition is, accordingly, disposed of.
5HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) Pending application(s), if any, stands disposed of.
9. The law on the subject is well settled. I am not inclined to entertain this application on merit. The application is liable to be dismissed. At this stage, learned counsel for the applicant has drawn my attention to aforesaid order dated 11/07/2018 passed in W.P.(s) (Criminal) No(s).157/2018 in the case of Shrestha Vs. Central Bureau of Investigation and submitted that a liberty be granted to the applicant to appear before the learned trial Court and file an application for grant of regular bail and if her application for grant of bail is rejected, she shall not be arrested for a period of 30 days in order to unable her to approach the higher forum/High Court.
10. Considering the fact that the applicant is a women and, therefore, I grant liberty to the applicant to file bail application and mark her presence before the learned trial Court. In case, if such an application is filed, the same shall be considered by the learned trial Court forthwith. If her application is rejected, then the applicant shall not be arrested for a period of 30 days in order to unable her to approach the higher forum/High Court.
4. On the day, bail application for grant of bail was moved, applicant was in custody as she was on bail for 30 days and, therefore, her application was dismissed on merit by the trial Court on 16/07/2018. At the time of filing of application, she was present and in her presence order dated 16/07/2018 was passed.
5. According to the applicant, she duly entered into appearance before the learned Magistrate on several occasions. The learned Magistrate has also marked her 6 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) presence on record, but her application for recalling the proclamation order/proceeding has not been decided. She is a woman who has primarily been a housewife and mother of two unmarried daughters. It was her husband co-accused - Vijay Madanlal Choudhary and others who were responsible of the conduct. The gravamen of allegations forming the basis of prosecution focus around the alleged availing of credit facilities by a Company M/s Zoom Developers Pvt. Ltd. From Union Bank of India and the account turning NPA. She has no connection with the said Company as she is neither a Director nor a shareholder thereof. The property in question located at Indore was equitably mortgaged with the Bank for the purpose of extending credit facilities to M/s Zoom Developers Pvt. Ltd. Apart from creation of an equitable mortgage, there was a Consent Letter signed by the lessees in possession of the said property to mortgage and allegedly, the said Consent Letter was later on found to be forged. The applicant has absolutely no role with the forgery.
6. On identical allegations, one of the Consortium Bank viz. Union Bank of India, Mumbai lodged an FIR with the CBI bearing RC No.BDI/2013/E/0001 for offences under Sections 120-B read with Section 420 of IPC in Mumbai, wherein, applicant was not arraigned as an accused. In the said case, charge-sheet was filed at Mumbai, wherein, all the accused including the present applicant's husband have been 7 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) admitted to bail.
8. On and after 15/12/2014, applicant and other co- accused persons were associated with investigations by CBI. Even applicant's handwriting samples were taken for comparison with the allegedly forged signatures appearing on the Consent Letter dated 1/04/2005. The applicant's signatures did not match with the allegedly forged signatures of the complainant etc.
9. Both the co-accused (Vijay Madanlal Choudhary and Sharad Kabra) have been directed to be released on bail by Hon'ble Supreme Court vide it's respective orders dated 17/08/2017 and 25/04/2018 in SLP (Criminal) No.2352/2017 and SLP(Criminal) No.954/2018.
10. The learned trial Court rejected the application only on the ground that the offence is serious in nature.
11. As per charge-sheet, there is no allegation against the present applicant and there is no prima facie material against her and prays for grant of bail.
12. Shri Rawal, learned counsel for the non-applicant/CBI has drawn my attention to the decision of the Apex Court in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra 1996(1) SCC 667 and K.L. Verma V. State reported in 1998 (9) SCC 348 and submitted that necessary compliance of Section 437/439 is must.
13. In reply, learned counsel for the applicant has submitted 8 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) that in view of the order passed by the Court, in M.Cr.C. No.19593/2018, the applicant was present before the learned trial Court and considering the aforesaid, the learned trial Court decided the application on merit. The Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors. reported in (2011) 1 SC 694 has held that life of the order under Section 438 of the Code of Criminal Procedure granting bail cannot be curtailed and held following in Para - 123 and 124 which reads as under :-
"123. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia case, it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 CrPC would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia case clearly observed that it is not necessary to rewrite Section 438 CrPC. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 CrPC granting bail cannot be curtailed.
124. The ratio of the judgment of the Constitution Bench in Sibbia case perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh 9 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) v. State of Maharashtra, K.L. Verma v. State, Adri Dharan Das v. State of W.B. and Sunita Devi v. State of Bihar.
14. It is also pointed out that now the matter has been referred to larger Bench in the case of Sushila Aggarwal & Ors. v. State(Nct of Delhi) & Anr. 2018(5) Supreme 312.
15. On merit, Shri Rawal has drawn my attention to Para - 2 of the reply/objection filed on 16/08/2018 and submitted that the present applicant handed over the title deed, copy of Consent letter dated 2/04/2005 to the occupiers of the property in question to the Bank to create the mortgage and prays for rejection of the application.
16. At present, the property in question is in possession of its owner. The applicant has no role with the forgery. Her signatures did not match with the forged signatures of the complainant etc. The main accused persons, namely Vijay Madanlal Choudhary and Sharad Kabra have been released on bail.
17. Considering the aforesaid facts and circumstances, I am inclined to allow this bail application, without expressing any opinion on merits of the case, I allow this bail application and it is directed that Applicant - Manjri Choudhary be released on bail upon her furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with two local sureties in the like amount to the satisfaction of the 10 HIGH COURT MADHYA PRADESH ; INDORE BENCH M.Cr.C. No.31520/2018 (Manjri Choudhary Vs. Union of India) concerned JMFC/CJM for her appearance before him or trial Court, as the case may be on each and every date of hearing fixed in this behalf by the Court concerned during trial and, if during trial she found absent without any sufficient cause by the trial Court then the bail order passed by this Court shall automatically come to an end. This order will remain operative subject to the compliance of the following conditions :-
1. The applicant will comply with all the terms and conditions of the bond executed by her;
2. The applicant will co-operate in the trial/investigation, as the case may be;
3. The applicant will not indulge herself in extending inducement, threat to the prosecution witnesses or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to the Police Officer, as the case may be;
4. The applicant shall not commit an offence similar to the offence of which she is accused;
5. The applicant will not seek unnecessary adjournments during the trial;
18. A copy of this order be sent to the Court concerned for compliance.
19. Certified copy as per rules.
(P.K. Jaiswal) Judge pn Preetha Nair 2018.08.17 11:31:25 +05'30'