Gujarat High Court
Hiteshkumar Vallabhdas Shah Power Of ... vs State Of Gujarat on 3 November, 2020
Equivalent citations: AIRONLINE 2020 GUJ 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/9197/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9197 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITESHKUMAR VALLABHDAS SHAH POWER OF ATTORNEY OF PANKAJ
INDRAVADAN SHETH
Versus
STATE OF GUJARAT
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Appearance:
MR SUDHIR NANAVARY, SENIOR ADVOCATE WITH MR VAIBHAV B
SHUKLA(5563) for the Applicant(s) No. 1
MS CHANDANI C KAPADIA (10544) for the Applicant(s) No. 1
MR HIMANSHU C DESAI(6832) for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP(2) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 3/11/2020
ORAL JUDGMENT
1. Rule. Learned APP and Mr. Himanshu C.Desai, learned advocate waive service of notice of rule on behalf of respective parties. The learned advocates on both the sides were heard at length on different dates and the matter was listed "for pronouncement of judgment" today.
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2. This application has been preferred under Section 439(2) of the Cr.P.C. for quashing and setting aside the order dated 12.06.2020 passed by the 14 th Sessions Judge, Vadodara in Criminal Misc. Application No.976/2020, whereby the learned 14th Sessions Judge, Vadodara has granted regular bail to the respondent no.2 in connection with FIR being C.R. No.-I- 146/2019 dated 16.10.2019. The applicant has further sought to commit the respondent no.2 to custody.
3. The complaint has been filed by Hiteshkumar Vallabhdas Shah, the Power of Attorney Holder of Pankaj Indravadan Sheth, before the Gotri Police Station, Vadodara on 16.10.2019. The present applicant, as a Power of Attorney Holder of Pankaj Indravadan Sheth, stated that the accused named in the FIR in connivance with each other, has induced Pankaj Indravadan Sheth to buy a property namely 'Abhilasha Complex' situated at Jetalpur, Vadodara.
3.1 It has been stated in the application that the present respondent no.2 in connivance with the co-accused Balvindersingh Sandhu has created forged and fabricated documents in the name of 'Abhilasha Constructions', pretended as if it is the original Abhilasha Constructions Firm with the ownership right over the 'Abhilasha Complex', executed the same with Pankaj Indravadan Sheth and thereby both of them had cheated and defrauded him to the tune of Rs.8,91,57,249/-. Therefore, the FIR came to be lodged.
3.2 The present respondent no.2 has been arrested on 24.05.2020 and thereafter by filing Criminal Misc. Application Page 2 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT 976 of 2020, sought regular bail before charge-sheet. It is stated by the present applicant that he had filed affidavit before the Sessions Court and the I.O. had presented an affidavit, opposing the bail application. The bail application was allowed and thus being aggrieved and dissatisfied the applicant has preferred the present application for cancellation of bail.
4. Mr. Sudhir Nanavaty, learned senior advocate with Mr. Vaibhav B.Shukla, learned advocate for the applicant relying on the grounds raised in the application memo submitted that, the order of the Sessions Judge is without appreciation of relevant material evidence. It was under the wrong impression of the accused, presuming the present respondent no.2 as some other accused and thereby the Sessions Judge has committed grave error in enlarging the respondent no.2 in regular bail. Mr. Nanavaty, learned senior advocate, stated that respondent no.2 himself has admitted in the Bail Application that he is partner in 'Abhilasha Constructions' with co-accused Balvinder Singh Sandhu, and the Sessions Judge has committed an error by presuming the present respondent no.2 as accused no.8 of the FIR, who is named as one short and fat person projecting himself as Vihang Bipinchandra Trivedi. Mr. Nanavaty, thus stated that it becomes apparently clear that respondent no.2 is a partner of 'Abhilasha construction' as well as he was the person who presented himself as Rajubhai. Mr. Nanavaty stated that without entering into the entire version of the FIR, considering the modus operandi of the accused persons, more particularly, the role of the present respondent no.2 of usurping the amount of Rs.8,91,57,249/-, the bail ought not to have been granted by the Sessions Judge.
Page 3 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020R/CR.MA/9197/2020 JUDGMENT 4.1 Mr. Sudhir Nanavaty, learned senior advocate,
contended that respondent no.2 is specifically named in the FIR as accused no.6 - Vihang Bipinbhai Trivedi @ Rajubhai; accused no.8 in the FIR is one fat and short person, who was called as Vihang as stated, clearly shows that both the accused persons are different and both have played specific role in the crime. Therefore, in consideration to the role played by both the accused, Mr. Nanavaty, submitted that the Sessions Court has clearly committed grave error of mixing-up accused no.6 as accused no.8 in para-7 of the order. Mr. Nanavaty further argued that the said Rajubhai is Vihang Bipinchandra Trivedi, who projected himself as property broker, although he is a partner in the 'Abhilasha Construction', as admitted by him in his Bail Application and on bare perusal of the FIR, it can be concluded that accused no.6 Rajubhai @ Vihang Bipinchandra Trivedi has played active role in commission of the crime; however learned Sessions Judge has wrongly termed respondent no.2 as accused no.8 i.e. one short and fat man, who pretended to be Vihang Trivedi and thereby has committed grave error by mixing-up the identity of both the accused.
4.2 Mr. Nanavaty, learned senior advocate, referring to the order of the Sessions Judge, submitted that the learned Judge has come to the conclusion of there being prima facie case against the applicant accused, in spite of that fact, granted him regular bail. He submitted that the learned Judge has committed grave error by granting bail on the ground of parity, when the respondent no.2 has projected himself as a partner. Mr. Nanavaty submitted that his case should have been equated Page 4 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT with that of Balvindersingh Bhagelsingh Sandhu, thus learned Judge ought to have considered the order passed by co-ordinate Bench of this Court on 19.02.2020 in Criminal Misc. Application No.2689 of 2020 and ought to have rejected the bail application of the respondent no.2. He further submitted that as per the FIR, accused no.1 is Managing Director of Mahalaxmi Mercantile Co- operative Bank; accused no.2 is an advocate; both have been granted anticipatory bail. Accused no.3 has been released on regular bail and son of accused no.3 is protected under the Quashing Petition. Mr. Nanavaty, learned senior advocate, submitted that Balvindersingh Sandhu and the respondent no.2 are partners in 'Abhilasha Construction Firm' and Balvindersingh Sandhu is on temporary bail vide order dated 19.02.2020 and the conditions made applicable while releasing him on temporary bail, ought to have been considered by the Sessions Judge.
4.3 Contending that the Sessions Judge has committed grave error in not considering the affidavit along with documents produced by the present petitioner on record, Mr. Nanavaty submitted that the Sessions Judge has failed to appreciate the fact that various false and fabricated documents were executed before the sub-registrar, Vadodara and the accused had induced Pankaj Indravadan Sheth to pay the money. He submitted that the Sessions Judge has failed to apprehend the exact role of present respondent no.2 and also failed to appreciate the relevant facts and material evidence on record and therefore bail granted to him is required to be cancelled.
4.4 Mr. Nanavaty, learned senior counsel, relied on the
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R/CR.MA/9197/2020 JUDGMENT
following authorities:
(i) Narendra Amin Vs. State of Gujarat, reported in 2008 (13)
SCC 515;
(ii) Abdul Basit Alias Raju And Ors. Vs. Mohd. Abdul Kadir
Chaudhary And Another, reported in (2014) 10 Supreme Court Cases 754;
(iii) Anil Kumar Yadav Vs. State of NCT Delhi, reported in 2018 (12) SCC 129.
5. Mr. Himanshu C.Desai, learned advocate for respondent no.2, contended that respondent no.2 has been granted regular bail by the learned Sessions Judge by equating parity with accused no.3 - Krishna Gendalal Somani. He submitted that Balvindersingh Sandhu was on temporary bail, therefore, his case was not considered by the Sessions Judge. Mr. Desai submitted that the respondent no.2 has no role in the conspiracy. Referring to the sequence of events in the FIR, Mr. Desai stated that, on 31.12.2018 all the transactions ended with Pankaj Sheth which were through documents executed between the parties. Thereafter, the amount given was as loan. He submitted that the FIR has been filed by power of attorney holder, who has no locus standi, very conveniently the power of attorney holder has chosen not to reply the contentions of the bail application. Mr. Desai contended that there were debit note and income tax returns, money deposited in the Bank were released and used.
5.1 Mr. Himanshu Desai, learned advocate for the respondent no.2, referring to the affidavit-in-reply of respondent no.2, submitted that the Power of Attorney Holder, as Page 6 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT complainant, has never seen anything personally and the entire FIR is hearsay. The complainant has named Vihang, and fat short man as two different persons; however, learned advocate Mr. Desai stated that both are the same person, the very fact becomes clear as police has not raised any objection. He submitted that in the arrest memo, respondent no.2 was named as Raju @ Vihang Trivedi, as the respondent is known by both the names. Referring to the series of transactions, Mr. Desai submitted that, all the documents were executed under legal advice. The additional M.O.U., notarized on 19.11.2018, is amongst Vihang Trivedi, Balvindersingh Sandhu and Pankaj Indravadan Sheth through power of attorney Prafulkumar B. Shah.
5.2 Mr. Desai, learned advocate, submitted that the Sessions Judge has considered the facts of the case and has recorded the submissions made. The learned Judge has specified the identity of the applicant who was before the Court for bail. He submitted that the order, granting bail, reflects proper application of mind. All the relevant documents, material and circumstances have been considered by the learned Judge and thereafter on the principle of parity granted regular bail to respondent no.2. Mr. Desai submitted that there are no circumstances to cancel the bail already granted. The nature and gravity of the offence, alleged to have been committed, have been considered. The cogent materials were placed before the Sessions Judge, considering the peculiar factual scenario, the bail has been granted. Mr. Desai, learned advocate, further submitted that no ground has been made by the applicant for cancellation of the bail, further police has not prayed for any cancellation of Page 7 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT the bail granted to the respondent no.2. There is neither any interference with the course of investigation nor any allegations made of tampering with evidence or tampering with witnesses. Mr. Desai, submitted that cancellation of bail is a harsh order, as it interferes with the liberty of individual, hence, submitted that it should not be lightly resorted.
5.3 In support of his submissions, Mr. Desai relied on the following decisions:
(i) Dolat Ram Vs. State of Haryana, reported in 1995 (1) SCC 349;
(ii) Hazari Lal Das Vs. State of West Bengal & Anr., reported in (2009) 10 SCC 652;
(iii) Bharirath Singh S/o. Mahipat Singh Judeja Vs. State of Gujarat, reported in (1984) 1 SCC 284;
(iv) Padamkar Tukaram Bhavnagare Vs. The State of Maharashtra And Anr., reported in (2012) 13 SCC 720;
(v) Savitri Agarwal Vs. State of Maarashtra, reported in 2009 Latest Caselaw 569 SC;
(vi) Nityanand Rai Vs. State of Bihar, reported in 2005 (4) SCC 178;
(vii) Myakala Dharmarajam & Ors. Etc. Vs. The State of Telangana & Anr., rendered by the Hon'ble Supreme Court in Criminal Appeal No.1974-1975 of 2019.
5.4. Heard learned advocates for both the sides and perused the material produced on record. After considering the case against the applicant - accused, present respondent no.2, the Sessions Judge came to the conclusion that there is a prima facie evidence of his role in the involvement of offence. Taking Page 8 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT the facts of the commission of offence by the respondent no.2, keeping in mind the anticipatory bail granted to accused nos.1 and 2 by this Court in Criminal Misc. Application No.21574 of 2019 and Criminal Misc. Application No.23739 of 2019 and the fact of accused no.3 granted regular bail in Criminal Misc. Application No.23395 of 2020, the role played by the respondent no.2, on the ground of equality i.e. on principle of parity, the Sessions Judge came to the conclusion that the applicant- accused, present respondent no.2, was entitled for bail. The Sessions Judge has also taken into account the contract dated 28.08.2018 with accused no.5, who is referred as prime accused, with the observation of the applicant accused 50% share in the firm 'Abhilash Construction', been sold at two and half crore to the victim, has stated that out of the same, 39 Lakhs has been accepted. Noting that the property was under mortgage in Bank, having observed that its Director and accused no.3 been released on bail, considering the role, the respondent no.2 was enlarged on bail on parity.
5.5 It appears that Sessions Judge has equated the role of the present respondent no.2 with that of accused no.3 - Krishna Gendalal Somani, has also considered the fact of the agreement by accused no.5 dated 28.08.2018, which is the Memorandum of Understanding (MOU) between M/s. Ridhhi Investment and Properties Pvt. Ltd. through its authorized Directors Rameshchadera Parwal, Balvindersingh Sandhu, accused no.2 as the authorized partner of M/s. 'Abhilasha Construction and the Pankaj Indravadan Sheth. The Sessions Judge has specified in the order at paragraph-9 to have equated case of respondent no.2 with co-accused and has given his Page 9 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT reasons for invoking the principle of parity.
5.6. It appears from the FIR, that on the instruction of Krishna Gendalal Somani - accused no.3, Pankaj Indravadan Sheth had given the Power of Attorney to the complainant. The deal started with Krishna Somani and Balvindersingh Sandhu in meeting with Pankaj Indravadan Sheth in the month of August, 2018, ended with the meeting of the complainant with said both the accused persons, two to four days after the execution of Power of Attorney on 14.03.2019. The complainant as power of attorney found himself cheated by the accused. The complainant read in newspaper that Krishna Somani and Raju Trivedi has murdered a builder of Ahmedabad named Gopal Kabra for a transaction of Rs.10,00,00,000/-, hence, the complainant learnt of being cheated for an amount of Rs.8,91,57,249/- under planned conspiracy.
5.7. The details in FIR shows that Raju Trivedi came into picture in the end of November, 2018, prior to that, agreement to sell was executed before the sub-registrar, Vadodara by Rameshchandra Parwal, Director of M/s. Ridhhi Investment and Properties Pvt. Ltd. and partner of M/s. Ahbilasha Construction, Balvindersingh Sandhu with Pankaj Sheth, who thereafter went back to America and returned in November, 2018. Krishna Somani and Balvindersingh Sandhu again met Pankaj Sheth for agreement with Kailash Aggarwal, owner of ground floor and basement. The deal was negotiated for Rs.55 Lakhs, out of which 50 Lakhs was to be paid to Kailash Aggarwal and 5 Lakhs to Raju Trivedi as brokerage. Raju Trivedi acts as real estate agent to the transaction. On 25.10.2019, in the office of Krishna Page 10 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT Somani, Raju Trivedi collected five lakhs cash from Pankaj Sheth, the brokerage money and Rs.50 Lakhs to be paid to Kailash Aggarwal, who did not turn up at the sub-registrar office; Krishna Somani assured Pankaj Sheth that he would send duly executed document to him. Hence, Pankaj Sheth left the sub-registrar office. After two or three days at a coffee shop, there was a meeting of Pankaj Sheth with Krishna Somani, Balvindersingh Sandhu and Raju Trivedi, where Krishna Somani suggested Pankaj Sheth to be partner in Ahbilasha Construction and to purchase 50% shares of Vihang Trivedi, who was a partner with Balvindersingh Sandhu, as alleged, under conspiracy, during the meeting, one fat and short person came and introduced himself as Vihang Trivedi. So in the said meeting Raju Trivedi and Vihang Tivedi, the fat short man both were present, Pankaj Sheth sees both these persons.
5.8. It was decided to purchase 50% share of Vihang Trivedi and as per the deal on 29.01.2019, Pankaj Sheth, his Power of Attorney holder Rohit Indravadan Seth, Dharmendra Kanubhai Sheth, Chandrakant Atmaram Joshi and Nayanbhai Darji, all had gone to the office of Krishna Somani, where Krishna Somani, Raju Trivedi, Padmanabh Somani and one fat short person Vihang Trivedi were in the office. Raju Trivedi was introduced to them as broker of that dealing and he was given Rs.5 Lakh as brokerage, the money brought in two bags were counted by the said short fat man Vihang Trivedi. Thereafter, in a very dramatic way Balvindersingh Sandhu arrived with his henchmen and at the knife point took away both the bags. Then, after two-three days, again there was meeting of Pankaj Sheth, Krishna Somani, Balvindersingh Sandhu and Raju Trivedi at Page 11 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT Alkapuri Express Hotel. Again on 05.03.2019, Raju Trivedi and fat short man Vihang Trivedi were present with Pankaj Sheth, Krishna Somani, Vihang Trivedi along with men of Pankaj Sheth went to the office of the Notary. Thereafter, near the notary office, there was quarrel between Balvindersingh Sandhu and Raju Trivedi and Raju Trivedi was to be hospitalized. The two incidents of quarrel made Pankaj Sheth to withdraw from the deal and thus he sought his money back.
6. The learned Sessions Judge in para-7 has observed, that prima facie it appears that the applicant accused is shown as accused no.6 in the complaint. Having referred the fact of arrest on 24.05.2020, the Sessions Judge tersely observed the crux of the dealing, observing the registered documents of partnership with 50% share of the accused to be transferred in favour of Pankaj Indravadan Sheth, the Sessions Judge observed that the money was received for that transaction and in that dealing they have identified one short fat man; in that situation the accused has contended himself to be partner. The Sessions Judge observed that witness-victim was lured to purchase the share, clearly shows prima facie evidence of the criminal involvement of the applicant accused in the offence.
6.1 The Sessions Judge thus has entertained the bail application of accused no.6 under the representation of being partner, the presence of short fat man was noted, and came to the conclusion of prima facie evidence against the accused and his involvement in the criminal act. Hence, the submission that impugned order came to be passed under wrong impression of accused presuming the present respondent no.2 as some other Page 12 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT accused, fails merit. The bail application was moved as Vihang Bipinchandra Trivedi @ Rajubhai, in FIR, accused no.6 is named so with his residential address as F/1/32, Sairang Heights, Behind Swaminarayan Temple, Atladas, Vadodara, while the same address is shown in the cause title of the impugned order and as stated, the arrest memo named, respondent no.2 as Raju @ Vihang Trivedi.
7. In case of Anil Kumar Yadav Vs. State of NCT Delhi (supra), the Hon'ble Supreme Court observed in paragraph no.32 that, once discretion is exercised by the Sessions Court to grant bail on consideration of relevant materials, the High Court would not normally interfere with such discretion, unless the same suffers from serious infirmities or perversity. While considering the correctness of the order granting bail, the approach should be whether the order granting bail to the accused is vitiated by any serious infirmity, in which case, the High Court can certainly interfere with the exercise of discretion.
7.1. Dolat Ram Vs. State of Haryana, reported in 1995 SCC(1) 349 relied upon by the learned advocate for the respondent no.2, is a case where anticipatory bail was sought to be cancelled wherein, the Hon'ble Supreme Court in para-4, held as under:
"Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the Page 13 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are:
interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
7.2. The Hon'ble Supreme Court in case of Narendra Amin Vs. State of Gujarat, reported in 2008 (13) SCC 584, noted that the Court dealing with cancellation application is required to find whether irrelevant material of substantial nature Page 14 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT was taken into account or relevant material omitted from consideration while granting bail. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case.
7.3. The Hon'ble Supreme Court in case of Abdul Basit Alias Raju And Ors. Vs. Mohd. Abdul Kadir Chaudhary And Another, reported in (2014) 10 Supreme Court Cases 754, held that although the court granting bail can cancel the bail on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail, however, in view of express bar contained in Section 362 Cr.P.C., it cannot review its order as to grant of bail on ground of it being unjustified, illegal or perverse. Such challenge to bail order on ground of it being illegal or contrary to law can be determined only by the court superior to the court which granted bail. The cancellation of bail rides on the satisfaction and discretion of the court under Section 439(2) of the Cr.P.C., it does not vest the power of review in the court which granted bail.
7.3.1. In Dolat Ram's case (supra), it has been held that very cogent and overwhelming circumstances are necessary for the canceling bail granted to an accused. As has been held in Narendra Amin's case (supra), the Court is required to examine whether irrelevant material of substantial nature has been taken into account or relevant material has been omitted from consideration while granting bail. In Abdul Basit @ Raju And Ors. (supra), the cancellation of bail was sought for on the grounds that it was obtained by gross misrepresentation of facts, misleading the Court and indulging in fraud, requiring the bail Page 15 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT order to be set aside on ground of it being perverse in law. It was observed that circumstances brought on record do not indicate any situation where bail was misused by accused, thus was held that cancellation of bail can be granted on ground of accused's misconduct or new adverse facts having surfaced after the grant of bail; and challenge to bail order on ground of it being illegal or contrary to law, can be determined only by the Court superior to the Court which granted bail.
7.4. It has been held by the Hon'ble Supreme Court in case of Bhagirath Singh S/o. Mahipat Singh Judeja Vs. State of Gujarat; reported in AIR 1984 SC 372, that, even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion grained in his favour by tampering with evidence.
7.5. Myakala Dharmarajam & Ors. Etc. Vs. The State of Gujarat, decided on 07.01.2020 in Criminal Appeal Nos.1974-1975 of 2019, the Hon'ble Apex Court while placing reliance on the case of Kanwar Singh Meena Vs. State of Rajasthan & Anr., reported in (2012) 12 SCC 180, held that, the factors to be considered while granting bail have been held by this Court to be the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the evidence and witnesses, and obstructing the Page 16 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT course of justice etc. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. The court has to only opine as to whether there is prima facie case against the accused. For the purpose of bail, the Court must not undertake meticulous examination of the evidence collected by the police and comment on the same.
7.6. In case of Raghubir Singh Vs. State of Bihar, reported in (1986) 4 SCC 481, the Hon'ble Apex Court held that, bail can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (viii) attempts to place himself beyond the reach of his surety, etc. The above grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to.
7.7. Cancellation of bail could not be resorted to on the assumption that the applicant - accused was guilty. In Sushila Aggarwal Vs. State of (NCT of Delhi), reported in (2020) 5 SCC 1, it is held that, the correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State of investigating agency, and set aside on the Page 17 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT ground that the court granting it did not consider material facts or crucial circumstances. This does not amount to "cancellation" in terms of Section 439 (2) Cr.P.C. So when the order of bail is found to be erroneous, as material facts and crucial circumstances are ignored, it would be vulnerable subjecting to be set aside.
8. In case of Rabindra Kumar Dey Vs. State of Orissa, reported in AIR 1997 SC 170, the Hon'ble Supreme Court held as under:
"Three cardinal principles of criminal jurisprudence are well settled namely:
(i) That the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(ii) That in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and
(iii) That the onus of the prosecution never shifts.
8.1 In the FIR, accused no.8 is shown as one short fat man called as Vihang, the residential address is not known. The FIR shows, the presence of Raju Trivedi and Vihang Trivedi, at a time, during the dealing; Pankaj Sheth had seen both the persons and even on 29.10.2019, Pankaj Sheth along with complainant (Power of Attorney Holder) and four of their other friends had seen both Raju Trivedi and Vihang Trivedi at Krishna Somani's office. It is the prosecution, who has to identify the Page 18 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT accused. The prosecution has to keep in mind the cardinal principles of administration of justice; one of them being that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted. The burden of proving the guilt of the accused is upon the prosecution. In the instant case, if Raju Trivedi and Vihang Trivedi are different persons, it is for the prosecution to clear whether fat short man is the present respondent no.2 or some other person, it got to be identified by the police. It is not required for the Court to conduct a roving inquiry when called upon to decide whether applicant-accused is entitled for bail or not. Persons, accused of non-bailable offences are entitled for bail, if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied for reasons to be recorded that in spite of the existence of prima facie case, there is need to release such persons on bail where fact situations require it to do so. It is not that while entertaining a bail application, the Sessions Court has to make elaborate discussion of facts and appreciation of statements recorded under Section 161 Cr.P.C.
9. The argument advanced by learned senior advocate Mr. Nanvaty is that, the Sessions Judge has failed to notice the fact that Balvindersingh Sandhu - accused no.2 is on temporary bail, as granted by this Court in Criminal Misc. Application No.2689 of 2020, hence, submitted that the case of the respondent no.2 ought to be considered on the same footing of his being a partner in 'Abhilasha Construction'. It requires to mention here that the Sessions Judge has referred the MOU dated 28.08.2018, wherein the authorized partner Page 19 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT Balvindersingh Sandhu, has undertaken to comply with the terms laid down in the MOU.
10. Mr. Nanavaty, learned senior advocate, contended that respondent no.2 in his bail application himself has admitted of being partner in Abhilasha Construction partnership firm, wherein the other accused Balvindersingh Sandu is also a partner. In Criminal Misc. Application No.2689 of 2020, Balvindersingh Sandhu was enlarged on 19.02.2020 on temporary bail, on the ground of amicable settlement of dispute between the parties. The Sessions Judge would not have considered the case of Balvindersingh Sandhu for the obvious reason of settlement of dispute. Whilst the bail application of the respondent no.2 was dealt with, the role of accused no.3 - Krishna Somani appears to be compared. On the facts of the case, Krishna Somani's role is graver than that of respondent no.2, thus there is no reason to interfere with the discretion exercised by the Sessions Judge.
11. In the present case, the impugned order passed by the Sessions Judge is supported by the reasons to the extent required for exercising of judicial discretion in the matter of grant of bail. It cannot be said that the factors, which weighed with the Sessions Judge in granting bail, was irrelevant to the issue before him rendering the order as perverse. The Sessions Judge on the set of facts and material before him has come to a particular view. The applicant herein cannot persuade the Court considering the aspect of cancellation of bail to adopt another view on the same set of facts and material, unless could show that the Sessions Court has ignored crucial circumstances and Page 20 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020 R/CR.MA/9197/2020 JUDGMENT material facts of the prosecution case.
12. In case of Sanjay Chandra Vs. CBI, reported in (2012) (1) SCC 40, the Hon'ble Apex Court held that, primary purpose of bail in a Criminal Case is to relieve the accused of imprisonment, to relieve the State of the burden of keeping the accused pending 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 at the time of trial. Merely the offence alleged against the accused is serious one, in terms of huge loss to the State exchequer that itself should not deter the Court from enlarging on bail when there are no serious contentions from the prosecution that if the accused is released on bail, they would interfere with the trial or tamper with the evidence.
13. For the foregoing reasons, the order passed by the Sessions Judge requires no interference. Hence, the application stands rejected. It goes without saying that nothing observed hereinabove shall be construed as expression of any opinion on the merits of the case. Rule is discharged.
(GITA GOPI,J) Pallavi Page 21 of 21 Downloaded on : Wed Nov 04 01:20:48 IST 2020