Gujarat High Court
State Of Gujarat vs Rajeshkumar Jamnadas Rami on 6 April, 2023
NEUTRAL CITATION
R/CR.MA/17041/2022 ORDER DATED: 06/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17041 of 2022
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STATE OF GUJARAT
Versus
RAJESHKUMAR JAMNADAS RAMI
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Appearance:
Ms. Monali Bhatt, Addl. PUBLIC PROSECUTOR for the Applicant(s)
No. 1
MR PUNIT B JUNEJA(3972) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 06/04/2023
ORAL ORDER
1. This is an application filed under section 439(2) of Code of Criminal Procedure, by the State seeking quashing of the order dated 13.04.2022 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) at Viramgam in Criminal Miscellaneous Application No. 67 of 2022. By the said order, the learned Sessions Judge has enlarged the respondent no.1- original accused no.1 in connection with the FIR being no.11192035210250 of 2021 dated 11.6.2021 registered with Mandal Police Station for offences punishable under Sections 406, 409, 420, 467, 470, 471 of Indian Penal Code.
2. The gist of the allegations levelled against the accused no.1 in aforesaid FIR is that the respondent no.1 while holding charge as Deputy Accountant at Dholera office had committed criminal breach of trust by misusing his position as government servant, by making bogus cheques and vouchers and using such bogus documents as genuine documents, the accused had dishonestly Page 1 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined diverted such amount in his account or in the name of relatives / friends. As per the allegations in the FIR, the total embezzlement of the amount involved was Rs.63,01,733/-.
3. It transpires from the record that before the registration of complaint, the department had conducted inquiry, whereby, the District Accountant Officer, Ahmedabad Panchayat office had by Order No. DP/HSB/MKM/57-59/ 2021 dated 07.06.2021 had directed the Dholera Office to proceed for registration of the FIR against the respondent no.1. It was stated that the respondent no.1 while holding charge as Deputy Accountant at Dholera office had committed the offence of embezzlement of such amount. Such a fact emerged during audit of the accounts of the Financial Year of 2017-2018 and 2018-2019. It had come on record during analysis of the account details that though the retired primary teachers have already been extended the benefit of leave encashment, the respondent no.1 had raised false claims of such teachers by submitting revise duplicate bills and in collusion of the Taluka Developmetn Officer (then in charge) and Taluka Primary Education Officer created false record by misusing his position. It had further transpired that the cheques were issued in the name of the accused's friends and relatives. The report revealed seven different cheques issued in the name of Mohmad Nadeem Halai, Vikram Vijakumar, Hiren V. Thadeswar, A.G. Jadeja, M.N. Halai and Hasmhukhbhai Rami, on 23.03.2017 and 04.07.2017, total of an amount of Rs. 39,37,780/-. On further scrutiny of the accounts, it had transpired that an amount of Rs.22,94,190/- was diverted for which no bill or voucher was raised by preparing cheques in the Page 2 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined name of persons known to him as well as in his own name. The report revealed details of five cheques dated 08.09.2017, 04.10.2017 and 05.10.2017, by which, such amount was diverted by the accused. Also, it was found that the accused had created duplicate revised bills by misusing the office order in case of retired primary teachers, by approving the bills vouchers, embezzled an amount of Rs.69,736/-. Such three vouchers dated 03.10.2017 in the name of retired teachers namely Kalabhai Virabhai Vankar and Jayantilal Gandabhai Patel, were diverted in the SBI Account, Mandal. Thus, having noticed the primary involvement of respondent no.1, the FIR came to be registered against respondent no.1 on 11.06.2021.
4. This application seeking cancellation of bail was filed on 09.09.2022. This Court by order dated 07.11.2022 had issued Rule, which was duly served. The matter was fixed for hearing considering the application filed by the respondent no.1 for early hearing. At one stage, attention of the Court was invited to the order dated 30.09.2022 passed by the Coordinate Bench in Criminal Miscellaneous Application No. 12680 of 2022, whereby the respondent no.1 had approached this Court for bail in respect of another FIR with similar allegations, registered with Police station and the matter was adjourned on the grounds that an application filed by the State seeking cancellation is pending consideration.
5. Learned Additional Public Prosecutor Ms. Monali Bhatt had appeared on behalf of applicant -State and Mr. Punit Juneja , learned advocate, had appeared on behalf of respondent no.1 -
Page 3 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined original accused. The matter was heard at length. During the course of arguments , the learned Additional Public Prosecutor has placed on record the charge sheet papers along with a report dated 12.01.2023 submitted by the In-charge Deputy Superintendent of Police, Economic Offense Wing, CID Crime, Gandhinagar. The hearing of the matter was concluded and the matter was reserved for orders.
6 At the outset, the Court notices the grounds raised in the application and prayers sought for, essentially the State through investigating agency, has approached this Court invoking section 439(2) of the Code of Criminal Procedure seeking quashing of the order dated 13.04.2022 passed in Criminal Miscellaneous Application No. 67 of 2022, by the 2 nd Additional Sessions Judge, Ahmedabad (Rural), with further direction to direct the accused to surrender in judicial custody.
7. In light of the aforesaid fact, the present application preferred is seeking cancellation of bail but not on the ground of supervening circumstances. The present application is challenges the order for grant of bail and the ground of challenge is with the very order of the Court granting bail. Taking into consideration the grounds raised, the illegality of due process is questioned on account of improper or arbitrary exercise of discretion by the Court while granting bail. In such circumstances, this Court would like to closely look into reasons assigned while granting bail.
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8. The Learned Sessions Judge has principally, while applying the ratio laid down by the Hon'ble supreme Court in the case of Sanjay Chandra vs. CBI, reported in (2012) 1 SCC 40, has taken into consideration three factors for enlarging the respondent accused on regular bail. First factor, the learned Sessions Judge has noticed upon perusal of investigation case papers is that the investigation is not impartial, though no reasons are assigned. Second factor which has weighed with the learned Sessions Judge is that prima facie that the ingredients of Section 13(1) and Section 13(2) of the Prevention of Corruption Act are not fulfilled as in the case of the respondent accused there is no entrustment of Government funds. In fact, the record reveals that by separate order dated 12.4.2022, the Learned Sessions Judge has not accepted the report of addition of charge under Sections 13(1) and 13(2) of the Prevention of Corruption Act, which is under challenge at the instance of the State and is pending adjudication in Revision Application filed before the coordinate bench. Lastly, the learned Sessions Judge has recorded that though prima facie the case of falsification of account, making of forged bills and misappropriation of money is established against the respondent accused but considering the fact that he being government servant, he is not likely to flee from trial and extending his judicial custody, even after filing of charge sheet, would amount to pre-trial punishment, the learned Sessions Judge has proceeded to exercise discretion to grant bail subject to conditions incorporated.
9. In the case of Dinesh M.N. (SP) vs. State of Gujarat reported in (2008) 5 SCC 66, the Hon'ble Supreme Court observed that Page 5 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined although a Court should avoid re-appreciation of evidence while granting bail. However, when a plea for cancellation of bail is presented before the Court, then under Section 439(2) can consider whether irrelevant materials were taken into consideration for granting bail. The reasoning for this is simple. The Court dealing with the plea for cancellation of bail may not know as to what extent the irrelevant material weighed with the court for granting bail in the particular matter.
10. Additionally, in the case of Subodh Kumar Yadav vs. State of Bihar reported in (2009) 14 SCC 638, the Hon'ble Supreme Court has observed that if a superior Court finds that the subordinate Court has erred in its decision for granting bail by considering irrelevant material, or non-application of mind, or fails to take note of any statutory bar to grant bail or if there was improper conduct of proceeding e.g. failure to hear the prosecution/complainant where required. In such cases, the order granting bail is liable to be quashed.
11. So it can be deduced that in common parlance the Court will not re-appreciate evidence while granting bail. But in cases where the question is raised on the court's decision for granting bail on the basis of considering irrelevant material on record, only then can the previous evidence be taken into account, to eliminate any discrepancies and reach a just decision.
12. In light of the aforesaid judicial pronouncement on the scope of jurisdiction of this Court under section 439(2) of CRPC, the only question which falls for consideration of this Court is Page 6 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined whether the learned Sessions Judge in light of the investigation, misdirected himself in exercising judicial discretion of enlarging accused on bail?
13. The learned Additional Public Prosecutor has placed reliance upon the documents like the report submitted by the IO, along with the affidavit filed by the IO, which is placed on record as Annexure B, the investigation case papers, more particularly, the statement of two witnesses namely Mohmadnadeem Alimohmad Halai dated 29.06.2021 and Suraj Gautamkumar Barot, recorded on 05.01.2022. She has also invited attention of this Court to the grounds raised in the present application. The attention of this Court is also drawn to the registration of three FIRs against the present respondent no.2, wherein, also the case embezzlement of state money is alleged along with the provisions of offense under prevention of corruption act has been alleged.
14. The investigation is over which has culminated into filing of charge sheet wherein present respondent no.2 has been arraigned as accused no.1, has emerged as main accused for the commission of alleged offense punishable under Sections 406, 409, 420, 465, 467, 468, 470,471, 477(a) read with Section 114 of IPC and Section 13(1) and Section 13(2) of the Prevention of Corruption (Amendment) Act, 2018. Indisputably, the report dated 06.04.2022 seeking addition of charge under Section 13(1) and 13(2) of the Corruption Act and Sections 114, 465 and Section 477(a) of the IPC has not been accepted by the learned Sessions Judge to the extent of incorporating offense under corruption act are concerned and has directed the IO to Page 7 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined produced the charge sheet before the concerned Judicial Magistrate First Class, vide order dated 12.04.2022. Thus, the respondent no.2 has been chargesheeted for the offense under IPC alleged.
15. In the opinion of this Court, the crux of the role of the accused - respondent no.2 as contended by the prosecution as described in charge sheet is that as Government servant while holding charge as Deputy Accountant, misusing his official position, in spite of the fact that the leave encashment amount of the retired teachers have been paid, forged bills were created, claim of leave encashment was made based on the earlier orders, government record was corrected/ changed accordingly and the amount sanctioned was improperly diverted in the account of the accused. The investigation has revealed three cheques drawn in the name of the accused have been presented by the accused in different accounts of the accused viz. Cheque no. 977274 dated 02.08.2017 of Rs.5,80,500/-, Cheque no. 977376 dated 08.09.2017 of Rs.5,76,230/- and cheque no. 977381 dated 05.10.2017 of Rs.5,69,700/- (not realized)diverted by issuing cheques in his own name or in the name of his relatives or known persons. Also, cheque bearing no. 9773 dated 18.08.2017 has been presented in the account of the father in law of the accused i.e. Hasmukhbhai Chaturbhai. The statement of two witnesses namely Mohmadnadeem Alimohmad and Suraj Gautamkumar Barot reveals the manner in which the accused has committed offense. The corresponding entries have been noticed in the statement of account collected by the IO. The disputed cheques, the cheque register book, bogus vouchers/ Page 8 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined bills raised, bank slips have also been recovered. The case of the prosecution as alleged is that the accused has misappropriated an amount of Rs.63,01,733/- resulting in total embezzlement of Rs.77,47,663/-. It has transpired during investigation from the audit report dated 25.02.2022 for A.Y. 2017-2018, indicates that a total amount of Rs.11,45,930/- has been misappropriated by the accused while holding charge as Deputy Accountant which were part of the government funds to be used for compensating the agriculturist towards loss/ damage of crop. It has also transpired that the accused has re-deposited an amount of Rs. 17,15,860/-. The IO has come with a case that such an amount has been deposited in absence of any office order, the accused has misused the seal of the TDO and himself has endorsed on behalf of TDO by acknowledging on the challan created by him. The registration of two FIRs is also reported by the IO in his affidavit. Similar charge has been alleged wherein in complaint bearing CR-I No. 907 of 2021 registered with the Karanj Police Station, an amount of Rs.7,03,76,846/- is alleged to have been misappropriated and in complaint bearing CR-I No. 361 of 2021 registered with Detroj police station, an amount of Rs.30,80,621/- is alleged to have been misappropriated. In light of the aforesaid alleged offense and on overall re-appreciation of the relevant documents placed on record, for consideration of this Court, prima facie, the case against the respondent no.2 is based on the cogent material which has been brought on record to substantiate the allegations made about embezzlement of government money. The learned Sessions Judge has rightly noticed the prima facie case against the accused - respondent no.2 about falsification of account, making forged bills and Page 9 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined misappropriation etc.
16. Now, having noticed prima facie case, if one examines the impugned order, the learned Sessions Judge has proceeded to pass an impugned order of granting bail by taking into consideration the principles laid down in the case of Sanjay Chandra (supra).It was a case which entailed the fraudulent allocation of 2G bandwidth spectrum to private entities in the telecom sector causing the exchequer an estimated loss of Rs.30,000 crores.25 Allegations of large scale corruption and collusion resulted in the arrest of the former telecom minister, high-ranking bureaucrats and top-level corporate executives. In May 2011, the Delhi High Court in Sanjay Chandra v. C.B.I., authorized their pre-trial detention even though the investigation was complete and there were no substantiated allegations of intimidation or tampering with the documentary evidence. In the process, it eroded the most fundamental tenet of criminal law:
the presumption of innocence. This eventually resulted in the continued incarceration of the accused for six months despite them not having been indicted for the offences charged, i.e. despite formal charges not having been framed under the Cr.P.C.
16.1. While rejecting their bail applications, the High Court observed that being an economic offence involving billions of dollars, the "allegations [were] itself sufficient to deny bail". It was found that despite the accused had cooperated during investigation, the High Court had stated that their past actions "cannot be a guarantee that during trial, they will not interfere with the judicial process". The High Court had further made Page 10 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined many observations on the merits of the allegations against the accused, effectively commenting on their guilt prior to judgment and departing from the settled dictum of 'bail, not jail'.
Additionally, it proceeded to set dangerous precedent by focussing on the 'impact on society and adopting a utilitarian premise to justify detention since this could potentially facilitate denial of bail applications based on considerations of 'public interest'. Finally, by shifting the burden onto the accused to demonstrate their innocence at the pre-trial stage, while assuring the Court of their continuing cooperation, their right to be presumed innocent until proven guilty was rendered nugatory.
16.2. However, the Hon'ble Supreme Court in appeal granted bail to the accused in the case of Sanjay Chandra (supra) based mainly on legal principle recognizing that the right to life and personal liberty was the "most basic of all fundamental rights". The Court reversed the High Court's order by taking cognizance of factors like the completion of investigation, prospective delay in concluding the trial and the six month incarceration, stating that the "right to bail is not to be denied merely because of the sentiments of the community were against the accused".
16.3. The Hon'ble Supreme Court's liberal reading of bail laws in Sanjay Chandra signals a return to the original construction applying the presumption of innocence. However, this is in contrast with the narrow formulation espoused in Pappu Yadav (supra) where Article 21 was reasonably restricted, taking "into consideration other facts and circumstances, such as the Page 11 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined interest of the society", regardless of the accused spending seven years in incarceration. Interestingly however, the Supreme Court in Sanjay Chandra did refer to Pappu Yadav although only on the issue of the necessity of establishing a prima facie case.
17. In light of the aforesaid legal position if I examine the present case, I am of the view that the offense alleged against the respondent no.2-accused is no doubt of serious nature and overwhelming material has been recovered which points finger against the accused involvement. But at the same time, this Court cannot ignore the fact that the investigation is over and a charge sheet is filed. In such circumstances, I am of the view that the discretion exercised by the court is judicious and not as a matter of course. Thus, in my view, a case which falls in either of the category as recognized by Hon'ble Supreme Court in the case of Mahipal vs. Rajesh Kumar @ Polia reported in (2020) 2 SCC 118. The Hon'ble Supreme Court thus held as under:
"16. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted. In Neeru Yadav v State of Uttar Pradesh,12 the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail. Justice Dipak Misra (as the learned Chief Justice then was) held:Page 12 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023
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12. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail.Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court..."
17.1. In Mahipal (supra), the Hon'ble Supreme Court further outlined the two standards to be considered for setting aside of bail by the Appellate Court, which reads as under:
"17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads:
2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got Page 13 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined slipped on a sharp turn, due to which he received injuries on various parts of body including ante-mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and conclusion of trial may take long time.
3. Learned Public Prosecutor and counsel for the complainant have opposed the bail application.
4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail."
17.2. In my opinion, on re-examining the order passed by the trial Court, cannot be read as non application of mind or de- hors the material which has come on record of investigation.
18. So far as grievance of the prosecution of the addition of charge is concerned, the same is pending adjudication in the revision application filed by the State. Apt would be to refer to the decision of Hon'ble Supreme Court in the case of Kumari Ruzada Ashikali vs. State of Gujarat , reported AIR online 2022 GUJ 1372 wherein this Court has held that, in a case where an accused has already been granted bail, the investigating authority in addition to an offense or offenses needs to obtain an order to arrest the accused from the Court which had granted the bail. In view of the aforesaid legal position, it would be for the IO to approach the concerned court seeking arrest order of the accused, however, at this stage, in absence of any order permitting addition of charge, no case is made out for quashing Page 14 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023 NEUTRAL CITATION R/CR.MA/17041/2022 ORDER DATED: 06/04/2023 undefined the order granting regular bail. Hence, present application seeking cancellation of bail is rejected.
(NISHA M. THAKORE,J) KAUSHIK J. RATHOD Page 15 of 15 Downloaded on : Sun Sep 17 18:17:51 IST 2023