Gujarat High Court
Jigar Amrutlal Thakkar vs State Of Gujarat & on 3 March, 2015
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/20417/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 20417 of 2014
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JIGAR AMRUTLAL THAKKAR....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance:
MR YATIN OZA, SR.ADVOCATE with MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 2 PUBLIC PROSECUTOR for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 03/03/2015 CAV ORDER The present application is filed by an accused under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the criminal complaint being R.C.No.BSM-2011-E-0007-BS & FC, Mumbai, of the offence punishable under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code and also under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
It appears from the materials on record that the applicant-accused was arrested on 19th November 2012 by way of a transfer warrant since he was already in custody in connection with R.C. No.BSM-2011-E-0001-BS & FC, Mumbai (Criminal Case No.3 of 2012 pending before the Special CBI Court, Mirzapur, Ahmedabad). He prayed for bail before the Page 1 of 18 R/CR.MA/20417/2014 CAV ORDER Special Judge for the CBI Cases first in point of time in the year 2012. The learned Additional Principal Judge and Special Judge, CBI Court No.3 at Mirzapur, Ahmedabad, vide order dated 18 th January 2013, rejected the application.
Being dissatisfied, the applicant herein preferred Criminal Misc. Application No.14413 of 2013 before this Court. A learned Single Judge of this Court, vide order dated 11 th March 2014, declined to grant bail to the accused. The application was permitted to be withdrawn. However, the learned Single Judge directed the trial Court to make all possible endeavours for early completion of the trial preferably within a period of six months from the date of receipt of the order.
It appears that the trial Court was not able to complete the trial within a period of six months as directed by this Court and, therefore, prayed for extension of the time limit by a further period of three years. The learned Single Judge, who had earlier rejected the bail application of the accused, considered the request made by the trial Court and extended the time period to complete the trial upto 30 th September 2016.
It appears that on 6th September 2013, a Coordinate Bench of this Court ordered release of a co-accused identically situated.
The applicant has, once again, filed the present application with a prayer that he be released on bail.
It is the practice of this Court, or rather, a settled position of law that a successive bail application should be heard by the same Court who had earlier rejected the application. In such Page 2 of 18 R/CR.MA/20417/2014 CAV ORDER circumstances, this matter should have been heard by the learned Single Judge who had earlier considered the bail plea of the accused. However, the learned Single Judge refused to take up the matter and, therefore, the same came to be placed before this Court after obtaining necessary order in that regard from Hon'ble the Acting Chief Justice.
I. Case of the Prosecution :
I may quote the charge, or rather, the case of the prosecution from the FIR itself.
"That, Central Bureau of Investigation (CBI), Bank Securities and Frauds Cell (BS & FC), Mumbai had registered the instant criminal case no. RCBSM2011E0007, on 13/10/2011, U/s. 120-B IPC r/w. 420, 467, 468 and 471 IPC, on the basis of a written complaint dated 05/10/2011, given by Sh. U. B. Bhat, Chief General Manager and Zonal Head, Corporation Bank, Zonal Office, Mumbai. The FIR was registered against M/s. Biotor Industries Ltd. (A-1), S/Sh. Bharatkumar M. Kapadia, Chairman, M/s. Biotor Industries Ltd. (A-2), Rajesh M. Kapadia, MD, M/s. Biotor Industries Ltd. (A-3), Dinesh R. Kapadia, Director, M/s. Biotor Industries Ltd. (A-4) and Anupam M. Shukla, Director, M/s. Biotor Industries Ltd. (A-5) and other unknown persons, on the allegation that a fraud of Rs.50 Crores was committed on Corporation Bank, Industrial Finance Branch (IFB), Mumbai during 2009, by obtaining a Short Term Loan under the priority sector, sanctioned in the names of farmers / Village Level Aggregators (VLAs) supplying Castor seeds to Biotor Industries Ltd., and its fraudulent and illegal diversion subsequently. Due to these acts, a wrongful loss of Rs.50 Crores of public money was caused to Corporation Bank and corresponding wrongful gain to the aforesaid accused persons.
2. The allegations in brief as mentioned in the FIR, are as follows. It has been alleged in the FIR that a conspiracy to cheat Corporation Bank, Industrial Finance Branch, Fort, Page 3 of 18 R/CR.MA/20417/2014 CAV ORDER Mumbai to the tune of Rs.50 Crores was hatched during 2009-2010 in the Managing & Agency Account of M/s. Biotor Industries Ltd. (A-1) through S/Sh. Bharatkumar M. Kapadia (A-2) Chairman,. Rajesh M. Kapadia (A-3) MD, Dinesh Kapadia (A-4) and Anupam Shukla (A-5) both Directors and other unknown persons. It is alleged that M/s. Biotor Industries Ltd. (BIL) having its Factory at Vadodara and Registered Office at Mumbai was engaged in manufacture of castor oil, was procuring raw material such as castor seeds directly from the farmers. In pursuance of the conspiracy to cheat Corporation Bank, the directors of the company approached Corporation Bank and requested for short term loan of Rs.50 Crores to meet the requirement of castor seeds in the form of post harvest agricultural finance in which the loan is to be extended to the farmers through their agents known as Village Level Aggregators (VLAs). This was done by submitting forged documents namely names of VLAs and various farmers including their Know Your Customer (KYC) documents.
3. It is also alleged that M/s. BIL acted as Management and Collection (M&C) Agents on behalf of Corporation Bank in which the loan extended to the farmers through VLAs was to be guaranteed for repayment by the company M/s. Biotor Industries Ltd. The company under the M&C Agreement was obliged to prove KYC requirement of VLAs and farmers to the bank and also the copy of 7/12 receipts of the farmer's holding thereby giving proof of cultivation of castor crop and its supply to the company according to the loan amount given to the farmers. But it is alleged that out of the 8 VLAs, 3 are reported to be fake and the remaining 5 have stated that they are unaware of the fact that BIL availed loan from Corporation Bank for onward landing to various farmers, through them. It is also alleged that the details of the farmers submitted to the Bank are also fake.
4. Identity of the accused persons (Charge-Sheeted):-
Evidence collected during the investigation of the instant case, establishes criminal conspiracy during 2009-10 among the following 24 accused persons / entity, at various stages i.e. making application for the Short Term Loan (STL) of Rs.50 Crores to Corporation Bank, Page 4 of 18 R/CR.MA/20417/2014 CAV ORDER submitting Applications-cum-Hypothecation Agreements in the names of fictitious VLAs/ farmers, diverting funds disbursed, fraudulently into the accounts of such VLAs, back to the various bank accounts of M/s. Biotor Industries Ltd., by way of cheques/ RTGS. In pursuance of the said criminal conspiracy, these accused persons committed various criminal acts as detailed in the forthcoming paras of this Charge-Sheet.
Top Management of Biotor Industries Ltd.:
Name of the accused Designatio Role played n M/s. Biotor Industries Limited The company through Ltd. Company it's Directors, availed (A-1) STL of Rs.50 Crore from Corporation Bank in a fraudulent manner.
Sh.Bharatkumar Chairman, As Chairman of the
Mangaldas Kapadia M/s. BIL company availed STL of
(A-2) Rs.50 crore from
Corporation Bank in a
fraudulent manner and
diverted the funds to
fictitious and genuine
VLAs, without any
underlying transactions.
Sh.Rajesh Mangaldas MD, Same as above
Kapadia (A-3) M/s.BIL
Sh.Dinesh Director, Diverted the STL funds
Ranchhoddas M/s. BIL to fictitious and genuine
Kapadia, (A-4) VLAs, without any
underlying transactions.
Sh.Anupam Director, Same as above.
Manmohan Shukla, M/s. BIL
(A-5)
Officials of Corporation Bank, Industrial Finance Branch, Mumbai:-
Sh.Balaji A.P. (A-6) The then Recommended
Senior favourably for sanction
Manager, of STL of Rs.50 Crore to
Industrial BIL. On receipt of
Page 5 of 18
R/CR.MA/20417/2014 CAV ORDER
Finance sanction letter,
Branch, disbursed funds to VLAs
Corporatio without doing KYC
n Bank, verifications and did not
Mumbai follow the important
instructions given in the
HO Sanction letter.
Village Level Aggregators (VLAs):-
Sh.Ghanshyambhai VLA Received an amount of
Laxmandas Shah Rs.7 crore from BIL
(A-7) which was diverted back
to the company through
cheques and cash
withdrawals. Also
entered into fictitious
agreement in the names
of fictitious farmers,
with Corporation Bank.
Sh.Sharwankumar VLA Received an amount of
Laxmandas Shah Rs.5 crore from BIL
(A-8) which was diverted back
to the company through
cheques and cash
withdrawals. Also
entered into fictitious
agreement in the names
of fictitious farmers,
with Corporation Bank.
Sh.Rajesh VLA Received an amount of
Ghanshyambhai Rs.5 crore from BIL
Maheshwari which was diverted back
(A-9) to the company through
cheques and cash
withdrawals. Also
entered into fictitious
agreement in the names
of fictitious farmers,
with Corporation Bank.
Sh.Manoj M.Gandhi VLA Received an amount of
(A-10) Rs. crore from BIL which
was diverted back to the
company through
cheques and cash
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R/CR.MA/20417/2014 CAV ORDER
withdrawals. Also
entered into fictitious
agreement in the names
of fictitious farmers,
with Corporation Bank.
Accused involved in assisting BIL in fraudulently
laundering of STL funds:-
Sh.Arif Memon (A- Director, Instrumental in floating
11) M/s. KGN the idea of financing
Industries farmers through VLAs
Ltd., by adopting the M&A
Ahmedabad Agreement mechanism.
Also visited the Banks
with A-3 regarding
application of BIL for
STL. Conspired with Jigar
Thakkar (A-12) for
laundering of STL funds
of Corporation Bank.
Sh.Jigar A.Thakkar Ex. Conspired with Arif
(A-12) Chairman Memon (A-11) for
of Shri laundering of STL funds
Vinayak Co. of Corporation Bank
Op. Bank through the account of
Ltd. and Shri Vinayak Co. Op.
Board Bank Ltd. and fictitious
Member of accounts in Siddhi Co.
Siddhi Co. Op. Bank Ltd.,
Op. Bank Ahmedabad and other
Ltd., accounts.
Ahmedabad
Employees of Biotor Industries Ltd.:-
Sh.Zubin F.Batiwala Vice Introduced fictitious
(A-13) President accounts of 3 VLAs at
(Purchase), OBC, Ahmedabad.
BIL, Received diverted funds
Vadodara from VLAs through
cheques and cash,
without purchase of
castor seeds from them.
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R/CR.MA/20417/2014 CAV ORDER
Sh.Rajkumar P.V. GM Introduced fictitious
(A-14) (Accounts) accounts of 3 VLAs at
BIL, OBC, Ahmedabad.
Vadodara
Sh.Amar Thacker Vice Instrumental in getting
(A-15) President proposal of BIL for STL
(Finance), of Rs.50 Crore
BIL, sanctioned. Received
Mumbai diverted funds from
VLAs through cheques
and cash, without
purchase of castor
seeds from them.
Sh.Alpesh B.Parikh Employee Committed forgery of
(A-16) in Ware signatures of farmers on
Housing applications between
Dept., BIL, farmers/ Corporation
Vadodara Bank.
Sh.Dharamsingh Peon, BIL, Committed forgery of
L.Rathwa (A-17) Vadodara signatures of farmers on
applications between
farmers/ Corporation
Bank.
Sh.Dharmendra A. Weigh Committed forgery of
Joshi (A-18) Bridge signatures of farmers on
Assistant, applications between
BIL, farmers/ Corporation
Vadodara Bank.
Sh.Hemal Y. Shah Employee Committed forgery of
in Seeds signatures of farmers on
Purchase applications between
Dept., BIL, farmers/ Corporation
Vadodara Bank. Also forged
signatures of 1 VLA
namely A. R. Chavda,
for opening and
operating a bogus
account at OBC,
Ahmedabad.
Sh.Jitesh H.Shah (A- Employee Committed forgery of
20) in Seeds signatures of farmers on
Purchase applications between
Dept., BIL, farmers/ Corporation
Vadodara Bank. Also forged
signatures of 1 VLA
Page 8 of 18
R/CR.MA/20417/2014 CAV ORDER
namely Chavda
Indrasinh, for opening
and operating a bogus
account at OBC,
Ahmedabad.
Sh.Kamlesh T.Mistry Clerk in Committed forgery of
(A-21) Seeds signatures of farmers on
Purchase applications between
Dept., BIL, farmers/ Corporation
Vadodara Bank.
Sh.Shailesh G Clerk in Committed forgery of
Parmar (A-22) Seeds signatures of farmers on
Purchase applications between
Dept., BIL, farmers/ Corporation
Vadodara Bank.
Sh.Amit B.Gohil Purchase Committed forgery of
(A-23) Assistant, signatures of farmers on
BIL, applications between
Vadodara farmers/ Corporation
Bank. Also forged
signatures of 1 VLA
namely V.B.Patel, for
opening and operating a
bogus account at OBC,
Ahmedabad.
I also deem fit to quote the averments made in the FIR so far as the Accused No.13 Shri Zubin Battiwala is concerned. The accused Shri Battiwala has been ordered to be released on regular bail by a Coordinate Bench of this Court.
The investigation has further disclosed that almost a month after the signing of the M & A agreement on 28th May 2009, Shri Zubin Battiwala (A-13) sent documents, viz. list of the VLAs/farmers showing the amount paid/to be paid to them through each VLA; Application-cum-Hypothecation Agreements executed by each farmer along with the VLAs; copy of 7/12 extract of the farmers; and copy of election cards, signed by 5 (five) VLAs to the Branch Manager, IFB, Mumbai of Corporation Bank vide letter dated 1st July 2009. These sets of documents are proved to be forged (4 of the VLAs existing and aware of the forged nature of the documents, but one VLA concerned not aware of the documentation done in his name). A similar Page 9 of 18 R/CR.MA/20417/2014 CAV ORDER set of documents in the names of 3 fictitious VLAs were given sometime in September 2009 and none of the VLAs are existing.
That, with the knowledge of Shri Zubin Battiwala (A-13), several employees of M/s.Biotor Industries Limited, viz. Shri Alpesh V.Parikh (A-16), Shri Dharamsingh L.Rathwa (A-17), Shri Dharmendra A.Joshi (A-18), Shri Hemal Y.Shah (A-19), Shri Jitesh H.Shah (A-20), Shri Kamlesh T.Mistry (A-21), Shri Shailesh G.Parmar (A-22) and Shri Amit B.Gohil (A-23) forged signatures of farmers/VLAs on the Application-cum-Hypothecation Agreements purportedly on behalf of such farmers/VLAs, which were submitted fraudulently to the Branch Manager, IFB, Corporation Bank, Mumbai, for availing the STL of Rs.50 crore. That, Shri Zubin Battiwala (A-13) was also aware that certain employees of Biotor Industries Limited forged KYC complaint documents like 7/12 Extracts and Voter ID Cards, in respect of purported farmers/VLAs.
Mr.Oza, the learned senior advocate appearing on behalf of the accused submitted that practically all the accused named in the charge-sheet are on bail except the applicant herein and one Arif Memon (A-11). He submitted that the Directors of M/s.Biotor Industries Limited who are the principal accused were not even arrested and straightway charge- sheets were filed before the trial Court. He also pointed out one Shri Zubin Battiwala (A-13) has also been ordered to be released on bail by a Coordinate Bench vide order dated 6 th September 2013. He submits that having regard to the individual role played by each of the accused persons, if the others have been released on bail or if the CBI has not thought fit to even arrest them and straightway filed charge-sheets, then in such circumstances, the applicant herein also deserves to be released on bail since he is in custody from July 2012.
An affidavit has been filed highlighting the following few relevant aspects of the matter, duly affirmed by the brother of the applicant-accused :
Page 10 of 18R/CR.MA/20417/2014 CAV ORDER "I state that I am the brother of the applicant Jigar Thakkar and the aforesaid application is filed by him under Section 439 of the Code of Criminal Procedure, 1973 seeking bail in connection with Criminal Complaint being R.C. No. BSM-2011 E 0007 BS & FC of Mumbai (Criminal Case No. 4 of 2013 pending before Special CBI Court, Mirzapur, Ahmedabad).
I state that in the present case my brother was arrested on 19/11/2012 by way of transfer warrant since he was already in custody in connection with R.C. No. BSM-2011 E 0001 BS & FC of Mumbai (Criminal Case No. 3 of 2012 pending before Special CBI Court, Mirzapur, Ahmedabad) and in the said case my brother was arrested on 26/07/2012.
I state that the directors of Biotor Industries Ltd. (BIL) (4 in number) were arrested in connection with R.C. No. BSM-2011 E 0001 BS & FC of Mumbai (Criminal Case No. 3 of 2012 pending before Special CBI Court, Mirzapur, Ahmedabad) and were released on default bail on 25/07/2011. I state that the other co-accused were not arrested and at the time of filing charge- sheet they were released on execution of bail bonds of Rs.15,000/- and my brother is in custody in the said case. I state that in said criminal case No. 3 of 2012, the directors of BIL who are the only beneficiaries of the alleged offences were not even charge-sheeted within the prescribed time period as per law and thus, they got the benefit of default bail and as far as my brother is concerned, he was arrested and against him charge-sheet is laid within the prescribed time period and though he is not the beneficiary and his role is much lesser than the co-accused which is, inter alia, of getting the cross bearer cheques discounted, he is in jail in connection with the said offence.
I state that in the present case, except my brother, and co- accused Arif Memon and Zubin Batiwala, all the other co- accused i.e. 19 in number have been charge-sheeted without arresting them and they have been released on execution of bail bonds of Rs.25,000/- by the learned trial judge. Annexed hereto and marked as ANNEXURE-I is a copy of one such order of issuing the bailable warrant against co-accused and the relevant page of the Rojnama indicating the said fact.
I state that as far as R.C. No. BSM-2011 E 0006 BS & FC of Mumbai (Criminal Case No. 10 of 2013 pending before Special CBI Court, Mirzapur, Ahmedabad) is concerned none of the accused persons have been arrested and the charge-sheet is filed without arresting them.
Page 11 of 18R/CR.MA/20417/2014 CAV ORDER I state in none of the aforesaid three cases, the charges are framed till date. In the present case there are 125 witnesses. I further state that the co-accused Zubin Batiwala is on regular bail in the present case and the directors of BIL have not been arrested and they have been released as stated hereinbefore on execution of bail bonds and thus, as far as the applicant herein is concerned, even as per the charge-sheet his role is much less than the aforesaid co-accused and he is not a beneficiary of the alleged fraud and has not pocketed a single penny, even if the case of prosecution is considered as it is and thus, considering the aforesaid facts the present application may kindly be allowed."
In such circumstances referred to above, Mr.Oza prays that the plea of the accused be considered and he may be released on bail.
This application has been vehemently opposed by Mr.R.C.Kodekar, the learned counsel appearing for the CBI. He submitted that in the past a Coordinate Bench, after considering the case against the applicant, had refused to exercise discretion in his favour. Mr.Kodekar submitted that it is open to different Judges to reject or grant bail to the accused even if their cases stand on same footing. According to Mr.Kodekar, even if other accused are on bail including Accused No.13 Shri Zubin Battiwala, that by itself is no ground for this Court to exercise the discretion in favour of the present applicant. He submitted that the charges against the applicant- accused are very serious. He submitted that the Court, who had earlier refused to release the applicant on bail, has already extended the time period to conclude the trial. However, at the same time, Mr.Kodekar, with his usual fairness, did concede to a few facts. He submitted that in the present case, out of 23 accused persons, only 2 are in custody i.e. the present applicant and one Shri Arif Memon (A-11). The other accused persons are on bail. He submitted that the Directors of Biotor Page 12 of 18 R/CR.MA/20417/2014 CAV ORDER Industries Limited were not arrested, and without effecting their arrest, charge-sheets were filed. He submitted that the Directors of Biotor Industries Limited were also arrested in connection with one another offence interlinked, and in the said case, they were all released on default bail way back on 25th July 2011. He also submitted that so far as the third case is concerned, which has been referred to in para 5 of the affidavit filed by the brother of the applicant quoted above, none of the accused persons were arrested and the charge-sheets were filed straightway before the trial Court.
Mr.Kodekar submits that considering the seriousness of the charge and the gravity of the offence, this Court may not exercise discretion in favour of the applicant-accused.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether any case is made out for grant of bail to the applicant-accused.
I have already highlighted the case of the prosecution. I have also highlighted the role played by each of the accused persons. Indisputably, it is M/s.Biotor Industries Limited which has committed the fraud as alleged by the prosecution.
To put it briefly, the company, through its Directors, availed STL of Rs.50 crore from the Corporation Bank in a fraudulent manner. The Chairman of the company, i.e. Accused No.2, availed STL of Rs.50 crore from the Corporation Bank in a fraudulent manner and diverted the funds to the fictitious and genuine VLAs without any underline transaction.
Page 13 of 18R/CR.MA/20417/2014 CAV ORDER It appears that the officials of the Corporation Bank are also impleaded as accused, and being public servants, they are being prosecuted for the offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. The employees of the Biotor Industries Limited have also played their individual roles which include Shri Zubin Battiwala (A-13) who is alleged to have introduced the fictitious accounts of the three VLAs of the OBC, Ahmedabad. He is alleged to have diverted the funds from the VLAs through cheques and cash, without any purchase of castor seeds from them. The other employees of the Biotor Industries Limited are alleged to have committed forgery of signatures of the farmers, etc. So far as the present applicant is concerned, he is alleged to have conspired with the Accused No.11, viz. Shri Arit Memon, for laundering of the STL funds of the Corporation Bank through the accounts of Shri Vinayak Cooperative Bank Limited, Ahmedabad, and fictitious accounts in the Siddhi Cooperative Bank Limited, Ahmedabad, and other accounts.
I am unable to understand as to on what basis I should deny bail to the present applicant-accused, more particularly, having regard to the overall case of the prosecution and the role alleged to have been played by each of the co-accused.
I should also consider the fact that the applicant is in custody since July 2012. I am told that in the course of the trial, almost 125 witnesses are to be examined. As noted above, the Coordinate Bench has extended the time period to complete the trial upto September 2016. I have my doubts, whether even by the end of 2016 the trial would be completed.
Page 14 of 18R/CR.MA/20417/2014 CAV ORDER In such circumstances, I am of the view that if on examination of a given case it transpires that the case of the applicant seeking bail is almost identical or even if it is not identical but as a co-conspirator has played his own individual role similar to the accused persons who have been bailed out, or have not been arrested and straightway charge-sheets have been filed, then the desirability of consistency will require that the applicant should also be released on bail. The argument of the learned CBI counsel that it is open to the different Judges to reject or grant bail to the accused even if their cases stand on the same footing, is not at all palatable. I am unable to persuade myself to accept this submission of the learned CBI counsel. The High Court is one court and each Judge is not a separate High Court. I do not propose to go into the merit of the matter, but having regard to the peculiar facts of the case as narrated above, I am inclined to exercise my discretion in favour of the applicant-accused.
I inquired with the learned counsel appearing for the CBI, whether the CBI proposes to challenge the order of grant of bail by the High Court to Shri Zubin Battiwala (A-13). Mr.Kodekar, after taking instructions, submitted that the CBI has accepted the order and they do not propose to challenge the same before the higher forum. This is one additional factor which I need to take into consideration.
I may only say without going further into the merit or demerit of the matter that ultimately the applicant will have to face the trial and if the prosecution is able to establish the case against the applicant as alleged, he may be found guilty.
Page 15 of 18R/CR.MA/20417/2014 CAV ORDER As observed by the Supreme Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, AIR 2012 SC 830, that in the bail applications, generally, it has been laid down from the earliest time that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventive. Deprivation of liberty may be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment Page 16 of 18 R/CR.MA/20417/2014 CAV ORDER as a lesson.
The Supreme Court in the case of Sanjay Chandra (supra) further observed that bail is the rule and committal to jail an exception. The refusal of bail is a restriction on the personal liberty on the individual guaranteed under Article 21 of the Constitution.
Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with R.C.No.BSM-2011-E-0007-BS & FC, Mumbai, on executing a bond of Rs.1,00,000/- (Rupees One Lac only) with one local surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within
a week;
[d] not leave the State of Gujarat without prior
permission of the Sessions Judge concerned;
[e] mark presence at the concerned Police Station on alternate Monday for a period of three months and thereafter, on any day of first week of the month for a period of six months;
[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
The authorities will release the applicant only if he is not Page 17 of 18 R/CR.MA/20417/2014 CAV ORDER required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question of grant of bail and shall not be construed as an expression of the final opinion in the main matter.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 18 of 18