Gujarat High Court
Nishant Mukeshbhai Shah vs State Of Gujarat on 1 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/1300/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 1300 of 2018
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NISHANT MUKESHBHAI SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED with MR AFTABHUSEN ANSARI for the PETITIONER(s) No. 1
MR TEJAS M BAROT for the RESPONDENT(s) No. 1
MS MOXA THAKKAR, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 01/03/2018
ORAL ORDER
By this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant - original accused no.2 prays for regular bail in connection with the First Information Report registered with the Vastrapur Police Station, Ahmedabad, bearing I-CR No.97 of 2017, for the offence punishable under Sections 406, 420, 467, 468, 469, 471 and 120B of the Indian Penal Code.
The case of the prosecution may be summarised as under :
The first informant is in the business of import of coal. The first informant is one of the Directors of a company running in the name of Image Mine Products Private Limited registered under the Companies Act, 1956. The main business of the company is to act as an agent for the purchase and import of non-cooking coal from foreign countries and supply/distribute Page 1 of 22 R/CR.MA/1300/2018 ORDER the same in India through their principal buyers/clients. The applicant-accused is the sole proprietor of a proprietary concern running in the name of M/s.Vishweshwari International. The applicant-accused is also engaged in the business of purchase and sale of non-cooking coal.
It appears from the FIR that the applicant-accused purchased 33,778.08 tonnes of coal worth Rs.12,09,18,031=00 from the first informant. The applicant-accused paid Rs.6,23,52,014=00 towards the said transaction. However, the balance amount of Rs.5,85,66,017=00 is yet to be paid to the first informant.
The case of the prosecution is that the applicant-accused, with a guilty mind, first created confidence in the mind of the first informant by paying Rs.6,23,52,014=00 and thereby lured the first informant to supply additional quantity of coal. It is alleged that the intention of the applicant-accused right from the inception was to cheat the first informant. It is further alleged that a Letter of Credit came to be issued by the applicant- accused in favour of the first informant but the same was found to be bogus.
The applicant-accused was arrested in connection with the FIR referred to above.
The investigation has been completed and charge-sheet has been filed. The applicant-accused prayed for bail before the Sessions Court, Ahmedabad (Rural) at Mirzapur, by filing the Criminal Misc. Application No.3234 of 2017 in the Criminal Case No.7028 of 2017. The court below, by order dated 4th January 2018, rejected the bail application, observing as under :Page 2 of 22
R/CR.MA/1300/2018 ORDER "6. Ld. Advocate for the complainant Shri M.C. Barot has filed the affidavit of the complainant vide exhibit7 with list of documents vide list Exhibit7A with documents Mark 7A/1 to Mark 7A/7 and drawn the attention of the court that there are several complaints are registered against the applicant with various police station. Produced all the orders passed by the court of sessions and order of Hon.'ble High Court.
Further submitted that applicant with other accused modus operandi is very well designed and conspirated with the companies dealing in coal business. In beginning applicant used to issues advance cheques to show their bonafide and create confidence and made scandal of more than 100 crores. Considering all these facts bail application deserves to be dismissed.
7. Perused the application of the applicant, documents produced with it, documentary evidence produced by the complainant and invetigation officer. Looking to the FIR, Considering the material placed before me by the prosecution, attributed role of the applicant to the alleged offence, While granting or rejecting bail application court has to considered the prima facie case on the basis of material available on record.
8. This application is filed after filing of the chargesheet and also on the ground that other accused no. 1 is enlarged by the Hon.'ble High Court on the ground of equity and parity to be enlarged on bail. Now considering the attributed role of accused in alleged offence; seriousness and gravity of offence are different than the accused no. 1, who is enlarged on anticipatory bail by the Hon.'ble High Court. Earlier also considering all the facts and circumstances this court has rejected the bail application of the applicant, so merely filing of the chargesheet would be not the new ground to grant the bail. In my humble view this is not case to grant bail in such circumstances this application cannot be considered. Therefore, following order is passed in the interest of justice. I pass the following order.
ORDER The present application filed by the applicant is hereby rejected."
Page 3 of 22R/CR.MA/1300/2018 ORDER As the Sessions Court declined to release the applicant- accused on bail, he has come up with this application.
Mr.I.H.Syed, the learned counsel appearing for the applicant, submitted that his client is a businessman and over a period of time has been facing a lot of rough weather in his business. Mr.Syed submitted that his client has sustained a huge loss in the business of purchase and sale of coal. In such circumstances, five FIRs came to be registered against him and the other co-accused including the present FIR. Mr.Syed submitted that all the offences are Magistrate triable and charge- sheet has also been filed. The learned counsel further pointed out that in connection with the two other FIRs, the applicant has been released on bail. One order has been passed by this Court, and another, by a coordinate bench. He further pointed out that in connection with one of the FIRs registered at the DCB Police Station, Rajkot, the bail was granted by the Sessions Court itself.
It is submitted that the applicant-accused is not a criminal. He is not a habitual offender. Just because five FIRs have been registered, the same by itself will not be sufficient to brand him as a habitual offender. It is submitted that as the applicant-accused is facing lot of financial difficulties in his business, he could not fulfill his commitments and complete the dealings with the different parties, and in such circumstances, five FIRs came to be registered.
Mr.Syed submitted that out of Rs.48,25,42,393=00 due and payable to the different parties, the applicant-accused indisputably has made payments of Rs.28,53,37,042=00. So far as the application in hand is concerned, the amount due and payable to the first informant is Rs.5,85,66,017=00.
Page 4 of 22 R/CR.MA/1300/2018 ORDER
Mr.Syed further pointed out that the complainant
company has also filed a Commercial Civil Suit No.202 of 2017 in the City Civil Court at Ahmedabad against the applicant- accused, who is one of the defendants, for recovery of Rs.5,85,66,017=00.
In such circumstances referred to above, Mr.Syed prays that there being merit in this application, the same be allowed and the applicant be released on bail subject to terms and conditions that this Court may deem fit to impose.
On the other hand, this application has been vehemently opposed by Ms.Moxa Thakkar, the learned APP appearing for the State. According to the learned APP, the applicant-accused should not be released on bail. It is submitted that he is a habitual offender and has committed cheating with six different parties, which include the first informant of the present FIR. The learned APP further submitted that a bogus Letter of Credit was created by the applicant-accused. The learned APP has relied on the averments made in the affidavit-in-reply filed by one Manoharsinh Mahavirsinh Jadeja, Police Inspector, Vastrapur Police Station, Ahmedabad, for the purpose of opposing this bail application. The averments are extracted hereunder :
"1. The aforesaid application is filed praying to grant the Regular Ball for the offence punishable under Section 406, 420, 467, 468, 469, 471, 120B of IPC. It is submitted that with the FIR came to be registered initially against Hardik Sheth, Nishant Mukeshbhai Shah and Tejas Trivedi with the Vastrapur Police Station alleging that complainant dealing in coal business in the name and style of Image Mines Products Pvt. Ltd. That it was alleged in the FIR that the applicants along with other persons had contacted the complaint for Page 5 of 22 R/CR.MA/1300/2018 ORDER doing business of the Coal initially, the payments through RTGS was made to the complainant. Thereafter, during the month of March, around Rs.7,75,27,549/-, he purchased from the complainant on Credit basis. During the year April, 2014, when the demand was raised with regard to the out- standing amount, it was informed that they would make the payment through Letter of Credit. It was further informed that the procedure for credit would be done by the Accused No.2 who is having the office at Ganesh Meridian in the name of Kayla India Consultant Pvt. Ltd., the complainant along with other Director namely Jitendra Bhatt went along with other accused of Tejal Trivedi visited wherein, it Initially conveyed that they would give the LC of Rs.3,00,00,000/-. The demand of the necessary documents were made for opening the LC, which was supplied by the complainant and thereafter, with the Stamp of the Kayla India Consultant Company, the New Zealand General Equity Building Bank Letter of Credit (LC) was prepared.
2. It is submitted that accused namely Tejals Trivedi had informed this Letter of Credit (LC) would given by the Kayla India Consultant Company in the name of 3rd party when the same was produced for encashing by the complainant company in the Mehsana Urban Co-operative Ltd and it was further forwarded to the Dena Bank by the Bank. The Dena Bank had further forwarded the same to the Wales Forgo Bank, the same was returned without honour. Subsequently, it was found that the Director of the Kayla India Consultant Company namely Mohanbhai Ruparel who is having the office at Uttar Pradesh had never issued such type of LC and it was found to be Bogus and forged. With the aforesaid allegations, the FIR came to be lodged. It is submitted that the applicant had approached to this Hon'ble Court for quashing of the FIR which was withdrawn being Criminal Misc. Application No.10769 of 2017.
3. It is submitted that with the said modus, Six FIRs came to be registered in the different Police Station, out of this two were registered at Uttar Pradesh and Maharastra against the present applicant. Copies of the Six FIRs are annexed herewith and marked as ANNEXURE-A.
4. It is submitted that the applicant indulge into the same type of activities and cheating the persons by initially making the payment of the goods, obtain trust then dupe person with Page 6 of 22 R/CR.MA/1300/2018 ORDER huge amount. That in view of the active role and antecedence, the deponent prays not to exercise of the discretion in favor of the applicant-accused and application be dismissed."
In such circumstances referred to above, the learned APP prays that there being no merit in this application, the same be rejected.
This application has been vehemently opposed by the first informant too. Mr.Barot, the learned counsel appearing for the first informant, submitted that the applicant-accused does not deserve to be released on regular bail. Mr.Barot, while opposing this bail application, raised hue and cry. According to Mr.Barot, the applicant-accused has cheated his client by not making the full payment towards the transaction of purchase of coal. Mr.Barot, while opposing this bail application, placed reliance on the following averments made in the affidavit-in-reply filed by the first informant :
"2. I say and submit that we are dealing in coal in the name and style of Image Mines Products Pvt. Ltd. from Ahmedabad and Mehsana office. I say that the present applicant along with two others committed fraud and cheating upon us for an amount of more than Rs.5,85,66,017/-.
3. I say that the present applicant and two others had hedged conspiracy and committed fraud with several persons. They are habitual offenders and several complaints and FIRs have been registered against the present applicant and his two associates.
4. It is submitted that their modus operandi is very well designed. As part of their conspiracy, they approach the companies dealing in coal and place purchase orders and in the beginning they issue advance cheques and immediately they send payments through RTGS to show their bonafide and create confidence. Thereafter, they place bulk orders Page 7 of 22 R/CR.MA/1300/2018 ORDER worth huge sums of money and they make a part payment and thereafter they did not pay any remaining sums and on questioning such a conduct by the buyers, they evade any communication and do not reply at all. By way of this modus operandi they have duped several companies for an amount exceeding 100 crores. They get the coal from different companies and thereafter they sell off the said coal at lower price in cash without bill/voucher and thereby committing frauds of several crores.
5. I further say that as a part of conspiracy after purchasing huge volume of coal from different companies they have completely evaded taxes that runs into huge amounts. I state that VAT authorities have also initiated investigation into the affairs of the applicant and his company.
6. I say that the present applicant who approached one of the director of our company Mr.Mohanbhai Ruparel through one Mr.Trambaklal Sheth of Gandhidham. It is submitted that the applicant Nishant Shah and Hardik Sheth, placed small orders in the beginning and then an order of 33,000 MT coal was placed with us and in all we sent 33,778.08 MT. In the beginning they paid part payment through cheque and RTGS and in all they made payment of Rs.6,23,52,014/- and thereafter they did not make any further payment and after our repeated reminders and requests they say that they will make payment by opening a Letter of Credit (LC). It is submitted that they opened false and bogus LC. It is submitted that thereafter, I tried to contact the applicant herein and also Other two accused. However, they did not take any of my calls or any communication from my end.
7. It is further submitted that the applicant approached Hon'ble High Court for quashing the present FIR i.e. FIR being I-CR. No.97/2017 registered with Vastrapur Police Station against the applicant Nishant Mukesh Shah residing at Bhuj, Hardik Motilal Sheth and Tejas Kiran Kumar Trivedi u/ss. 406, 420, 467, 468, 469, 471 and 120B of IPC by way of Criminal Misc. Application No. 10769 of 2017. The said application has been withdrawn by the applicant.
8. I say that the present applicant and Tejas Trivedi committed huge fraud with several companies. I further say that there are several FIRs lodged against them. It is Page 8 of 22 R/CR.MA/1300/2018 ORDER submitted that earlier also one FIR at Sola Police Station being I-CR. No.291/2015 u/ss. 406, 420, 467, 468, 471, 294B, 506(1), 120B and 114 of IPC was lodged against the present applicant and Tejas Trivedi for false and bogus LC.
9. I further say that another FIR for false and bogus LC was registered with Ellisbridge Police Station being I-CR. No.29/2017 u/ss. 406, 420, 467, 468, 471 and 120B of IPC against Tejas Trivedi.
10. I further say that another FIR was registered with Madhavpura Police Station being I-CR. No.19/2017 u/ss. 406, 420, of IPC against Tejas Trivedi.
11. I further say that another FIR was registered with DCB Police Station, Rajkot being I-CR. No.11/2016 u/ss. 406 and 120B of IPC against Tejas Trivedi and Nishant Shah for fraud and cheating.
12. I say that another FIR being I-CR. No.237/2017 was registered with Sola High Court Police Station against Tejas Trivedi, Nishant Shah and others by K. C Corporation u/ss. 406, 420, 504, 506 and 120B of IPC which is under scrutiny of the Police.
13. I further submit that an FIR being Case Crime No.0198 of 2015 was filed by Amardeep Singh who is one of the partner of M/s. Kayla India consultants residing at Sitapur, U.P. When it came to the notice of the complainant that the LC was rejected by the bank, the complainant inquired with Amardeep Singh, it was revealed that he did not give any consent or authorization for opening an LC, he does not hold a passport, that he does not hold any bank account with New Zealand Bank and all the documents were forged and made up by the applicant and other persons with a malafide intention to dupe several companies for huge sums of money. The FIR clearly suggests that the applicant along with Tejas Trivedi and Hardik Sheth created a false and bogus LC in the name of Amardeep Singh. It is further submitted that statement of Amardeep Singh was recorded u/s.164 CrPC which clearly shows that he has not given his consent to open an LC in his name and he has not given any authorization to open any LC."Page 9 of 22
R/CR.MA/1300/2018 ORDER In such circumstances referred to above, the learned counsel appearing for the first informant prays that there being no merit in this application, the same be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether I should exercise my discretion in favour of the applicant-accused.
The details with regard to the six FIRs and the amount paid and outstanding is extracted hereunder by way of a chart :
Sr. Particulars Alleged Date of Date of Complaina Accused Amount for Payment Arrears as Civil Proceedi Status of No regarding Offences Offence FIR nt Name Name the Goods Made alleged in Suit ng under Bail FIR Purchased FIR Details NI Act
1. I-CR 406, 420, 1/12/13 14/4/17 Kanubhai 1.Hardick 12,09,18,031 6,23,52,014 5,85,66,017 NA NA Pending No.97/2017 467, 468, Rambhai Sheth Vastrapur 469, 471 Patel 2. Nishant Police and Shah station 120(b) of 3. Tejas IPC Trivedi
2. I-CR 406, 420, January 25/11/15 Bhushan 1. Tejas 6,03,81,576 87,00,000 5,16,81,576 Pending Pending Pending No.291/ 465, 467, 2014 to Shivkumar 2. Gautam 2015 Sola 468, 471, 9/9/14 Dubey 3. Narendra Police 294(b), 4. Arun Station 506(1), 5. Nishant 114 and 6. Autho.
120(b) of Officer of
IPC General
Equity Bldg
Society
3. I-CR 406, 420, May 11.2.15 Tejas 1. Nishant 25,69,17,730 15,59,65,220 15,69,35,912 Pending Pending Granted
No.31/2015 471 and 2014 Kiranbhai 2. K.C. (Justice
Anand 120(b) Trivedi Corporation G.R.
Town Police 3. Udhwani)
Station Jagdishbhai
4.
Bhushanbha
4. I-CR 406, 420 18/4/14 9/8/17 Bhusan 1. Tejas 12,83,18,74 4,16,66,202 8,66,51,591 Pending Pending Granted
No.237/ and to Shivkumar 2. Nishant (Justice
2017 Sola 120(b) of 27/4/14 Dubey J.B.
Police IPC. Pardiwala)
Station
5. I-CR 406 and 1/4/14 16/10/16 Bankimbha 1. Tejas 3,14,93,182 1,66,53,606 1,48,39,576 Pending Pending Granted
No.11/2016 120(b) to Kantilal 2. Nishant (By
DCB Police 18/2/15 Mehta District
Station, Court)
Rajkot
6. I-CR No. 419 and Not 13/5/15 Am,ardeep 1. Shreyash NA NA 3,00,00,000 NA NA Not
198/2015 420 of Noted sinh 2. Nishant arrested
Kotalvali IPC Govindsinh 3. Tejas
Police 4. Arun
Station, UP
Page 10 of 22
R/CR.MA/1300/2018 ORDER
So far as the FIR bearing I-CR No.97 of 2017 registered at the Vastrapur Police Station, Ahmedabad, is concerned, one of the co-accused came to be released on anticipatory bail by a coordinate bench vide order dated 28th November 2017. The order passed by a coordinate bench in the Criminal Misc.
Application No.24868 of 2017 is extracted hereunder :
"2. Learned advocate appearing on behalf of the applicant would submit that considering the nature of offence, the applicant may be enlarged on anticipatory bail by imposing suitable conditions. Learned Advocate for the applicant on instructions states that the applicant is ready and willing to abide by all the conditions, including the condition with regard to the powers of Investigating Agency to seek remand of the petitioner; subject to the petitioners right to oppose it.
3. On the other hand, the learned APP appearing for the respondent-State has opposed this application.
4. Having considered the rival contentions including that of the petitioner, although it appears that a fraud of sum Rs.23,02,38,711/- is alleged against the accused persons; so far as, petitioner is concerned learned APP could not point out his active role in the commission of fraud except introduction of other accused persons to the complainant and his presence in the bank where allegedly fake Letter of Credit was presented. In above view of the matter, in absence of credible case against the petitioner at this stage, discretion is required to be exercised in favour of the petitioner by admitting him to bail in anticipation of his arrest; in absence of apprehension against the petitioner tampering with the evidence or threatening the witnesses or fleeing from justice."
So far as the FIR bearing I-CR No.31 of 2015 registered at the Anand Town Police Station is concerned, the applicant- accused came to be released on regular bail by a coordinate bench vide order dated 15th December 2017. The order passed by a coordinate bench in the Criminal Misc. Application No.28769 of 2017 is extracted hereunder :
Page 11 of 22R/CR.MA/1300/2018 ORDER "1. Heard learned advocate for the applicant and learned APP for the respondent-State.
2. This application is filed seeking bail under Section 439 of the Code of Criminal Procedure, 1973 in respect of the offences punishable under Sections 420, 406, 471 and 120- B of the Indian Penal Code for which FIR came to be registered at C.R. No.I-31 of 2015 with Anand Town Police Station.
3. Having considered the rival contentions, it clearly transpires from the averments made in the complaint that prima facie, the dispute involved herein is a commercial/civil dispute. The petitioner is arrested only because he defaulted in making the payments of the bills to the complainant.
Earlier, at pre-charge-sheet stage, the bail application by the petitioner was withdrawn. No better material implicating the petitioner in the offence in question except as above is pointed out by learned APP. Thus, considering the nature of accusation against the petitioner and in absence of any apprehension of the petitioner tampering with the evidence or threating the witnesses or fleeing from trial, the case for admitting the petitioner to bail is made out.
4. Hence, this application is allowed and applicant is ordered to be released on bail in connection with C.R. No.I-31 of 2015 with Anand Town Police Station on executing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one 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 injurious to the interest of the prosecution;
(c) surrender his passport, if any, to the lower court within a week;
(d) not leave the territory of India without prior permission of the Sessions Judge concerned;
(e) mark presence in the concerned police station once in a calendar month.
(f) furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the trial court at the time of execution of the bond and Page 12 of 22 R/CR.MA/1300/2018 ORDER shall indicate change of residential address if any to the trial court.
5. The competent authority will release the applicants only if he is not required in connection with any other offence for the time being.
5.1. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to take appropriate action in the matter.
5.2. Bail bond to be executed before the lower court having jurisdiction to try the case.
5.3. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law.
5.4. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail.
6. Rule made absolute to the aforesaid extent. Direct service is permitted."
So far as the FIR bearing I-CR No.237 of 2017 registered with the Sola High Court Police Station is concerned, this Court ordered released of the applicant on regular bail by order dated 12th February 2018 passed in the Criminal Misc. Application No.3500 of 2018. The relevant portion of the order is extracted hereunder :
"3. The learned advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
4. The learned APP appearing on behalf of the respondent- State has opposed grant of regular bail looking to the nature and gravity of the offence.Page 13 of 22
R/CR.MA/1300/2018 ORDER
5. The learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
6. I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant.
I have also taken into consideration the following aspects :
(i) The investigation is over. Chargesheet is filed.
(ii) The offences are magistrate triable.
(iii) The case of the prosecution appears to be of cheating.
There is a Civil Suit also pending between the parties.
This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40."
So far as the FIR bearing I-CR No.11 of 2016 registered at the DCB Police Station, Rajkot, is concerned, the applicant- accused was ordered to be released on regular bail by the Sessions Court itself.
One FIR has been registered in the State of Uttar Pradesh. However, in connection with the said FIR, the applicant-accused has not been arrested.
Essentially, it can be said that the dispute between the first informant and the applicant-accused arose from a commercial transaction. It is too much to say that just because six FIRs have been registered against the applicant-accused, he could be termed as a habitual offender. Prima facie, it appears that the business of the applicant-accused is facing a rough weather. He does not seem to be doing well in his business for the reasons assigned in his application. As noted above, out of Page 14 of 22 R/CR.MA/1300/2018 ORDER Rs.48,25,42,393=00, an amount of Rs.28,53,37,042=00 has been paid till this date to the different parties. Commercial suits for recovery of the said amount are also pending in the civil courts. In such circumstances, if bail is declined, the same will be nothing but punishment at a pre-trial stage.
I am conscious of the fact that there are allegations against the applicant-accused of creating a bogus Letter of Credit. It is possible that he might have gone to the extent of creating such a bogus Letter of Credit succumbing to the immense pressure exerted by the first informant. The allegations as regards creating the bogus Letter of Credit may constitute a prima facie case against the applicant to put him on trial. However, the same by itself may not be sufficient to deny bail pending the trial.
In Sanjay Chandra v. Central Bureau of Investigation, (2012)1 SCC 40, the Supreme Court has exhaustively explained the object of bail. Some of the observations of the Supreme Court are extracted hereunder :
"21. In bail applications, generally, it has been laid down from the earliest times 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 preventative. Deprivation of liberty must 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.
22. 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 Page 15 of 22 R/CR.MA/1300/2018 ORDER 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.
23. 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 as a lesson.
24. In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which has resulted in loss to the State Exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice."
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused Page 16 of 22 R/CR.MA/1300/2018 ORDER constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
A cornerstone of our criminal justice system is that a person is presumed innocent until tried and convicted according to law. It is fundamental that a person should not be denied his or her liberty. Bail is not about whether or not an accused person is guilty of an offence and that there the problem lies. In the recent times, bail has come to be symbolised as a "Judgment" and serve as a proximity for guilt and punishment. Denying bail and putting a person in jail before trial has become a way of expressing condemnation of the behaviour in which a person is alleged to have engaged. In our criminal justice system, condemnation and punishment should only ever happen after someone has been found guilty of an offence. Bail should not be denied by way punishment. Just because an F.I.R. has been registered and an offence is alleged to have been committed, that by itself, is not sufficient to deny bail. Yes, if the offence otherwise is very serious and the accused has antecedents, the Court would be well justified in denying bail. However, bail in these type of cases should not be declined to punish a person, who is yet to be prosecuted for a crime.
In the aforesaid context, if I do not refer to and rely upon a recent pronouncement of the Supreme Court, then this judgment would remain incomplete. I am referring to a decision of the Supreme Court in the case of Dataram Singh vs. State of Uttar Pradesh and another [Criminal Appeal No.227 of 2018 decided on 6th February 2018]. The observations of the Supreme Court are extracted hereunder:
Page 17 of 22R/CR.MA/1300/2018 ORDER "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the Page 18 of 22 R/CR.MA/1300/2018 ORDER deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re Inhuman Conditions in 1382 Prisons. (2017) 10 SCC 658.
6. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [2017 (13) Scale 609] going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565] in which it is observed that it was held way back in Nagendra v. KingEmperor [AIR 1924 Cal 476] that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson [AIR 1931 All 356] wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
7. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
8. We have been constrained to make these observations in the present appeal, in which the grant of bail has not been Page 19 of 22 R/CR.MA/1300/2018 ORDER opposed by the State, but there is vehement opposition from the complainant."
In the present case also, it is the first informant, i.e. the victim, who has raised hue and cry opposing this bail application. It is but obvious that the first informant, being the victim, will definitely raise a hue and cry as he has to recover Rs.5 crore and odd from the applicant-accused.
A very unusual submission has been made by the learned APP as well as by the learned counsel appearing for the first informant. Both submitted that if the applicant-accused is released on bail, then he will once again enter into a fresh business transaction with a particular party and such party also would be duped or cheated. In such circumstances, according to both the learned counsel, the release of the applicant-accused would not be in public interest.
I am not at all impressed by such a submission. The reputation of a particular party in the market is by and large known to the people. Despite the same, if any party enters into any business transaction, he would do so on his risk or peril. No apprehension has been expressed that by the release of the applicant-accused on bail the trial would be put to peril or in jeopardy. As the entire case of the prosecution is based on the documentary evidence, there is no question of tampering with the evidence or the prosecution witnesses.
In any view of the matter, all the offences are Magistrate triable. The investigation is also over. Charge-sheet has been filed. The entire case of the prosecution is substantially based on documentary evidence. A Commercial Civil Suit for recovery of the requisite amount is also pending.
Page 20 of 22R/CR.MA/1300/2018 ORDER In the overall view of the matter, I am inclined to exercise my discretion in favour of the applicant-accused.
Hence, the present application is allowed and the applicant-accused is ordered to be released on regular bail in connection with the First Information Report registered with the Vastrapur Police Station, Ahmedabad, bearing I-CR No.97 of 2017, on executing a personal bond of Rs.5,00,000/- (Rupees Five Lac only) with one 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 before the concerned Police Station every fortnight on Sunday between 11:00 a.m. and 2:00 p.m. 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 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.
Page 21 of 22R/CR.MA/1300/2018 ORDER 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.
At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 22 of 22