Gujarat High Court
Qatar Chemical And Petrochemical ... vs State Of Gujarat on 27 February, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/25240/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC. APPLICATION NO. 25240 of 2017
With
CRIMINAL MISC. APPLICATION NO. 25244 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order NO made thereunder ?
CIRCULATE THIS JUDGEMENT IN THE SUBORDINATE JUDICIARY.
========================================================== QATAR CHEMICAL AND PETROCHEMICAL MARKETING AND DISTRIBUTION COMPANY (MUNTAJAT) QJSC...... Applicant Versus STATE OF GUJARAT & 1 ..... Respondents ========================================================== Appearance:
CRIMINAL MISC. APPLICATION NO. 25240 of 2017:
MR DHAVAL DAVE, SENIOR ADVOCATE FOR J SAGAR ASSOCIATES for the PETITIONER(s) No. 1 MR IH SYED, ADVOCATE WITH MR ANKIT B PANDYA for the RESPONDENT(s) No. 2 MS MOXA THAKKAR, APP for the RESPONDENT(s) No. 1 CRIMINAL MISC. APPLICATION NO. 25244 of 2017: MR DHAVAL DAVE, SENIOR ADVOCATE FOR J SAGAR ASSOCIATES for the PETITIONER(s) No. 1 MR IH SYED, ADVOCATE WITH MR ANKIT B PANDYA for the RESPONDENT(s) No. 2 MR RAKESH PATEL APP for the RESPONDENT(s) No. 1 ========================================================== Page 1 of 24 R/CR.MA/25240/2017 JUDGMENT CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 27/02/2018 ORAL COMMON JUDGMENT 1 As the issues involved in both the captioned applications are the same, those were heard analogously and are being disposed of by this common judgment and order.
2 The Criminal Miscellaneous Application No.25240 of 2017 has been filed by the original first informant for cancellation of anticipatory bail granted by the Court below in favour of the respondent No.2.
Whereas, the Criminal Miscellaneous Application No.25244 of 2017 has been filed by the very same first informant for cancellation of regular bail granted by the Court below in favour of the respondent No.2.
3 I take notice of the fact that the respondent No.2 in the two applications are father and son respectively.
4 The facts of this litigation may be summarised as under:
4.1 The applicant in both the applications is the original first informant. The applicant lodged a First Information Report before the Vastrapur Police Station dated 8th January 2017 for the offence punishable under Sections 409, 418, 420 and 120B of the Indian Penal Code, which came to be registered as the C.R. No.I5 of 2017. The F.I.R.
came to be lodged against the respondent No.2 of the two applications.
4.2 The accused persons are the owners of three companies: (1) Ardor Global Private Limited, (2) Ardor International, and (3) ChemEdge International Company.
Page 2 of 24R/CR.MA/25240/2017 JUDGMENT 5 The case of the applicant, as pleaded in his own words in the two applications, is extracted hereunder:
"As brought out in the said FIR, the accused had purchased liner Alkyl Benzene (LAB) chemical, which is used to manufacturing Linear Alkyl benzene Sulphonic Acid (LABSA), which in turn is used for manufacturing detergents, from Muntajat Qatar Company (Qatar Chemical and Petrochemical Marketing and Distribution Company (Muntajat) QJSC) and initially, till 29th October 2015, paid for the bills with a view to earn confidence of the complainant. However, thereafter, the accused failed to pay for the subsequent invoices.
Till 30th October 2015, the accused had ordered and received goods for a total amount being USD 28077954.13, which amounts to approximately INR 188 crores and more specifically at their branch worth USD 8319481.94 through Ardor Global Private Limited, worth USD 6726272.29 through Ardor International and worth USD 12959999.90 through ChemEdge International Company. The accused have not paid the said amount of approximately INR 188 crores to the complainant for the goods purchased and have thereby committed criminal breach of trust and fraud with the complainant."
6 Thus, it appears that the case of the applicant is one of being an unpaid seller said to have been cheated by the accused.
7 The respondent No.2 of the Criminal Miscellaneous Application No.25240 of 2017, apprehending arrest at the hands of the police, preferred the Criminal Miscellaneous Application No.101 of 2017 in the Court of the 3rd Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur. The 3rd Additional District Judge, Ahmedabad (Rural), vide its Page 3 of 24 R/CR.MA/25240/2017 JUDGMENT order dated 20th January 2017, allowed the application and ordered the release of the accused on anticipatory bail. The impugned order of anticipatory bail is extracted hereunder:
"2 Heard Ld. Advocate for the applicant Mr. V.D.Gajjar who has argued out the matter and submitted that before filing the complaint, there is verification in respect of the fact of offence in Economical offence prevention department. The applicant has purchased the goods from the company of Qatar and it is the case of the complainant that after the purchase of goods, the applicant has not made payment and therefore this is the civil dispute. The complainant has to recover amount from the applicant but this is not the way to recover the amount. The complainant has not stated any criminal act of the applicant. The applicant is also having his business in the India and the offence against the applicant is under Sec. 409, 420 of IPC and therefore looking to the nature of the offence, the applicant be released on bail. Further submitted that the Hon'ble High Court of Gujarat has also released the applicant in two other offence of the similar nature and enlarge the applicant on anticipatory bail. The complainant is filing the complaint upon complaint just to harass the applicant and therefore this is the anticipatory bail since this applicant has earlier released on anticipatory bail by the High Court and therefore in this offence, the applicant should be released on anticipatory bail. The Ld. Advocate for the applicant has also placed reliance on the citation i.e. 1992 (1) GLR 631 in case of Solanki Ravibhai Dipubhai V. State of Gujarat as well as (2011) 3 GLR 1999 in case of Rameshbhai Batubhai Nabhi V. State of Gujarat.
3. On the other hand Ld. DGP Mr. P.M.Trivedi has objected this application on the ground that the other accused named Fenil who is the son of the present applicant has to be arrested. The present applicant is involved in the offence of criminal breach of trust and cheating for Rs. 188 Crores. The complainant is Manager of Qatar company and the complainant has purchased the goods worth 2,80,77,954/U.S. $ and the applicant has not paid an amount of Rs. 188 Crores and therefore committed the cheating and criminal breach of trust and therefore the present applicant should not be enlarged on bail.
4. Perused the police papers as well as the affidavit of the Investigating Officer wherein this case it is the allegation of the complainant that the present applicant has purchased goods worth 2,80,77,954/U.S. $ from the complainant company and did not made the payment and thereby committed the offence of criminal breach of trust and cheating. Thus, looking to the fact of the complaint, after purchasing the goods the present Page 4 of 24 R/CR.MA/25240/2017 JUDGMENT applicant has not made the payment of the goods purchased and therefore it appears that this is the dispute having civil nature in which the complainant has to recover the amount of goods sold from the present applicant. Now the Hon'ble High Court of Gujarat has also released the present applicant in two other offences of the similar nature. The applicant belongs to Prahladnagar, Ahmedabad and he is the local resident of Ahmedabad. Looking to the nature of the offence and gravity of punishment as well as social status of the applicant and settled principle of law in respect of the bail, this appears to be fit and proper case to exercise the discretion vested under Sec. 438 of the Cr.P.C. with this court and to enlarge the accused person on anticipatory bail in case of arrest of the applicant. Hence, I pass the following order in the interest of justice.
:: O R D E R ::
The present application for anticipatory bail U/Sec.438 of Cr.P.Code is hereby allowed.
It is hereby ordered that on event of arrest of present applicant namely Bharatbhai Ratanshi Shah in connection with the C. R. No. I5/2017, registered with the Vastrapur Police Station, Ahmedabad, for the offence punishable U/Sec. 409, 418, 420, 120B of the Indian Penal Code, the present applicant is released on an anticipatory bail on execution of bond of the amount of Rs.50,000/ (Rupees Fifty Thousand Only) with surety of like amount subject to the following conditions.
(a) The applicant is directed to remain present before the I.O. who is investigating the offence on 23/01/2017 and 24/01/2017 from 10.00 AM to 5.00 PM.
(b) The applicant shall remain present before the I.O. of the Vastrapur police station for the purpose of interrogation as and when called for by the investigation officer.
(c) It is open to the investigating officer to file the application for remand if, he considers it proper and if, such application is filed, the concerned Ld. Magistrate shall decide the said application for remand on merits and according to law.
(d) In pursuant to such interrogation, any recovery of articles are needed, the investigating officer would be at liberty to do so and such recovery would be deemed to have been effected while the appellant was in custody.Page 5 of 24
R/CR.MA/25240/2017 JUDGMENT
(e) The applicant shall not involved himself in the similar other offence.
(f) The applicant shall not directly or indirectly make any inducement, threat or promise to any witnesses of the prosecution.
(g) The applicant shall not leave the territory of Gujarat without prior permission of the concerned Ld. Magistrate.
(h) The applicant shall surrender his passport, if he have, forthwith to the Trial court.
(i) The applicant shall furnish his detailed address before the Trial court and if, he changes his residence, then he shall inform the concerned Ld. Magistrate and investigation officer immediately within 7 days."
8 On the other hand, the respondent No.2 of the Criminal Miscellaneous Application No.25244 of 2017 came to be arrested by the police. In such circumstances, he had to file the Criminal Miscellaneous Application No.192 of 2017 in the Court of the 3 rd Additional Sessions Judge, Ahmedabad (Rural) at Mirzapur for regular bail under Section 439 of the Code of Criminal Procedure, 1973. The 3rd Additional Sessions Judge, Ahmedabad (Rural), vide its order dated 3rd February 2017, allowed the application and ordered the release of the accused on regular bail. The impugned order of regular bail is extracted hereunder:
"2 Heard Ld. Advocate for the applicant who has argued out the matter and submitted that previously the father of the applicant has been enlarged on bail on 20/01/2017 and this is the application of the applicant for regular bail. The applicant is also arrested for the other offence and the regular bail is pending before the High Court. In this matter, even the police has got the remand of the applicant. The applicant is under judicial custody since 27/01/2015. The entire case of the complaint is based on the documentary evidence and the documents are with the complainant and therefore there is no any possibility of tampering the documentary evidence. The investigation has over. The applicant has got son of 5 years and daughter of 10 years and he has also got responsibility for looking after the business and since in the complaint, Page 6 of 24 R/CR.MA/25240/2017 JUDGMENT the amounts shown is used would not affect the merit of the case and therefore looking to the offence against the applicant as well as the other citations relied upon by the Ld. Advocate, submitted to enlarge the accused on bail on terms and conditions which the court deems just and proper.
3 On the other hand Ld. D.G.P. Mr. P.M. Trivedi has strongly objected this application on the ground that this applicant is looking after the business of his father. He is the main accused and the role attributed to both the accused are different and therefore the present applicant is not entitled to get benefit of parity and submitted to dismiss the application.
4 On going through the police papers as well as affidavit of Investigating Officer, it appears that the present applicant has purchased goods worth 2,80,77,954/U.S. $ from the complainant company and did not made the payment and thereby committed the offence of criminal breach of trust and cheating. Thus, looking to the fact of the complaint, after purchasing the goods the present applicant has not made the payment of the goods purchased and therefore it appears that this is the dispute having civil nature in which the complainant has to recover the amount of goods sold from the present applicant. Now the father of the applicant has been enlarged on bail by this court in the same offence. Even the Hon'ble High Court has enlarged the father of the accused in other offence of the similar nature and those applications were under Sec. 438 of Cr.P.C. whereas this is the application under Sec. 439 of Cr.Pp.C. I.e. for regular bail. So far as the investigation is concerned, the police interrogation has completed. The applicant belongs to Prahladnagar, Ahmedabad and he is the local resident of Ahmedabad. Looking to the nature of the offence and gravity of punishment as well as social status of the applicant and settled principle of law in respect of the bail, this is the fit case to exercise the discretion vested with this court under Sec. 439 of the Cr.P.C. and to enlarge the applicant on regular bail under Sec. 439 of the Cr.P.C. Hence, I pass the following order in the interest of justice.
:: O R D E R ::
The present application for regular bail U/Sec.439 of Cr.P.Code is hereby allowed.
The applicant namely Fenil Bharatbhai Shah is ordered to be released on regular bail U/Sec.439 of Criminal Procedure Code in connection with the C.R. No. I5/2017 registered with the Vastrapur Police Station, Ahmedabad for the offence punishable U/Sec. 409, 418, 420, 120B of the Indian Penal Code, on his executing bond of Rs.50,000/ Page 7 of 24 R/CR.MA/25240/2017 JUDGMENT (Rupees Fifty Thousand Only) with surety of like amount on the following terms and conditions that he shall:
remain present before the I.O. on every 1st and 15th day of each month till filing of the charge sheet.
not tamper with the evidence of, nor pressurizes or contacts the complainant or witnesses of the prosecution.
not involve himself in similar type of another offence.
furnish his address to the Court concerned at the time of execution of bond, and, if he change his resident, then he shall disclose his address of the new residence before I.O. as well as the Court within the 15 days.
not leave the territory of State of Gujarat without the permission of the Court and if, having Passport, he shall deposit the same before the trial Court within a week.
Bail bond, be furnished before the concerned Ld. Magistrate of his satisfaction and if the time is required for producing solvency certificate, the Trial Court may grant the same as he thinks fit."
9 The applicant, being dissatisfied with the two orders, one of anticipatory bail and another of regular bail, is here before this Court questioning the legality and validity of both the orders.
10 The applicant wants this Court to cancel the anticipatory bail as well as the regular bail granted in favour of the two accused by the Court below.
11 Mr. Dhaval Dave, the learned senior counsel appearing for the applicant - original first informant vehemently submitted that, the Court below committed a serious error in exercising its discretion in favour of the two accused. Mr. Dave submitted that having regard to the Page 8 of 24 R/CR.MA/25240/2017 JUDGMENT magnitude of the crime and the nature of the charge, the Court below ought not to have exercised its discretion in favour of the accused persons. Mr. Dave submitted that his client is a foreign company. The company entered into an agreement of purchase of chemicals. It is pointed out that the accused had ordered and received goods worth USD 28077954.13, which in terms of Indian Rupees comes to around 188 Crore. It is submitted that the accused failed to pay the amount of Rs.188 Crore, and thereby, committed criminal breach of trust. Mr. Dave submitted that, within one week from the date of the filing of the F.I.R., the Court below granted anticipatory bail to Bharat Ratanshi Shah. Whereas, the son was arrested by the police, and later, released on regular bail. It is pointed out that the accused are quite influential and there is every likelihood that they may threaten the witnesses and also tamper with the evidence. Mr. Dave submitted that the Court granting bail is expected to exercise its discretion in a judicious manner and not as a matter of course. Though, at the stage of granting anticipatory bail or regular bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, yet there is a need to indicate in such orders reasons for prima facie concluding why anticipatory bail or regular bail was being granted, particularly, when the accused is charged of having committed the offence of cheating to the tune of Rs.188 Crore. It is submitted that the nature of accusations and the nature of supporting evidence has been overlooked by the Court below while exercising its discretion in favour of the accused.
12 Mr. Dave submitted that cancellation of the anticipatory bail as well as regular bail is not only prayed for on the ground that the accused persons may misuse their liberty and thereby put the trial in jeopardy, but also on the ground that the discretion exercised by the Court could Page 9 of 24 R/CR.MA/25240/2017 JUDGMENT be termed as illegal and perverse. To put it in other words, the concept of setting aside the unjustified, illegal or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or some new facts have emerged requiring such cancellation.
13 In such circumstances referred to above, Mr. Dave, the learned senior counsel prays that there being merit in both the applications, they be allowed and the bail may be cancelled. Mr. Dave, in support of his submissions, placed reliance on a decision of the Supreme Court in the case of Jai Prakash Singh vs. State of Bihar and another [AIR 2012 SC 1676].
14 On the other hand, both these applications have been vehemently opposed by Mr. I.H. Syed, the learned counsel appearing for the two accused. Mr. Syed submitted that no error, not to speak of any error of law could be said to have been committed by the Court below in granting anticipatory bail as well as regular bail in favour of the two accused.
15 Mr. Syed submitted that all the offences are magistrate triable. Even if there is a prima facie case, bail should not be cancelled by way of punishment. Mr. Syed submitted that the first informant by filing these two applications for cancellation of anticipatory bail and regular bail respectively is indirectly trying to exert pressure on the accused for the payment towards the goods sold by the first informant in favour of the accused. The learned counsel submitted that the case on hand is nothing, but one of a dispute arising from a commercial business transaction. At times, the party may have to face financial difficulties, Page 10 of 24 R/CR.MA/25240/2017 JUDGMENT and in such circumstances, may not be in a position to pay the requisite amount at the earliest. However, having regard to the case put up by the first informant, bail need not be cancelled.
16 In such circumstances referred to above, Mr. Syed, the learned counsel submitted that there being no merit in both the applications, those be rejected.
17 Both the learned A.P.Ps. appearing for the State submitted that having regard to the amount due and payable by the accused persons to the first informant, the Court below ought not to have exercised its discretion in favour of the accused persons.
18 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 the Court below committed any error in passing the impugned orders.
19 It is trite law that the considerations for grant of bail and cancellation of bail stand on different footings. By a majority judgment in Aslam Babalal Desai v. State of Maharashtra [1992 AIR SCW 2621], the circumstances, when bail granted can be cancelled, were highlighted by the Supreme Court in the following words:
"11. On a conjoint reading of Sections 57 and 167 of the Code it is clear that the legislative object was to ensure speedy investigation after a person has been taken in custody. It expects that the investigation should be completed within 24 hours and if this is not possible within 15 days and failing that within the time stipulated in clause (a) of the proviso to Section 167(2) of the Code. The law expects that the investigation must be completed with dispatch and the role of the Magistrate is to oversee the course of investigation and to prevent abuse of the law by the investigating agency. As stated earlier, the legislative history shows that before the Page 11 of 24 R/CR.MA/25240/2017 JUDGMENT introduction of the proviso to Section 167(2) the maximum time allowed to the investigating agency was 15 days under subsection (2) of Section 167 failing which the accused could be enlarged on bail. From experience this was found to be insufficient particularly in complex case and hence the proviso was added to enable the Magistrate to detain the accused in custody for a period exceeding 15 days but not exceeding the outer limit fixed under the proviso (a) to that subsection. We may here mention that the period prescribed by the proviso has been enlarged by State amendments and wherever there is such enlargement, the proviso will have to be read accordingly. The purpose and object of providing for the release of the accused under subsection (2) of Section 167 on the failure of the investigating agency completing the investigation within the extended time allowed by the proviso was to instil a sense of urgency in the investigating agency to complete the investigation promptly and within the statutory time frame. The deeming fiction of correlating the release on bail under subsection (2) of Section 167 with Chapter XXXIII i.e. Sections 437 and 439 of the Code, was to treat the order as one passed under the latter provisions. Once the order of release is by fiction of law an order passed under Section 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under subsection (5) of Section 437 or subsection (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar [AIR 1987 SC 149] the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted under Section 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency,
(vii) attempts to place himself beyond the reach of his surety etc. These grounds are illustrative and not exhaustive. It must also be remembered that rejection of bail stands on one footing but cancellation of ball is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to."
20 It is, therefore, clear that when a person to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities which would hamper smooth investigation or trial, bail granted can be cancelled. Rejection of bail stands on one footing, but cancellation of bail is a harsh order because it takes away the liberty of Page 12 of 24 R/CR.MA/25240/2017 JUDGMENT an individual granted and is not to be lightly resorted to.
21 In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and another [2004 (7) SCC 528]. In para 11, it was noted as follows:
"11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are :
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the Court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SCC 598) and Puran v. Rambilas (2001 (6) SCC 338)."
22 It was also noted in the said case that the conditions laid down under Section 437(1)(i) are sine qua non for granting bail even under Section 439 of the Code.
23 In para 14 of Kalyan Chandra Sarkar (supra), it was noted as follows :
"14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and Page 13 of 24 R/CR.MA/25240/2017 JUDGMENT another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745 of 2001 dated 25th July 2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(i) of the Code. This Court also in specific terms held that the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikehood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitled the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
24 Ordinarily, the High Court should not reappreciate the evidence considered by the Court granting bail. However, the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail.
25 In Puran vs. Rambilas and another [2001 (6) SCC 338], it was noted as follows :
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) [AIR 1978 SC 179]. In that case the Court observed as under:Page 14 of 24
R/CR.MA/25240/2017 JUDGMENT "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session visavis the High Court.""
26 The Supreme Court in the case of State through the Delhi Administration vs. Sanjay Gandhi [1978 Cri. L.J. 952] observed, in para 13, extracted hereunder:
"Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial..."
27 By a plethora of decisions, it is now a wellsettled position of law that the power of grant of bail is not to be exercised as if the punishment before trial is being imposed. Rejection of bail, when bail is applied for, is one thing, whereas cancellation of bail already granted to a person is quite another. It is easier to reject a bail application in a nonbailable case than to cancel a bail already granted in such a case because cancellation of bail necessarily involves a review of decision already made.
28 The Supreme Court in the case of Bhagirathsinh Judeja vs. State of Gujarat, [AIR 1984 SC 372 : (1984 Cri. L.J. 160)] has observed : Page 15 of 24 R/CR.MA/25240/2017 JUDGMENT "We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established it is necessary for the Court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case, there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. We would have certainly overlooked this aspect of the matter if the approach of the learned Judge was otherwise one which would commend to us".
In the aforesaid case, the bail was granted to the accused persons which was cancelled by the High Court and the matter went before the Supreme Court where the highest Court of the land made the above noted observation.
29 In Sanjay Chandra vs. 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 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, Page 16 of 24 R/CR.MA/25240/2017 JUDGMENT 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 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."
30 The dispute in the present case, as noted above, is one between the first informant and the accused with regard to payment of Rs.188 Crore. It appears from the statement, which has been furnished by the learned counsel appearing for the accused, that the first informant and Page 17 of 24 R/CR.MA/25240/2017 JUDGMENT the accused are carrying on in business together past almost ten years. The contents of the statement as such are not disputed by the first informant. The statement reads as under:
Summary of SEEF LIMITED Year Co. Name Qatar Qty. Amt. Rs. Payment 20082009 AIL '1241.771 71856831 5234604 AGPL CIPL TOTAL '1241.771 71856831 5234604 20092010 AIL '1499.381 83597988 149288357 AGPL CIPL TOTAL '1499.381 83597988 149288357 20102011 AIL AGPL CIPL TOTAL '0.000 '0.000 '0.000 20112012 AIL '12735.608 1197005804 119614140 AGPL '9756.111 880427182 713443978 CIPL '6499.085 612822168 425792720 TOTAL '28990.804 2690255154 1258850838 20122013 AIL '19112.418 1949590445 2355150723 AGPL '8659.849 891265747 1054708458 CIPL '2672.890 271351986 219286244 TOTAL '30445.157 3112208178 3629145425 20132014 AIL '1818.222 196208319 1019525757 AGPL 101691266 CIPL 274295348 TOTAL '1818.222 196208319 1395512371 GRAND TOTAL '63995.335 6154126470 6438031595 Page 18 of 24 R/CR.MA/25240/2017 JUDGMENT SUMMARY OF QATAR CHEMICAL & PETROCHEMICAL MARKETING & DISTRIBUTION CO. (MUNTJAT) Year Co. Name Qatar Qty. Amt. Rs. Payment 20132014 AIL '22721.862 2484460029 1562391384 AGPL '19062.444 2054088232 1777872801 CIPL '3569.759 378989284 TOTAL '45354.065 4917537545 3340264185 20142015 AIL '17515.268 1364799707 2118125369 AGPL '14260.904 1351989904 1123169134 CIPL '23376.603 19237 94617 1196597285 TOTAL '55152.775 4640584228 4437891788 20152016 AIL '14613.447 1093397268 841623075 AGPL '14877.345 1102142530 1199267249 CIPL '21124.767 1589489989 1916041807 TOTAL '50615.559 3785029787 3956932131 20162017 AIL '1331.605 101319628 86246404 AGPL '478.031 34385440 145674244 CIPL '8463.429 628087197 456615552 TOTAL '10273.065 763792265 688536200 GRAND TOTAL '161395.464 14106943825 12423624304 1683319521 TOTAL OF SEEF & QATAR '225390.799 20261070295 18861655899
31 Thus, prima facie, it appears that the first informant and the accused have done business together worth crores of rupees. However, it appears that in the last transaction, something went wrong and the accused have not been able to make the payment in time.
32 At this stage, let me take a note of what has been stated by the accused on oath in their affidavitinreply opposing the two applications filed by the applicant:
Page 19 of 24R/CR.MA/25240/2017 JUDGMENT "I say that the transaction between the applicant and the deponent is purely business transaction and the deponent is involved in the business where the deponent has made any mischief in the transaction between the applicant and the deponent. I say that the deponent has purchased goods worth Rs.1410 crores from the applicant on various dates since 2013 till the date of FIR and the deponent has fully paid the said amount without any delay. I say that the allegations made in the impugned FIR are totally baseless and there is a civil dispute between the applicant and the deponent and there is a clause in the transaction that if somehow the payments are delayed, then interest will be charged and the same is in the mind of the applicant but only to harass the deponent, the applicant filed the impugned FIR. I say that the applicant straightway filed the FIR against the deponent for pressurizing the deponent to clear the remaining outstanding dues."
33 The above referred averments made in the reply have not been rebutted in any manner by the applicant - original first informant.
34 Having gone through both the orders, one of the anticipatory bail and another of the regular bail, I do not find any perversity or illegality in the orders. Having regard to the nature of the offence, the Sessions Court thought fit to exercise its discretion in favour of the accused persons, which, in no manner could be termed as arbitrary, or not in accordance with the settled principles of law as regards the grant of anticipatory bail or regular bail.
35 I also take notice of the fact that the impugned orders are dated 20th January 2017 (anticipatory bail) and 3rd February 2017 (regular bail). More than one year has elapsed. The State has not complained of any misuse of the liberty or breach of any conditions. In this regard, Page 20 of 24 R/CR.MA/25240/2017 JUDGMENT even the first informant has not complained of any misuse of the liberty or interference of the investigation or breach of any conditions. All that the applicant, being the first informant, wants is that this Court should cancel the bail, as an F.I.R. has been registered against the accused persons.
36 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 problem lies. In the recent times, bail has come to symbolise 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 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, the Court would be well justified in denying bail. However, bail in these type of cases should not be used to punish a person, who is yet to prosecute for a crime.
37 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 may refer to and rely upon 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 21 of 24R/CR.MA/25240/2017 JUDGMENT "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 firsttime 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 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.
Page 22 of 24R/CR.MA/25240/2017 JUDGMENT
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 ageold 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 opposed by the State, but there is vehement opposition from the complainant."
38 In the present case also, it is the complainant, who has vehemently submitted that the bail be cancelled. It is but obvious that the complainant would raise a hue and cry as he has to recover a substantial amount from the accused persons.
39 For the reasons aforesaid, I have reached to the conclusion that, I should not interfere with the two impugned orders, one of grant of Page 23 of 24 R/CR.MA/25240/2017 JUDGMENT anticipatory bail and the another of grant of regular bail. The guilt or the innocence of the accused will be determined by the Trial Court on the basis of the evidence that may be led by the prosecution as well the defence in the course of the trial.
40 Let me clarify and it goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question whether bail should be cancelled and shall not be construed as an expression of the final opinion in the main matter.
41 In the result, both the applications fail and are hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) chandresh Page 24 of 24