Bombay High Court
Rajendrakumar S/O Brijkisor Jaiswal vs State Of Mah. Thr. Pso Ps City Kotwali ... on 11 April, 2022
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
43.BA.228-2022.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (BA) NO.228 OF 2022
(Rajendrakumar s/o Brijkisor Jaiswal
Vs.
State of Maharashtra)
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's order
and Registrar's orders.
Mr. Subodh P. Dharmadhikari, Senior Counsel assisted by Mr. A.R. Deshpande,
Advocate for the Applicant
Mr. Amit R. Chutke, APP for Respondent/State.
Mr. S.P. Bhandarkar, Advocate Assist to Prosecution.
CORAM : AVINASH G. GHAROTE, J.
DATE : 11/04/2022
Heard Mr. Dharmadhikari, learned Senior
Counsel for the applicant, Mr. Chutke, learned APP for
the non-applicant/State assisted by the learned Counsel
Mr. Bhandarkar.
2. At the outset, a plea has been raised by Mr.
Bhandarkar, learned Counsel assisting the prosecution,
that he has right of audience before this Court, in
support of which, he places reliance upon J.K.
International Vs. State, (2001) 3 SCC 462 and Vinay
Poddar Vs. State of Maharashtra, 2008 SCC Online
Bombay 1389.
3. The said plea is vehemently opposed by the
learned Senior Counsel Mr. Dharmadhikari, by
contending that the entitlement of the complainant, is
merely to assist the prosecution and nothing else.
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4. The relevant provisions in this regard, are
encompassed in Section 301 of the Code of Criminal
Procedure (for short Cr.P.C.). Whereas Section 301(1)
requires the public prosecutor or assistant public
prosecutor in charge of a case may appear and plead
without any written authority before any Court, in
which that case is under enquiry, trial or appeal, Section
301(2) permits, any private person, to instruct a pleader
to prosecute the proceedings. Holistic view of Section
301(1) and (2) of the Cr.P.C. would indicate that they at
no point of time of the proceedings, permit any private
person or for that matter, any person assisting the public
prosecutor, to take over the conduct of the prosecution
in any manner whatsoever. The language used in the
Section indicates that the pleader as instructed by a
private person, shall act under the directions of the
public prosecutor or Assistant Public Prosecutor and
may, with the permission of the Court, submits written
arguments after the evidence is closed in the case. The
language therefore used categorically demonstrates that
the pleader instructed in the manner as contemplated in
Section 301(2), has a limited role to play, which role is
always subservient to that of the public prosecutor. The
liberty which is granted to such pleader, is only to the
extent of submitting written notes of argument with the
permission of the Court after the evidence is closed in
the case. In J.K. International (supra), the Court was
considering a case, in which the order of issuance of
process by the Magistrate was challenged in Writ
Petition before the High Court seeking its quashment, in
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which the complainant was not made a party and an
application being made for impleadment and for
hearing, came to be rejected by the High Court. It is in
that context that the Hon'ble Apex Court held that since
the criminal proceedings were initiated at the behest of
the complainant, it would be appropriate, if he was
heard before the quashment was permitted. This is what
the Court has held therein in paras 9, 10, 11 and 12 as
under : ( J.K. International Vs. State)
"9. The scheme envisaged in the Code of
Criminal procedure (for short "the Code")
indicates that a person who is aggrieved by the
offence committed, is not altogether wiped out
from the scenario of the trial merely because the
investigation was taken over by the police and
the charge sheet was laid by them. Even the fact
that the court had taken cognizance of the
offence is not sufficient to debar him from
reaching the court for ventilating his grievance.
Even in the sessions court, where the Public
Prosecutor is the only authority empowered to
conduct the prosecution as per Section 225 of
the Code, a private person who is aggrieved by
the offence involved in the case is not altogether
debarred from participating in the trial. This can
be discerned from Section 301(2) of the Code
which reads thus:
301. (2) If in any such case any private
person instructs a pleader to prosecute any
person in any Court, the Public Prosecutor
or Assistant Public prosecutor in charge of
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the case shall conduct the prosecution,
and the pleader so instructed shall act
therein under the directions of the public
Prosecutor or Assistant Public prosecutor,
and may, with the permission of the Court,
submit written arguments after the
evidence is closed in the case.
10. The said provision falls within the
Chapter titled "General Provisions as to
Inquiries and Trials". When such a role is
permitted to be played by a private person,
though it is a limited role, even in the sessions
courts, that is enough to show that the private
person, if he is aggrieved, is not wiped off from
the proceedings in the criminal Court merely
because the case was charge sheeted by the
police. It has to be stated further, that the Court
is given power to permit even such private
person to submit his written arguments in the
Court including the sessions court. If he submits
any such written arguments the Court has a
duty to consider such arguments before taking a
decision.
11. In view of such a scheme as delineated
above how can it be said that the aggrieved
private person must keep himself outside the
corridors of the Court when the case involving
his grievance regarding the offence alleged to
have been committed by the persons arrayed as
accused is tried or considered by the Court. In
this context it is appropriate to mention that
when the trial is before a Magistrate's Court the
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scope of any other private person intending to
participate in the conduct of the prosecution is
still wider. This can be noticed from Section 302
of the Code which reads thus:
302. (1) Any Magistrate inquiring into or
trying a case may permit the prosecution
to be conducted by any person other than
a police officer below the rank of
Inspector; but no person, other than the
Advocate-General or Government
Advocate or a public prosecutor or
Assistant Public prosecutor, shall be
entitled to do so without such permission:
Provided that no police officer shall be
permitted to conduct the prosecution if he
has taken part in the investigation into the
offence with respect to which the accused
is being prosecuted.
(2) Any person conducting the prosecution
may do so personally or by a pleader.
12. The private person who is permitted to
conduct prosecution in the Magistrate's Court
can engage a counsel to do the needful in the
Court in his behalf. It further amplifies the
position that if a private person is aggrieved by
the offence committed against him or against
any one in whom he is interested he can
approach the Magistrate and seek permission to
conduct the prosecution by himself. It is open to
the Court to consider his request. If the court
thinks that the cause of justice would be served
43.BA.228-2022.odt
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better by granting such permission the courts
would generally grant such permission. Of
course, this wider amplitude is limited to
Magistrates' Courts, as the right of such private
individual to participate in the conduct of
prosecution in the sessions court is very much
restricted and is made subject to the control of
the Public Prosecutor. The limited role which a
private person can be permitted to play for
prosecution in the Sessions Court has been
adverted to above. All these would show that an
aggrieved private person is not altogether to be
eclipsed from the scenario when the criminal
court takes cognizance of the offences based on
the report submitted by the police. The reality
cannot be overlooked that the genesis in almost
all such cases is the grievance of one or more
individual that they were wronged by the
accused by committing offences against them."
5. J.K. International (supra), therefore merely
holds that the role of the complainant in the course of
trial, either before the Magistrate or the Sessions Court
is not totally wiped out. It however also holds that such
a role cannot surpass what is laid down in Section
301(2) of Cr.P.C.
6. Further regard can be had to the provisions
of Section 439(1-A) of the Cr.P.C., which requires only
the presence of the informant or any person authorized
by him as obligatory at the time of hearing of the
application for bail, however this is restricted only in
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respect of offences under Sections 376(3), 376-AB,
376-BA or 376-DB of the Indian Penal Code. Such
presence of the informant or any person authorized by
him obviously is also for the purpose of assisting the
prosecution and not for affording an independent right
of audience, as no such right, appears to have been
conferred from the language of Section 439(1-A) of the
Cr.P.C.
7. In Vinay Poddar (supra), on which reliance
has been placed by Mr. Bhandarkar, learned Counsel
seeking audience, while considering the question,
whether in an application for anticipatory bail, whether
the complainant and/or the Counsel for the complainant
have any right of audience, the learned Single Judge of
this Court, as he then was, after considering J.K.
International (supra), it has been held as under:
"15. When an application for anticipatory bail
is considered, the police may not place all
factual details before the Court as the
investigation in most of such cases is at a
preliminary stage. Therefore, some role can be
played by the complainant by pointing out
factual aspects. In the circumstances, it is not
possible to hold that the first informant or the
complainant cannot be heard in an application
for anticipatory bail. When the complainant
appears before the Court in the course of
hearing of an application for grant of
anticipatory bail, the Court is bound to hear
him. But the said right cannot be allowed to be
exercised in a manner which will delay the
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disposal of an application for anticipatory bail.
The delay in disposal of such application may
adversely affect the investigation. Therefore, the
right which can be spelt out in favour of the
first informant or the complainant is of making
oral submissions for pointing out the factual
aspects of the case during the course of hearing
of an application for anticipatory bail before the
Court of Session. The said right is to be
exercised by the complainant either by himself
or through his Counsel. This is not to say that
the Sessions Court hearing the application for
anticipatory bail is under an obligation to issue
notice to the first informant or the complainant.
There is no such requirement of issuing notice
to the first informant or the complainant at the
hearing of the application for anticipatory bail.
However, if the complainant or the first
informant appears before the Court, he cannot
be denied a right of making oral submissions
either in person or through his Counsel. It must
be noted here that the legal position on this
aspect in the case of an application for regular
bail may not be the same."
8. It is however to be noted, that in Vinay
Poddar (supra), itself the learned Single Judge has
observed that the position on this aspect, in the case of
an application for regular bail may not be the same. To
my mind, one of the reasons for the same, would be the
position that in regular bail, in number of cases, the
charge-sheet is already placed on record, whereas while
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considering an application for anticipatory bail, the
investigation is still in progress and there may be
something available, which the informant or his Counsel
has to point out to the Court.
9. The rigor of law as flowing from the
language of Section 301(2) of the Cr.P.C., has to be given
effect to and doing so would naturally mean that right of
the informant or his pleader would be restricted to the
assistance to be provided to the public prosecutor and
not otherwise. To hold that the informant or his counsel
would have right of audience, in an application for bail,
would do violence to the language of Section 301(2) of
the Cr.P.C., which does not confer any such right upon
either the informant or his counsel. Even in J.K.
International (supra), such a right of audience, in a case
of bail, is not spelt out. In fact, the Hon'ble Apex Court
in that case has considered the provision of Section 302
of the Cr.P.C., to dilate the extent to which the
intervention by the informant or his counsel could be
permitted. In fact, the proviso of Section 24(8) of the
Cr.P.C., empowers the Court to permit the victim to
engage an Advocate of his choice to assist the
prosecution. The word "assist", in its common parlance
would mean rendering help, to assist someone else, and
therefore, would be in contra distinction to playing a
role equal to that of a public prosecutor, which is also
what is spelt out by the language of Section 301(2) of
the Cr.P.C.
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10. The term assist has been considered by the
Hon'ble Apex Court in Rekha Murarka Vs. State of West
Bangal and another, 2020 (2) SCC 474, in the following
terms.
"11.1. The use of the term "assist" in the proviso to
Section 24(8) is crucial, and implies that the victim's
counsel is only intended to have a secondary role
qua the Public Prosecutor. This is supported by the
fact that the original Amendment Bill to the CrPC
had used the words "coordinate with the
prosecution". However, a change was later proposed
and in the finally adopted version, the words
"coordinate with" were substituted by "assist". This
change is reflective of an intention to only assign a
supportive role to the victim's counsel, which would
also be in consonance with the limited role
envisaged for pleaders instructed by private persons
under Section 301(2). In our considered opinion, a
mandate that allows the victim's counsel to make
oral arguments and cross-examine witnesses goes
beyond a mere assistive role, and constitutes a
parallel prosecution proceeding by itself. Given the
primacy accorded to the Public Prosecutor in
conducting a trial, as evident from Sections 225 and
301(2), permitting such a free hand would go
against the scheme envisaged under CrPC.
11.2. In some instances, such a wide array of
functions may also have adverse consequences on
the fairness of a trial. For instance, there may be a
case where the Public Prosecutor may make a
strategic call to examine some witnesses and leave
out others. If the victim's counsel insists upon
examining any of the left-out witnesses, it is possible
that the evidence so brought forth may weaken the
prosecution case. If given a free hand, in some
instances, the trial may even end up becoming a
vindictive battle between the victim's counsel and
the accused, which may further impact the
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safeguards put in place for the accused in criminal
trials. These lapses may be aggravated by a lack of
advocacy experience on the part of the victim's
counsel. In contrast, such dangers would not arise in
the case of a Public Prosecutor, who is required to
have considerable experience in the practice of law,
and act as an independent officer of the court. Thus,
it is important to appreciate why the role of a
victim's counsel is made subject to the instructions of
the Public Prosecutor, who occupies a prime position
by virtue of the increased responsibilities shouldered
by him with respect to the conduct of a criminal trial.
11.3. At the same time, the realities of criminal
prosecutions, as they are conducted today, cannot be
ignored. There is no denying that Public Prosecutors
are often overworked. In certain places, there may
be a single Public Prosecutor conducting trials in
over two-three courts. Thus, the possibility of them
missing out on certain aspects of the case cannot be
ignored or discounted. A victim-centric approach
that allows for greater participation of the victim in
the conduct of the trial can go a long way in
plugging such gaps. To this extent, we agree with the
submission made by the learned Senior Counsel for
the appellant that the introduction of the proviso to
Section 24(8) acts as a safety valve, inasmuch as the
victim's counsel can make up for any oversights or
deficiencies in the prosecution case. Further, to
ensure that the right of appeal accorded to a victim
under the proviso to Section 372 CrPC is not
rendered meaningless due to the errors of the Public
Prosecutor at the trial stage itself, we find that some
significant role should be given to the victim's
counsel while assisting the prosecution. However,
while doing so, the balance inherent in the scheme
of CrPC should not be tampered with, and the prime
role accorded to the Public Prosecutor should not be
diluted.
11.4. In this regard, given that the modalities of
each case are different, we find that the extent of
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assistance and the manner of giving it would depend
on the facts and circumstances of each case. Though
we cannot detail and discuss all possible scenarios
that may arise during a criminal prosecution, we find
that a victim's counsel should ordinarily not be given
the right to make oral arguments or examine and
cross-examine witnesses. As stated in Section
301(2), the private party's pleader is subject to the
directions of the Public Prosecutor. In our considered
opinion, the same principle should apply to the
victim's counsel under the proviso to Section 24(8),
as it adequately ensures that the interests of the
victim are represented. If the victim's counsel feels
that a certain aspect has gone unaddressed in the
examination of the witnesses or the arguments
advanced by the Public Prosecutor, he may route any
questions or points through the Public Prosecutor
himself. This would not only preserve the paramount
position of the Public Prosecutor under the scheme
of the CrPC, but also ensure that there is no
inconsistency between the case advanced by the
Public Prosecutor and the victim's counsel.
11.5. However, even if there is a situation where the
Public Prosecutor fails to highlight some issue of
importance despite it having been suggested by the
victim's counsel, the victim's counsel may still not be
given the unbridled mantle of making oral
arguments or examining witnesses. This is because in
such cases, he still has a recourse by channelling his
questions or arguments through the Judge first. For
instance, if the victim's counsel finds that the Public
Prosecutor has not examined a witness properly and
not incorporated his suggestions either, he may bring
certain questions to the notice of the court. If the
Judge finds merit in them, he may take action
accordingly by invoking his powers under Section
311 CrPC or Section 165 of the Evidence Act, 1872.
In this regard, we agree with the observations made
by the Tripura High Court in Uma Saha v. State of
Tripura that the victim's counsel has a limited right
of assisting the prosecution, which may extend to
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suggesting questions to the court or the prosecution,
but not putting them by himself."
11. Rekha Murarka (supra), succinctly spells
out the limited role which the pleader for the
informant/complainant has to play in the scheme of
Cr.P.C., in the matter of conduct of the trial, and in my
considered opinion, the same would also govern the
hearing of a bail application, given the language of
Section 301(2) of Cr.P.C, considering which, the
contention that the counsel for the informant has a right
of audience does not appeal to me and the same is
therefore negatived.
12. Coming to the facts of the present matter,
the applicant is arraigned for the offence punishable
under Section 420, 461, 468, 471 and 409 of the Indian
Penal Code in Crime No.537 of 2021.
13. The FIR is dated 26.11.2021. The applicant
has been arrested on 22.02.2022 on his surrender as per
the directions of the Hon'ble Apex Court in SLP (Cri.)
No. 990 of 2022 dated 16.02.2022, on account of the
challenge to the rejection of the anticipatory bail
application dated 02.02.2022 which was rejected by this
Court, being turned down by the Hon'ble Apex Court
with a direction that the application for bail shall be
decided in accordance with law without being swayed
by any observations made in the judgment and order of
the High Court rejecting the application for anticipatory
bail. The matter is still under investigation, as the
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charge-sheet is yet to be filed.
14. Mr. Dharmadhikari, learned Senior counsel
for the applicant contends, that the entire offence, as
alleged is to be proved by documents which are in the
custody of the Excise Department, and therefore, there is
no need for any judicial custody of the applicant, for
which reliance is placed upon P. Chidambaram vs.
Central Bureau of Investigation, 2020 (13) SCC 337,
(paras 21 and 31). It is further submitted that
considering the nature of the allegations, the offence
under Section 409 of IPC - Criminal breach of trust -
which requires an entrustment as contemplated by
Section 405 of IPC, which is not made out; so also the
requirement of Section 471 of IPC - Using as genuine a
forged document is also not made out. He further
submits that there is no false representation made
within the meaning of Section 415 of IPC, so as to
attract the provisions of Section 420 of IPC. In so far as
Section 468 of IPC is concerned, he submits that there is
no allegation of forging of document and its use and
therefore, the same is also not attracted. It is further
contended that the applicant has himself surrendered on
22.02.2022, the investigation does not require the
judicial custody of the applicant, and therefore, the
applicant is entitled to bail. It is further submitted that
all that the applicant had done, is to apply for renewal
of licence in the name of the partnership firm which
even otherwise applicant being a partner was entitled to
do. It is further contended that the applicant was not
43.BA.228-2022.odt
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aware of the demise of Mr. P. T. Gawande, and therefore,
there was no question of the applicant having been
under the obligation to intimate the same to the Excise
Department. Even otherwise, there is no loss of revenue
to the Excise Department and all that the son of Mr. P. T.
Gawande namely Mr. Amit Gawande can claim is the
share of Mr. P. T. Gawande, in the partnership business
and nothing else. In the year 1973-74, the FL-II licence
was granted to Mr. P. T. Gawande consequent to which,
partnership was entered into between Mr. P. T. Gawande
and one Mr. Brijkishor B. Jaiswal (father of the
applicant). Since Mr. Brijkishor B. Jaiswal, passed away
on 19.08.1987, the applicant entered into a fresh
partnership with P.T. Gawande on 15.09.1987. It is
further contended, that there was another partnership
deed dated 21.09.1987, between the applicant and
Mr. P.T. Gawande which however had not been
submitted to the Excise Department and has never been
used by the applicant, except during hearing of the
matter before Collector Excise. It is therefore submitted
there is no criminality in the matter and the applicant
needs to be enlarged to bail.
15. Mr. Chutke, learned APP for non-applicant/
State vehemently opposes the application and submits,
that the applicability of the aforesaid offences is writ
large, on the face of the averments made in the
complaint itself, in as much as it is contended that the
applicant was all throughout aware of the demise of
Mr. P. T. Gawande, who was the original licencee, having
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been granted FL-II licence by the Excise Department,
with whom the applicant had entered into a partnership
in the year 1972-1974, under the terms of which, the
late Mr. P. T. Gawande, was entitled to a share in the
profits of the business which were to be determined in
each financial year and paid over to Mr. Gawande which
would indicate the knowledge of the applicant regarding
demise of Mr. P. T. Gawande, in spite of which this fact
was intentionally suppressed, on account of fear of
loosing the licence from the Excise Department and the
department was throughout misled in believing that the
original licencee was alive and therefore, entitled for
renewal of the licence. He further invites my attention,
to the case diary and specifically to four affidavits of the
applicants dated 26.03.1997, 03.04.2002, 16.03.2015,
28.03.2017 which indicate that the applicant had
applied for the renewal of the FL-II licence as a partner
of the firm. He further relies upon two applications, one
dated 18.04.2011 by which, the applicant had applied to
the Excise Department for the deletion of the name of
Mr. P.T. Gawande from the licence on account of his
demise, which was accompanied by the death certificate
of Mr. P.T. Gawande as issued by the Grampanchayat,
Kalashi, Tahsil Daryapur, which death certificate was
issued on 10.03.2000, which application was
withdrawn / taken back by the applicant by his
application dated 03.06.2011 and the other application
dated 31.10.2018, by which the applicant had applied to
the Excise Department for deletion of the Name of
Mr. P.T. Gawande from the FL-II licence, which
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application was accompanied by the death certificate of
Mr. P.T. Gawande as issued by Akola Municipal
Corporation. It is therefore, submitted that the plea of
ignorance, claimed by the applicant regarding the death
of Mr. P. T. Gawande was intentional and a deliberately
calculated plea to suppress the demise of Mr. P.T.
Gawande on account of an apprehension that the FL-II
licence would not be renewed. He further contends, that
in the partnership deeds Mr. P.T. Gawande was shown to
be the resident of Drayapur whereas the FL-II licence
was in respect of shop Gandhi Chowk, Akola, which was
being run by the applicant. There were criminal
antecedents of the applicant inasmuch as there were two
offences registered against him, one for illicit importing
of a liquor tanker and another for attempt to accept
bribe on behalf of a public servant. He also submits that
a complaint was filed by the informant of receiving
offers from certain persons to unduly influence him too
which an NC was registered.
16. In rebuttal, Mr. Dharmadhikari, learned
Senior Counsel, submits that, mere criminal antecedents
cannot be a factor to deny bail to the applicant, if a case
of bail was otherwise made out, which he contends is
the case. Reliance is placed on Maulana Mohammed
Amir Rashadi Vs. State of Uttar Pradesh and another,
(2012) 2 SCC 382 (para 10) and Prabhakar Tewari Vs.
State of Uttar Pradesh, (2020) 11 SCC 648 (paras 5 &
7). Insofar as, the NC is concerned, it is submitted, that
it is merely a reflex action considering the order of the
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Hon'ble Apex Court dated 16.02.2022, with an intention
to create a ground for opposing the bail application
which was surely to be filed.
17. The parameters for grant of bail have been
laid down by the Hon'ble Apex Court in a catena of
decisions, which are summarized by P. Chidambaram
(supra) as under:
"21. The jurisdiction to grant bail has to be
exercised on the basis of the well-settled principles
having regard to the facts and circumstances of each
case. The following factors are to be taken into
consideration while considering an application for
bail:
(i) the nature of accusation and the severity of
the punishment in the case of conviction and the
nature of the materials relied upon by the
prosecution;
(ii) reasonable apprehension of tampering
with the witnesses or apprehension of threat to the
complainant or the witnesses;
(iii) reasonable possibility of securing the
presence of the accused at the time of trial or the
likelihood of his abscondence;
(iv) character, behaviour and standing of the
accused and the circumstances which are peculiar to
the accused;
(v) larger interest of the public or the State
and similar other considerations "
18. It is not disputed, that Mr. P.T. Gawande has
passed away on 12.02.2000. The original agreement of
partnership between Mr. P.T. Gawande and Mr. Brijkishor
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B. Jaiswal (father of the applicant) is dated 15.06.1976
(page 22 of the application under section 301(2)
Cr.P.C.), under the terms of which, the firm M/s.
Vidarbha Wine Mart was created for the business of
dealing in foreign liquor, beer and country liquor on
retail basis. Even before this partnership deed dated
15.06.1976 came into existence, an application for a
vendors licence for sale of foreign liquor in the name of
M/s. Vidarbha Wine shop came to be filed before the
Collector Akola, on 22.11.1973, which is signed by
Mr. P.T. Gawande, in which it was stated that there were
two partners of M/s. Vidarbha Wine shop namely Mr. P.T.
Gawande and Mr. Brijkishor B. Jaiswal, in which it was
also stated that Mr. Brijkishor B. Jaiswal was a partner of
M/s. Jaiswal and company having FL-II license in Akola
from 01.06.1966. Mr. Chutke, learned APP for the non-
applicant/State, on a pertinent question being put as to
whether the FL-II licence, was in the name of Mr. P.T.
Gawande alone or in the name of M/s. Vidarbha Wine
shop, a partnership firm of which Mr. P.T. Gawande and
Mr. Brijkishor B. Jaiswal were the partners, upon
instructions, makes a statement that there is no such
licence in the record which would indicate, that the FL-II
licence was ever in the name of Mr. P.T. Gawande alone.
He submits, that the application for the licence was
made by the firm M/s. Vidarbha Wine shop, of which
Mr. P.T. Gawande and Mr. Brijkishor B. Jaiswal were the
partners which is so indicated from the application
dated 22.11.1973 [page 24 of the application under
section 301(2) Cr.P.C.]. On demise of Mr. Brijkishor
43.BA.228-2022.odt
(20)
Jaiswal on 19.08.1987, the partnership firm M/s.
Vidarbha Wine shop was reconstituted by adding the
present applicant in place of his deceased father [page
30 of the application under section 301(2) Cr.P.C.],
which position is also not disputed. Thereafter the FL-II
licence has been renewed from time to time, in the
name of M/s. Vidarbha Wine shop of which Mr. P.T.
Gawande as well as the present applicant were shown as
partners, which is reflected from Annexure-F [page 37 of
the application under section 301(2) Cr.P.C.], which is
the renewal of the licence of 1989-90, which position
has continued thereafter till the last renewal for the
period 16.01.2018 to 15.01.2021. It is thus apparent
from a perusal of the case diary as well as material
placed on record by the applicant as well as the learned
counsel assisting the prosecution, that the FL-II licence
was not in the name of P.T. Gawande individually but
was in the name of M/s. Vidarbha Wine shop a
partnership firm of which the applicant since 1987
onwards was a partner. The only question which prima-
facie has to be considered is the obligation of the
applicant to disclose the demise of Mr. P.T. Gawande in
the year 2000 and the failure of such disclosure. This
obviously has to be considered in the light of the
language the partnership deed dated 15.09.1987, which
indicates, that the partnership was at Will and did not
contain any provisions as to the inclusions of the legal
heirs of the deceased partner. The partnership being at
Will, by the demise of Mr. P.T. Gawande, stood dissolved
by virtue of provisions of Section 42(c) of the Indian
43.BA.228-2022.odt
(21)
Partnership Act, and therefore, in case of such a
dissolution, the legal heirs of Mr. P.T. Gawande, would
have a right of settlement of accounts and not to the
business of the firm. This being the position, though it
was obligatory, upon the applicant, to have disclosed to
the Excise Department, the factum of the demise of Mr.
P.T. Gawande, however insofar as the FL-II licence was
concerned that was capable of being renewed, even
otherwise, presuming that the firm was dissolved, due to
the demise of Mr. P.T. Gawande at the behest of the
applicant. Insofar as, the Excise Department is
concerned, no complaint has been filed it; and even
otherwise nothing turns upon the non intimation of the
demise of Mr. P.T. Gawande, as the basic requirement for
the renewal of the licence, is the payment of the licence
fee which can be paid by either of the partners of the
firm and which has been paid for a number of years by
the applicant. True it is, as indicated by the learned APP,
that the documents on record, specifically the four
affidavits of the applicant dated 26.03.1997,
03.04.2002, 16.03.2015 and 28.03.2017 indicate, that
the applicant had applied for renewal of FL-II licence as
a partner of the firm and his applications dated
18.04.2011 and 31.10.2018, indicate the knowledge of
the applicant regarding the demise of Mr. P.T. Gawande,
however, merely because the same was suppressed, the
department has not been put to any loss on that count as
the licence fee chargeable according to Mr. Chutke,
learned APP for the non-applicant/State, for a renewal
of licence by a partnership firm, as well as by an
43.BA.228-2022.odt
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individual, is the same, which has been paid up to date
by the applicant. Since, the partnership is of the year
1987, was at Will, what all the legal heirs of Mr. P.T.
Gawande would be entitled in law would be an account
of partnership. It is also necessary, to consider the order
of the Commissioner State Excise dated 11.11.2021,
(page 40) in which, after considering the fact, that the
demise of Mr. P.T. Gawande, was not brought to the
notice of the Excise department, it has been held, that
since there was no exigency of suspending the licence,
the order of the Collector, dated 17.09.2021, by which
he had closed the business of the applicant, has been
set-aside and the applicant has been directed to set-aside
50% share of the profit of the shop in a separate account
and to run the business as he was doing so. It is stated at
the bar by Mr. Chutke, learned APP for the
non-applicant/State, that order of Commissioner State
Excise has been challenged in revision before the
Principal Secretary State Excise Department, by the
complainant, which challenge is still pending, however
it is stated, that there is no stay granted to the order of
the Commissioner of State Excise dated 11.11.2021.
19. Prima-facie, since the FL-II licence was
granted to the partnership firm of which the applicant
was one of the partners, the other being Mr. P.T.
Gawande, there may not, strictly speaking, be any
entrustment of property as contemplated by Section 405
of the Indian Penal Code, as the licence was renewed in
the name of the firm for all these years, in which late
43.BA.228-2022.odt
(23)
Mr. P.T. Gawande was also shown as one of the partners.
So also there does not appear to be any deceiving of
Mr. P.T. Gawande during his life time, so as to
fraudulently or dishonestly, cause delivery of any
property to the applicant, as it is not disputed that since
1987 when the partnership firm was reconstituted till
his demise in 2000, no complaint of whatsoever nature,
was made by late Mr. P.T. Gawande, either to the Excise
Department or to the Police authorities, regarding the
FL-II licence or the partnership firm, its working or any
share of his therein. It is also not the case of the
complainant that the signatures of Mr. P.T. Gawande,
were forged by the applicant on any document and the
same was presented to the Excise Department for
renewal of the FL-II licence. All that is alleged is that
inspite of the knowledge of demise of late Mr. P.T.
Gawande in 2000, the applicant, suppressed this
information from the Excise Department and filed
applications for renewal of licence as a partner.
20. In light of the above conspectus of facts,
though prima-facie there is a suppression on part of the
applicant in disclosing the demise of Mr. P.T. Gawande,
however, considering what has been held in P.
Chidambaram (supra), regarding the parameters for
grant of bail, though the offences have been alleged
against the applicant under the aforesaid sections,
however, considering what has been discussed above,
the prima-facie allegation merely boils down to
suppression of the demise of Mr. P.T. Gawande and not
43.BA.228-2022.odt
(24)
to any loss being caused to the Excise department. It is a
statement made by Mr. Dharmadhikari, learned Senior
Counsel for the applicant, that since 2000 onwards the
applicant has maintained a separate account, regarding
the partnership business and so also the details of the
amount payable to the share of Mr. P.T. Gawande. That
apart, it appears even the legal heirs of Mr. P.T. Gawande
were oblivious of the business being carried out by their
father as the first complaint in this regard has been
made on 25.11.2021, which is made upon receipt of a
communication by the Excise Department to the
complainant Mr. Amit P. Gawande.
21. Though, it is contended, by Mr. Chutke,
learned APP for the non-applicant/State, that there has
been an attempt at influencing the complainant by the
applicant through third party, however the complaint
made in this regard dated 22.02.2022 by the
complainant, in respect of which an N.C. Report has
been given, merely makes a general allegation, without
specifying the date on which the said Gautam Bhatkar
and other person had been to his residence at Daryapur.
So also no connection between the said Gautam Bhatkar
and the applicant has been indicated, which creates a
doubt about its credibility.
22. Though, the learned APP submits, that there
are criminal antecedents of the applicant, inasmuch as,
offences have been registered against him, regarding
43.BA.228-2022.odt
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illicit import of liquor and by the Central Bureau of
Investigation, for an attempt to accept bribe on behalf of
a public servant, in view of what has been held by the
Hon'ble Apex Court in Maulana Mohammed Amir
Rashadi and Prabhakar Tewari (supra), that the mere
existence of criminal antecedents alone cannot be a
ground, to refuse bail, if prima-facie, the nature of
accusations justify the same, which considering what has
been discussed above, does, that cannot come in the
way of the applicant from claiming bail. Any
apprehension which the prosecution may have, can be
met with stringent conditions. In view of the above
discussion, in my considered opinion a case for bail is
made out. Hence, following order.
ORDER
i. The Criminal Application is allowed.
ii. Applicant Rajendrakumar S/o Brijkisor Jaiswal, be released on bail in Crime No. 537/2021 registered at Police Station City Kotwali, District Akola, for the offence punishable under Sections 420, 461, 468, 471 & 409 of the Indian Penal Code, on his furnishing P.R. Bond in the sum of Rs. 2,00,000/- (Rs. Two Lakhs Only) with two respected solvent sureties of the like amount, in case he is not required in any other crime.
iii. The Applicant shall not tamper with the evidence and shall not directly or indirectly make any inducement,
43.BA.228-2022.odt (26) threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer.
iv. The Applicant shall surrender his passport, if any, to the Investigating Officer and shall not leave the Country.
v. The Applicant shall appear before the Investigating Officer on every Monday and Thursday between 12.00 noon to 05.00 p.m., and shall assist the prosecution in all manner, till charge-sheet is filed.
vi. The Applicant shall not commit an offence similar to the offence of which he is accused of or for that matter any offence whatsoever of any nature while on bail.
vii. The Applicant, till charge-sheet is filed, shall reside outside the District of Akola and shall intimate his place of residence as well as his mobile number, to the Investigating Officer, except on the dates, the Applicant is directed to appear before the Investigating Officer. In case of any change of residence or mobile number, the same shall be intimated to the Investigating Officer in advance.
viii. After the charge-sheet is filed, the Applicant shall attend each and every date before the learned Sessions Court and shall ensure that the trial is not protracted on his count.
43.BA.228-2022.odt (27) ix. Violation of any of the above conditions shall result in cancellation of bail.
23. Pending application/s, if any, shall stand disposed of accordingly.
JUDGE SD. Bhimte Signed By:SHRIKANT DAMODHAR BHIMTE Signing Date:12.04.2022 17:57