J-APPLN-28-17 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION SUO MOTU NO.28 OF 2017
arising out of
CRIMINAL APPLICATION (ABA) NO.15 OF 2017 (D)
Court on its own motion ... Applicant.
-vs-
Manisha w/o Krishnakant Deshmukh
Aged about 28 years, Occupation Nil.
R/o Dawdipar (Bela),
Tah. And Dist. Bhandara ... Non-applicant.
Ms Geeta Tiwari, Additional Public Prosecutor for applicant/State.
Shri P. S. Chauhan, Advocate for non-applicant.
CORAM : A. S. CHANDURKAR, J.
DATE : December 08, 2017 Oral Judgment :
On 13/06/2017 the following order was passed while considering the anticipatory bail application of another co-accused :
" During the course of consideration of this application, Shri M. J. Khan, learned A.P.P. has pointed out that co-accused Manisha Krishnakant Deshmukh who was Director of the Society at the relevant time is granted pre-arrest bail by the Sessions Court by order passed on 3rd February, 2017. the learned A.P.P. has produced copy of the order also.
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J-APPLN-28-17 2/8 I have seen the order. The learned Additional Sessions Judge has overlooked the relevant aspects and has granted pre-arrest bail to this accused (Manisha Krishnakant Deshmukh) without recording any reasons. The accusations against the Directors of the society are of misappropriation of huge amount of Rs.7 to 8 Crores and 7 to 8 kilogram of gold.
In the above facts, I feel it necessary to issue notice to Manisha Krishnakant Deshmukh R/o Ambedkar Chowk Parisar Silli, Tq. Bhandara, Dist. Bhandrara-441904 to show cause why this Court should not exercise jurisdiction under Section 482 of the Code of Criminal Procedure and why the pre-arrest bail granted to her by order passed by Additional Sessions Judge, Bhandara on 3d February, 2017 in Crime No.113/2016 registered by Kardha police station against her should not be cancelled."
2. Pursuant to the aforesaid notice, the learned Additional Public Prosecutor as well as the learned counsel for the non-applicant have been heard.
3. In view of an audit report submitted by the Auditor, Co-operative Societies, Bhandara with regard to misappropriation and defalcation of various amounts of members/depositors, Crime No.113/2016 was registered ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 3/8 on 09/12/2016 for the offence punishable under Sections 409, 420, 468, 471, 477(A) read with Section 34 of the Indian Penal Code and Section 3 of the Maharashtra Protection of Depositors (Financial Establishment) Act, 1999. As per the said report, the non-applicant who was the Chairman of the Managing Committee of Laxmi Rural Non-agricultural Activities Co-operative Credit Society Ltd. along with other members of the Managing Committee were alleged to have indulged in defalcation of an amount exceeding Rs.7 Crores as well as gold exceeding 7 kg. Pursuant to the lodging of this report, the non-applicant filed an application under Section 438 of the Code of Criminal Procedure 1973. By order dated 03/02/2017 this application came to be allowed. The relevant portion of said order reads thus :
" Perused application and say of Additional Public Prosecutor and Investigating Officer. Also perused case diary. Heard both sides. It is apparent from record that the allegations are concentrated against two persons, although name of the applicant is figured in F.I.R. as a Director. In such circumstances, it cannot be said that there is prima facie any overt act on the part of the applicant. However, taking into consideration facts and circumstances of the case and in order to afford opportunity to the Investigating Agency, it is expedient in the interest of justice to require applicant to attend police station. "
Certain conditions with regard to attendance of the non-applicant ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 4/8 were also imposed.
4. It is submitted by learned Additional Public Prosecutor that the learned Judge of the Sessions Court without considering the gravity of the offence and the fact that various investors and depositors had been duped proceeded to grant protection from arrest only by observing that the name of the non-applicant was mentioned in the report as a Director and the allegations were concentrated against two other persons. It is submitted that the crime in question was registered pursuant to the report submitted by the Auditor and in this report the non-applicant was clearly indicted. Without considering any of the aspects for grant of pre-arrest bail, the application came to be allowed by passing a cryptic order. The investigation has revealed that the crime was committed in a systematic matter and merely on the premise that the non-applicant was a member of the Managing Committee, she was not entitled for grant of protection. She referred to the papers collected by the investigating agency and submitted that the order granting pre-arrest bail deserves to be set aside. Reliance was placed on judgment of the Honourable Supreme Court in CBI, Hyderabad vs. Subramani Gopalkrishnan & Anr. (2011) 5 SCC 296.
5. The non-applicant has filed reply opposing the prayer as made. It is submitted by her learned counsel that after considering the police papers ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 5/8 the learned Sessions Judge was legally justified in granting protection to the non-applicant. It could not be said that the order as passed was either perverse or that the relevant aspects were not kept in mind while granting protection. It was then submitted that the protection from arrest was granted on 03/02/2017 and during this period there was no grievance that the non-applicant had not co-operated during investigation. Merely on account of enormity of the amounts involved, the said protection does not deserve to be taken away. The non-applicant can be directed to continue to co-operate with the investigation. The statement of the non-applicant had also been recorded and hence the suo motu notice deserves to be discharged. In support of his submissions, the learned counsel placed reliance on the decisions in National Insurance Co. Ltd. vs. Keshav Bahadur and ors. (2004) 2 Supreme Court Cases 370, Manjit Prakash & Ors. vs. Shobha Devi and anr. AIR 2008 SC 3032, Hazari Lal Das vs. State of West Bengal and anr. (2009) 10 SCC 652, Satyavir Singh vs. State of Uttar Pradesh (2010) 3 SCC 174 and Sharad Kumar Sanghi vs. Sangita Rane (2015) 12 SCC 781.
6. I have heard the learned counsel for the parties and I have also perused the material sought to be relied upon by them. Before considering their submissions, reference may be made to the observations of the Honourable Supreme Court in Kanwar Singh Meena vs. State of Rajasthan ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 6/8 and anr. (2012) 12 SCC 180 which read thus :
" 10. .... If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well-recognised principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing the accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. ..."
One of the grounds for cancellation of bail is non-consideration of relevant aspects on the basis of which duly granted. If it is found that the trial Court without considering the material factors has overlooked relevant material and has also not given due consideration to the enormity and magnitude of the offence, such order would become vulnerable and thus liable to be set aside.
7. While viewing the case in hand on the aforesaid premise, it can be seen that the prosecution has sought to rely upon the detailed audit report prepared by the Auditor, Co-operative Societies, Bhandara. The audit report ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 7/8 is a statutory report and the same records the manner in which financial misappropriation has been committed while accepting deposits from various investors and also while accepting pledge of gold ornaments. The said report indicates financial misappropriation to the tune of Rs.7 Crores 34 lakhs and odd as well as with regard to gold to the extent of 7 to 8 kgs. In such an offence that has been registered on the basis of the statutory audit report, the Sessions Court was not justified in granting protection from arrest without perusing that report and only on the ground that though the name of the non-applicant figured in the First Information Report, the allegations were concentrated only against two other persons. Except this observation, the impugned order does not refer to any other consideration which is necessary to be taken into account while granting protection from arrest. It cannot be lost sight of that the non-applicant was the Chairman of the Society in question at the relevant point of time. Other material in the form of statements of depositors indicates the role played by the non- applicant.
8. The effort on the part of the learned counsel for the non-applicant of seeking to distinguish matters in which bail has been granted and matters in which same is sought to be cancelled does not further the case of the non- applicant. If pre-arrest protection is sought to be withdrawn on the ground that same was granted overlooking material aspects, the submission that the ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 ::: J-APPLN-28-17 8/8 non-applicant has co-operated pursuant to said order and hence her liberty does not deserve to be withdrawn loses its significance. Her co-operation in investigation cannot be a ground that would overweigh the aspect of non- consideration of relevant aspects while granting protection from arrest.
9. In that view of the matter, I am satisfied that the order dated 03/02/2017 granting pre-arrest bail to the non-applicant deserves to be cancelled. Accordingly the following order is passed :
(i) The order dated 03/02/2017 passed by the learned Additional Sessions Judge, Bhandara in Criminal Bail Application No.25/2017 is set aside.
(ii) Application filed by the non-applicant under Section 438 of the Code stands dismissed.
(iii) The non-applicant is granted time of three weeks to appear before the Investigating Officer.
The present proceedings are disposed of by clarifying that observations are only for deciding the present application.
JUDGE Asmita ::: Uploaded on - 13/12/2017 ::: Downloaded on - 14/12/2017 01:09:29 :::