Sameer S/O Sudhir Joshi (In Jail) vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 2002 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            NAGPUR BENCH, NAGPUR.

                         Criminal Application (BA) No. 787 of 2016 
                              Sameer  v.  State of Maharashtra
                   
                                       
                                                           
                                                                               
                                                                                                   
                                                                                                                       
                                                                                                                                    
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions                                      Court's or Judge's orders.
and Registrar's Orders.
                                       Shri Shyam Dewani,  Advocate for applicant 
                                       Smt Bharti Dangre, Public Prosecutor for respondent-State

                                  Coram:           S. B. Shukre,  J 
                                  Date   :         April 26,   2017

1. This is an application filed for grant of bail under Section 439 Cr. P. C. The applicant is facing prosecution for the offences punishable under Sections 406, 409, 420, 120-B read with Section 34 of the Indian Penal Code; Section 3 of the MPID Act read with Section 45 (IA), 45 (S) punishable under Section 58-B (4A) and (5A) of the Reserve Bank of India Act.

2. The allegations against this applicant and the co-accused are that they invited unsuspecting investors to invest their funds in their company by promising them huge returns on their investments ranging from 25% to 40% per annum on their funds and when the investors deposited their hard-earned money with the Company of the applicant, the investors did not receive the promised returns. After lodging of the complaint against this applicant and co-accused by some of the investors, various offences,

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as referred to earlier, were registered against this applicant and the co-accused. The investigation made disclosed that this applicant had prima facie defrauded more than 5500 depositors and swindled their money amounting to Rs. 200 crores. A charge- sheet was, therefore, filed against the applicant and now the charge has also been framed on 6.1.2016 for the aforesaid offences against this applicant and the co-accused. Now, the case is pending at the stage of recording of the evidence of the witnesses.

3. Smt Bharti Dangre, learned Public Prosecutor has taken an exception to the maintainability of this application filed under Section 439 Cr. P. C. as the previous application filed by this applicant (BA/955/2015) was allowed to be withdrawn by this Court vide order dated 18.1.2016. She submits that the applicant now cannot push forward his case on merits of the matter.

4. Shri Dewani, learned counsel for the applicant submits that the application, as filed by this applicant, is more on other grounds than really on merits of the case. He submits that when the charge- sheet has already been filed and there is no criminal record of this applicant, it is not necessary that this applicant be further detained in jail and if he is to be detained so, it would amount to his pre-trial

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punishment. He further submits that according to the prosecution, there are going to be 700-800 witnesses and thousands of documents to be proved in evidence which would reasonably indicate that the trial of the case is not going to be concluded within a reasonable period of time. He submits that after framing of charge on 6.1.2016, the trial of the case has not moved further in any significant manner and sofar as this applicant is concerned, there is not a single instance attributable to him which could be said to have contributed to delay in the trial. He submits that there is no possibility of the applicant fleeing from justice or interfering in the course of justice and, therefore, the applicant is entitled to be released on bail.

5. Sofar as merits of the case are concerned, I must say that the applicant cannot seek to argue his case on its basis as his application filed under Section 439 Cr. P. C. has been allowed to be withdrawn by this Court on 18.1.2016 and to this extent, learned Public Prosecutor is right. In fact, learned counsel for the applicant has also not placed much emphasize on merits of the case.

6. Shri Dewani, learned counsel for the applicant has placed heavy reliance on the case of Sanjay Chandra v. Central Bureau of Investigation

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reported in AIR 2012 SC 830 to support his argument that 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. He further submits that now it is well-settled principle of law, as held in the case of Gudikanti Narasimhulu & ors v. Public Prosecutor reported in AIR 1978 SC 429 that a personal liberty of person is too precious under our Constitutional system which is recognized by Article 21 of the Constitution of India and, therefore, if the personal liberty is to be deprived, it must be on judicious and rationale considerations. He submits that it is sensible to assume a man on bail has better chance to prepare or present his case than the one remanded in custody.

7. According to learned Public Prosecutor, although there is no doubt about the principles of law referred to by learned counsel for the applicant, the court is required to strike a balance between individual interest and societal interest by keeping in mind all the relevant parameters which govern the discretionary power of the court to grant or refuse the bail. She submits that this is a case where the innocent investors have been duped and relieved of their huge funds by fraudulent means by this

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applicant and, therefore, the crime prima facie committed by the applicant has graver degree. She submits that if the applicant is released on bail, it would not only undermine the societal interest, but also give rise to possibility of the applicant thwarting the course of justice by resorting to the same tricks which he employed for entrapping the unsuspecting investors.

8. In the case of Sanjay Chandra v. CBI (supra), the Hon'ble Apex Court considered all the precedents in the field and held that when the under- trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. It further held that the primary purposes of bail in a criminal case are to relieve the accused of imprisonment and to reduce burden of the State in detaining him and at the same time to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required. The Hon'ble Supreme Court also reiterated the principles of law as laid down in Gurcharan Singh & ors v. State reported in AIR 1978 SC 179 that apart from the seriousness of the offence, such factors as the likelihood of accused fleeing from justice and his tampering with the prosecution witnesses, must also be taken into account as these factors go a long way in ensuring fair trial of the

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case.

9. In the case of Gudikanti Narasimhulu & ors v. Public Prosecutor (supra), the Hon'ble Apex Court while observing that personal liberty is too precious a value of our constitutional system, laid down the relevant criteria for grant or refusal of bail which, amongst other, are the seriousness of the offence and gravity of its consequences; likelihood of the accused fleeing from justice or interfering in the course of justice or otherwise polluting the process of justice. It also held that in order to ascertain whether these parameters are fulfilled to the satisfaction of the court by a person seeking bail, it would be not only traditional but rational also for the court to enquire into the antecedents of the man applying for bail and other relevant circumstances.

10. The principles enunciated in the above- referred cases are now well settled and have been applied in the facts and circumstances of the cases decided by various Benches of this Court in Suresh G. Motwani (Dr) and anr v. State of Maharashtra and anr reported in 2004 (Supp.) Bom. C.R. 521; Mrs Pallavi Sameer Joshi v. State of Maharashtra (BA/149/2014, decided on 7th April 2014); Sunil Hanumantrao Koppal v. State of Maharashtra reported in 2006 All MR (Cri) 433; Rajesh Suresh

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Joshi v. The State of Maharashtra (BA/634/2015, decided on 8th October 2015) and Menino v. State of Goa reported in 1995 (1) Bom. C.R. 334 which have been referred to me by learned counsel for the applicant.

11. In the case of Deepak Shubhashchandra Mehta v. C.B.I. reported in 2012 CriLJ 1664, the same principles of law, as are enunciated in Gudikanti and Sanjay Chandra (supra), have been laid down. In the case of Babu Singh Kushwaha v. CBI & anr reported in (2015 (12) SCALE 648, the Hon'ble Supreme Court found that the appellant in that case was in custody for a period of about 3 and half years and it was also clear that the number of witnesses cited by the prosecution being much, it was not possible for the trial Court to reasonably conclude the trial within a few years and, therefore, denial of bail to the applicant in such a fact situation was held to be unjust and improper.

12. Keeping in view these well-settled principles of law, I find that the offences prima facie committed by this applicant being of very serious nature and much graver than in other cases as the evidence prima facie suggests that more than about 5500 gullible depositors have been taken for a ride by this applicant, the possibility of the applicant

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interfering with the prosecution witnesses and course of justice which are also aspects of fair trial, is not reasonably ruled out. This applicant has, as rightly submitted by learned Public Prosecutor, prima facie employed tricks in entrapping the innocent investors and the amount swindled by the applicant being of more than Rs. 200 crores, the possibility of this applicant coming out with some proposal for the witnesses who are also his investors, to say something else with the hope that something magical would be done by the applicant in returning their money, is not ruled out. A reasonable basis to this possibility is provided by the fact that though as per the promise given by the applicant, companies were to be set up by using investors' money for carrying on various businesses, the companies turned out to be only paper entities and in such a scenario, there appears to be no active source remaining in the hands of the applicant, for the present, to make any real arrangement on immediate basis for returning the funds. In this backdrop, there is no reasonable assurance to the court that this applicant would not once again resort to the same old tactics as he did earlier to make the witnesses fall prey to his fraudulent machinations. If such is the case, I am of the view that it would be in the interest of fair trial and justice that the applicant is denied the benefit of bail and such deprivation of his liberty having

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reasonableness and rationale in it, I am of the further view, there would not be any pre-trial punishment for the applicant.

13. About the contention that there are hundreds of witnesses to be examined and thousands of documents to be proved in evidence, all of which would not make it possible for the trial Court to conclude the trial in another few years, I must say that it would be too premature for us to draw any such inference. The charge has been framed on 6.1.2016 and the trial is at the stage of recording of evidence. The report of the trial Judge shows that the evidence of the prosecution, as per the programme, was to be recorded on three consecutive dates - 27, 28 and 29.1.2016. But, the whole programme was made to collapse by the accused persons who are already on bail. These accused persons filed a pursis (exhibit 126) on 27.1.2016 informing the court that they did not receive all the papers submitted along with the charge-sheet. One does not understand as to why this was intimated to the court so belatedly which could have been done much earlier in a reasonable period of time after 13.12.2013, the date on which charge-sheet was presented or after 24.7.2015, the date when the supplementary charge- sheet was filed. Then, on 10.2.2016 this applicant moved an application (exhibit 133) seeking

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adjournment on the ground that he required time to verify the charge-sheet and documents received. On 24.2.106, applicant filed another pursis (exhibit 139) informing the court that he still had not received some documents submitted along with the charge- sheet. Report of the trial Judge further shows that the trial Court somehow or the other succeeded in fixing the case for recording the evidence in the case on 14.3.2016. But on that date, this applicant filed another application (exhibit 145) under Section 10 of the MPID Act seeking direction to the State to pay Rs. 50,000/- as monthly maintenance expenses and Rs. 5 lacs for meeting the legal expenses.

14. The above discussion would only show that although this applicant is in jail for about three and half years and the trial of the case against him has not yet acquired desired momentum, blame for his detention and tardy progress of trial cannot be entirely put upon the State. Applicant and other co- accused too have their some share and this is when they are equally obliged in law to render their cooperation in expeditious disposal of the trial of the case against them. One of the offences with which theis applicant has been charged with an offence under Section 409 IPC. This offence attracts maximum punishment of imprisonment for life and apart from the punishment, the impact of the crime

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prima facie committed by this applicant on the society at large, is much graver. Therefore, one would have to say that at this juncture, it would be too early to say that just because the applicant is in jail for a period of three and half years and more and the prosecution evidence is voluminous entailing delayed trial, the applicant would be entitled to be released on bail. After all, this Court is required to balance the individual interest of the applicant against the societal interest in the light of gravity of the offences alleged and punishment prescribed for these offences. Taking over all view of the matter, I am of the opinion that the applicant would not be entitled to be released on bail.

15. As regards the contention that if released on bail, the applicant would be in a better position to prepare for his defence, it may be said that as there is nothing on record showing that the applicant or his lawyers felt handicapped for this reason, the contention, for the present, is too pretentious to be accepted.

16. The ground of parity with the other co- accused who have been released on bail, has been pressed into service by the applicant. Chart of the co- accused released on bail, forms part of the application. However, I am not impressed by the

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same. The principle of parity cannot be applied to this applicant. He is the principal accused and has played principal role in prima facie committing alleged offences. In the case of Nanha Nabhan Kha v. State of Uttar Pradesh reported in 1993 Cri.LJ 938 relied upon by learned counsel for the applicant, the Allahabad High Court has held that the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and straight jacket to grant bail automatically. In fact, this is a well-settled law. The situation of this applicant is much different from that of the co-accused released on bail. Even, the co- accused Pallavi who has been released on bail being a woman, stood on much different footing than this applicant. It would then follow that this applicant on this ground also also not entitled to be released on bail. In the circumstances, I am not inclined to allow this application.

17. In the result, application stands rejected.

Learned counsel for the applicant at this stage prays for liberty to file application for bail afresh after six months if the trial is not concluded till then. He undertakes that applicant would fully cooperate with the trial Court for disposal of the trial as per programme.

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Liberty, as prayed for, is granted.

Copy of the order be sent to the trial Court to enable it to take appropriate steps for expeditious disposal of the case.

JUDGE

joshi