Suo Motu vs Manisha Krishnakant Deshmukh
2017 Latest Caselaw 9432 Bom

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.

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

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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

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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

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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

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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

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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

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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