Prabha Surana vs State Of West Bengal
2023 Latest Caselaw 3581 Cal

                  IN THE HIGH COURT AT CALCUTTA
                  Criminal Miscellaneous Jurisdiction
                            Appellate Side

Present :-        Hon'ble Mr. Justice I. P. Mukerji
                  Hon'ble Mr. Justice Biswaroop Chowdhury

                          CRM (DB) No. 4148 of 2022

                                   Prabha Surana
                                         Vs.
                                State of West Bengal

 For the Petitioner                   :-     Mr. Ratnanko Banerjee, Sr. Adv.,
                                             Mr. Ayan Bhattacharya,
                                             Mr. Abhijit Chowdhury,
                                             Mr. Aditya Ratan Tiwary, Advs.

For the defacto-complainant :-               Mr. Sandipan Ganguly,
                                             Mr. Arnab Sardar,
                                             Mr. Anurag Sardar,
                                             Mr. Sayan Mukherjee, Advs.

 For the State                        :-     Mr. Saswata Gopal Mukherji,
                                             Ld. PP,
                                             Mr. Neguive Ahamed,
                                             Ms. Jonaki Saha.
 Judgment on                          :-     19.05.2023


 I. P. Mukerji, J.:-

 INTRODUCTION


 When the bail application was moved before us on 10th January, 2023, the

 petitioner was already in custody for 135 days. Investigation was over and

 charge   sheet    had   been    filed.    Although,   further   investigation   was

 contemplated, but any supplementary charge sheet had not been

 submitted. One co-accused had been granted bail. A special leave petition

 challenging that bail order SLP (Criminal) Diary No. 33282 of 2022 (Amita

 Dani and Ors. vs. Shubhika Surana and Anr.), filed by the de-facto

 complainant was dismissed by the Supreme Court on 31st October, 2022.


 On these facts on 10th January, 2023 we granted bail to the petitioner.


 The State of West Bengal was not happy with this order. In fact, they felt

 aggrieved. They moved the Supreme Court with a special leave petition
 (Crl.) No. 1981 of 2023. Its appeal was allowed. The Supreme Court passed

the following order on 3rd March, 2023, remanding the matter back to us

after setting aside our order:


             1. ".........Accordingly, the impugned order passed by the High
               releasing the respondent on bail is hereby quashed and set
               aside and the matter is remitted back to the High Court to
               reconsider the bail application afresh, in accordance with law
               and on its own merits and in light of the observations made by
               this Court reproduced hereinabove.
              The aforesaid exercise shall be completed within a period of three
       months from the date of receipt of present order. All the contentions
       and defences, which may be available to the respective parties are
       kept open, to be considered by the High Court which shall be dealt
       with and considered by the High Court in accordance with law and on
       its own merits and without in any way being influenced by the
       present order.
              In view of the above, the present Appeal is accordingly allowed."


Human liberty is most valuable to every civilized human being. Liberty

includes the right and opportunity to free movement without unreasonable

restrictions, the freedom to talk, to be talked to, to write, to be written to, to

express views, be influenced by expression of views, to work, eat, rest, play,

recreate and do activities becoming of a civilized human being, without

interference from anybody or unreasonable interference from any state

authority.


This principle is as old as the hills in all countries where there is rule of law

as understood by the Anglo Saxon jurisprudence, that unless required to

prevent commission of a crime, normally, a person cannot be detained in

prison without trial by any state authority. The principle which flows

alongside this constitutional principle is that a man is presumed to be

innocent unless proved guilty and that a person is proved guilty of a

criminal offence only if his guilt is proved beyond reasonable doubt. Such is

the standard of proof required for conviction in a criminal trial. There is a



                                      2
 saying that a thousand guilty persons may be acquitted by the court but let

not a single innocent person be convicted.


Immediately after a cognizable offence is complained of, an investigation is

started. The police starts an investigation under Sections 156 and 157 of

the Code of Criminal Procedure visits the place of crime, makes an enquiry,

makes search and seizure of articles involved in the crime. The police starts

interrogation of persons to identify the accused or witnesses. Persons are

summoned to give statements. They are recorded under Sections 161, 162

and 164 of the Criminal Procedure Code. The evidence to support the

commission of the crime has to be quickly collected.


An exception to the above principle of no detention without trial is when

after the occurrence of a cognizable offence, the alleged offenders need to be

identified, interrogated and the offence investigated into to enable the

prosecution to frame a charge against them. The offence complained of may

be heinous like murder. The alleged offender may be of a very vicious

nature. He may be inclined to commit more crimes. The more heinous the

offence, there is more likelihood of the offender trying to conceal the

evidence of the crime or interfering with the witnesses so that they do not

speak against him. There might also be a tendency of offenders to flee from

justice and take shelter in some safe place.


Now, when investigation is taking place, it becomes necessary in most

cases to take the accused into custody so that he does not obstruct or

interfere with the collection of evidence or influence potential witnesses, the

investigation and the submission of charge sheet by the prosecuting

authority.


When such an arrest is made, it is prior to trial. Such detention is justified

in law. Concurrently, the accused has a right to apply for bail.


How is a case for grant or refusal to grant bail to be considered by the

court? It is not necessary to go into the generality of the circumstances in


                                     3
 which bail is granted or not granted. I shall discuss the facts of this case

and the authorities on the subject to come to a view whether bail should be

granted to the accused, in this case.


FACTS

The facts of the case are like this. An association of fraudulent persons was

formed around 2007. It consisted of one Dilip Chand Kankaria, his wife

Sudha Kankaria, their relative Surendra Bengani and the members of the

Surana family which included the petitioner and her husband Shanti

Kumar Surana. The petitioner, a senior member of the society and belonging

to a respectable business family represented to members of her society and

also to the public at large that if they invested money through Kankaria and

the Surana group, they would receive large returns. In this way, several

crores of rupees were received from the public by Kankaria and part of it

was routed to the account of the petitioner. What appears from the tenor of

the accusation is that this was only part of several chains through which

money was collected and routed. The ultimate purpose was to

misappropriate the fund collected. A brochure by Commercial Paradise Pvt.

Ltd. inviting the public to make investment was allegedly issued and

published in 2011 allegedly deceiving them to make investment. According

to the petitioner the company was incorporated years later in 2016. Hence

the brochure could have been issued on or after 2016. According to the

prosecution, the bank statements obtained by it would show that several

hundreds of crores of rupees interchanged hands between the petitioner

and Dilip Chand Kankaria between 2007 and 2013. After his death this

operation was handled by his wife, Sudha whose bank account would also

reflect these transactions from 2014 till 2020.

The de facto complainant lodged a complaint petition before the Chief

Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure

which was treated as a First Inspection Report.

The accused has a different story to tell. The alleged transaction between

the de-facto complainant and the Kankarias had nothing to do with the

petitioner. On the face of the first information report, it would appear that

the alleged offence was committed from 28th May, 2011 onwards. That the

petitioner had no connection with it, would appear from the fact that in

2021 a commercial suit was filed by the de-facto complainant against Sudha

Kankaria (CS No. 219 of 2021) for recovery of Rs.1,20,00,000/- on a loan

transaction (after withdrawal of a similar earlier suit instituted on 28th

June, 2019), which was subsequently settled between the parties and

withdrawn.

Admittedly, Rs.52,58,964/- had been repaid by Sudha Kankaria before

institution of the complaint.

The petitioner has been charged inter alia under Section 3 of the West

Bengal Protection of Interest of Depositors in Financial Establishments Act,

2013 for an offence which was allegedly committed in 2011.

From the charge sheet, it is evident that the complaint was regard to money

paid to Dilip Chand Kankaria between 2011 and 2012. His widow, Sudha

assured repayment to the de-facto complainant on 1st January, 2014. Yet,

the complaint was lodged on 27th January, 2020 before the Chief Judicial

Magistrate. The investigation was completed on 21st July, 2022. The charge

sheet was filed before the learned Special Judge. The petitioner has

surrended ther passport with the investgating agency.

The subject matter of the complaint is a plain and simple civil dispute

between the parties, the accused finally contended.

LAW

At this point of time, it is important to note the law laid down by the

Supreme Court in the case of Ishwarji Nagaji Mali vs. State of Gujarat &

Anr. in (2022) 6 SCC 609 relying on which the Supreme Court was pleased

to set aside our judgement and order dated 10th January, 2023. The

judgement in Ishwarji Nagaji Mali summarised the law with regard to grant

of bail laid down by the Supreme Court in around 45 years beginning with

Gudikanti Narasimhulu and Ors. vs. Public Prosecutor, High Court of

Andhra Pradesh reported in (1978) 1 SCC 240 and ending with Anil

Kumar Yadav vs. State (NCT of Delhi) reported in (2018) 12 SCC 129.

Over these years, the court held that the nature of the charge and evidence,

the punishment which the accused would receive on conviction, whether the

accused would thwart the course of justice, the likelihood of the applicant

fleeing from justice, interfering with witnesses and evidence, enquiry into

the antecedents of the accused, particularly his tendency to commit further

crime would be the considerations in such an application. In Prahlad Singh

Bhati vs. NCT, Delhi and Anr. reported in (2001) 4 SCC 280 the Supreme

Court said that the legislature while using the words "reasonable grounds"

for believing that the accused had committed the crime meant that the

prosecution had only to establish a genuine case against the accused. In

Ram Govind Upadhyay vs. Sudarshan Singh reported in (2002) 3 SCC

598, the court said that the power to grant bail had to be used in a

judicious manner on a case to case basis. The more heinous the crime the

greater the chance of rejection of bail. In Kalyan Chandra Sarkar vs.

Rajesh Ranjan alias Pappu Yadav and Anr. reported in (2004) 7 SCC 528,

the court held that the court should not enquire into the nature of the facts

and evidence. It should deal with the case prima facie. It should not deal

with the application mechanically as held in Prasanta Kumar Sarkar vs.

Ashis Chatterjee and Anr. reported in (2010) 14 SCC 496. [See also Neeru

Yadav vs. State of Uttar Pradesh and Anr. reported in (2016) 15 SCC 422

and Anil Kumar Yadav vs. State (NCT of Delhi) and Anr. reported in

(2018) 12 SCC 129.]

In Serious Fraud Investigation Office vs. Nittin Johari and Anr.

reported in (2019) 9 SCC 165, the Supreme Court treated an economic

offence as a class by its own resulting from "deep-rooted conspiracy and

involving huge loss of public funds." While granting bail the court had to

consider "the nature of evidence........severity of the punishment, the

character of the accused.......his antecedents.....reasonable possibility of

securing the presence of the accused at the trial......... reasonable

apprehension of the witnesses being tampered with.........the larger interest

of the public/State and other similar considerations." It endorsed its earlier

view in Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation

reported in (2013) 7 SCC 439. [See also State of Bihar & Anr. vs. Amit

Kumar alias Bachcha Rai reported in (2017) 13 SCC 751].

In the case concerning the former Finance Minister P. Chidambaram, P.

Chidambaram vs. Directorate of Enforcement reported in (2020) 13 SCC

791, Mr. Justice Bopanna delivering the judgment of the Supreme Court

opined that an economic offence could have sufficient gravity. The gravity of

the offence had to be assessed on a case to case basis. However, the right to

grant of bail should not be denied to persons accused of such offence. Bail

was the rule and refusal the exception. He observed that an accused person

who enjoyed freedom was in a much better position to look after his case

and to properly defend himself than one in custody. The law presumed his

innocence until convicted. The court followed its earlier dictum in Shri

Gurbaksh Singh Sibbia and Ors. vs. State of Punjab reported in (1980) 2

SCC 565.

On the ground that the accused in a chit fund scam would interfere with

the sale of properties keeping away prospective buyers, bail was refused to

him in Central Bureau of Investigation vs. Ramendu Chattopadhyay

reported in (2020) 14 SCC 396. The fact that another co-accused has been

granted bail should not be mechanically considered so as to grant bail to an

accused but the facts and circumstances carefully scrutinized before

granting the accused bail as held in Ramesh Bhavan Rathod vs.

Vishanbhai Hirabhai Makwana (Koli) and Anr. reported in (2021) 6 SCC

230.

In Satender Kumar Antil vs. Central Bureau of Investigation and Anr.

reported in (2022) 10 SCC 51, the Supreme Court remarked as follows:-

"94. Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the criminal courts. Any conscious failure by the criminal courts would constitute an affront to liberty. It is the pious duty of the criminal court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest."

The court endorsed the views expressed in its earlier decisions that human

liberty was invaluable, there was a presumption of innocence unless an

accused was proved guilty, commission of an economic offence did not

disentitle the accused to bail, bail not jail was the rule, gravity of the

offence had to be adjudged from the sentence prescribed for the alleged

offence. [See also Jagjeet Singh and Ors. vs. Ashish Mishra alias Monu

and Anr. reported in (2022) 9 SCC 321 and Y vs. State of Rajasthan and

Anr. reported in (2022) 9 SCC 269.]

OUR CASE

The accusation against the petitioner is of an economic offence. It relates to

alleged misappropriation of crores of money collected from the public from

2011 onwards. The person aggrieved by this alleged misappropriation did

not file a complaint till 10 years later in 2020. By 2020 the petitioner would

have destroyed whatever evidence it wanted to destroy to absolve her of the

crime. If she did not, in my opinion, there is little chance of its destruction

now. The investigating agency has had a decade to make itself aware of the

crime and to take steps for prosecution. It did not. Prosecution started only

after the de-facto complainant made an application before the criminal

court. On the basis of this, FIR was registered. Had the complaint been

made contemporaneously, it would have carried much more weight than

having been made.

When it is said that the gravity of offence would be a factor in determining

whether bail is to be granted, it does not mean that the court has to

adjudicate on the elements of the crime or the charges to find out its nature,

extent and depth. On the basis of the charges framed, the court is only

required to ascertain the nature of the crime. If the whole of the charges in

the charge sheet were proved, what would be the magnitude of the crime

and the sentence the accused was likely to suffer. Thereafter, a prima facie

determination of the guilt of the accused.

The previous record of the accused or in other words antecedents would

undoubtedly be a factor to be taken into account. His influence over the

potential witnesses or the investigating agency or the likelihood of the

accused destroying evidence is also a relevant factor. I think the greater the

enormity of the crime, more cautious should the prosecution be to keep the

witnesses and the evidence free from interference. In such a situation, more

could be the propensity of the accused to interfere with the trial, would be a

safe presumption for the court. It would be required to assess the

reasonable likelihood of the accused trying to interfere with the potential

witnesses or tamper with the evidence so as to save himself.

The principles which emerge are as follows:-

(i)     Human liberty is sacrosanct.

(ii)    It is invaluable for a human being in any civilized society.

(iii) It is granted as a fundamental right under Articles 19 and 21 of the

Constitution of India, read with Article 14 thereof.

(iv) There is presumption of innocence of an accused unless proved guilty

after a proper trial.

(v)     Bail is the rule and jail is the exception.

(vi)    The court considering an application for bail is not to adjudicate

        upon the commission of the crimes.

(vii) It is only required to assess the gravity of the offence from an

assessment of the fact whether there are reasons to believe that the

accused is guilty of the crime and the prima facie case against him,

the magnitude of the offence on the charges levelled against him and

the sentence he would undergo if those charges were proved.

(viii) Whether there was reasonable likelihood of the accused interfering

with witnesses.

(ix) Whether there was reasonable likelihood of the accused destroying

the evidence against him.

(x) A verification of the antecedents of the accused so as to enable the

court to follow a belief whether or not he would indulge in similar

crime if released on bail.

(xi) The likelihood of the accused "thwarting the course of justice".

(xii) The reasonable likelihood of the accused fleeing from justice.

(xiii) Whether the release of the accused on bail would be prejudicial to the

society.

In this case, after filing of the criminal complaint, investigation was quickly

carried out by the investigating agency by seizure of the documents,

tracking of all bank accounts, their attachment and so on. Investigation was

closed and charge sheet submitted.

If the Danis genuinely settled the suit on receiving the said sum or a

substantial portion of it advanced by them to the Kankarias, the theory of

filtration of the money from the Danis to the Kankarias and thereafter, to

the petitioner through a relative of the petitioner, Bengani loses some force.

If for more than 12 years, the accused has not absconded, there is little

reason to believe pending trial the accused would abscond. She has

surrendered her passport with the investigating agency. Furthermore, there

is little scope of recovery of more evidence to convict the accused.

In any case, the prosecution has not even submitted that a supplementary

charge sheet is being made ready. Just a mere submission that more

investigation is required, is not enough unless some proof is laid before the

court that there are some materials on which further charges can be framed

and that the accused is in a position to tamper with that evidence or

otherwise interfere with the trial.

One co-accused is released on bail.

For these reasons, this is a fit case for grant of bail.

We direct that the petitioner shall be released on bail upon furnishing a

bond of Rs.10,000/- with two sureties each of like amount, one of whom

must be local, to the satisfaction of the learned 3rd Additional District

Judge, Alipore (Special court), subject to the condition that the petitioner

shall appear before the trial court on every date of hearing until further

orders and shall not intimidate the witnesses and/or tamper with evidence

in any manner whatsoever.

In the event the petitioner fails to appear before the trial court it shall be at

liberty to cancel her bail in accordance with law without further reference of

this court.

She will not leave the limits of Kolkata without informing the Investigating

Officer.

She will also deposit his passport, if any, with such Officer within seven

days.

The application for bail (CRM(DB) 4148 of 2022) is, accordingly, disposed of.

Urgent certified photo copy of this judgment and order, if applied for, be

furnished to the appearing parties on priority basis upon compliance of

necessary formalities.

  I agree,




(BISWAROOP CHOWDHURY, J.)                                    (I. P. MUKERJI, J.)