Gaurav Girishbhai Mehta vs State Of Gujarat
2022 Latest Caselaw 9118 Guj

   R/CR.MA/6204/2022                           ORDER DATED: 14/10/2022




    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


   R/CRIMINAL MISC. APPLICATION NO. 6204 of 2022


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                GAURAV GIRISHBHAI MEHTA
                           Versus
                    STATE OF GUJARAT
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Appearance:
MR BB NAIK, SENIOR ADVOCATE with MR PREMAL S
RACHH(3297) for the Applicant(s) No. 1
MS VRUNDA SHAH, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI


                        Date : 14/10/2022


                          ORAL ORDER

[1.0] This successive application for regular bail under Section 439 of the Code of Criminal Procedure, after rejection of his bail application post submission of charge-sheet not only by the Court of Sessions but with reasoned order rejected by this Court having been challenged up to Supreme Court and when that challenge failed, initially filed on 04.01.2022 before the Court of Sessions straightway instead of approaching the Court where trial is going on, is filed before this Court.

[2.0] The applicant - accused herein as recorded in the

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earlier order is facing charge for offences under Sections 120 B, 406, 420 and 409 of the Indian Penal Code (hereinafter referred to as 'the Code'). His bail application, post submission of charge-sheet, came to be rejected on the ground that he misappropriated Rs.2,79,99,700/- and utilized the same for repaying his own debts created in satta betting in cricket. Not only that, the co-accused, being accused no.2 is the father and accused no.3 is the maternal uncle, in whose accounts the present applicant - accused transferred Rs.3,45,000/- and Rs.5,00,000/- respectively, were granted bail on condition of deposit of the said amount pending the case. When this successive application for bail is filed, no grievance was raised about the delay in trial, that too, before the trial Court itself. As such, once trial has commenced of the accused, the applicant is expected to file bail application first before the trial Court so that the trial Court can appropriately deal with all the submissions made including delay in trial. However, the application, which is moved before the Sessions Court directly on 31.12.2021, was on the ground that since charge-sheet is already filed offence is triable by the Court of Magistrate and offence under Section 409 of 'the Code' is not made out and a request was made to release the accused on bail as only one witness is examined in the trial, and therefore, it may further delay the conclusion, which would amount to pre-trial punishment. Though the said application came to be rejected vide order dated 04.01.2022, the accused has preferred this successive application for bail, after rejection of earlier application post submission of charge-sheet with a reasoned order, which was challenged up to Supreme Court, on the

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ground that new law point is being raised and pressed into service as change of circumstances being no offence under Section 409 of 'the Code' is made out as also another ground raised is that despite the direction by the Supreme Court to expedite and conclude the trial preferably within a period of one year from the date of receipt of production of copy, it has yet not been concluded. The said direction by the Supreme Court is passed vide order dated 10.02.2021.

[3.0] Mr. B.B. Naik, Senior Advocate, learned Counsel assisted by Mr. Premal Rachh, learned advocate for the applicant, vehemently submitted that the applicant - accused while serving as Clerk in Gujarat Fertilizer Dealers Association, cannot be said to be a public servant or that Association being a Banker, provisions of Section 409 of 'the Code' cannot be invoked and it is not made out. At best offence under Section 408 of 'the Code' can be said to have been made out, which is maximum punishable with seven years imprisonment, and therefore, in view thereof, keeping in mind the ratio of the Supreme Court in the cases of Arnesh Kumar Vs. State of Bihar and Another reported in (2014) 8 SCC 273 and Satender Kumar Antil Vs. Central Bureau of Investigation & Anr reported in 2022 (11) SCALE 114, it is submitted that in the cases where maximum punishment, which can be imposed is seven years, the accused has to be enlarged on bail. According to his submission, whether offence under Section 409 of 'the Code' is made out in this case or not, it is a question of law, and therefore, it is a new ground as change of circumstance raised, which is required to be

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considered even in successive application for bail. He further submitted that earlier no such ground appears to have been raised.

[3.1] He has further submitted that despite the direction by the Supreme Court to conclude the trial preferably within a period of one year from the date of receipt of its order, since it is yet not concluded and only five witnesses are examined, even on the ground of breach of order passed by the Supreme Court and on the ground of delay of conclusion of trial, the applicant is entitled to be released on bail even in this successive application for bail.

[4.0] As against that, Ms. Vrunda Shah, learned Additional Public Prosecutor, submitted that once the accused on misappropriating the amount to the tune of approximately Rs.2,80,00,000/-, which has been utilized by him for his personal gain to repay his debts incurred in cricket satta - betting, rejection of bail by this Court and not entertained by the Supreme Court, is sufficient proof of seriousness of the case against him.

[4.1] She has further submitted that since there is no change in the fact situation, which prevailed at the time when the application of bail post submission of charge-sheet is determined and even considered and rejected by the Supreme Court, this application of successive bail, in absence of substantial change in facts and circumstances, should not be entertained.

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[4.2] She has further submitted that the very ground that in the peculiar facts and circumstances of the case whether offence under Section 409 of 'the Code' is made out or not though was available to the accused when his application for bail post submission of charge-sheet was determined by the Sessions Court, High Court even up to the Supreme Court, not raised or waived, cannot be treated to be substantial change in the facts situation so as to file successive application for bail.

[4.3] She has further submitted that mere change of advocate coming out with such argument cannot be considered to be a substantial change in the facts and circumstances so as to determine the successive application for bail.

[4.4] She has further submitted that after the application for bail was decided by the Supreme Court, the co-accused, who are none other than the father and maternal uncle of the applicant, saw to it that it is delayed so as to pray for bail on the ground of delayed trial. She has further submitted that as coming out from the docket sheet, even the report from the trial Court with respect to the progress of trial in the present case and why it has been delayed was called for by this Court and it is submitted to the Court, which may be considered. In short, according to her submission, the very argument though available to be argued even up to the Supreme Court and not argued or waived is the proof of the fact that an offence under Section 409 of 'the Code' is made out or else no advocate

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would have left that submission to be made claiming regular bail even post submission of charge-sheet, that too, up to Supreme Court, and therefore, she has submitted that this successive application for bail be rejected.

[5.0] As stated hereinabove, this Court vide order dated 01.09.2020 rejected the application of the accused post submission of charge-sheet assigning reasons therein. The applicant - accused preferred Special Leave to Appeal (Criminal) No.5058 of 2020, which came to be determined by the order dated 10.02.2021. The order passed by the Supreme Court in the said application reads thus:

              "The     Court   is      convened      through           Video
              Conferencing.

Having heard learned Counsel for the parties and carefully perusing the material placed on record, we see no reason to grant bail to the petitioner herein in view of the fact that he has suffered incarceration for a period of about 13 months.

The special leave petition is, accordingly, dismissed.

However, taking into consideration the facts and circumstances of the instant case, we direct the trial Court to expedite the trial and conclude the same preferably within a period of one year from the date

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of receipt/production of a copy of this order."

[5.1] The applicant - accused has cleverly not mentioned in his any of the application when the copy of the Supreme Court order was received by the trial Court or even produced by him so as to see that the direction contained therein is followed in its true letter and spirit by the trial Court. However, the learned Additional Public Prosecutor, during the course of hearing of this bail application on earlier occasion produced the papers of investigation as also the material that certain witnesses have been examined before the Court and it is procured and produced. The copy of the Rojkam (daily order sheet of the trial Court), reflects that original accused no.2 being the father of the applicant, vide Exh.6 application in the trial Court on 25.01.2021 filed an application for discharge, which was posted for hearing. There appears sick note of the learned advocate representing accused no.2 on 11.02.2021 when application, Exh.6, of accused no.2 i.e. father of the applicant was kept for hearing. Though accused no.3 i.e. maternal uncle of the applicant was served on the day on which accused no.2 applied for discharge, he appeared but did not engage an advocate. Subsequently also, original accused no.3 applied for adjournment on the ground of engaging of advocate, which was granted by the trial Court. On 11.02.2021 i.e. the day after the bail application before the Supreme Court came to be disposed of, all the applicants - accused had engaged advocate. As coming out from the report of the trial Court, which was called for by this Court, the application for discharge Exh.6 filed by accused no.2 came to

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be rejected vide order 04.03.2021. However, as reflected from the report, accused no.2 asked for adjournment so as to challenge the same before higher forum. It is further reflected from the report that accused nos.2 and 3, against whom similar allegations are there, engaged only one advocate. Accused no.3 filed an application for discharge on 12.03.2021 i.e. after a week of the discharge application being rejected of accused no.2. Not only that, after filing of the discharge application, accused no.3 again filed an application, Exh.25 requesting the Court to keep the Investigating Officer present for explanation, which came to be rejected on that very day. However, despite certain adjournments, at the instance of accused no.3, his discharge application also came to be rejected on 18.06.2021. Again, as a modus operandi, accused no.3 also requested for an adjournment so as to challenge the said order before higher forum, which was granted. So after the order passed by the Supreme Court directing trial Court to preferably conclude the trial within a period of one year, out of which four months are consumed in concert by accused nos.2 and 3, who are father and maternal uncle of the present applicant - accused for filing and arguing the discharge application not permitting the Court even to frame the charge against them, though date is not mentioned in the report of the Magistrate but it is reflected that when the matter was pending for framing charge. Accused no.3, who is the maternal uncle of the applicant, was released on bail, did not remain present on that day and only with an intention to see that no charge is framed against the accused, Court imposed cost of Rs.3000/- upon him. However, on the next date of hearing, the

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said accused furnished medical certificate. However, on 27.08.2021 charge appears to have been framed. Prior to framing of the charge, on 09.08.2021, accused no.2 did not remain present on the ground of illness, and therefore, for him cost of Rs.1000/- was imposed by the trial Court. Despite on 27.08.2021 an adjournment application was filed by the accused, which came to be refused and thereafter charge could be framed against the accused, it is mentioned in the report itself that all the accused have fully tried their best to prolong the trial and thereafter to complain about the delay in trial.

[5.2] When these facts were put to the learned Counsel for the applicant -accused, readily it is answered that they are not under his control. The said answer is very surprising as accused nos.2 and 3, who attempted to prolong the trial, may be by so called exercise of their statutory right, being father and maternal uncle of the applicant - accused, it is claimed that they are not under his control and the applicant - accused is successful in even avoiding framing of charge for more than six months after Supreme Court rejected the bail application where it directed the trial Court to conclude the trial preferably within one year. Looking at the papers of charge-sheet, it appears that there are in all 20 witnesses shown, out of which two witnesses are police officials i.e. Investigating Officer as also PSO of the Police Station and out of remaining 18, 5 witnesses have already been examined. Even the witnesses who have been examined so far, there is a further story to be told. When Prosecution Witness No.1 - Atul Shantilal Shah and

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Prosecution Witness No.2 - Arunjyotising Ghanshamsing Rajput were examined on behalf of accused nos.2 and 3, multiple sittings /adjournments were consumed for completion of cross examination of these two Bank witnesses, who had produced 29 original cheques. No doubt, the cross examination of the witnesses were conducted in instalments, which could have been controlled by the trial Court. With a view to give reasonable and sufficient opportunity to the accused to defend themselves well, that fact cannot be pressed into service for an order of bail on the ground of delayed trial for which the accused themselves are responsible. Though on 16.12.2021 one witness was present but on an application for adjournment on behalf of accused no.3 the case was adjourned. It appears that even in the month of March, witness was not examined pursuant to an adjournment application by accused no.3. On 10.03.2022, partial examination in chief of that witness came to be recorded and for further examination in chief, the case was adjourned as reflected from the report of the learned Magistrate on 07.04.2022 and an application for bail was filed by the present applicant - accused under Section 437 (6) of the Code of Criminal Procedure, 1973, which came to be rejected on 27.04.2022. It is surprising that on that very day i.e. on 27.04.2022, an application for bail was moved under Section 437 (6) of the Code of Criminal Procedure, 1973 came to be rejected, accused nos.2 and 3 applied under sub-section (2) of Section 231 of the Code of Criminal Procedure, 1973 requesting the Court to defer the cross examination of the witness, which came to be rejected by the Court. It is further reported that cross examination of Prosecution Witness No.3

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was also conducted by the accused consuming more than one adjournment and when the witness was present before the Court, again accused nos.2 and 3 had filed an adjournment application as they were sick. Even subsequent thereto, an adjournment was sought for, which came to be granted by the Court.

[5.3] In short, ample attempts were made by accused nos.2 and 3 in concert to see that the trial gets delayed so that the applicant - accused may be able to raise a ground for bail on delayed trial. However, for delaying the trial, accused themselves in concert as they are all blood related attempted to delay the trial, and therefore, their attempts may not enure to the benefit of the applicant - accused to seek bail, that too, when his application for bail is rejected up to Supreme Court on merit post submission of charge-sheet.

[5.4] As further reported by the trial Court that from October, 2022 the matter be proceeded for three days per week so that it can be over as early as possible. It is pertinent to note that during pendency of this application before this Court when a query was raised whether any application is moved before the trial Court where trial is pending or not, vide application Exh.134, the applicant - accused requested the Court seeking bail. If the order on the bail application, which is moved by the applicant - accused before trial Court, is looked into, what is reported by the learned Magistrate is finding place in detail in the impugned order, which is produced at page 39 of the compilation.

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[5.5] However, coming back to the submission made by the learned Counsel, raising an issue that no offence under Section 409 of 'the Code' is made out, cannot be said to be change in the facts and circumstances of the case, that too, substantial change so as to consider successive application of bail by this Court after an order of rejection is confirmed by the Supreme Court. Apart from the availability of the said contention to be raised up to the Supreme Court, looking to the allegations against the applicant - accused and the papers of charge-sheet, prima facie it is made out and it is also mentioned in the earlier order rejecting the bail application in this Court. Not only that, neither of the accused have ever attempted to apply for discharge from an offence under Section 409 of 'the Code', before any Court .

[5.6] Considering the decision of the Supreme Court in the case of State of Maharashtra Vs. Captain Buddhikota Subha Rao reported in AIR 1989 SC 2292 once application for bail was rejected post submission of charge-sheet, there was no question of granting similar prayer, which would virtually overrule earlier decision without there being change in the facts situation and when Supreme Court spoke about change, it must be a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Keeping in mind the aforesaid principle, mere change of advocate and raising these arguments cannot be presumed to be not raised earlier. Even if it is not raised, fact remains that though it was available and

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accused failed to establish that said offence is not made out, he did not dare to raise it before the Supreme Court praying for an order of bail.

[5.7] Now almost five of the witnesses have been examined by now and the progress of the trial, if not delayed further by the accused, it may be concluded within no time if they cooperate with the conducting of the trial, which is now ordered to be kept thrice in a week from October, 2022, and therefore, this application is not required to be entertained on any ground.

[5.8] Though there are several decisions cited at the bar in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and Anr reported in (2005) 2 SCC 42, Babu Singh and Ors Vs. State of U.P reported in (1978) 1 SCC 579 as also State of Tamil Nadu Vs. S.A. Raja reported in (2005) 8 SCC 380, all these judgments reflects ultimate outcome in it on the facts of each case. However, delay in trial is not even considered to be a ground to seek bail. Not only that, in the case of S.A. Raja (Supra) Supreme Court has quashed and set aside the order of bail granted in favour of the respondent - accused on the ground that there were no change, that too, substantial change in the facts and situation to grant bail by the High Court, his bail was cancelled by the Supreme Court and he was ordered to be taken in custody forthwith. So principle enunciated in the case of Captain Buddhikota Subha Rao (Supra) will hold the field and on the contrary it is nowhere diluted in any of the

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subsequent decisions The decision in the case of Satender Kumar Antil (Supra) is also not of any help to the accused as it is determining certain direction and guidelines as mentioned therein keeping in mind the case of Arnesh Kumar (Supra), and therefore, it is again of no help to the applicant - accused and if at all the direction issued by the Supreme Court to conclude the trial preferably within one year from receipt or production of copy of its order, at best trial Court can be directed to proceed with the case, which it is doing now on fast track basis without loss of time. Hence, this successive application for bail is required to be rejected and it is hereby rejected.

(UMESH A. TRIVEDI, J.)

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