Gujarat High Court
Nitinbhai Narendrabhai Rajguru vs State Of Gujarat on 29 November, 2023
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R/CR.MA/17864/2023 JUDGMENT DATED: 29/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR CANCELLATION OF BAIL) NO.
17864 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 17865 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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NITINBHAI NARENDRABHAI RAJGURU
Versus
STATE OF GUJARAT
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Appearance:
MR HEMANT B RAVAL(3491) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 29/11/2023
ORAL JUDGMENT
1. Rule. Learned APP waives service of rule for the
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respondent State.
2. Common question of law and facts arise in both the
petitions, they are being disposed of by this common order.
3. Both the Criminal Misc. Applications u/s 439(2) of the
Code of Criminal Procedure, 1973 have been preferred for
cancellation of bail against the orders dated 1.9.2023 passed by
the learned City Civil & Sessions Court, Ahmedabad in Criminal
Misc. Application No.6940 of 2023 and 6976 of 2023 grating bail
to the accused, who are arraigned as accused in the one and
same FIR being Part No.A 11191011230216 of 2023 registered
with the Ahmedabad City DCB Police Station for the offences
punishable u/s 406, 409, 420, 465, 467, 468, 471, 120(B) of the
IPC.
4. Criminal Misc. Application Nos.17864 of 2023 and 17865
of 2023 have been filed to cancel the regular bail granted to
accused Bimalbhai Parikh and Kinnarbhai Shah respectively by
the learned Sessions Court.
5. The facts in nutshell to decide present applications are that
the first informant Nitinbhai Rajguru has lodged the
aforementioned FIR against the officers of the Colour Merchant
Cooperative Bank Ltd., namely, Mr. Atulbhai Shah, Manager,
Kinnarbhai Shah, General Manager and Mr. Bimal Parikh,
Chairman. The allegations levelled against them in the FIR are
that the first informant had applied for loan from the Colour
Merchant Cooperative Bank Ltd. This loan was mortgage loan.
According to the FIR, all the accused, in connivance with each
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other, by forging the signature of the first informant as well as
guarantor forged the document to obtain top up mortgage loan
in tune of Rs.55 lakh and as such, have committed the aforesaid
offences.
6. Accused Mr. Bimal Parikh moved Criminal Misc.
Application No.6340 of 2023 before the learned Sessions Court
for regular bail u/s 439 of the Code. The learned Sessions Court
after considering the facts on record, exercised discretion in
favour of the accused and enlarged him on regular bail on same
terms and conditions as mentioned in the impugned order.
These conditions were imposed upon the petitioner on the
undertaking given by the accused. Apart from the said
conditions, other conditions are also imposed while the accused
was enlarged on bail.
7. In same fashion, another accused Mr. Kinnarbhai Shah
moved Criminal Misc. Application No.6976 of 2023 before the
learned Sessions Court for regular bail u/s 439 of the Code and
the learned Sessions Court has granted conditional bail.
8. The first informant being aggrieved by the aforesaid orders,
preferred present petitions u/s 439(2) of the Code.
9. Heard learned advocate Mr. HB Raval for the respective
petitioner as well as learned APP.
10. What has been argued by learned advocate Mr. HB Raval is
that the learned Sessions Court has committed error in granting
bail in a serious criminal matters. He would further submit that
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the learned Sessions Court has ignored the basic principles of
grant or refusal of bail in a serious economic offence. He would
further submit that the learned Sessions Court has ignored the
gravity of the offence while granting bail to both the accused and
thereby, serious error has been committed. What more
submitted by learned advocate Mr. HB Raval is that the learned
Sessions Court has failed to exercise discretion judiciously,
cautiously and strictly in compliance with the basic principles
laid down by the Hon'ble Apex Court in plethora of judgments.
He would further submit that in fact, the learned Sessions
Court, without considering the gravity of offence, mechanically
granted bail without considering the relevant consideration and
as such, has committed serious error.
11. Learned advocate Mr. HB Raval would further submit that
the impugned orders are unjust, uncalled for, arbitrary and
illegal and thus, he submits to allow these applications and to
cancel the bail granted to the accused.
12. Learned advocate Mr. HB Raval has referred to and relied
upon the decision of the Hon'ble Apex Court in case of Myakala
Dharmarajam and others Vs. State of Telangana and another
reported in 2020(2) SCC 743, the relevant observation of the
Hon'ble Apex Court reads thus:-
"9. It is trite law that cancellation of bail can be done in
cases where the order granting bail suffers from serious
infirmities resulting in miscarriage of justice. If the
court granting bail ignores relevant material 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
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Court or the Sessions Court would be justified in
cancelling the bail."
13. Upon above submissions, learned advocate Mr. HB Raval
would submit to allow these petitions.
14. On the other hand, learned APP submits that the learned
Sessions Court has exercised discretion in favour of the accused,
as the petitioner has failed to make out any case that the
accused have jumped the condition of the bail and in that
circumstances, he would submit to pass necessary orders in the
interest of justice.
15. Having heard learned advocates for both the sides, at the
outset, let refer reasons assigned by the learned Sessions Court
for granting bail to both the accused.
16. Reasons assigned in Criminal Misc. Application No.6940 of
2023.
"(7)Heard arguments of the both the parties. Perused the
Investigation Papers. Perused the affidavit of the
Investigating Officer. From which it becomes clear that the
original Complainant obtained a Loan from Colour
Merchant Bank, Satellite Branch. Thereafter, on their
residential property, for the Complainant and his wife
Parulben, the Sadguru Cotton Company had obtained
previous documents of the original complainant, filed false
Return, put false signature, obtained a Loan amounting Rs.
55,00,000/-. False Mortgage deed has been made. Rs.
21,00,000/- was deposited in this Loan Account and the
rest of the amount is outstanding with interest with regard
to that Loan, Proceedings under SARFAESI Act was
initiated. Thereafter, the present complainant has filed
complaint, in regard of which the Applicant has been
arrested. At the then time ,the Applicant was working as a
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General Manager in the Colour Merchant Co - Operative
Bank. Among various branches of that Bank, the Loan was
obtained from the Satellite Branch Bank.
(8)It becomes clear from the above mentioned facts that in
the year 2019, one Loan amounting to Rs.55,00,000/-, was
granted on he name of the complainant and his wife from
the Colour Merchant Co-Operative Bank, Satellite
Branch. At that time, the present applicant Kinnarbhai,
was General Manager of this Bank. Among various branches
of this Bank, in the satellite Branch, on the names of the
Complainant and his wife the proceedings for granting and
disbursing of the Loan was done. For that work, false
documents were used and the present applicant with other
persons have committed the offence. The accused is
accused of committing such offence. It seems that, at
this time, an other FIR is lodged against the Applicant.
The accusation of which the Applicant is accused, is serious
in nature. But for the reasons mentioned herein below, the
Applicant is granted Bail.
(1)The Applicant was the General Manager of the Bank.
Generally , in daily works of different Branches,
the role of the Manager is limited.
(2)In this case, the Manager and the General Manager
of the Bank Branch, from where the Loan is given,
are accused.
(3)After a long period of time and that too, knowing that
the grant of the disputed Loan on his name and the
disbursement thereof. Thereafter, the
complainant has filed the complaint.
(4)The applicant is ready to deposit Rs.15 lakh for
showing bona fide sense.
(5)The Applicant is local resident, and seeing the
record, it doesn't appear that he might flee away
anywhere.
(6)The FIR of this offence was lodged after the order
passed under SARFAESI Act against the original
Complainant.
(7) On 15.8.2023, Hon'ble Gujarat High Court has
passed order in Criminal Misc. Application
No.5923/2023, granting interim relief , in the
complainant involving such offence and given
protection therefor. Details of that case after perusing
the FIR, seems similar to the present case.
(8)The alleged offence is triable by Metropolitan Court.
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It seems that disposal of this case might take a long."
17. Reasons assigned in Criminal Misc. Application No.6976 of
2023.
"(7)Heard arguments of the both the parties. Perused the
Investigation Papers. Perused the affidavit of the
Investigating Officer. From which it becomes clear that the
original Complainant obtained a Loan from Colour
Merchant Bank, Satellite Branch. Thereafter, on their
residential property, for the Complainant and his wife
Parulben, the Sadguru Cotton Company had obtained
previous documents of the original complainant, filed
false Return, put false signature, obtained a Loan
amounting Rs. 55,00,000/-. False Mortgage deed has been
made. Rs. 21,00,000/- was deposited in this Loan Account
and the rest of the amount is outstanding with interest
with regard to that Loan, Proceedings under SARFAESI Act
was initiated. Thereafter, the present complainant has filed
complaint, in regard of which the Applicant has been
arrested. At the then time ,the Applicant was working as a
General Manager in the Colour Merchant Co - Operative
Bank. Among various branches of that Bank, the Loan was
obtained from the Satellite Branch Bank.
(8)It becomes clear from the above mentioned facts that in
the year 2019, one Loan amounting to Rs.55,00,000/-, was
granted on he name of the complainant and his wife from
the Colour Merchant Co-Operative Bank, Satellite
Branch. At that time, the present applicant Kinnarbhai,
was General Manager of this Bank. Among various branches
of this Bank, in the satellite Branch, on the names of the
Complainant and his wife the proceedings for granting and
disbursing of the Loan was done. For that work, false
documents were used and the present applicant with other
persons have committed the offence. The accused is
accused of committing such offence. It seems that, at
this time, an other FIR is lodged against the Applicant.
The accusation of which the Applicant is accused, is serious
in nature. But for the reasons mentioned herein
below, the Applicant is granted Bail.
(1)The Applicant was the General Manager of the Bank.
Generally , in daily works of different Branches,
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the role of the Manager is limited.
(2)In this case, the General Manager and the Loan
Agent of the Bank Branch, from where the Loan is
given, are accused. Moreover, the Chairman is also
made Accused.
(3)After a long period of time and that too, knowing that
the grant of the disputed Loan on his name and the
disbursement thereof. Thereafter, the
complainant has filed the complaint.
(4)In respect of other similar offences, Hon'ble Gujarat
High Court has given directions for releasing him on
Anticipatory Bail on 15/06/2023.
(5)The Applicant is local resident, and seeing the
record, it doesn't appear that he might flee away
anywhere.
(6)The FIR of this offence was lodged after the order
passed under SARFAESI Act against the original
Complainant.
(7)The alleged offence is triable by Metropolitan Court.
It seems that disposal of this case might take a long."
18. In case of P. Vs. State of Madhya Pradesh and another
reported in (2022) SCC Online SC 552, the Hon'ble Apex Court
has enumerated the circumstances when bail could be cancelled
and one of the conditions stated therein is the misuse of the
liberty granted to the petitioner by the Court by involving in
subsequent crime.
19. In the present case, learned advocate Mr. HB Raval for the
petitioner failed to point out that the accused has misused the
liberty, which was granted to them.
20. In case of Gurcharan Singh and others Vs. State (Delhi
Administration) reported in (1978) 1 SCC 118, the Hon'ble Apex
Court has occasioned to observe that the concept of setting aside
the unjustified, illegal or perverse order is totally different from
the concept of cancelling the bail on the ground that the accused
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has misconducted himself or because of some new facts
requiring such cancellation. In para 16, the Hon'ble Apex Court
has observed as under:-
"16. Section 439 of the new Code confers special powers
on High Court or Court of Session regarding bail. This
was also the position under Section 498 CrPC of the old
Code. That is to say, even if a Magistrate refuses to
grant bail to an accused person, the High Court or the
Court of Session may order for grant of bail in
appropriate cases. Similarly under Section 439(2) of the
new Code, the High Court or the Court of Session may
direct any person who has been released on bail to be
arrested and committed to custody. In the old Code,
Section 498(2) was worded in somewhat different
language when it said that a High Court or Court of
Session may cause any person who has been admitted
to bail under sub-section (1) to be arrested and may
commit him to custody. In other words, under Section
498(2) of the old Code, a person who had been admitted
to bail by the High Court could be committed to custody
only by the High Court. Similarly, if a person was
admitted to bail by a Court of Session, it was only the
Court of Session that could commit him to custody. This
restriction upon the power of entertainment of an
application for committing a person, already admitted to
bail, to custody, is lifted in the new Code under Section
439(2). Under Section 439(2) of the new Code a High
Court may commit a person released on bail under
Chapter XXXIII by any Court including the Court of
Session to custody, if it thinks appropriate to do so. It
must, however, be made clear that a Court of Session
cannot cancel a bail which has already been granted by
the High Court unless new circumstances arise during
the progress of the trial after an accused person has
been admitted to bail by the High Court. If, however, a
Court of Session had admitted an accused person to
bail, the State has two options. It may move the
Sessions Judge if certain new circumstances have
arisen which were not earlier known to the State and
necessarily, therefore, to that Court. The State may as
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well approach the High Court being the superior Court
under Section 439(2) to commit the accused to custody.
When, however, the State is aggrieved by the order of
the Sessions Judge granting bail and there are no new
circumstances that have cropped up except those
already existed, it is futile for the State to move the
Sessions Judge again and it is competent in law to move
the High Court for cancellation of the bail. This position
follows from the subordinate position of the Court of
Session vis-a-vis the High Court."
21. The aforesaid observations made by the Hon'ble Apex
Court has been reiterated by the Hon'ble Apex Court in case of
Puran v. Rambilas and Another reported in (2001) 6 SCC 338 as
well as in case of Abdul Basit alias Raju and Ors. v. Mohd. Abdul
Kadir Cahudhary and Another reported in (2014) 10 SCC 754.
22. In case of Ranjit Singh v. State of M.P. reported in (2013)
16 SCC 797, the Hon'ble Apex Court had occasion to reiterate
the position as regards the distinction between the parameters
for grant of bail and cancellation of bail and also the distinction
between the concept of setting aside an unjustified, illegal or
perverse order and cancellation of an order of bail on the ground
that the accused has misconducted himself or certain
supervening circumstances warrant such cancellation. It has
been held in para 19 by the Hon'ble Apex Court as under:-
"19. It needs no special emphasis to state that there is
distinction between the parameters for grant of bail
and cancellation of bail. There is also a distinction
between the concept of setting aside an unjustified,
illegal or perverse order and cancellation of an order of
bail on the ground that the accused has misconducted
himself or certain supervening circumstances warrant
such cancellation. If the order granting bail is a
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perverse one or passed on irrelevant materials, it can
be annulled by the superior court. We have already
referred to various paragraphs of the order passed by
the High Court. We have already held that the learned
trial Judge has misconstrued the order passed by the
High Court. However, we may hasten to add that the
learned Single Judge has taken note of certain
supervening circumstances to cancel the bail, but we
are of the opinion that in the obtaining factual matrix
the said exercise was not necessary as the grant of bail
was absolutely illegal and unjustified as the court
below had enlarged the accused on bail on the strength
of the order passed in Ranjeet Singh v. State of M.P.
[Ranjeet Singh v. State of M.P., MCRC No. 701 of 2013,
order dated 1-2-2013 (MP)] remaining oblivious of the
parameters for grant of bail under Section 439 CrPC. It
is well settled in law that grant of bail though involves
exercise of discretionary power of the court, yet the
said exercise has to be made in a judicious manner
and not as a matter of course."
23. Thus, setting aside the unjust, illegal, or perverse order is
one thing and cancelling the order of granting bail is another
thing. In the present case, the petitioner claimed that the
learned Sessions Court has passed unjust, illegal and perverse
order. However, learned advocate Mr. HB Raval has failed to
point out that on what count, the impugned orders are unjust,
illegal, or perverse. In fact, the petitions are misconceived. No
grounds or supervening circumstances are made out for
cancellation of bail as no allegation of misuse of liberty is made.
Granting of bail in any offence by itself would not be an unjust,
illegal or perverse order. The learned Sessions Court has
exercised the discretion on sound reasons stated herein above.
24. At this juncture, the observations made by the Hon'ble
Apex Court in case of Dolat Ram and Ors. v. State of Haryana
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reported in 1995(1) SCC 349 is required to be recollected. It was
observed therein that very cogent and overwhelming
circumstances are necessary for an order directing the
cancellation of the bail already granted. The grounds for
cancellation of bail though are broad, but illustrative and not
exhaustive; are interference or attempt to interfere with the due
course of administration of justice or evasion or attempt to evade
the due course of justice or abuse of the concession granted to
the accused in any manner. The Court should satisfy for
availability of the grounds for satisfying of the bail or
cancellation of the bail and one of the possibility is accused
being absconded. The bail once granted, should not be cancelled
in a mechanical manner without considering availability of any
grounds or supervening circumstances, which affects the very
principle of fair trial.
25. In P. v. State of Madhya Pradesh (supra), the Hon'ble Apex
Court has revisited the past precedents and has encapsulated
the circumstances under which bail granted to the accused can
be revoked. The circumstances are as under:-
"a) If he misuses his liberty by indulging in similar/other
criminal activity;
b) If he interferes with the course of the investigation;
c) If he attempts to tamper with the evidence;
d) If he attempts to influence/threaten the witnesses;
e) If he evades or attempts to evade court proceedings;
f) If he indulges in activities which would hamper smooth
investigation;
g) If he is likely to flee from the country;
h) If he attempts to make himself scarce by going
underground and/or becoming unavailable to the
investigating agency;
i) If he attempts to place himself beyond the reach of his
surety. j) If any facts may emerge after the grant of bail
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which are considered unconducive to a fair trial."
26. Before parting with the order, I may also refer the
observations made in the recent decision by the Hon'ble Apex
Court in case of Kekhriesatuo Tep and others Vs.National
Investigating Agency reported in (2023) 6 SCC 58. The relevant
observation made in para 19 reads as under:-
"The Special Judge has himself distinguished cases of the
persons who 이 have indulged into extortion for furthering
the activities of the organisation and red the persons like the
present appellants, who were government servants, and er,
compelled to contribute the amount. Hence, it cannot be
said that the prima ell facie opinion, as expressed by the
Special Judge, could be said to be perverse or impossible."
27. Thus, the petitioner has failed to make out a case, which
permits this Court to interfere with the impugned orders
granting bail to the accused. No reasons or supervening
circumstances or grounds are made out warranting interference
with the order of granting bail. No perversity is noticed.
28. In the result, present petitions fail and stand dismissed at
admission stage. Rule discharged.
(J. C. DOSHI,J)
SHEKHAR P. BARVE
