TMI Blog2013 (12) TMI 1629X X X X Extracts X X X X X X X X Extracts X X X X ..... with 13 (1) (c) and 13 (1) (d) of the Prevention of Corruption Act, 1988. The appellant is accused No. 34 in that case. The appellant was granted bail on 21.5.2012 by a common order below the applications filed by accused Nos. 31 to 50 under Section 439 (1) of Cr.P.C. by the Incharge Additional Adhoc District Judge No. 1 and Additional Sessions Judge, Jalgaon. It is this order which has been set-aside by the High Court. The operation of the High Court has been stayed by this Court on 7.8.2012. 3. Mr. A.V. Savant, learned senior counsel and Mr. Sudhanshu Chaudhary have appeared for the appellant. Mr. Sanjay Kharde, learned counsel has appeared for the first respondent-State of Maharashtra. Mr. B.H. Marlapalle, learned senior counsel and Ms. Kamini Jaiswal, learned counsel have appeared for the respondent Nos. 2 to 4. 4. The above referred Crime/FIR No. 13/2006 was registered at the City Police Station, Jalgaon on 3.2.2006. The Charge-sheet therein came to be filed after completion of the investigation much later on 25.4.2012. It is essentially about the defalcation of public money resulting into a huge loss of over L 169.60 crores to the Jalgaon Municipal Corporation in Mahar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Municipal Corporation towards the interest amount have increased, and it will take quite a few years for the Corporation to repay the loan. 7. The above referred Shri Sureshdada Jain was arrested sometimes in March, 2012, and the charge-sheet has been filed on 25.4.2012. The appellant was issued a notice dated 16.5.2012 under Section 160 of Cr.P.C. to attend at the Jalgaon Police Station on 19.5.2012. Accused Nos. 31 to 50 including the appellant applied for bail under Section 439 (1), and they were so released by the above referred order passed on 21.5.2012. This order has been set aside by the impugned order of the High Court. We are informed that the charges have been framed by the trial court, and the recording of the evidence is yet to start. Out of various charges, the charge under Section 409 has not been framed, but Mr. Sanjay Kharde, learned counsel for the State, has informed us that the State is going to apply for framing of the charge under this section also. A supplementary charge sheet has also been filed on 2.6.2012. 8. The initial charge-sheet leading to the prosecution has been placed on record. It runs into more than 268 pages and contains various det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused nos. 31 to 50 on personal bonds in the sum of L 50,000/- with one solvent surety in the like amount. 10. The respondent Nos. 2 to 4 sought to set-aside this order by filing Criminal Application No. 2522 of 2012 dated 11.6.2012, and the High Court has allowed it, by passing the impugned order. The High Court has noted in its order that:- (i) The appellant was arrested on 21.5.2012 and was produced before the Special Court along with some councillors on the same day with the remand report. Bail application was moved on the same day. (ii) In paragraph 14 of his order the learned Judge noted that under the proviso to Section 439 (1) of Cr.P.C. where the person concerned is accused of an offence which is punishable with imprisonment of life (such as Section 409 I.P.C. in the present case), the Sessions Judge has to give the notice of the application for bail to the public prosecutor, unless for the reasons to be recorded in writing, it is not practicable to give such notice. In the instant case, no order was made giving notice to the public prosecutor, nor reasons for the same were recorded in the order granting bail. The only order made on the very day was I.O. (i.e. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal accused including the appellant have resorted to pressure tactics at various stages of the case. Amongst other statements against the appellant, he has specifically placed on record the following material :- (i) In paragraph 5 (iii) of his affidavit he has placed on record that the appellant brought a morcha' (i.e. a procession to protest) on the police station on 29.3.2006. He has stated therein as follows :- That right from the time when the crime was registered, the petitioner-accused have tried to create pressure on investigation machinery by bringing morcha on police station by the leadership of petitioner and Suresh Jain and demanding arrest of themselves by police, therefore, offence was registered against the Councillors including the present petitioner as crime No. 27/2006 on 29.3.2006. He has annexed the extract of the station diary entry dated 30.3.2006 as Annexure R2 to this affidavit. This extract from the station diary records that some of the Municipal Councillors including the appellant had moved a no-confidence motion against the Municipal Commissioner, Mr. Praveen Gedam, who had lodged the complaint leading to this prosecution, and then these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than 30 contracts to Jalgaon Construction Company belonging to the appellant as the beneficiary in the conspiracy. The past conduct of the appellant after the registration of the present crime was pointed out in detail, as well as his criminal antecedents with proof, and also the fact that the bail applications of 3 of the main accused (i.e. Sureshdada Jain and others) had been rejected by another Sessions Judge by the orders dated 17.5.2012 and 19.5.2012. That there was a wrongful loss of about L 169 crores to Jalgaon Municipal Council was also brought to the notice of the Court. The counsel for the State of Maharashtra has, therefore, submitted that the order passed by the Sessions Judge was a perverse order since none of these factors was considered by the Court. 16. Mr. Savant, learned senior counsel appearing for the appellant submitted that it is a well established proposition that bail not jail is the rule of law, and cancellation of bail is not to be lightly resorted to. He referred to the judgment of this Court in Bhagirathsinh (supra) where the appellant facing the charge under Section 307 IPC, was granted bail by the Sessions Judge, but the bail was cancelled by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atlingappa Mhetre v. State of Maharashtra and others reported on 2011 (1) SCC 694 was heavily relied upon, wherein this Court has held that where the accused has joined the investigation, is cooperating with the investigating agency, and is not likely to abscond, custodial interrogation should be avoided. 19. These submissions were countered by the counsel for the respondents. They referred to what this Court has observed in paragraphs 10 and 11 of Puran v. Rambilas and another reported in 2001 (6) SCC 338. In paragraph 10 this Court has referred to Daulat Ram v. State of Haryana (supra) which was also referred to by the High Court in the impugned order. After referring to this judgment, this Court has noted that rejection of a bail in a non-bailable case at an initial stage or a cancellation of bail already granted had to be considered on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. The Court has also noted that it has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s position follows from the subordinate position of the Court of Session vis-a-vis the High Court. (emphasis supplied) 20. The judgment of this Court in State of U.P. v. Amarmani Tripathi reported in 2005 (8) SCC 21, was also relied upon in support. In that matter the respondent and his wife were admitted to bail by an order passed by the High Court on 29.4.2001 and 8.7.2004. Considering the totality of the factors including that there was a clear possibility of the respondents intimidating the witnesses, this Court cancelled the bail by its order dated 26.9.2005 which was passed more than a year after the grant of bail. What is relevant for our purpose is what this Court has observed in paragraph 18 to the following effect :- 18....While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused...... (emphasis supplied) 21. Masroor v. State of Uttar Pradesh and another re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions Judge passed an order I.O. to say'. The matter was taken up there and then. The prosecutor applied for remand of at least 2 days which was declined. The notice under the proviso under the Section 439 (1) implies a proper and full opportunity to the prosecutor to point out as to why bail should not be granted. The initial charge-sheet in the instant case was itself running into more than 268 pages. The Sessions Judge ought to have granted adequate time to the prosecutor to reply on the basis of this charge-sheet, for him to pass a considered order. Consequently the order of bail does not reflect upon the contents of the charge sheet. 24. As pointed out by Mr. Pawar, Deputy S.P. in his affidavit that although the matter was heard there and then, the prosecutor did make a detailed argument pointing ought the prima facie case against the appellant. The past conduct of the appellant after the registration of the present crime was also pointed out in detail as well as his criminal antecedents with proof, and also the fact that the bail applications of 3 of the main accused (i.e. Sureshdada Jain and others) had been rejected by another Sessions Judge by the order dated 17. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the position, we cannot find any fault with the order of the High Court cancelling the bail on that ground also. The order does record the cogent and overwhelming circumstances justifying cancellation of bail. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case, and they must squarely be dealt with by the Court while passing an order on bail applications. 28. We must note one more objection raised on behalf of the appellant, namely, that respondent Nos. 2 to 4 had no locus to file an application seeking cancellation of bail. It is contended that respondent Nos. 3 and 4 had not even filed any application before the Trial Court. They later on joined the respondent No. 2 to move the High Court by filing SLP (Crl.) Application to quash and set aside the order granting bail. Mr. Marlapalle, learned Senior Counsel and Ms. Kamini Jaiswal learned counsel appearing for these respondents pointed out in reply that the Criminal Application filed in the High Court was moved under Section 439 (2) read with Section 482 of Cr.P.C. Paragraph 2 of the said Criminal application stated as follows :- 2. The applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame does not deserve to be entertained. 31. Although this appeal is not being entertained, what we find is that the appellant along with 4 other accused who have been denied bail, had made numerous attempts to intimidate the witnesses, and even threatened the investigating officer. Some of the witnesses are the employees of the Jalgaon Municipal Corporation, and obviously the appellant and the 4 accused, though in jail, may still make every effort to influence them hereafter, and vitiate the trial if it is conducted in Jalgaon. Mr. Kharde, learned counsel appearing for the State has submitted that it will be in the fitness of things that the trial be transferred outside the district. Mr. Savant, learned senior counsel appearing for the appellant has no objection for the same. Mr. Marlapalle and Ms. Kamini Jaiswal appearing for the respondents No. 2 to 4 have also supported this submission. We quite see the merit of this submission. A trial of this nature, for that matter every trial, ought to be conducted in a free and fearless atmosphere. Hence, in the facts and circumstances of the present case we are of the view that the trial of this Sessions case ought to be transferred out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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