TMI Blog2019 (7) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 2765 - SUPREME COURT] , while considering question of grant of anticipatory bail, in a similar case involving misappropriation of public funds and corruption, the Hon'ble Supreme Court held that anticipatory bail granted by the Sessions Court, was rightly cancelled by the High Court, looking to the gravity of the offences. The documents handed over by the learned APP to this Court which have been unearthed during the investigation do indicate that there has been large scale misappropriation of funds in the said Bank. The applicant/Chairman of the Bank was obviously in the know of the happenings in the Bank from the year 2015 and even earlier, which ultimately led to the R.B.I. directive closing down all banking activities and appointment of Liquidator on the Bank. But, that alone cannot be a reason to conclude that custodial interrogation of the said applicants would be mandatory - But, the material on record to which the learned APP has invited attention of this Court, clearly indicates that the applicant/Chairman of the Bank had actively connived with co-accused persons in causing loss and misappropriation of crores of rupees. This prima facie finding can be rendered o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. the Chairman of the Bank is concerned, the prayer for grant of anticipatory bail cannot be accepted. The said applicant is arrested in Crime No. 181 of 2019 registered at Police Station Dhantoli, district Nagpur City, dated 15.05.2019, she shall be released on bail on the conditions imposed - application allowed. - Criminal Application Nos. 475 and 476 of 2019 - - - Dated:- 31-7-2019 - Manish Pitale, J. For Appellant: Sunil Manohar, Sr. Adv. and Z.Z. Haq, Adv. For Respondents: N.B. Jawade, APP JUDGMENT Manish Pitale, J. 1. These applications have been filed by the applicants apprehending arrest in connection with first information report (FIR) dated 15.05.2019 registered against them and other accused persons in Police Station Dhantoli, district Nagpur City, for offences punishable under Sections 420, 406, 409, 120-B, 465, 467, 468, 471 and 477-A of the Indian Penal Code as also Section 3 of the Maharashtra Protection of Interest of Depositors Act, 1999 and Sections 65 and 65(B) of the Information Technology Act, 2000. The FIR has been lodged at the behest of one Shrikant Supe, who was appointed as Special Auditor for Navodaya Urban Sahakari Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief. 4. Mr. Sunil Manohar, learned Senior Counsel appearing for the applicants, submitted that the sequence of events in the present case indicated that while the report of the Auditor was submitted as far back as on 27.04.2018, FIR in the present case stood registered after more than a year on 15.05.2019. It was further submitted that the very nature of allegations made against the applicants were such that the investigation entailed analysis and sifting of documentary material, which was already in custody of the investigating agency. It was submitted that when the investigating agency had possession of the entire documentary material, including computers, hard disk and other such material, there was no need for any custodial interrogation of the applicants. It was submitted that after ad-interim protection was granted to the applicants on 01.06.2019, they had abided by the conditions imposed by the Sessions Court, by attending the Police Station twice a week. It was further submitted that despite the applicants cooperating with the investigating agency, the Session's Court had rejected their applications for grant of anticipatory bail, being influenced by. the absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken huge amounts of loans from the Bank. It was pointed out that the detailed procedure for withdrawing amounts towards bank expenses through the Branch Manager, the Chief Executive Officer and the Board of Directors, was circumvented and amounts to the tune of ₹ 3.5 crores were withdrawn in such a manner at the behest of the Chairman of the Bank. The learned APP also pointed out in detail as to how cheque holding was resorted to by the Chairman of the Bank in connivance with co-accused persons so as to defraud the Bank and innocent investors as well as depositors. It was further submitted that the Chairman of the Bank as President of the one time settlement committee of the Bank deliberately extended benefits to co-accused persons who were wilful defaulters, thereby causing huge loss to the Bank. Such other illegal activities were also highlighted by the learned APP to show that the wife of the Chairman of the Bank was also involved in facilitating a property to be given in mortgage for loans taken by co-accused persons when the same property had been already mortgaged in another case. 7. Apart from highlighting all such illegal activities of the applicants, the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a matter for trial. 9. Although the learned APP has referred to a number of documents and material to oppose the present applications, this Court is not going into each and every detail because the investigation is still underway and presently this Court is concerned with the question as to whether the applicants are entitled to grant of anticipatory bail. 10. Before embarking upon the exercise of taking a prima facie view on the basis of the material on record in the context of the contentions raised by the rival parties, it would be relevant to refer to the position of law as enunciated by the Hon'ble Supreme Court in some of the judgments referred to and relied upon by the learned counsel appearing for the rival parties. 11. In the case, of Gurbaksh Singh Sibbia vs. State of Punjab reported in (1980) 2 Supreme Court Cases 565 : [2010 ALL SCR (O.C.C.) 316], a Constitution Bench of the Hon'ble Supreme Court considered in detail as to the manner in which judicial discretion was to be exercised by the Court considering an application for grant of anticipatory bail. After considering various aspects of the matter including the balancing act that the Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall be enlarged on bail. 32. A word of caution may perhaps be necessary in the evaluation of the consideration whether the applicant is likely to abscond. There can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it. In his charge to the grand jury at Salisbury Assizes, 1899 (to which Krishna Iyer, J. has referred in Gudikanti), Lord Russel of Killowen said : (SCC p. 243, para 5) ... it was the duty of magistrates to admit accused persons to bail, wherever practicable, unless there were strong grounds for supposing that such persons would not appear to take their trial. It was not the poorer classes who did not appear, for their circumstances were such as to tie them to the place where they carried on their work. They had not the golden wings with to fly from justice. This, incidentally, will serve to show how no hard and fast rules can be laid down in discretionary matters like the grant or refusal of bail, whether anticipator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. 7. High Court has approached the issue as though it was considering a prayer for granting regular bail after arrest. Learned Single Judge of the High Court reminded himself of the principle that it is well-settled that bail and not jail is a normal Rule and then observed thus: unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant. 8. The above observation are more germane while considering an application for post-arrest bail. Consideration which should weigh with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction by a Court, in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences. (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch cases to ensure that no prejudice is caused to free, fair and full investigation, while ensuring that there is no harassment, humiliation and unjustified detention of the accused persons. It is also relevant that in the said judgments of the Hon'ble Supreme Court as well as this Court, the nature and seriousness of the offences and the proposed charges, is held to be a relevant factor. It is also a relevant consideration as to whether the applicant would be influencing the investigation by misusing protection granted by the Court, which would ultimately interfere with a full investigation into the matter. By applying the aforesaid parameters, the present applications are now being considered. 17. The documents handed over by the learned APP to this Court which have been unearthed during the investigation do indicate that there has been large scale misappropriation of funds in the said Bank. The applicant/Chairman of the Bank was obviously in the know of the happenings in the Bank from the year 2015 and even earlier, which ultimately led to the R.B.I. directive closing down all banking activities and appointment of Liquidator on the Bank. But, that alone cannot be a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e were manipulations done in the account books and back dated entries were made so as to ensure that the financial loss caused to the Bank was not immediately detected. All this could not have been done without the involvement of responsible persons of the Bank including the applicant/Chairman of the Bank. 21. The aforesaid material on record does indicate that huge amounts of money in cash were facilitated to be siphoned off in connivance with co-accused persons. In this context, it would be futile to take the view that since investigation in such a case necessarily involves documentary material, the custodial interrogation of the applicants would not be necessary. The money trail in such cases can be unearthed only after proper interrogation and investigation is carried out by the investigating agency. In this context, the above quoted view taken by the Hon'ble Supreme Court in the case of State represented by C.B.I..vs. Anil Sharma (supra), assumes significance wherein it has been held that success in such an interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time when he is being interroga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons. Such material does indicate that the applicant was making efforts to influence the investigation, even while enjoying the ad-interim protection granted by the Sessions Court. This clearly indicates. propensity of such an applicant, to misuse such protection even in the future. 24. Another statement recorded during the course of investigation to which the learned APP invited attention of this Court shows that a person working as I.T. Manager in the said Bank was pressurized into making manipulations in data recorded in the computers of the said Bank at the behest of the applicant/Chairman of the Bank, so as to fudge figures and to continue activities of misappropriation of funds, thereby causing serious financial loss to the Bank. Although such statements recorded during the course of investigation are subject to rigours of being tested during the course of trial, at this stage, when a prima facie opinion is to be drawn in the context of considering the prayer for grant of anticipatory bail, such material does become relevant. 25. As regards the question of adverse inference drawn by the Sessions Court due to absence of the applicants before the said Court on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said applicant in Criminal Application (ABA) No. 475 of 2019, is said to be involved only in facilitating mortgage of a specific property for grant of loan, when such property was already mortgaged for an earlier loan taken against the same property. Apart from this, it appears that being the wife of the applicant/Chairman of the Bank, she was shown as a Director of the Bank and for that reason she is alleged to be responsible for the large scale misappropriation of funds. Apart from this, the learned APP could not point out any material to show that the said applicant had sought to influence the investigation during the period when she was enjoying ad-interim protection as per order dated 01.06.2019 passed by the Sessions Court. Considering these facts and the absence of any indication that the said applicant will flee the process of law, this Court is of the opinion that her application can be granted by imposing appropriate conditions. 28. In view of the above, Criminal Application (ABA) No. 475 of 2019 (Kiran w/o Ashok Dhawad vs. State of Maharashtra) is allowed. Accordingly, in the event the said applicant is arrested in Crime No. 181 of 2019 registered at Police Station ..... X X X X Extracts X X X X X X X X Extracts X X X X
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