1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 3283 of 2009 Naval v. The State of Maharashtra ------------------------------------------------------------------------------------------ Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr Shyam Dewani, Adv for applicant Ms Bharti Dangre, Addl. Public Prosecutor for State Coram : A.P. Bhangale, J Dated : 27th January 2010 1. Heard learned counsel for the parties. Apprehending his arrest in Crime No. 338/2007 registered with Police Station, Sitabuldi, Nagpur for the offences punishable under Sections 406, 408, 409, 467, 468, 471, 420, 201, 120-B read with Section 34 of the Indian Penal Code, applicant has filed this application under Section 438 Cr.P.C. for grant of anticipatory bail. 2. Learned counsel for applicant submits that the applicant had availed of loan facilities from time to time commencing from the year 1997 and the applicant was regular in repaying loan amounts. He claims that accounts of Aman Hemani were illegally and fraudulently merged with the account of applicant, without the consent of applicant. He 2 further submits that applicant is not at all concerned with accounts relating to V.K. Enterprise, V.P. Enterprise, Vision Innovation and VIP and that the blank cheques issued by the applicant on demand by the Bank for security of outstanding, were misused. Learned counsel for the applicant also submits that as soon as applicant came to know about the fraudulent activities of bank officials, he has lodged complaints to various authorities including Reserve Bank of India, Joint Registrar, Cooperative Societies, concerned Police Station etc. and has filed a Dispute before the Cooperative Court at Nagpur. Applicant has claimed innocence and it is claimed that custodial interrogation of the applicant is not at all necessary. Similarly situated accused have been granted bail/anticipatory bail whose names are mentioned at pages 14-16 of the application. 2. Ms Bharti Dangre, learned Addl. Public Prosecutor, on the other hand, argued strenuously that First Information Report was lodged by District Special Audit Officer, Cooperative Societies, Nagpur alleging misappropriation by the managing committee members and officials of the Samata Sahakari Bank Limited to the tune of Rs. 145,60,46,332/- defrauding account holders of the Bank. Complaint was lodged on the basis of report of flying unit of the Special Audit (Class-I), Cooperative Societies, Hqrs., Pune. Offences came to be registered against members of managing committee; concerned officials of the Bank and accused persons like applicant. She points out that rephasement of all loan accounts of applicant Naval Harsh was 3 done irrespective of restrictions imposed by the Reserve Bank of India. It is stated that applicant had opened nine accounts with the Samta Sahakari Bank in various names and an amount of Rs. 19,08,62,499/- is yet to be recovered from the applicant. She opposed the bail application on the ground that applicant in connivance with certain Directors and officials of the Bank has duped the Bank and stressed the need for custodial interrogation of the applicant. 3. Mr Dewani relied on Joginder Kumar v. State of UP and ors reported in (1994) 4 SCC 260 and Lal Kamlendra v. State of UP and ors reported in (2009) 4 SCC 437 to urge that arrest should not be merely on suspicion about the person’s complicity in the crime and since arrest can cause irreparable loss to a person’s reputation, arrest is not a must in all cases of cognizable offences. He further in pursuance to the undertaking given by learned APP on 25th September 2009, applicant has not been arrested so far. It is further stated that applicant has attended Investigating Officer till date as and when called. 4. It is no doubt well-settled that ambit of power conferred by Section 438 Cr.P.C. is limited. The power of granting anticipatory bail is somewhat extraordinary in character and it is only in exceptional cases where it appears that a person might be falsely implicated or a frivolous case might be launched against him or there are reasonable grounds for holding that a person accused of an offence is not likely to 4 abscond, or otherwise misuse his liberty while on bail that such power to grant pre-arrest bail may be exercised. However, it cannot be forgotten that though the power conferred under Section 438 of the Code of Criminal Procedure can be described as of an extraordinary character, this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. The discretion has to be exercised with due care and circumspection depending on circumstances of each case justifying it’s exercise. 5. In the instant case, it is argued that it has nowhere been complained by learned Additional Public Prosecutor that applicant is avoiding interrogation or is not attending Investigating Officer as and when called. Since the First Information Report is based on audit report, entire records and papers are in the custody of respondent. The first information report was lodged on 15.11.2006 and it is stated by learned counsel for applicant during the course of argument that applicant has attended Investigating Officer as and when called. However, concession of anticipatory bail cannot be allowed for an indefinite period. 6. In Salauddin Abdulsamad Shaikh v. State of Maharashtra reported in (1996) 1 SCC 667 which is also pressed into service by learned counsel for applicant, the Supreme Court has held :- “Anticipatory bail is granted in anticipation of arrest in 5 non-bailable cases, but that does not mean that the regular court, which is to try the offender, is sought to be bypassed and that is the reason why the High Court very rightly fixed the outer date for the continuance of the bail and on the date of its expiry directed the petitioner to move the regular court for bail. That is the correct procedure to follow because it must be realised that when the Court of Sessions or the High Court is granting anticipatory bail, it is granted at a stage when the investigation is incomplete and therefore, it is not informed about the nature of evidence against the alleged offender. It is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the court granting anticipatory bail should leave it to the regular court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge- sheet is submitted.” The said view is followed by the Apex Court in K.L. Verma v. State reported in (1998) 9 SCC 348 where it is reiterated that anticipatory bail orders should be of a limited duration only and limited duration must be determined having regard to the facts of the case and the need to give the accused sufficient time to move the regular court for bail and to give the regular court sufficient time to determine the bail application. 6 In other words, the Apex Court has held that till the bail application is disposed of one way or the other, the Court may allow the accused to remain on anticipatory bail. To put in differently, anticipatory bail may be granted for a duration which may extend to the date on which the bail application is disposed of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire. The ratio laid down by the Apex Court in the aforesaid two cases is again reiterated in Vaman Narain Ghiya v. State of Rajasthan reported in (2009) 2 SCC 281. 7. In view of what has been discussed above, in my opinion, following order would subserve the ends of justice. 8. In the event of his arrest in Crime No. 338/2007 registered with Police Station, Sitabuldi, Nagpur for the offences punishable under Sections 406, 408, 409, 467, 468, 471, 420, 201, 120-B read with Section 34 of the Indian Penal Code, applicant be released on anticipatory bail for a limited period upto 12.2.2010 upon executing PR Bond in the sum of Rs. 25,000/- with two or more sureties in the like amount. Applicant is directed to extend full cooperation to the investigating agency and he shall attend investigating officer as and when called. Applicant shall not try to tamper with prosecution evidence and shall not communicate with any of the prosecution witnesses in any manner and try to influence them. 7 Applicant shall surrender his passport with Investigating Officer and he shall not leave the city of Nagpur without prior permission from the Investigating Officer or the Court concerned. Applicant shall leave his permanent address with telephone/cell phone number with Investigating Officer and the Court concerned and shall communicate change, if any therein, in future. Order granting temporary anticipatory bail shall automatically expire at the end of 12th February 2010. Applicant may surrender to the Court below and apply for grant of regular bail. In case such application is made, the Court concerned shall decide the same on its own merit and in accordance with law. The Court concerned may consider grant of interim bail and may allow the applicant to remain on interim bail pending final disposal of application made before it. Application stands disposed of accordingly. Hamdast. Judge. Hsj