IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No 567 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE R.P.DHOLAKIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- STATE OF GUJARAT Versus KANAKSINH MOHANSINH MANGROLA -------------------------------------------------------------- Appearance: 1. Criminal Revision Application No. 567 of 2004 MR PR ABICHANDANI, APP for Petitioner No. 1 MR SI NANAVATI FOR M/S NANAVATI & NANAVATI for Respondent No.1 MR DHARMESH V SHAH for Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.P.DHOLAKIA Date of decision: 11/10/2004 ORAL JUDGMENT The State has preferred the present Criminal Revision Application against the judgment order dated 16-7-2004 passed by the learned Sessions Judge, Surat, in Cri.Misc.Appln.No.917 of 2004 whereby the application for anticipatory bail preferred by the present respondent no.1-accused in connection with the offence registered as I.C.R.No.8 of 2003 with the DCB Police Station, Surat, was allowed. 2. The complainant, Shri Babubhai Somabhai Gamit, the then Chairman of the Suryapur Co-Operative Bank Ltd. filed a written complaint to the Commissioner of Police, Surat, on 29-1-2003 for the offence under Secs.406, 408, 409, 420 and 380 of the Indian Penal Code against 60 persons for misappropriating huge amounts initially estimated to be more than Rs.44.00 crores. The Commissioner of Police directed the complaint to be registered with DCB Police Station, Surat and it was registered as DCB Police Station, Surat, vide C.R.No.I-8 of 2003 and started investigation. During the course of investigation, Secs.465, 468, 471 and 120-B of IP code were added, various persons were interrogated and some persons were arrested and sent to judicial custody. Since name of the present respondent No.1 was disclosed as one of the accused and as he was not available for interrogation, the investigating agency obtained order from the learned Chief Judicial Magistrate, Surat, for issuing warrant under Sec.70 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) against him. Instead of remaining present before the investigating agency, the respondent no.1 preferred Cri.Misc.Appln.No.478 of 2003 under Sec.438 of the Code before learned Addl. Sessions Judge, Surat. After giving opportunity to the concerned parties, learned Addl. Sessions Judge, Surat, rejected the same on 22-9-2003. Against the said order of rejection, he preferred Cri.Misc.Appln.No.7822 of 2003 in the High Court. In pursuance of issuance of notice, State appeared and said application was withdrawn by the respondent No.1-accused vide order dated 10-11-2003 passed by this Court (Coram: A.L.Dave,J.) which runs as under: "Mr.K.J.Shethna, learned advocate for the applicant seeks permission to withdraw the present application. Permission as prayed for is granted. Present application is disposed of as withdrawn. Notice discharged." 3. The matter was not carried further by the accused and therefore, the above order has become final between the parties. Instead of remaining present before the investigating agency, the respondent No.1-accused again preferred Cri.Misc.Appln.No.227 of 2004 for anticipatory bail before the court below as a successive application on the ground of change in circumstance. On perusal of said application, it appears that all possible grounds taken in earlier application have been taken as is reflected in the said application running into 37 pages which is a part of the present proceedings. Said successive application for anticipatory bail was entertained by the learned Sessions Judge on 11-2-2004 and same was allowed by the learned Sessions Judge, Surat, on merits on 23-3-2004. 4. Being aggrieved by the said order, State preferred Criminal Revision Appln.No.250 of 2004 before the High Court for cancellation of anticipatory bail wherein rule was issued and stay of the impugned order was granted. In pursuance of that, Mr.Kunan B.Naik, learned advocate appeared on behalf of the respondent No.1. As the said period of anticipatory bail for 90 days was already over, revision application was disposed of by this Court (Coram: A.L.Dave,J.) on 1-7-2004 by passing the following order: "This application challenging the order passed by the Sessions Court, Surat, granting anticipatory bail to the respondent by order dated 23rd March, 2004. 2. It is submitted by the learned advocate for the respondent that the matter has become infructuous as the period during which the anticipatory bail order was valid has expired. Under these circumstances, this application deserves to be disposed of as having become infructuous. The earlier interim order passed by this Court staying the operation of the order would stand vacated as the time has already expired. 3. Rule is discharged. Interim relief, if any, is vacated." 5. Before this Court could finally dispose of the said Cri. Revision Appln. No.250 of 2004 on 1-7-2004 wherein protection was granted to the accused till final disposal, second successive anticipatory bail application under Sec.438 of the Code was preferred by the respondent No.1-accused in the Court of learned sessions Judge, Surat, being Cri.Misc.Appln.No.917 of 2004 on 19-6-2004. In pursuance of issuance of notice by the learned Sessions Judge, Surat, State appeared through learned P.P., Shri Gandhi. It is required to be made clear that above referred Cri.Misc.Appln.No.917 of 2004 is not the petition based only on change in circumstances but a full-fledged petition filed by the present respondent no.1 as a second successive anticipatory bail application. Said application was finally disposed of on 16-7-2004 whereby anticipatory bail was granted in favour of the respondent no.1-accused. Hence, the present Criminal Revision Application by the State. 6. Initially, notice was issued vide order dated 17-8-2004 which was made returnable on 30-8-2004 and this Court (Coram: A.L.Dave,J.) stayed the implementation and enforcement of the judgment and order dated 16-7-2004 passed by the learned Sessions Judge, Surat, in Cri.Misc.Appln.No.917 of 2004. In the said revision application, Cri.Misc.Appln.No.7994 of 2004 was filed by the accused for vacating the interim relief granted by the Court vide order dated 17-8-2004 in Cri. Revision Appln.No.567 of 2004. It reflects from the order dated 19-4-2004 passed in Cri.Misc.Appln.No.7994 of 2004 that direction was given to the investigating agency not to arrest the accused in connection with C.R.No.I-8 of 2003. Thereafter, in place of Mr.Naik, the respondent no.1-accused appeared through M/s Nanavati & Nanavati. As my Brother Judge, Mr.Justice D.N.Patel, is not taking up the matter pertaining to M/s Nanavati & Nanavati, an endorsement was made as "not before me". In pursuance of that, matters went to the office and Hon'ble the Chief Justice ordered for placing the matters before this Court to dispose of the same on merits. 7. I have heard learned Addl. Public Prosecutor, Mr.P.R.Abichandani, for the petitioner-State, Mr.S.I.Nanavati for M/s Nanavati & Nanavati for the respondent no.1-accused and Mr.Dharmesh V.Shah, learned counsel appeared for the respondent no.2, the complainant bank. 8. It is mainly contended by learned Addl. Public Prosecutor, Mr.P.R.Abichandani, that the impugned order by the learned Sessions Judge under Sec.438 of the Code was passed in the successive application on the alleged ground of change in circumstance i.e. submission of report by the Special Auditor wherein, according to the accused, no direct or indirect involvement was shown against him in the crime in question as appeared in the FIR. It is further contended that Cri.Misc.Appln.No.478 of 2003 initially filed under Sec.438 of the Code was disposed of on merits vide detailed reasoned order running into 69 pages and when said order was taken into High Court by way of Cri.Misc.Appln.No.7822 of 2003 by the accused, at the end of arguments, it was disposed of as withdrawn which amounts to rejection and, therefore, court below ought not to have considered the successive application on all grounds which have been dealt with by the court by way of change in circumstance that too during the pendency of application in the High Court. A show has been made that said application was filed only on change in circumstance but, as such, all possible grounds were taken and it was decided again on merits. It is further contended that even the second successive application filed by the respondent no.1-accused was on the same alleged ground of change in circumstance of non-involvement of the accused in the audit report. Drawing my attention towards the record, it is contended that on the day on which successive application was filed, neither the audit work was completed nor the report submitted and in these circumstances, court below ought not to have allowed the successive application on that ground and ought not to have dealt with other grounds which were dealt with once in the first anticipatory bail application. According to him, Special Auditor was appointed not for the purpose of complaint in question. The act of the accused is such which would not be apparently visible either by the auditor during the course of audit or the investigating agency because of smart act of the accused wherein huge amounts of the bank have been siphoned off. Initially Rs.8.11 crores were transferred by G.L.No.156 of Ram Chowk Branch of the complainant bank (sundry account). Out of which, Rs.7.50 crores were transferred in G.L.No.155 Majura Gate Head Office of the bank on 30-8-2002. Taking me through page nos.29, 30, 37 and 38 of the compilation, it is contended that out of Rs.7.50 crores transferred to two different accounts, Rs.5.62 crores have been transferred in the account of Sitaram Seva Trust by O.D.No.89 on 30-8-2002 and Rs.1.88 crores in the account of Sitaram Corporation by C.C.No.85 on 30-8-2002. Since above referred amounts were directly transferred from the sundry account of the bank, neither the auditor nor the investigating agency can find it out through common eye and, therefore, if it has not been reflected in the accounts, it cannot be said that amounts have not been misappropriated by the present respondent no.1-accused which admittedly was after the closure of functioning of the bank on 30-8-2002 and all moneys have gone to the accused on that day. It is further contended that though same arguments advanced in the first anticipatory bail application by the learned Public Prosecutor were advanced by Mr.Gandhi, learned P.P., who appeared on behalf of the State in the successive application, and also shown evidence to that effect, same were not properly dealt with by the court below. It is also contended that the learned Sessions Judge has also not considered the reasoned order passed by the learned Addl. Sessions Judge in the first application. If the learned Sessions Judge in the successive application wants to reverse the finding given by the Addl. Sessions Judge in the first anticipatory bail application, the reasons given in the first application ought to have been properly dealt with justifying findings. 8.1. In this connection, learned Addl. Public Prosecutor, has drawn my attention towards the principles laid down by the Apex Court in the case of Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and another, reported in 2004(3) Crimes 63 (SC) more particularly towards para 19 which reads as under: "Though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail application has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also failed to take into consideration that at least on favour occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character." 9. It is also contended by Mr.Abichandani that during the course of investigation since name of the present accused was disclosed as one of the prime accused, investigating agency has started search and as he was not available, warrant was obtained by the investigating agency under Sec.70 of the Code from the learned Chief Judicial Magistrate. Since he was not available thereafter also, proceedings under Sec.82 of the code were initiated and even proclamation was issued to that effect. Same was challenged by the respondent no.1-accused in the court of law and as the required period was not provided in the proclamation, it was directed to issue a fresh proclamation. Even thereafter also, he was not available for investigation. According to him, the respondent no.1-accused was knowing from very beginning that his presence is required for interrogation and that his request under sec.438 of the Code was turned down by the trial court and confirmed by the High Court and hence, he ought to have appeared before the investigating agency. Instead, he has obtained the above referred order in a successive application and, therefore, it is requested that the impugned order be quashed and set aside. Taking me through various orders passed by the concerned Courts, affidavits, counter affidavits, documentary evidence and statements of witnesses, it is contended that once the order passed by the court below was confirmed by the High Court, it has become final and when it has not been carried further, learned Sessions Judge should not have entered into successive application especially when there is no change in circumstance. 10. It is also contended that FIR filed by the then Chairman to the Commissioner of Police was a well designed typed FIR and, therefore, obviously, names of present accused, other Directors and office bearers of the bank would not appear as accused. To save them, it was mentioned in para 14 of the FIR that all office bearers and directors are innocent and affidavits sworn by each one of them to that effect are annexed with the complaint and, therefore, according to him, on the one hand, a well designed typed complaint was filed and on the other hand, the respondent no.1-accused is stating that his name has not been mentioned in the FIR which leads to the only conclusion that he wants to take disadvantage of his own wrong. It is also contended that later on, during the course of investigation, the complainant himself was made as an accused along with other Directors wherein name of the present accused was disclosed as one of the accused and hence also, learned Sessions Judge ought not to have placed any weight on the aforesaid complaint. Moreover, the accused was absconding and was not available for investigation though complaint was registered in the year 2002. 11. It is the first argument advanced by the learned Senior Counsel, Mr.S.I.Nanavati for M/s Nanavati & Nanavati appearing on behalf of the respondent no.1, that the order passed by the learned Sessions Judge under Sec.438 of the Code is an interlocutory order and, therefore, this revision is not maintainable. In this regard, he has placed reliance on the cases reported in AIR 1977 S.C. 2185 more particularly paras 6 and 9 and AIR 1988 S.C. page 922 and argued that this revision is not maintainable and, therefore, it may be rejected only on that ground. Learned Addl. Public Prosecutor has submitted that the nature of the matter is such that it is maintainable and does not require to be disposed of on this point. 12. As regards maintainability of the revision, the Apex Court in the case of Krishnan & Anr. Vs. Krishnaveni & Anr., 1997(1) Supreme 628 has held in para 10 as under: "Ordinarily, when revision has been barred by Sec.397(3) of the Code, a person-accused/ complainant cannot be allowed to take recourse to the revision to the High Court under Sec.397(1) of the Code, since it may amount to circumvention of the provisions of Sec.397(3) or Sec.397(2) of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Sec.397(1) read with Sec.401 of the Code." 13. The aforesaid judgment has been followed by this Court in the case of Jagdishbhai Dharamsi Thakore Vs. State of Gujarat reported in 1997(2) G.L.R. 1553. In view of these reported judgments, this Court is vested with inherent power and even revisional power under Sec.397(1) read with Sec.401 of the Code to entertain the present revision when it is found that there is grave miscarriage of justice or abuse of process of the Court. I am of the opinion that this revision is maintainable. 14. Taking me through the affidavit filed by the respondent no.1 more particularly towards paras 6 to 10, Mr.S.I.Nanavati has submitted that the respondent no.1 is a permanent resident of Bharuch district and is in active politics and, therefore, to settle the internal rivalry, he has been involved in criminal case by the investigating agency at the instance of his rivals in politics. The respondent no.1 was the Chairman of the Suryapur Co-operative Bank and was also a member of Rajya Sabha from 1994 for a period of six years. He worked as a Chairman of the Gujarat State Fertilizer Corporation for the period 1996-97 and was also the Chairman of the Sardar Sarovar Narmada Nigam Ltd. in the year 1998. He was performing his duty very efficiently, honestly and diligently while holding public posts. He is actively involved in various activities in the Bharuch district and also runs various trusts, colleges, hospital and medical colleges. He is totally innocent and has resigned from the bank as Chairman and Director on 26-2-2002 and though he has not taken any direct or indirect interest in the affairs of the bank, he was falsely involved in the crime in question. It is submitted that in the body of the complaint in question i.e. C.R.No.I-8 of 2003 registered with DCB Police Station, Surat, against 60 persons on 29-1-2003, name of the present respondent no.1-accused was not shown as an accused nor any allegation has been made against him in the entire FIR. It is submitted that the charge-sheet submitted by the investigating agency on 24-4-2003 shows no evidence worth the name connecting the accused with the crime except showing his name in column no.2 of the first page of the charge-sheet as an absconding accused along with other accused and, therefore, at the end of investigation, as there is no evidence against the present accused connecting him with the crime in question, court below has rightly granted anticipatory bail and hence, it is requested that same may not be interfered with. 15. It is further submitted by Mr.Nanavati that merely because the respondent no.1-accused is a trustee in the trust in which Rs.7.50 crores have been diverted, he should not be held responsible. The audit report was in favour of the respondent accused and hence, court below has rightly considered the same as a change in circumstance. It is further submitted that one more complaint was lodged by DCB Police, Surat, against the present respondent no.1-accused for the offences punishable under Secs.406, 408, 409, 418, 420, 467, 468, 471, 120-B and 34 of the Indian Penal Code on 29-1-2003 registered as C.R.No.I-52 of 2004. As he was falsely involved in said case also, he has obtained bail. The said order was also challenged by the State and now it is pending in the High Court. It is submitted that the criteria for grant or rejection of anticipatory bail will be quite different. Once anticipatory bail was granted by the court below, this Court should be slow in rejecting the same. If at all any interference is required, same can be done by dealing with the reasons assigned by the court below. 15.1 Mr.Nanavati has placed reliance on the case of Dolatram and Others Vs. State of Haryana, (1995) 1 S.C.C. 349. It has been held by the Apex Court in para 4 of the judgment as under: "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (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 satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding, is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial." 15.2 He has also relied on the case of Subhendu Mishra Vs. Subrat Kumar Mishra and another, AIR 1999 S.C. 3026 more particularly towards head note which reads as under: "Criminal P.C. (2 of 1974), S.439--Cancellation of bail--High Court overlooked distinction of factors relevant for rejecting bail at initial stage and cancelling bail once granted--Cancellation of bail done in mechanical manner--Order not sustainable." 15.3 Reliance was also placed by him on Ghanchi Rubina Salimbhai Vs. Metubha Diwansingh Solanki, (2003) 7 S.C.C. 183 towards head note which reads thus: "Criminal Procedure Code, 1973--S.439-Bail--Grant of--After denial by trial court, High Court granting bail must record reasons--Held, where the trial court found material to establish a prima facie case against the respondent-accused and denied bail, High Court ought to at least briefly indicate reasons for reversing the trial court's findings and granting bail--Order of grant of bail by High Court set aside." He has drawn my attention towards para 5 of the aforesaid reported judgment which is as follows: "5. Since the trial court has assigned reasons for refusing bail which includes availability of material to establish prima facie case against the respondent-accused, and looking to the gravity of the offence as also the apprehension of the complainant as to the possibility of interference by the accused with the investigation and threat to the prosecution witnesses in the event of they being enlarged on bail, it would have been more appropriate if the High Court could have at least briefly indicated the reasons which it thought entitled the respondent-accused to bail. It may be that any strong expression of opinion in the nature of a finding in a bail application by the High Court though not binding on the trial court, could influence the mind of the trial court since such observation