1 APPLN 4477 OF 10.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4477 OF 2010. Shri. Natvarlal Ratanji Kevat .. Applicant -versus The State of Maharashtra .. Respondent. Mr. Vijay Pradhan i/b Mrs Deepa Bajaj, for the Applicant. Ms. Alpa Javeri, APP for the Respondent State. Mr. A. H. H. Ponda, for original complainant. CORAM: R.C. CHAVAN, J. DATED: 12th October, 2010 P.C. 1. This is an application anticipatory for bail by a person who describes himself in para 2 of his application as under:- “2. The applicant is a 69 years old, retired, senior citizen. The applicant is been in the services to the people as a social worker all his life. He has been a councilor of Billimora Nagarpalika for 30 years. He has been a President of Billimora Nagarpalika, Dist. Navsari for 12 years. He is also been the President of Congress Committee for 15 years. Presently, the applicant is the Secretary of Congress Committee (Working Committee), 2 APPLN 4477 OF 10.sxw Navsari District. He is also a Trustee of Billimora Education Society, along with the above the Applicant has also taken the Honorary service of being the President of Billimora Gaekar Mill Workers Committee.” 2. One Bakul Bhai the Director of Platinum Square Pvt. Ltd has filed a report at Sion Police Station Mumbai, against the applicant in respect of forgery of Memorandum of Understanding printed on a stamp paper purchased on the name of applicant in Gujarat. The original stamp paper was in possession of informant ie Bakul Bhai who has handed it over to the police. It is alleged that the applicant got signature of Bakulbhai forged on photocopy. As far as contents of original and the copy there is no dispute. The contents are same. The applicant apprehends arrest in connection with FIR No.76 of 2010 under Sections 406, 465, 466, 467, 468, 469, 471 and 474 of the Indian Penal Code registered by Sion Police Station and therefore, has filed this application, after his application was rejected by learned Sessions Judge, Sewree, Mumbai. 3. I have heard learned counsel for the applicant, learned Additional Public Prosecutor as well as learned counsel for the first informant. 4. It is the case of the applicant that the applicant is a leader of workers of Gaekar Mills of Billimora, Gujarat. The company went into liquidation and on the original side of this Court Company petition 1048 of 2008 was filed. The first informant 3 APPLN 4477 OF 10.sxw company, Platinum Square Pvt.Ltd, sought to revive the company by joining company as strategic investor. A scheme for revival was drawn. A sum of Rs.10,00,00,000/- was accordingly deposited towards salaries etc of former employees of Gujarat Mill. It is applicant’s contention that about 3000 workmen were not getting benefits of this deposit. Therefore, Action Committee was formed with applicant as its Chairman. On behalf of this Action Committee, petition bearing No.416 of 2009 was filed in the Company Petition for intervention. It is applicant’s case that on 9th September,2009, Memorandum of Understanding was reached between first informant and the applicant on behalf of workmen which was sought to be drawn up on a stamp paper, brought by the applicant, at Reliance World, Fort Mumbai. A photocopy or print out of the document was available, but the original was not available when the document was to be signed, allegedly for being tendered in the Court. According to the applicant, he as well as first informant were persuaded to sign copy rather than finding out original. This is how according to applicant, copy came to be signed. The original or its copy have, however, not been produced before the company Court. 5. On 10th September,2009 before the Company Court, objections by the intervener i.e., applicant and his followers were withdrawn. According to applicant this was done because MOU was 4 APPLN 4477 OF 10.sxw signed. First informant issued cheque of Rs.3.15 crores dated 18th December,2009, in the name of the applicant. The Company Court accordingly passed appropriate orders. 6. According to first informant, the applicant had brought MOU printed on a stamp paper. Since first informant did not agree to the terms of the Memorandum of Understanding, in as much as they did not include any term about tenements in possession of tenants being vacated, he did not sign the same. The applicant left the stamped document in the first informant’s office by signing on one page on 25th September,2009. 7. According to applicant, working committee of the workmen passed appropriate resolution authorizing the applicant to deposit the cheque and an account was opened in Bank of Baroda, Branch at Billimora on 12.1.2010 where cheque was deposited and bounced because the first informant had ordered, “payment to be stopped”. There is some dispute as to whether the resolution by workmen was passed before or after opening of the account. Notices were issued by the applicant to the first informant referring to the MOU as well as bouncing of the cheque. Thereafter, complaint was filed by applicant under section 138 of the Negotiable Instrument Act. On 2.3.2010, company’s reply dated 11th February,2010 was received by the applicant. On 15th April, 2010, applicant filed complaint u/s 420 of the Indian Penal Code 5 APPLN 4477 OF 10.sxw before the Court of J.M.F.C. Court, Gujarat, against the first informant in respect of MOU. Before this, on 1st April,2010, a report was lodged by informant at Sion Police Station in respect of forgery. 8. Learned counsel for the applicant submitted that the first informant would not have issued a cheque of Rs.3.15 crores and the applicant would not have withdrawn the objection in company petition, had there been no understanding between them. He submits that there was absolutely no reason for the applicant to withdraw the objection if there was no understanding reached between the parties. It is worthy of note that the first informant had paid Rs.3.15 crores by cheque to the applicant, about which no explanation is given and in course of argument it was stated on behalf of first informant that the amount was possibly paid to get various permissions from the authorities as the applicant was an influential politician in the area. Therefore, according to first informant, this payment has nothing to do with the withdrawal of objections before the Company Court. It is not clear why cheque was issued in the name of applicant rather than issuing it in the name of trade union or workers individually. 9. Learned Additional Public Prosecutor submitted that it is necessary to have applicant in custody in order to find out who are real culprits involved in the case of forgery of stamped document. 6 APPLN 4477 OF 10.sxw She expressed doubt as to applicant would co-operate with investigating officer and stated that the investigation would proceed nowhere if the applicant is not in custody. 10. The learned counsel for the first informant as well as learned APP relied on number of judgments to support their contention that anticipatory bail is extraordinary power and it should not be lightly exercised. The observations of Hon’ble Supreme Court in Bhalchand Jain vs- State of Madhya Pradesh, reported in (1976) 4, SCC 572, has been subsequently followed and it may be useful to reproduce the related referred guidelines in para 17 of the case Savitri Agarwal -vs- State of Maharashtra reported in 2009 (9) SCALE 514, which reads thus:- “17. The Court felt that wide discretionary power conferred by the Legislature on the higher echelons in the criminal justice delivery system cannot be put in the form of straight jacket rules for universal application as the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. A circumstance which, in a given case, turns out to be conclusive, may or may not have any significance in another case. While cautioning against imposition of unnecessary restrictions on the scope of the Section, because, in its opinion, over generous infusion of constraints and conditions, which were not to be found 7 APPLN 4477 OF 10.sxw in Section 438 of the Code, could make the provisions constitutionally vulnerable, since the right of personal freedom, as enshrined in Article 21 of the Constitution cannot be made to depend on compliance with unreasonable restrictions, the Constitution bench laid down the following guidelines which the Courts are required to keep in mind while dealing with an application for grant of anticipatory bail. i) Though the power conferred under Section 438 of the Code can be described as of an extra ordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only because it is of an extraordinary character. Nonetheless, the discretion under the Section has to be exercised with due care and circumspection depending on circumstances justifying its exercise. ii) Before power under sub section (1) of Section 438 of the Code is exercised, the Court must be satisfied that the applicant invoking the provision has reason to believe that he is likely to be arrested for a non bailable offence and that belief must be founded on reasonable grounds. Mere “fear” is not belief, for which reason, it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested. The grounds on 8 APPLN 4477 OF 10.sxw which the belief of the applicant is based that he may be arrested for a non bailable offence, must be capable of being examined by the Court objectively. Specific events and facts must be disclosed by the applicant in order to enable the Court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the Section. iii) The observations made in Balchand Jain’s case (supra), regarding the nature of the power conferred by Section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into Section 438 cannot be treated as conclusive on the point. There is no warrant for reading into Section 438, the conditions subject to which bail can be granted under Section 437(1) of the Code and therefore, anticipatory bail cannot be refused in respect of offences like criminal breach of trust for the mere reason that the punishment provided for is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. iv) No blanket order of bail should be passed and the Court which grants anticipatory bail must take care to specify the offence or the offences in respect of which alone the order will be 9 APPLN 4477 OF 10.sxw effective. While granting relief under Section 438 (1) of the Code, appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. One such condition can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the recovery. Otherwise, such an order can become a charter of lawlessness and a weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed. v) The filing of First Information Report (FIR) is not a condition precedent to the exercise of power under Section 438. the imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an FIR is not yet filed. vi) An anticipatory bail can be granted even after an FIR is filed so long as the applicant has not been arrested. vii)The provisions of Section 438 cannot be invoked after the arrest of the accused. After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested. viii)An interim bail order can be passed under 10 APPLN 4477 OF 10.sxw Section 438 of the Code without notice to the Public Prosecutor but notice should be issued to the Public Prosecutor or to the Government Advocate forthwith and the question of bail should be re-examined in the light of respective contentions of the parties. The ad interim order too must conform to the requirements of the Section and suitable conditions should be imposed on the applicant even at that stage. ix) Though it is not necessary that the operation of an order passed under Section 438(1) of the Code be limited in point of time but the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of FIR in respect of the matter covered by the order. The applicant may, in such cases, be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonable short period after the filing of the FIR.” 11. The above observations are exhaustive and are reiterated in several cases on which learned counsel placed reliance. They are i) Union of India -vs- Padam Narain Agarwal etc reported in 2008(13) SCALE 171, ii) Naresh Kumar Yadav -vs- Ravindra Kumar and ors reported in (2008) 1 Supreme Court Cases 632, iii) D. K. Ganesh Babu -vs- P.T. Manokaran and ors reported in (2007) 4 Supreme Court Cases 11 APPLN 4477 OF 10.sxw 434, iv) State (Rep by the C.B.I) -vs- Anil Sharma , reported in (1997) 7 Supreme Court Cases 187. It may be seen that the Supreme Court itself has clarified that though the power under Section 438 can be described as an extraordinary character, but this does not justify the conclusion that the power must be exercised in exceptional cases only, because it is of an extraordinary character. The question which would be material in deciding application for anticipatory bail would be whether the applicant’s being in custody would be necessary for the purpose of taking investigation to its logical end. In this case, allegation is that memorandum of Understanding is forged by producing photo-copy having signature of informant, when on original document, in possession of the first informant, any such signature does not appear. If the copy of Memorandum of Understanding produced in the Court bears signature of the first informant, when original in the possession of first informant does not bear any such signature, it is not clear as to what further is required to prove that copy which is submitted in the Court is not the correct copy. It would be for the applicant to prove before competent Court that he has in possession a copy which is signed by first informant and if he cannot show that it would be obvious that he has produced a document which is not the true copy of Memorandum of Understanding which was sought to be reached between the 12 APPLN 4477 OF 10.sxw parties. 12. In any case applicant has given explanation of how copy came in his possession and how it was produced before the Court at Gandevi. Therefore, the applicant’s being in custody is unlikely to lead to anything further in the matter. According to learned APP as well as counsel for the first informant the summonses had been issued to the applicant, but applicant failed to appear before Investigating Officer. Thus, can be duly taken care by imposing stringent conditions on the applicant asking him to appear before Investigating Officer for the purpose of interrogation. Had it been the case of theft of some valuable property or some instrument, used in commission of serious crime, which had to be recovered, then question of custodial interrogation would have assumed significance. In this case, in the face of the fact that original is in possession of first informant himself and does not bear signature of the first informant whereas copy showing signature of first informant is already filed in Court. It is not clear as to why investigating officer should have the applicant’s custody. Incidentally on being asked as to when the Investigating Officer wants applicant to appear before him, the Investigating Officer stated that applicant should be asked to appear in 1.11.2010 since Investigating Officer is busy till then. This too rules out need for custodial interrogation. In view of this, application is allowed in 13 APPLN 4477 OF 10.sxw the following terms ORDER. i) In the event of applicant’s arrest, he be released on bail on his furnishing PR Bond in the sum of Rs. 50,000/- with one or more solvent sureties in the aggregate sum of Rs.50,000/-. ii) The applicant shall make himself available for interrogation by Investigating Officer on 1.11.2010 at 11.00 a.m., and and thereafter as and when required Investigating Officer which applicant shall himself ascertain from Investigating Officer. iii) The Investigating Officer shall inform the applicant the date on which he is required to appear and obtain acknowledgment about next date of appearance. iv) The applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; v) The applicant shall not leave India without the previous permission of the trial Court. vi) This order shall remain in force till the chargesheet 14 APPLN 4477 OF 10.sxw is filed and thereafter applicant may approach appropriate court for regular bail. (R. C. CHAVAN, J.)