:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1158 OF 2006 Jagmohan Dalmiya ... Petitoner. V/s State of Maharashtra ...Respondent. --- Shri Adhik Shirodkar, Senior Counsel with Shri Maneshinde, Shri Rajendra Shirodkar, Shri T. Mukherjee, Shri Sayaji Nangre, Shri A. Bannerjee, Ms. Renuka Laxmeshwar i/b Huzefa Nasikwala, advocates for the petitioner. Shri Ravi Kadam, Advocate General with Shri S.R. Borulkar Chief P.P. for the State. Shri Shirish Gupte, Senior Counsel with Mrs. U.K. Dahanuhar i/b Khaitan & Jaykar for the original complainant. ---- ALONGWITH CRIMINAL APPLICATION NO. 1187 OF 2006 S.K. Nair ....Petitioner. V/s State of Maharashtra ....Respondent. --- Shri Rajendra Shirodkar with Shri Sayaji Nangre i/b Huzefa Nasikwala for the petitioner. Mr. Amit Desai i/b Khaitan & Jaykar for the original complainant. Ms. Rajendra M. Gadhvi, APP for the State. ---- :2: ALONGWITH CRIMINAL APPLICATION NO. 1188 OF 2006 Kishore Rungta .....Petitioner. V/s State of Maharashtra .....Respondent. --- Mr. Satish Maneshinde with Mr. Sayaji Nangre i/b Huzefa Nasikwala for the petitioner. Mr. Samsher Garud i/b Khaitan & Jayakar for the original complainant. Ms. S.D. Shinde, APP for the State. ---- ALONGWITH CRIMINAL APPLICATION NO. 1189 OF 2006 Jyoti Bajpai .....Petitioner. V/s State of Maharashtra .....Respondent. --- Mr. Sayaji Nangre i/b Huzefa Nasikwala, Renuka Laxmeshwar for the petitioner. Ms. S.D. Shinde, APP for the State. --- CORAM: CORAM: CORAM: V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. DATE: DATE: DATE: 10th April, 2006 10th April, 2006 10th April, 2006 :3: P.C.: 1. Heard the learned Senior Counsel for the petitioner, the learned Advocate General and the learned Senior Counsel appearing on behalf of the original complainant at length. 2. These four applications for anticipatory bail can be disposed of by a common order since they are arising out of the same C.R. which has been filed initially at the Marine Drive Police Station and later on it was transferred to EOW GBCB CID. 3. Brief facts which are relevant for the purpose of deciding these applications are as under:- 4. The petitioner in Criminal Application No. 1158 of 2006 is the President of the Cricket Association of Bengal (hereinafter referred to as the "CAB") and one of the founder and full member of the Board of Control of Cricket in India (hereinafter referred to as the "BCCI"). He was also the President of International Cricket Council (hereinafter referred to as the "ICC") The petitioner is the former President of the BCCI, apart from being the Honorary Secretary and Honorary Treasurer. The petitioner was the Honorary Treasurer during 1983-84 to 1984-1985, the Honorary Secretary :4: during 1991-1993 to 1997 and was the President during 2001-2002 till 2003-2004. In the year 2004, the Annual General Body Meeting was contested between the two groups headed by Shri Sharad Pawar on the one side and Shri Ranbirsingh Mahendra. The election ended in tie for the post of President and the petitioner being the then President cast his vote in favour of Ranbirsingh Mahendra. In respect of the said Elections large number of litigations were filed in various courts. In the year 2005, the Annual General Meeting was also keenly contested and Shri Sharad Pawar and his supporters were successful in getting elected. The petitioner did not contest for any post since 2004. 5. The results of elections of 2005 were announced on 29/11/2005. A complaint was filed by Shri Niranjan Shah, the Secretary against the present petitioners on 16/3/2006 in which it was alleged that the Account was opened by the petitioner - Jagmohan Dalmiya at the Bhowanipor Branch of Indian Overseas Bank for the purpose of meeting the expenditure which was to be incurred during the worldcup 1996 which was organized by three countries viz. India, Pakistan and Sri Lanka. The joint Account of the three countries was opened in London and was known as PILCOM Account i.e. :5: Pakistan, India Lanka Committee Account and the Account which was opened in Bhowanipor Branch in the Indian Overseas Bank was termed as INDCOM Account and a resolution was passed by the Committee that the Account was to be opened by the President, Treasurer and the Secretary. It is alleged that the said Account was opened in the name of the petitioner - Jagmohan Dalmiya who was the only authorized signatory. A complaint, essentially, is in respect of the operation of this Account in Bhowanipore Branch of the Indian Overseas Bank and the gist of the allegations are as follows:- (i) (i) (i) The accounts were never placed before the Working Committee or General Body. (ii) (ii) (ii) The Bank Account was closed in February 2006 in spite of the directions given by the Working Committee that the Account was to be operated by Shri Niranjan Shah and yet, by flouting these directions, the Account was closed by Shri Jagmohan Dalmiya. (iii) (iii) (iii) Though the balance at the foot of the Account was Rs 17 lakhs (approximately), a cheque for the amount of Rs 39 lakhs was given :6: by CAB in favour of BCCI towards the amount payable from the said account. (iv) (iv) (iv) Initially, two Demand Drafts which were issued in favour of BCCI for an amount of Rs 17 lakhs were cancelled and the Demand Draft for the said amount was issued in favour of CAB while closing the account in the Bhowanipore Branch, Indian Overseas Bank and CAB, in turn, issued a cheque for an amount of Rs 39 lakhs in favour of BCCI. (v) (v) (v) The details of the Account prior to 2005 were not given. (vi) (vi) (vi) When Shri Jagmohan Dalmiya was questioned in respect of the said Account in the meeting of the Working Committee held on 21/2/2006, evasive answers were given by him. (vii) (vii) (vii) In the reply which was given by Shri Jagmohan Dalmiya to the various queries raised in the meeting of the Working Committee dated 21/2/2006, it was stated that Rs 21.74 lakhs were utilised by him on his travel, boarding, lodging & conveyance and therefore this was an :7: admission of misappropriation. (viii) (viii) (viii) It was alleged that though the petitioner - Jagmohan Dalmiya was the authorized signatory, the authority appeared to have been given to Shri K.M. Choudhary who was his employee who had issued letters to the Bank on the letter-head of Shri Jagmohan Dalmiya, asking the Bank to debit the Account in favour of one S.G. Traders and in favour of J.M. Tours and Travels and Voyage Tours and Travels. The total amount which was paid to S.G. Traders on the instructions of Shri S.G. Choudhary was to the tune of Rs 15,66,270/- and to J.M. Tours and Travels and Voyage Tours and Travels was to the tune of Rs 1,84,925/-. (ix) (ix) (ix) The cash withdrawals of Rs 1.50 crores had been made over a period of 10 years though there was no authorization from the Board. (x) (x) (x) The inspection of Bank Account & statements was not given. (xi) (xi) (xi) It is alleged that the other petitioners :8: had conspired alongwith Shri Jagmohan Dalmiya and, therefore, they have committed an offence under section 120B of the Indian Penal Code. 6. The petitioners applied for anticipatory bail by filing these Criminal Applications directly in this Court. A preliminary objection was raised by Shri Borulkar, the learned Chief Public Prosecutor regarding the maintainability of the applications in this court on the ground that normally the applications should first be filed in the Sessions Court and, thereafter, in the High Court. This Court, by passing a reasoned order dated 21/3/2006, held that the applications were maintainable. Thereafter, on 23/3/2006 after the learned Counsel for the petitioners and the learned Advocate General who appeared on behalf of the State were heard for some time, this Court felt that an opportunity should be given to the Investigating Agency to investigate and also to the petitioners to explain the allegations which were made against them and, therefore, they were directed to remain present before the Investigating Officer in Mumbai for a period of four days and in Calcutta for a period of three days by a detailed order dated 23/3/2006. :9: SUBMISSIONS SUBMISSIONS SUBMISSIONS 7. The learned Counsel appearing on behalf of the Petitioners submitted that the petitioner - Jagmohan Dalmiya was defeated in the election which was held in 2005 and, therefore, in order to take vengeance and to settle the private scores, the present complaint has been filed in undue haste without giving any opportunity to him to explain the allegations regarding the Bank Account which was in operation for last 10 years to the knowledge of the complainant and other members of the Board. He submitted that the Account had been audited over the years since 1996 and was placed before the Working Committee, Financial Committee and the General Body. It is submitted that, initially, the Account was opened after the resolution was passed for the purpose of meeting the expenses incurred in the said Worldcup 1996. It is submitted that no query has been raised in the past 10 years in respect of the functioning and operation of the said Account when the complainant was the member during these 10 years and only after the petitioner - Jagmohan Dalmiya was defeated, the present complaint was filed to humiliate and implicate him so that, in future, he would not pose a threat to the members who were elected in the present election. He submitted :10: that it is an admitted position that after the Worldcup event was held in 1996, all the Accounts except the Account at Bhowanipor Branch was continued since the Income Tax Authorities had made claims to the tune of Rs 88 crores and the petitioner - Jagmohan Dalmiya being the resident of Calcutta, he was authorized to handle the accounts and was permitted to operate the said Account. He submitted that with this understanding the said Account was operated and the tax liability was successfully reduced from Rs 88 crores to Rs 4 crores and that the matter was pending in the High Court of Calcutta. He submitted that various amounts were spent towards the lawyers fees, fees of Chartered Accountants and other expenses. It is submitted that after the petitioner had taken over in 1993-94, the BCCI was running in loss with deficit balance of Rs 26 lakhs and in last 10 years, the BCCI earned profit of Rs 100 crores. He submitted that the Investigating Officer had not collected a single document regarding the balance-sheet and other returns during the interrogation. He submitted that the complainant was neither authorized by any Committee nor any resolution was passed by any Committee, authorizing the complainant to file any complaint. He submitted that the legal position for the grant of an anticipatory bail is well settled and that section 438 :11: was introduced in the Statute Book only in order to protect the persons who are likely to be falsely implicated in criminal cases for the purpose of settling the private scores or business or due to political rivalry. He submitted that, in any case, custodial interrogation of the petitioner was not necessary since the entire case was based on operation of a single Bank Account and the entire documents were now in possession of police in respect of the said Bank Account and all other documents were in possession of the complainant and the newly elected body. Therefore, no purpose would be served in arresting the petitioner and keeping him in jail for few days and, thereafter, releasing him on bail. 8. The learned Advocate General Shri Kadam submitted that the petitioner - Jagmohan Dalmiya in his reply has admitted that he had used the amount of Rs 21 lakhs and this was a case of misappropriation of amounts over which the petitioner had no right to use it for meeting his personal expenses. He submitted that the petitioner had diverted the funds of the BCCI through his employee Shri K.G. Choudhary who was not the authorized signatory and an amount of Rs 16 lakhs (approximately) was paid to S.G. Traders who have stated that they were supplying stationery to the CAB. :12: He submitted that the payments which were made to Voyage Tours and Travels and J.K. Tours and Travels indicated that several amounts were paid for the expenses incurred by K.M. Choudhary for travelling by air and also by other persons including the present petitioner himself. He submitted that this material was sufficient to indicate the involvement of the petitioner in the commission of the said offence and on this ground alone, the anticipatory bail was liable to be rejected. The learned Advocate General also invited my attention to the reply which was given by the petitioner in which he had shown that an amount of Rs 65,000/- was withdrawn every month and it was shown that an amount of Rs 3,31,000/- (approximately) was paid to the lawyers and to the Chartered Accountants. A total amount of Rs 6 lakhs was, therefore, alleged to have been spent. He submitted that this explanation itself was palpably false as it is difficult to accept that the petitioner - Jagmohan Dalmiya would imagine or contemplate in advance that an amount of Rs 65,000/- would be required during the month for the expenses of lawyers. He submitted that, therefore, this was an instance which indicated falsity of the claim of the petitioner. He submitted that the allegation of malafide alleged by the petitioner was also incorrect. He invited my :13: attention to the letter which was written by the petitioner to Shri Sharad Pawar in which he had stated that Shri Pawar was fair enough to give him seven days time to give reply to the show-cause notice. The learned Advocate General submitted that though he had given a certificate of being fair to Shri Pawar in the said letter, for the purpose of filing this anticipatory bail, the allegation of malafide was made against Shri Pawar only to mislead this Court. He further submitted that the complaint is filed in Mumbai since the Headquarters of BCCI is situated in Mumbai and all accounts were maintained in Mumbai and, therefore, the allegation that the complaint was filed in Mumbai because the Home Minister of the State of Maharashtra belongs to the party of the President of the BCCI Shri Sharad Pawar, is false. He submitted that the custodial interrogation of the petitioner was verymuch essential in order to find out the role of S.G. Traders since in the statement of the proprietor of S.G. Traders, it was revealed that the S.G. Traders did not own any tourist vehicles. He submitted that it is also essential to find out where the money from the said Account had gone. He submitted that the anticipatory bail is normally granted in an exceptional cases and that, in the present case, there is sufficient material on record :14: to indicate that there was large-scale misappropriation of the amount by the petitioner - Jagmohan Dalmiya and, therefore, his custodial interrogation is necessary. 9. Shri Shirish Gupte, the learned Counsel appearing on behalf of BCCI submitted that the accounts of the said INDCOM Account and PILCOM Account were not audited which was clear from the report given in the Annual General Body Meeting held on 23/1/2006. He submitted that during the course of investigation, it had transpired that even there was withdrawal of 5000 pounds from the PILCOM and merely because the said fact was not mentioned in the FIR should not be construed to mean that the Investigating Officer did not have any right to investigate into the said aspect. He submitted that the complainant was authorized by the President to file the present complaint and, therefore, no separate resolution was necessary and there was instruction to file the complaint by the President who was authorized to take action against the petitioner. He submitted that the complaint was not filed in undue haste as alleged but was filed after an opportunity was given to the petitioner - Jagmohan Dalmiya to give an explanation and since the explanation could not be given, :15: thereafter the present complaint had been filed. He also refuted the allegations made by the petitioner regarding malafide and ulterior motive in filing the present complaint. He also filed an affidavit-in-reply of the complainant in which more particulars of the complainant have been mentioned. Shri Shirodkar, the learned Counsel appearing on behalf of the petitioners in rejoinder submitted that in respect of the alleged discrepancy of 5000 pounds from the PILCOM Account, a detailed inquiry was made by FERA Authorities and by the Reserve Bank of India who had exonerated the petitioner - Jagmohan Dalmiya which is evident from the letter written by the Reserve Bank of India dated 7th October, 1997 to the Deputy Director of Enforcement Directorate giving clean chit to the applicant and also by letter dated 17th October, 1997, the Deputy Director of the Enforcement Directorate wrote to Shri Jagmohan Dalmiya acknowledging that till date they had not detected any violation of the provisions of Foreign Exchange Regulation Act, 1973 against PILCOM or against the petitioner. FINDINGS FINDINGS FINDINGS AND CONCLUSION: AND CONCLUSION: AND CONCLUSION: 10. I have given my anxious consideration to the :16: submissions made by the learned Senior Counsel appearing on behalf of the petitioners, the learned Advocate General and the learned Senior Counsel appearing on behalf of the complainant. 11. Since the admitted facts have been mentioned in the beginning I do not wish to again repeat the said facts in my reasoned order unless where emphasis has to be laid on certain aspects. 12. Since the law on the question of grant of an anticipatory bail is quite settled, the guide-lines for the grant of anticipatory bail have been considered in the case of Gurbaksh Singh Sibbia etc. vs. The State of Punjab reported in AIR 1980 SC 1632, AIR 1980 SC 1632, AIR 1980 SC 1632, and, thereafter, in the catena of cases the Supreme Court and this Court has held that this power should be exercised by the Sessions Court and the High Court in cases where it is found that the complaint has been filed malafidely and that the complaint and the material which is placed by the Investigating Agency does not disclose commission of the offence which is alleged to have been committed. Further, it has been held that merely because the offence which is alleged to have been committed is serious and is even punishable by life and death, that alone would not :17: warrant reading into the provisions of section 438 the restrictions which are imposed under section 437 of the Criminal Procedure Code. Further, it has been consistently held that this Court may exercise its jurisdiction which is vested in it under section 438 if it comes to the conclusion that the complaint which is filed is not bonafide but has been filed with a view to settle the private scores or business or political rivalry. The reference can be usefully made to the following judgments:- (1) Gurbaksh Singh Sibbia etc. Vs. The State of Punjab reported in AIR 1980 SC 1632. (2) Directorate of enforcement Vs. P.V. Prabhakar Rao reported in (1997) 6 SCC 647. (3) State of A.P. Vs. Bimal Krishna Kundu & Anr. reported in (1997) 8 SCC 104. (4) C.B.I. Vs. Anil Sharma reported in (1997) 7 SCC 187. (5) Directorate of Enforcement Vs. Ashok Kumar Jain reported in (1998) 2 SCC 105. (6) K.K. Jerath Vs. Union Territory of Chandigarh & Ors. reported in (1998) 4 SCC 80. :18: (7) Muraleedharan Vs. State of Kerala reported in (2001) 4 SCC 638. (8) Harshad Mehta Vs. Union of India reported in (1992) Cr. L.J. 4032. (9) Dukhishyam Benupani Vs. Arun Kumar Bajoria reported in (1998) 1 SCC 52. (10) Mahesh K. Bhawasinghka Vs. State of Delhi reported in (2000) 9 SCC 383. (11) Ramdhari Mishra Vs. State of Maharashtra reported in (2003) Bom.C.R. 215. (12) Narinderjit Singh Sahani Vs. Union of India & Ors. reported in (2002) 2 SCC 210. (13) Adri Dharan Das Vs. State of West Bengal reported in (2005) 4 SCC 303. (14) Rajesh Bajaj Vs. State NCT of Delhi & Ors. reported in (1999) 3 SCC 259. :19: (15) Nagpur Steel & Alloys Pvt. Ltd. Vs. P Radhakrishnan & Ors. reported in (1997) SCC (Cri) 1073. Though none of the counsel for the petitioners and the respondents have relied upon any judgments, I have chosen to refer to these judgments since the law on the subject has been elaborately considered and guidelines have been laid down 13. Taking into consideration the conspectus of these judgments and keeping in view the ratio of the judgment of the Supreme Court, I shall now examine the facts of this case and consider whether the case has been made out for grant of an anticipatory bail. 14. In my view, the petitioners have made out a case for grant of anticipatory bail considering the complaint and the material which has been placed before this Court by the Investigating Agency and by the complainant and, therefore, the petitioners are entitled to be released on anticipatory bail for the following reasons. 15. It is essential to take into consideration the brief chronology of events which has culminated in the :20: filing of the complaint against the present petitioners. The petitioner Shri Dalmiya was connected with the CAB and later on almost from 1994-95 he was at the helm of the affairs as Treasurer and, thereafter, as a Secretary and then as a President upto 2004. The worldcup of 1996 was jointly organized by the Pakistan, India and Sri Lanka and was to be held in these three countries simultaneously and for the said purpose a joint Account of Pakistan, India and Sri Lanka i.e. PILCOM was opened in London and an agreement to that effect was executed. This Account was to be audited by A.F. Ferguson & Company. Another account was opened in India at Bhowanipore Branch of Indian Overseas Bank at Calcutta which was referred to as INDCOM Account which was meant to cater to the expenses which were incurred in India for the purpose of organizing the matches in India. A resolution was passed in the BCCI in which it was resolved that such an Account would be opened and will be operated either by the Treasurer or by the Secretary or by the Chairman. The Account was opened and Shri Dalmiya was the authorized signatory of the Account. It is an admitted position that no objection was raised regarding the operation of the Account solely by Shri Dalmiya over a period of 10 years, though the accounts were audited from year to year and :21: the accounts were placed before the Working Committee, Finance Committee and the General Body. At this juncture, it has to be stated that though a statement on oath has been made by the petitioner Shri Dalmiya in his application that the accounts were duly audited, when a query was made to the Advocate General and the Counsel appearing on behalf of the BCCI, none of them were in a position to say whether, in fact, these accounts were audited. No statement on oath had been made in any affidavit-in-reply filed by the State or by the BCCI controverting the statement which is made on oath by the petitioner Shri Dalmiya. In any case, no reply is given by the learned Senior Counsel who appeared on behalf of the BCCI to the query which was made by this Court. On the contrary, the minutes of the meeting which was held on 23/1/2006 were shown and in paragraph in the said report it was mentioned that PILCOM has not been audited or audited accounts have not been shown was referred to. So far as the PILCOM Account is concerned, it is an admitted position that the said Account was to be audited by