IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1963 OF 2008 The State of Maharashtra .. Applicant Vs. Mrs.Nirmal Sanjiv Sharma & Anr. .. Respondents Mr.J.P.Yagnik, A.P.P for the State. Mr.A.H.H.Ponda for the respondents. ALONGWITH CRIMINAL WRIT PETITION NO.685 OF 2008 Baljitsingh Sekhon .. Petitioner Vs. Mrs.Nirmal Sanjiv Sharma & Ors. .. Respondents Mr.Hemant Kenjalkar for the petitioner. Mr.A.H.H.Ponda for respondent nos.1 and 2. Mr.J.P.Yagnik, A.P.P for the respondent no.3. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 24th September 2008. : 24th September 2008. : 24th September 2008. JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties are heard. The 1st and 2nd respondents in the application and writ petition are the accused who applied for grant of anticipatory bail under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code of 1973). By the impugned order dated 03rd March 2008, the learned Additional 2 Sessions Judge granted anticipatory bail in favour of the 1st and 2nd respondents. The order is very short which needs to be reproduced. The order reads thus: "Say filed by prosecution taken on record. Heard Shri Ponda for applicants. The applicants couple and I.O. It is already observed by me that in the A.R. application couple have been arrested from last 10 minutes. It appears that I.O. himself in confusion after examining some witnesses. He has no experts opinion on certain important aspects such as forgery, etc. It seems to be a dispute of a partnership and the complainant was one of the partners in a laundry business four years before. He is NRI and now after lodging FIR he did not return to India. The applicants had made out case of harassment at the hands of police on such complaint. Applicants have stated their case to me orally. The police are respected and duty bound to investigate the case impartially and as expeditiously as possible. Merely because there is a complaint registered as FIR, they may lead to investigation but not harassment. It is a fit case to protect their liberty by following 3 order on their anticipatory bail application. O R D E R 1. Applicants couple shall be released on anticipatory cash bail of Rs.5,000/- (Rupees Five Thousand Only) each in the event of their arrest. 2. They shall co-operate police in the investigation and shall leave their contact number and addresses with the police and also inform the change of address thereafter. . Application is allowed and accordingly disposed of." 2. Criminal Application No.1963 of 2008 is filed by the State of Maharashtra praying for quashing the said order. Criminal Writ Petition No.685 of 2008 is filed by first informant for quashing the said order. The 1st and 2nd respondents were sought to be arrested on the basis of the F.I.R lodged at the instance of the petitioner in Criminal Writ Petition No.685 of 2008. The offences alleged against the 1st respondent are 4 under section 406, 420, 467, 468, 471, 120(B), 34 of the Indian Penal Code. The offences are being investigated by the Economic Offences Wing, C.B., C.I.D, Mumbai. The first informant claims to be a Dutch National who is having a laundry business in Netherlands. He intended to start laundry business in Bombay alongwith his sister and the 1st and 2nd respondent (hereinafter referred to as the said accused). According to the case of the first informant, a Limited Company by the name Eurolin Laundries Pvt Ltd was formed. The first accused had 51% shares in the Company and first informant and his sister had 49% shares. The said company had taken loan in the sum of Rs.50,00,000/- from the Central Bank of India, Vikroli branch, Mumbai. According to the complainant, he paid a sum of about Rs.13,00,000/- in foreign currency (Euro) for importing the machinery from Netherlands. A sum of Rs.01,50,000/- was transferred by the first informant to the first accused for using the same as a margin money for opening a letter of credit with Central Bank of India. According to the first informant, machinery was imported from Netherlands. According to the first informant, at the time of installation of machinery, the accused demanded a further amount. At that time the first informant called upon the accused to show the books of accounts. It is alleged that in the meanwhile the first informant 5 suffered an accident causing injuries to both his legs. In January 2006, the first informant proceeded to Netherlands for treatment. The allegation of the first informant is that Form No.32 were filed by the accused showing that two new directors were appointed and the first informant and his sister had resigned as the Directors of the said Company. It is alleged that the signatures of the first informant and his sister on the Form No.32 were forged. It is alleged that the accused illegally opened a new account in the name of the Company in Vijaya Bank at Powai, Mumbai and misappropriated an amount of about Rs.22,00,000/- and more. The allegation is that the first accused with the help of the second accused entered into a Memorandum of Understanding with a third party with the intention of transferring shares of the said Company and had taken a sum of Rs.22,00,000/- from the third party. The allegation in the F.I.R is of misappropriation of a sum of Rs.63,18,000/-. 3. The learned A.P.P submitted that the application for anticipatory bail has been disposed of by passing a cryptic order without considering the relevant factors which are required to be considered while considering an application for grant of anticipatory bail. He submitted that the merits of the case are not considered 6 while granting anticipatory bail. He submitted that after anticipatory bail was granted, the accused have not co-operated and have not produced necessary documents. He submitted that the order is illegal and perverse and needs interference at the hands of this Court. 4. The learned counsel appearing for the first informant in support of this petition placed reliance on the decision of the Apex Court in the case of Puran Vs. Rambilas and another [(2001) 6 Supreme Court Cases 338] and submitted that an order granting bail passed by ignoring material on record and without giving reasons deserves to be set aside. He also placed reliance on decision of the learned single Judge of this Court in the case of State of Maharashtra Vs. Shri. Ananda Tukaram Akale & Anr [2008 ALL MR (Cri.) 1]. He submitted that as a result of grant of anticipatory bail, effective investigation could not be carried out and infact no recovery could be made from the accused. He also placed reliance on a decision of the Apex Court in the case of Er.K.K.Jerath Vs. Union Territory, Chandigarh and others [1998 ALL MR (Cri.) 896]. 5. The learned counsel appearing for the accused submitted that an accused cannot be forced to produce 7 documents allegedly in his custody and he placed reliance on the decision of the Apex Court in the case of State of Gujarat Vs. Shyamlal Mohanlal Choksi and another [AIR 1965 Supreme Court 1251]. He also placed reliance on the decision of the Apex Court in the case of State through C.B.I. Vs. Amarmani Tripathi [2005 Criminal Law Journal 4149]. He submitted that the affidavit of the accused placed on record shows that they have not committed any breach of terms and conditions on which anticipatory bail was granted and that they have co-operated for investigation. He also placed reliance on a decision of the Apex Court in the case of Mahant Chand Nath Yogi and another Vs. State of Haryana [2003 Supreme Court Cases (Cri.) 312] and submitted that the bail which is granted can be upset only on very cogent and overwhelming grounds. He has placed reliance on the decision of the Apex Court in the case of Subhendu Mishra Vs. Subrat Kumar Mishra and another [2000 Supreme Court Cases (Cri.) 1508]. He submitted that considering the material on record, the accused had made out a case for grant of anticipatory bail. He fairly stated that the order granting anticipatory bail be restricted till the stage of filing of chargesheet. He submitted that there is a typographical error in the order and infact the learned Judge intended to say that for a period of ten months, 8 no action has been taken by the investigating officer. He submitted that it will be unjust to cancel the anticipatory bail at this stage. 6. I have carefully considered the submissions. It will be necessary to refer to the decision of the Apex Court in the case of Puran Vs. Rambilas (supra). In paragraph 10 of the said decision the Apex Court has held thus: ".... It has been held that generally speaking the grounds for cancellation of bail broadly 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. It is, however, to be noted that this Court has clarified that these instances are merely illustrative and not exhaustive. One such ground for cancellation of One such ground for cancellation of One such ground for cancellation of bail bail bail would be where ignoring material and would be where ignoring material and would be where ignoring material and evidence evidence evidence on record a perverse order granting on record a perverse order granting on record a perverse order granting bail bail bail is passed in a heinous crime of this nature is passed in a heinous crime of this nature is passed in a heinous crime of this nature and and and that too without giving any reasons. Such that too without giving any reasons. Such that too without giving any reasons. Such an an an order would be against principles of law. order would be against principles of law. order would be against principles of law. Interest Interest Interest of justice would also require that such of justice would also require that such of justice would also require that such 9 a perverse order be set aside and bail be perverse order be set aside and bail be perverse order be set aside and bail be cancelled. cancelled. cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary Therefore, an arbitrary Therefore, an arbitrary and and and wrong exercise of discretion by the trial wrong exercise of discretion by the trial wrong exercise of discretion by the trial court court court has to be corrected." has to be corrected." has to be corrected." (Emphasis supplied) In paragraph 11 the Apex Court proceeded to state as under: "11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. ..." 7. In the case of State of Maharashtra Vs. Ananda Akale (supra) this Court observed that if all the facts and circumstances of the case are not taken into consideration by the Sessions Court, the grant of pre-arrest bail will not be proper. In the case before 10 the learned Judge, permanent pre-arrest bail was granted by the Sessions Court. The learned Judge observed that without considering the facts and circumstances of the case and even before investigation could take proper shape, pre-arrest bail order was passed which was required to be set aside. It will be also necessary to refer to the decision of the Apex Court in the case of State of Maharashtra Vs. Amarani Tripathi (supra). The relevant part of the paragraph 18 of the said decision reads thus: "18. They also relied on the decision in S.N.Bhattacharjee v. State of West Bengal 2004 (11) SCC 165 where the above principle is reiterated. The decisions in Dolat Ram and Bhattacharjee cases (supra) relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under section 439 read with section 437, continue to be relevant. We, however, agree that while considering and decide appeals against grant of bail, where the accused 11 has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail." 8. Thus, the Apex Court has observed that while considering the applications for cancellation of bail or petitions for challenging order granting bail, post bail conduct and supervening circumstances will have to be taken note of but then they are not the only factors to be considered. The Apex Court has not made a departure from the view expressed earlier in the case of Puran (supra) that an order of bail passed by ignoring material evidence on record that too without giving reasons is a perverse order which would be against the principles of law. The Apex Court observed that in the interest of justice such perverse order should be set aside and bail should be cancelled. The Apex Court held that concept of setting aside an unjustified, illegal or perverse order is totally different from cancelling the bail on the ground that the accused has misconducted himself. 12 9. Turning back to the order granting anticipatory bail, it must be noted here that the learned Judge has not even considered the nature of offences alleged against the accused. The learned Judge has also not adverted to general nature of allegations made against the accused in the F.I.R. He has not considered the question whether the allegations call for custodial interrogation of the accused. On the plain reading of the order, apart from the fact that the same is cryptic, the relevant factors which are required to be considered for considering grant of anticipatory bail are not at all considered by the learned Judge. It is true that the accused cannot be compelled to produce documents against their own interests. This order is an arbitrary and improper fpexercise of discretion. Therefore, the order granting bail is required to be interfered with on the grounds set out by the Apex Court in the case of Puran (supra). 10. In my view, a case is made out for setting aside the impugned order granting anticipatory bail. However, sufficient time deserves to be granted to the first and second respondents to surrender. 11. Hence, I pass the following order: 13 (i) The impugned order granting anticipatory bail in favour of the accused is quashed and set aside. (ii) The 1st and 2nd respondents (accused) are hereby directed to surrender before the Regular Court. Time of four weeks from today is granted to the accused to surrender before the regular Court. It is obvious that on surrender before the Regular Court, the accused will be entitled to seek regular bail. (iii) It is obvious that application for regular bail will be considered by the concerned Court on its own merits. If such application for bail is made, the concerned Court will endeavour to dispose it of as expeditiously as possible. (iv) It is made clear that the observations made in this order are for limited purposes of considering the prayer for setting aside the order granting anticipatory bail. No opinion is 14 expressed by this Court on the entitlement of the accused to regular bail. (A.S. Oka, J)