1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO: 2945 /2009 ((1) Smt. Premlata w/o Dattaprasad Agrawal and another vs. The State of Maharashtra ) CRIMINAL APPLICATION NO: 2947/2009 ((1) Smt. Premlata w/o Dattaprasad Agrawal and another vs. The State of Maharashtra ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr. Shyam Dewani, Adv .for applicants Mrs. S.S. Wandile APP for Respondent-State C ORAM : A.P. BHANGALE, J. DATED : 1 st September, 2009. Heard learned counsel for the respective parties, at length. By Criminal Application No. 2945/2009 applicants prayed for grant of anticipatory bail in connection with Crime No. 83/2009 registered at Dhantoli Police Station, Nagpur for offence punishable under sections 406, 420 read with section 34 of the Indian penal Code, presently, under investigation by the Crime Branch Police Nagpur. 2. In Criminal Application No. 2947/2009, the applicants are seeking for anticipatory bail in Crime No. 57/2009 reported at Kotwali Police Station, Nagpur for offence punishable under sections 406, 409, 420 read with section 34 IPC . 2 3. Earlier, it appears that Criminal Application No. 2135/2009 by order dated 11.6.2009, this Court had granted interim anticipatory bail. Later on, on 25th June 2009, the learned Sessions Judge was directed to decide the application for anticipatory bail expeditiously. Thus, Misc. Criminal Application No.994/2009 was decided by the learned Additional Sessions Judge, Nagpur on 24.7.2009 who, it appears by a reasoned order, rejected the application, mainly on the ground that crores of rupees have been accepted from the depositors in various schemes and were not returned and that the applicants being close relatives of alleged kingpin-Pramod Agrawal, it cannot be believed that they were unaware of the dealings by Pramod Agrawal as also custodial interrogation of the applicants is still necessary to unearth the material at the instance of the applicants. 4. It appears that one Prabhakar Gajanan Anantwar reported at Dhantoli Police Station Nagpur that Pramod Kejdimal Agrawal and other concerned responsible persons had constituted Kalamna Market Urban Co- op. Credit Society and Mahadeo Land Developers Private Limited tempting people to invest in various deposit schemes and did not repay the amounts despite expiry of the period of deposits and thus, in conspiracy, committed criminal breach of trust and also cheated the depositors. Thus, officer punishable under section 406, 420 read with section 34 IPC was reported. The investments made by the first informant is in the sum of Rs. 8,06,940/- ( the total amount) which was not repaid despite expiry of the term of the deposits. Learned Advocate for the applicants contended that since final report u/s 173 of the Criminal Procedure Code is already filed before the JMFC Nagpur and considering that applicants did cooperate with the investigation pursuant to the interim anticipatory bail in their favour, no custodial interrogation has been necessary. Therefore they may be released upon anticipatory bail. 3 5. Regarding Cri. Appln.No. 2947/2009 it appears that the applicants were granted interim anticipatory bail in Criminal Application No. 2135/2009 by order dated 11.6.2009 by this Court and, on 25th June 2009 by identical orders, the Sessions Judge was directed to decide the application. Thus, the learned Addl. Sessions Judge, Nagpur by order dated 24.7.2009 in Misc. Cri.Appln. No. 995/2009 rejected the anticipatory bail by a reasoned order, mainly on the ground that custodial interrogation of the applicants is still necessary in order to unearth material at the instance of the applicants and that applicants being close relatives of Pramod Agrawal, it cannot be believed that they were unaware of the dealings by Pramod Agrawal, more particularly, considering their status as Directors in respect of the Societies. Learned Advocate for the applicants submitted that notwithstanding the fact that the charge-sheet is filed, the prayer for anticipatory bail in connection with non-bailable offences can be granted on merits, in view of the ruling in Bharat Chaudhary vs. State of Bihar reported in AIR 2003 SC 4662. It is contended that by placing reliance on the Maksud Saiyed vs. State of Gujarat ( 2008) 5 SCC 668 that the Indian Penal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or Directors of the Company when the accused is the Company and vicarious liability of the Managing Director and Director would arise provided any provision exists in that behalf in the statute. Statutes indisputably must contain provision fixing such vicarious liabilities. Even for the said purpose it is obligatory on the part of the complainant to make requisite allegations which would attract the provisions constituting vicarious liability. The observations in para no. 13 of the ruling were made with reference to Criminal Appeal No. 1248/2007 preferred by Maksood Saiyad which was dismissed after making observations regarding summoning witnesses in criminal case. Reference is also made to S.K.Alag vs. State of UP ( AIR 2008 SC 1731) in connection with offence punishable u/s 406 IPC; under the circumstances when the 4 demand drafts were drawn in the name of the Company even if the appellant was its Managing Director, it was observed that he cannot be said to have committed an offence u/s 406 of IPC. Another ruling relied upon is in the case of Kunjalata Dei vs. State of Orissa reported in AIR 1985 Cri.L.J. 1045 ( Orissa High Court), in order to submit that supplementary charge-sheet cannot be submitted without making further investigation and without obtaining further evidence - oral or documentary. Ruling in Joginder Kumar vs. State of U.P. (1994) CRI.L.J. 981 is also referred, in order to submit that a person is not liable to arrest merely on the suspicion of complicity of an offence. There must be some reasonable justification in the opinion of the Officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences, an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave station without permission would do. Reference is also made to Lal Kamlendra Pratap Singh vs. State of U.P. (2009) 4 SCC 437 in respect of the observations made by the Apex Court that arrest is not a must in all cases of cognizable offences and in deciding whether to arrest or not the police officer must be guided and act according to the principles laid down in Joginder Kumar’s case. 6. Learned Advocate for the applicants contended that since one of the applicants- Smt. Swati w/o Ankit Garg is nursing the child since March 2009 and is residing at Mumbai, anticipatory bail ought to be granted in her favour. Regarding another applicant-Smt.Premlata Dattaprasad Agrawal it is contended that she is about 57- years of age and doing household duties and not at all concerned with the offences as alleged, as such, she is entitled for anticipatory bail. 5 7. Learned APP stoutly objected grant of bail on the ground that the applicants are the close relatives of main accused- Pramod Agrawal who is in custody. The applicants are also well-qualified and educated and knew about the nature of documents as also the effect of their signatures in the course of transactions by various societies floated by them. Regarding Cri. Application No.2945/2009, it is contended that the applicants are Directors of Kalamna Market Urban Co-op. Credit Society Limited, Nagpur as such, they are responsible equally with other Directors of the said society, in view of the criminal conspiracy between the Directors to collect huge amounts from the depositors with intention to repay the amounts. It is contended that with the help of amounts received from gullible depositors, transactions in respect of immovable properties including bogus sale deeds were prepared, the depositors were promised to make their amounts double within a short period and were tempted to invest their life’s fortune with the societies floated by Pramod Agrawal and other Directors. According to Respondent, as many as 815 depositors were tempted to invest Rs. 18,94,67,100/- and various societies have been floated throughout the State of Maharashtra by Pramod Agrawal and his relatives.. Regarding Cri. Appln. No. 2947/2009, identical objections have been taken for grant of anticipatory bail as the Directors of the Society of the applicants with said Pramod Agrawal collected huge amounts through Mahadeo Land Devleopers Pvt. Ltd. and Kalamana Market Co-op.Urban Society ; lands were purchased at very many places in Vidarbha region and some of the sale deeds were bogus sale deeds. This has been done with the help of depositors from various persons who were promised that their amounts would be doubled in a short span of time but the amounts were not repaid. In connection with Cri.Appln,.No.2947/2009, it is contended that in all 679 depositors came forward to reveal that total amount of Rs. 16,04,35,904/- was invested by them. According to the respondent, about 3000 to 4000 depositors had deposited the amount with the society or the Mahadeo Land 6 Developers, amounting to Rs.1200 crores. The Income Tax Department also seized 576 sale deeds in respect of the lands purchased in Nagpur District as well as in Vidarbha region. According to respondent, the applicants are Directors and, as such, the Investigating Agency must get information from them as to how much amount they had received as also purchases made of lands and gold jewellery etc.. and such investigation cannot be completed without their custodial interrogation. It is contended on behalf of the Respondent that the present applicants had signed various proceedings of the Societies concerned as Directors indicating their knowledge. My attention was also invited to provisions of the Maharashtra Co-operative societies Act, 1960 more particularly Section 73 (1) to submit that the Management of every society shall vest in a Committee, constituted in accordance with this Act, the rules and bye-laws, which shall exercise such powers and perform such duties as may be conferred or imposed respectively this Act, the rules and the by-laws and furthermore in view of Section 73 (1)(AB) the members of the Committee shall be jointly and severally responsible for all the decisions taken by the committee during its term relating to the business of the society. The members of the committee shall be jointly and severally responsible for all the acts and omissions detrimental to the interest of the society, further indicating that every such member shall execute a bond to that effect within 15 days of his assuming the office, further indicating that every Member of the Committee who do not agree with the resolution or decision of the Committee, is at liberty to express dissenting opinion which has to be recorded in the proceedings of the meeting in order to remain aloof from responsibility for the decision embodied in the resolution of the society, in view of second proviso to Section 73 of the MCS Act 1960. The learned APP made a reference to ruling in Abhay R Sinha vs. State of Maharashtra (1999 All. M.R.(Cri) 458 in order to submit that in the identical case here Directors of the Finance Company were alleged to have committed fraud 7 to over Rs. 20 crores received from Rs. 5 lakh depositors and the police were in the process of attaching various assets and properties belonging to Directors of the Company. This Court ( Bombay: principal seat) observed that the detailed investigation was required in respect of the number of sister companies required and it was held that custodial interrogation was necessary in order to establish various links. It does appear that reference was made by this Court to K K Jerath vs. Union Territory reported in 1998 Cri.L.J. 2556 and CBI vs. Anil Sharma 1997 (2) Supreme (CR) 236 regarding necessity of custodial interrogation to obtain useful and material information on the ground that if suspected person remain insulated by pre-arrest bail order, the interrogation would be reduced to a mere ritual because when investigation is still pending various threads will have to be formed, records have to be taken charge of from the Directors of the society concerned.. The contention of the learned Advocate that charge-sheet has already been filed and that applicants have not been made accused in the crime would only show that Investigating agency would not submit a charge-sheet without any basis or material. The provisions contained in Section 173 (8) of Cr.P.C. do enable the Investigating Officer concerned to seek formal permission from the trial Court to continue with further investigation and then to submit additional or supplementary charge-sheet based on the permitted further investigation. Section 173 (8) Cr.P.C. enables the Police or Investigating agency to obtain further oral or documentary evidence and to submit further report or reports regarding such evidence collectively. The provisions of Section 173 (8) has been enacted with a view to remove any hindrance in the way of the prosecution to get real culprits; while sec.319 of Cr.P.C. enables the trial Court to proceed against the real culprits, if in the course of the trial it appears that persons other than the accused before it are also prima facie required to be arrested or summoned. The object of both these provisions is to ensure that real culprits shall not escape the 8 clutches of law and punishment according to law. 8. In the facts and circumstances brought to my notice and considering that the learned Addl. Sessions Judge, Nagpur, pursuant to orders passed by this Court decided to reject anticipatory bail of both these applicants and further more open assurance from the learned APP that the requisite care would be taken even in respect of the applicant -Smt. Swati Ankit Garg who is nursing child since March 2009, I am not inclined to take a different view of the matter. The applicants will have to surrender themselves and cooperate with the investigation, of course, they are at liberty to apply for bail on merits from the regular Court. With these, both the applications for anticipatory bail are rejected., 9. Learned Advocate for the applicants prayed for time to approach the Hon’ble Apex Court and submitted that protection of interim anticipatory bail be granted for some more time as it was granted earlier by this Court as well as the Court below. Learned APPP vociferously objected this prayer for the simple reason that the applications are decided on merits. Considering that the applicants are at liberty to apply for bail on merits, I do not consider it appropriate to prevent the arrest of the applicants by the Investigating Officer concerned. Therefore, the prayer is rejected. JUDGE. sahare