1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 785 of 2010 State of Maharashtra, through Supdt. of Police, CID (Crimes), Amravati ..VERSUS.. Mutansir Hamazali Hussain Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.S.Parihar, A.P.P. for applicant/State. Mr. V.M.Deshpande, Advocate for the respondent/non-applicant. CORAM : Prasanna B. Varale, J. Order reserved on : 07th December, 2010 Order Pronounced on : 23rd December, 2010 By the present application under Section 439 (2) of the Code of Criminal Procedure, the applicant/Sate is seeking challenge to the order dated 02/3/2010 passed by the learned Sessions Court, Amravati in Criminal Application No.765/2009 filed by the non- applicant for grant of anticipatory bail in connection with Crime No. 278/2006, registered with Police Station, Gadge Nagar, Amravati for the offences punishable under Sections 166, 167, 420, 409, 467, 468, 471, 120-B R/w Sec. 34 of I.P.C., thereby granted bail to the present non-applicant. The non-applicant was working as in-charge Chief Accounts and Finance Officer (CAFO) for the period from 11/2/2002 to 10/03/2002 and from 18/3/2002 to 31/3/2002, when one Mr. Kothalkar was on leave. A report was lodged in respect of defalcation in the Zilla Parishad, Amravati. Initially the Revenue Commissioner directed to conduct an audit for the period from 1999 to 2000 and it was found 2 that there is defalcation of an amount of Rs.4,48,00,000/-. This fact was brought to the notice of State Government by the Revenue Commissioner. The State Government directed a special audit through a special auditor for the period from 1994-95 to 2001-02. The Special Auditor and his team conducted the audit in respect of the transactions in Minor Irrigation Division, Zilla Parishad, Amravati for the period from 994-95 to 2001-02 and in the preliminary audit for the year 1999 to 2000, a large sum defalcation was found. Accordingly, one Ramesh Nandanwar, the then Executive Engineer, Irrigation Department, Zilla Parishad, Amravati, lodged a report on 26/6/2006 with Gadge Nagar Police Station, Amravati. On the said report, Crime No. 278/2006 was registered for the offences under section 166, 167, 420, 409, 467, 468,471, 120-B r/w Section 34 of IPC and under Section 7, 13 (a) (d) (i) (ii) (iii) of Prevention of Corruption Act. Initially in the said First Information Report, four accused namely Jawahar Dube, Bhaurao Dudhe, Parshuram Nandeshwar and Devrao Kothalkar were involved. It was alleged in the FIR that these 4 accused, who were holding the responsible post in the Zilla Parishad misappropriated the government money to the tune of Rs.4,43,30,512/-. Initially the investigation was carried out by the local police and thereafter the same was transferred to the C.I.D. (Crimes), Amravati. In the subsequent investigation, the compass of enquiry was expanded and it was found by the investigating agency that there were as many as 62 accused involved including 29 government officials working in the various divisions like irrigation division and Accountant of accounts division of Zilla Parishad, Amravati, whereas other 33 accused persons are the proprietors of bogus companies. As per the investigating agency, one Jawahar Dubey is the mastermind of the whole scam and the main allegations are against him only. He floated various bogus companies and with 3 the help of these companies caused loss to the public exchequer. As per enquiry report, there is major withdrawal of money for water pumping, vehicle repairing and maintenance and for fuel and this amount comes to the tune of Rs.20,17,65,203/- . The non-applicant was posted as CAFO for the period from 11/2/2002 to 10/3/2002 and from 18/3/2002 to 31/3/2002 and during his tenure, the non-applicant with ulterior motive, without scrutinizing and complying with the formalities passed the bills for Rs. 98,00,000/-. It is the case of the prosecution agency that though the bills were prepared and passed towards supply of goods, but actually no goods were supplied to the Zilla Parishad. The non-applicant apprehending his arrest by the police, presented Criminal Application No. 765/2009 for pre-arrest bail. The learned Additional Sessions Judge, Amravati, by order dated 02/3/2010 allowed the application on certain conditions. The State Government being aggrieved by the said order has approached this Court by present application for cancellation of the bail. Learned APP Mr. Parihar, has vehemently argued that the impugned order dated 02/3/2010 is erroneous and requires to be quashed and set aside by this Court. Learned APP has raised the following grounds to challenge the impugned order. 1] The offence is serious as huge government money is defalcated. 2] The non-applicant was holding responsible post as CAFO and it was his duty to supervise and check the financial affairs of Zilla Parishad, but the non-applicant has utterly failed to discharge his duty and the act of the non-applicant is not mere an irregularity, but an illegality. 3] While allowing the application, the court below has not considered the record. 4 4] The non-applicant has sanctioned the bills without verifying whether there is actual supply of the material to the Zilla Parishad. Learned APP submitted that the non-applicant, who was holding the post of CAFO was duty bound to check and verify the financial matters. He further submitted that if the non-applicant would have objected for sanctioning the bills, there would not have been such defalcation. Learned APP submitted that the non-applicant is in possession of certain bills and in furtherance of the investigation the said bills are necessary for which the custodial interrogation of the non-applicant is must. Learned APP submitted that as per his instructions, the non-applicant is not cooperating with the investigating officer. To support his arguments, learned APP has placed reliance on the following judgments. 1] 2010 (1) SCC 679, (HDFC Bank Ltd..vs. J.J.Mannah alias J.M. John Paul and another.) 2] (1985) 2 SCC 597, (Pokar Ram .vs. State of Rajasthan and another.) 3] (2001) 4 SCC 638, (Murlidharn .vs. State of Kerala) 4] (2001) 6 SCC 338, (Puran .vs. Rambilas and another.) 5] (2008) 13 SCC 594, (State of Gujrat .vs. Narendra K. Amin.) 6] (1997) 7 SCC 187, (State rep. By C.B.I., .vs. Anil Sharma.) Per contra, Mr. V.M.Deshpande, learned Advocate for the non-applicant has submitted that the present application is not only a belated attempt, but an misconceived attempt of the fear psychosis of the investigating agency. Learned Advocate submitted that the investigating agency is trying to paint the non-applicant as the main accused in the offence. He submitted that the allegations of the investigating agency are about the defalcation for the period 1996-97 and 1997-1998, whereas the non-applicant was in-charge CAFO for certain intervening period in the year 2002. 5 Mr. Deshpande, learned Advocate submitted that perusal of the audit report, on which learned APP has placed heavy reliance would show that there is no mention of the non-applicant nor any allegations are levelled against the non-applicant. Learned Advocate has further referred to the portion of the report, which reads thus : “foRr foHkkx ft-i- o eq-ys- o fo-vf/kdkjh ;kauh [kjsnh izLrkokoj ?ksrysY;k xaHkhj vk{ksikdMs nqyZ{k d:u] [kjsnh ckcrpk izLrko eq-dk- vf/kdkjh ;kauh eatqj dj.ks o rn~uarj loZlk/kkj.k lHkk (ft-i-) fn-30@12@1997 ps Bjko dz- 29 izek.ks [kjsnhl vafre eatqjh iznku dj.ks ;k loZ ckch la’k;kLin vkgsr- egkjk”Vª ft-i ia-l- ys[klafgrk 1968 ps ifjf’k”V&1 M ps mYya?ku >kys vlqu eq[; ys[kk o foRr vf/kdkjh gs ftYgkifj”knsps foRrh; lYykxkj vlqu lq/nk R;kapk lYyk Mkoy.;kr vkyk- foRr foHkkxkP;k vk{ksikaps vuqikyu >kys vlrs rj izR;{kkr [kjsnh fdrh vko’;d vkgs ;kpk lqLi”V [kqyklk gkowu iq<hy vuko’;d [kjsnh VGyh vlrh o i;kZ;kus vigkjkl oko feGkyk ulrk ;kdfjrk rRdkyhu eq[; dk;Zikyu vf/kdjh] dk;Zdkjh vfHk;ark flapu foHkkx o lgk;~;d ys[kkf/kdkjh] flapu foHkkx o lgk;~;d vfHk;ark ;ka=hdh gs tckcnkj vkgsr-” (It is observed that by neglecting the serious objections raised by the CAFO, the final sanction was granted by the Chief Officer and for the said defalcation, the then Chief Executive Officer, Executive Engineer (Irrigation Deptt.), Assistant Accountant (Irrigation Deptt.), Assistant Engineer (Statistics) are responsible. ) Learned Advocate further submitted that it is the case of the investigating agency that one Jawahar Dubey is the main accused and 6 the master mind behind the financial scam. At the initial stage, there was no allegation against the applicant. Even in the audit report of the Special Auditor, no illegality is alleged against the non-applicant. It can be seen that the non-applicant was discharging his duty with due care and caution. The learned Advocate for the non-applicant has heavily attacked the approach of the investigating agency. He submitted that the other accused persons including the higher officials, except main accused Jawahar Dubey, are granted anticipatory bail by this Court by order dated 22/8/2006. The investigating agency till date has not moved any application for cancellation of bail granted to those accused persons, which shows the approach of pick and choose policy of the investigating agency. The reason given by the applicant for not moving such application is that an action is taken against the erring investigating officer, which is of no consequence and failure in duty by one officer of the investigating agency is no ground to cancel the bail granted to the non-applicant. The other ground raised by the applicant/State that custodial interrogation of the non-applicant is necessary, is also devoid of any merit. Learned Advocate submitted that all the documents are in the custody of the investigating agency. As per the instructions from the non-applicant, in view of the directions of the court below vide order dated 02/3/2010, the non- applicant is visiting the I.O. once in a week on the scheduled date and cooperating with him. The I.O. has not called upon him and as such there is no merit in the submissions that the non-applicant is not cooperating with the investigating agency. Learned Advocate for the non-applicant therefore, prayed for rejection of the application. I have heard learned APP for the applicant/State and learned Advocate for the non-applicant at length. I have gone through the audit report placed before me. Perusal of the audit report 7 shows that in the audit conducted by the Special Auditor and his team, several serous irregularities were found, which caused loss to the public exchequer. The said audit report was considered by the learned Sessions Judge, Amravati while dealing with the Criminal Application No. 765/2009. It is observed that the prime accused is one Jawarhar Dubey. It is further observed that the other accused persons were granted anticipatory bail under the orders of this Court. Insofar as the judgments referred by the learned APP to support his submissions, there cannot be any doubt in principle that if the material is not considered by the Court while granting bail or if the material is considered in casual manner, they are good grounds to cancel the bail granted in favour of the accused. In my opinion, this is not the case in the present application. The material on which learned APP has placed strong reliance, was the material placed before the trial Court. The material in the form of audit report, various resolutions, is also perused by me. Perusal of the material shows that the non-applicant was discharging his duty as in-charge CAFO for a very limited period. The conditions imposed on non- applicant while granting bail, are being followed by the non- applicant. It will be useful to refer the judgments of the Apex Court in various cases. In the case of Devender Kumar and another .v. State of Haryana and others, reported in (2010) 3 Supreme Court Cases (Cri.) 223 while considering the ground that the police wanted custody of the accused for recovery of certain articles, the Apex Court has observed that the reason given by the High Court for cancellation of the orders, granting bail and directing the arrest of the appellants on the ground that disclosures have been made by the appellants and that their police custody was necessary for recovery of the same, is in in our view, not sufficient for the purpose of cancellation of bail 8 granted earlier. In the case of Subodh Kumar Yadav .v. State of Bihar and another, reported in (2009) 14 Supreme Court Cases 638, the Apex Court has observed, particularly at para 16, that “infact it is now well settled that if a superior Court finds that the court granting bail had acted on irrelevant material, or if there was non-application of mine or failure to take note of any statutory bar to grant bail, or if there was manifest impropriety as for example failure to hear the Public Prosecutor/ complainant where required, an order for cancellation of bail can in fact be made. However, while cancelling bail, the superior court would be justified in considering the question whether irrelevant materials were taken into consideration by the court granting ”. It may be said that these are the broad factors to be considered while cancellation of bail is sought. In my opinion, in the present application, no such lapse or any ground as expressed by the Apex Court is coming forward. In the case of Savitri Agrawal and others .v. State of Maharashtra and another, reported in (2009) 8 Supreme Court Cases 325, the Apex Court has observed that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. But, no such cogent and overwhelming circumstances are brought by the investigating agency nor the record suggests that the apprehension of the authority that the non-applicant is not available for interrogation, is established, particularly in the backdrop of the condition imposed upon the accused by the learned Sessions Court to attend the investigating agency every week till filing of the charge sheet. Taking overall view of the matter and perusal of the record and considering the material, I am of the opinion that no case is made out by the applicant/State for cancellation of bail granted to the non- 9 applicant. In the result, the application is rejected. JUDGE Diwale