((-1-)) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2901 OF 2006 Arvind Birendra Singh Applicant versus The State of Maharashtra & ors. Respondents Mr.A.P.Mundargi with O.A.siddiqui for applicant. Ms.M.M.Deshmukh, APP for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th August 2006 PC : 1. Heard Shri Mundargi appearing for the applicant and Ms.Deshmukh-APP for the respondent. The applicant is apprehending arrest in connection with CR No.300 of 2006 registered at Oshivara Police Station alleging offence punishable under sections 406,420 R/W 34 IPC.. 2. Shri Mundargi submits that the applicant was earlier implicated in CR No.778 of 2005 registered at the same Police Station. The applicant applied for anticipatory bail. He submits that identical offences were alleged to have been committed by the applicant in this CR.. ((-2-)) The learned Sessions Judge granted anticipatory bail to the applicant. While passing an order on 21st March 2006 the learned Sessions Judge has recorded a statement of the I.O. that he does not need further presence of the present applicant-accused for interrogation purposes. Therefore, anticipatory bail was granted to the applicant in that CR.. 3. Shri Mundargi submits that immediately another CR was registered being CR No.6 of 2006 wherein also the applicant was released on pre-arrest bail. 4. Thereafter, the applicant and other accused were implicated in a third CR and the applicant has been released on bail in the same as well. 5. In the mean while, the applicant had filed a writ petition in this Court. In the writ petition, the applicant had challenged the investigations commenced and action in pursuance thereto of freezing all assets of the applicant. A Division Bench of this Court directed that the assets be defreezed upon the applicant executing a bond in the sum of Rs.1.00 crore. He submits that the bond has duly been executed. ((-3-)) 6. Shri Mundargi’s submission is that there were contempt proceedings also filed because of the fact that the prosecution went on registering CRs intermittently and frequently alleging same offences. The applicant was enlarged on bail in each one of the same. In fact, in one of the anticipatory bail application, during the hearing, a statement was made before the learned Additional Sessions Judge that there is no CR registered and hence the application was not considered. The moment application was rejected on the basis of this statement, the subject CR has been registered on 25th May 2006. Shri Mundargi submits that the co-accused has been taken in custody. The applicant apprehended arrest and, therefore, moved the learned Additional Sessions Judge by filing Anticipatory Bail Application No.649 of 2006 wherein interim order was granted on 2nd June 2006. Finally, on 1st August 2006, the bail application has been rejected and that is how the instant application for pre-arrest bail has been filed. 7. Shri Mundargi’s submission is that this Court cannot over look the modus operandi adopted by the prosecution. He submits that the offences ((-4-)) alleged in all these CRs are identical. It is alleged that the applicant and the co-accused floated one company/outfit without obtaining permissions and licences and assured students/several persons of employment abroad. In lieu thereof, huge amounts are collected and now the assurances having not been fulfilled, such persons have been demanding repayment. It is the case of the prosecution itself that the applicant had indeed repaid some amounts. The co-accused has also confirmed this aspect. In such circumstances and when custodial interrogation is not required in the light of the statement that the charge sheet is to be filed, this is a fit case for enlarging the applicant on anticipatory bail. 8. On the other hand, Ms.Deshmukh-APP submits that the offences alleged are serious. She submits that now there is a statement made by Mrs.Poonam Yadav who is also an co-accused and she has pointed out the manner in which the applicant collected the monies. When he later on found that the amounts will have to be repaid because job recruitment is not possible, the company was purported to be transferred to the co-accused. However, such transfer would have no ((-5-)) bearing insofar as commission of the alleged offence, because these agreements are entered into in November 2005, whereas, the amounts in lakhs of rupees have been collected prior thereto. She submits that the extent of the transaction is such that every time fresh recruits and students are complaining about the fact that amounts are lying with the accused and there is no assurance of employment. Now, that the applicant and others have closed down the operations but the investigations are incomplete, this is not a fit case for enlarging the applicant on bail. More so, even in earlier orders, there is no discussion or reasoning at all about the prima facie case. She relies upon a judgement of the Hon’ble Supreme Court in the case of Jayendra Saraswathi Swamigal Vs. State of T.N. reported in (2005)2-SCC-13 and emphasises the fact that when larger interest of the public or the State is at stake, that is a relevant factor for consideration whether the applicant deserves to be enlarged on bail or not. In such circumstances, the application be rejected. 9. She submits that the applicant has been consistently recoveries monies partly in cash and ((-6-)) partly by cheque. An amount of Rs.5,000/- was collected in cash and the balance in cheques. The investigations are in progress and the details of such payments need to be probed further. 10. With the assistance of learned counsel appearing for both sides I have perused the application and the annexures thereto. The averments in the application are not denied. In other words, pendency of the earlier CRs, grant of anticipatory bail therein and finality attained by those orders, is an undisputed fact. It is not disputed that the applicant is abiding by the conditions imposed on him in the earlier anticipatory bail orders and has been attending the concerned Police Station; but at the same time the submission is that insofar as subject CR is concerned, the applicant does not deserve to be enlarged on pre-arrest bail and custodial interrogation is necessary. Reliance is placed upon the statement of co-accused Ms.Poonam Yadav in that behalf. 11. In my view, in the light of the fact that the applicant has been enlarged by a pre-arrest bail in the earlier CRs so also because the ((-7-)) applicant having come to this Court invoking its jurisdiction under Article 226 of the Constitution of India and there is an order passed allowing him to utilise all his assets upon execution of bond which order also remains unchallenged, it is not possible to accede to the learned APP’s contentions that in this case the applicant does not deserve to be enlarged on bail. 12. Merely because the prosecution is entitled to probe and investigate further and on that basis register fresh FIRs/Complaints, that does not mean that the applicant cannot contend that the offences alleged being identical and further he having not abused the liberty, his application in the latest CR/FIR deserves sympathetic consideration. When prima facie allegations are made of harassment by registration of successive CRs, immediately upon the anticipatory bail being granted in the earlier CR which having not been denied, this is not a case where any departure can be made from the earlier course adopted by the Courts below. I have perused with the assistance of both sides the order passed by the learned Principal Judge of Sessions Court for Greater Bombay. ((-8-)) 13. After relying upon the statements recorded the learned Judge observes thus :- "15. As far as Poonam Yadav is concerned, the applicant has relied upon order dated 27.3.2006 passed in B.A. No.369 of 2006. The applicant has also relied upon A.B.A.No.540 of 2006 wherein order has been passed by H.H.J. Shri W.K.Kanbarkar and ultimately order passed in A.B.A.No.610 of 2006 by H.H.J. Shri A.T.Vaidya on 24.5.2006. 16. Today, as can be seen, from the said report that substantial amounts are due and payable and the said amounts are yet to be recovered, The Learned APP for the State has stated that the custodial interrogation of the applicant is necessary since he is one in a chain along with others. Interrogation is in progress today. hence, in view of what has been stated above the following order is passed :-" 14. In my view, the applicant was co-operating in the investigation and there is no allegation that he has not attended the Police Station pursuant to the earlier conditions imposed on him. Once he is abiding by the conditions and has been reporting even during the pendency of the last anticipatory bail application, so also till date, the application in the subject CR deserves to be considered and granted. ((-9-)) 15. I am aware of the principles laid down in the aforesaid decision of Hon’ble Supreme Court. However, their applicability depends upon facts and circumstances of each case. Ultimately, bail orders are granted considering the facts and offences alleged in each individual cases. The principles to be applied may be of universal application, but their applicability is dependent upon facts and circumstances of each case. In the instant case, when all CRs are alleging commission of identical offence and merely because now the statement of co-accused is recovered, a different view cannot be taken. More so, when all assets were also frozen and now a bond is executed pursuant to the directions of this Court so also the case based upon documents which are also substantially in the custody of prosecuting agency. Hence, by imposing more stringent conditions and ensuring that the applicant remains present at the trial of the offence, the instant application is granted. One more reason is that the prosecution is now going to file a charge sheet, as stated, within a period of four weeks from today. 16. Hence, following order :- ((-10-)) (i) In the event of the arrest of the applicant in connection with C.R.No.300 of 2006 of Oshiwara Police Station, Mumbai, the applicant shall be enlarged on bail subject to furnishing P.R.Bond in the sum of Rs.50,000/- (Rs.Fifty thousand only) with one or two local sureties in the like sum; (ii) The applicant shall submit forthwith his Passport to the I.O.. Submission of Passport is condition precedent for release of the applicant; (iii) The bail is granted subject to condition that the applicant will attend the concerned Police Station as and when summoned. (iv) The bail is granted subject to condition that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of accusation against him so as to dissuade him from disclosing such facts to the Court or to the Police Officer/Investigating Agency. The applicant shall not tamper with the prosecution evidence. (v) Any observation made in this order shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial. (vi) This order will enure to the benefit of the applicant only till charge sheet is filed. Thereafter, he will be free to apply to the appropriate Court for appropriate relief. (vii) Application is disposed of in the above terms. (S.C.DHARMADHIKARI, J.)