1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI.APPLICATION NO.1117 OF 2008. State of Maharashtra through Superintendent of Police, CID, Amravati. .... APPLICANT. // versus // Fida Hussain Bohra, Aged about 40 years, Occu. : Business, R/o. Khamgaon, Tah. Khamgaon, District : Buldana. .... NON-APPLICANT. ______________________________________________________________________________________________ Shri Nitin Sambre, Public Prosecutor for Applicant Shri Anil S. Mardikar, Advocate for Respondent/ State. ______________________________________________________________________________________________ CORAM : R.C.CHAVAN, J. DATED : DECEMBER 03, 2008. ORAL ORDER : 1. By this application under Section 439(2) of the Code of Criminal Procedure, the State seeks to have anticipatory bail granted to the Non-applicant by the learned Additional Sessions Judge, Akola by order dated 19th December, 2007 cancelled. 2 2. The facts in the context of which this application has been made, would require a little elaboration. 3. Some government hospitals in Akola district used to place orders for supplies with the National Co-operative Consumers' Federation of India Ltd. (“NCCF” for short) in pursuance of Government Resolution dated 24th April, 2002. This NCCF had empaneled some suppliers. NCCF used to place orders with those suppliers and the suppliers used to supply goods to hospitals concerned. The hospitals concerned would pay for such supplies to the NCCF which, after deducting 2% commission, used to pay the suppliers for the goods supplied. The non-applicant Fida Hussain had been appointed as their authorised supplier by three suppliers empaneled by NCCF, viz. P.R. Corporation, Unique Traders and Sapna Enterprises. 4. The case of the State is that, without there being any need for supplies and without there being any grants sanctioned for such purchase, bogus orders used to be placed with NCCF which used to pass on those orders to the empaneled suppliers viz. P.R. Corporation, Unique Traders and Sapna Enterprises . The allegation is that, in fact these three suppliers procured bogus orders for being delivered to NCCF and got those orders issued to them by NCCF. Without supply of any goods, the authorities in the hospitals prepared bills, drew various amounts from Treasury, and sent drafts to NCCF, 3 which, after deducting commission, would make over payment to three suppliers i.e. P.R. Corporation, Unique Traders and Sapna Enterprises. It is the contention of the State that even these three suppliers are just paper entities of the Non- applicant, who in fact, eventually ensured that money would be laundered and paid to him in cash without his coming into picture anywhere. 5. Investigation into this crime commenced with report by Dr. Arun Ramchandra Thosar on 30th November, 2006. he had alleged that Dr. K.S. Sharma, Dr. D.B. Zambre, Dr. V.G. Jethwani and Dr. N.B. Mawale, at the relevant time, were Drawing and Disbursing Officers, who had drawn bills from Treasury for the material, which was neither required nor supplied. Dr. Sharma, Dr. Jethwani and Dr. Mawale have already been admitted to bail. Dr. Zambre, was admitted to bail but expired. Cashier M.A. Sheikh, Godown Keeper Avinash Deshmukh, who have handled the cash and goods at the relevant time, have also been bailed out. M.S. Ghate, Peon too has already been bailed out. 6. The Non-applicant filed an application on 15th November, 2007 before the learned Sessions Judge, Akola for grant of pre-arrest bail under Section 438 of the Code of Criminal Procedure. After considering the reply filed on behalf of the State the learned Additional Sessions Judge, by an 4 elaborate order, directed release of the Non-applicant on P.R. Bond in sum of Rs.Fifteen Thousand with surety, on the condition that he should attend the office of C.I.D., Akola thrice a week. It is not in dispute that this condition has since been relaxed on an application the Non-applicant, and he has been directed to attend only twice a month. This relaxation came in the wake of reply filed by the C.I.D. that he may be asked to attend only once a week or as and when required by the Investigating Officer. The condition was relaxed on 18th April, 2008. 7. By the present application, which was filed before the condition was relaxed, the State seeks cancellation of bail on the ground that, in fact, the Non-applicant is the person who had been principally involved in defrauding the Treasury to the tune of Rs.Twenty Six Crores. It was also stated that the Non-applicant was involved in similar Crime No.495/2006 at Amravati, Crime No.262/2006 at Amravati, Crime No.98/2004 at Naxik and Crime No.136/2004 at Chandrapur. It has been stated that custodial interrogation of the non-applicant is necessary in order to find out other persons involved in the crime, as also to probe further about the false and fabricated documents produced by the Non-applicant. 8. I have heard Shri Nitin Sambre, learned Public Prosecutor for the applicant/ State and Shri Anil Mardikar, learned counsel for the non-applicant. 5 9. The learned counsel for the Non-applicant submitted that since the Non-applicant had been bailed out by the Additional Sessions Judge, Akola an application for cancellation of bail under Section 439(2) of the Code would properly lie before the same Court and not before this Court. However, this contention cannot be accepted in view of the observations in a judgment of a learned Single Judge of this Court in Satish Dhond Vs. State of Goa, reported at 2006 ALL MR (Cri.) 1412, to which learned counsel for Non-applicant himself drew my attention. In that case, while considering the challenge to cancellation by the Sessions Judge of anticipatory bail granted to the accused, relying on the judgment of Supreme Court in Gurucharan Singh Vs. State (Delhi Admn.) (AIR 1978 SC 179), this Court observed, amongst other things, in paragraph 18 as under : “18. ... If a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those which already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows 6 from the subordinate position of the Court of Session vis-a-vis the High Court....” 10. In view of this, in this application the question is not of invocation of concurrent jurisdiction of this Court for cancellation of bail, but that of invoking jurisdiction of this Court cancelling bail that has been granted by a subordinate Court. Limitations while considering the application for cancellation of bail which have been referred to in several judgments to which my attention was drawn by both the learned counsel would not be attracted to this application, since the application is in the nature of challenge to order of granting bail passed by the learned Sessions Judge. In State of UP Vs. Amarmani Tripathi, reported at (2005) 8 SCC 21 in paragraph 17 the Apex Court had observed that in an application for cancellation of bail, 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, would continue to be relevant. The Court also held that while considering and deciding an appeal against grant of bail, where the accused 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. 7 11. In Dinesh M.N. (S.P.) Vs. State of Gujrat, reported at 2008 ALL MR (Cri) 1988 (S.C.) the Supreme Court had an occasion to consider whether an appeal is available against an order releasing a person on bail. In paragraph 8 and 9 of the judgment the Court has observed as under : “8. .... Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Sessions, or the High Court. 9. It has been fairly accepted by learned counsel for the parties that in some judgments the expression “appeal in respect of an order of bail” has been used in the sense that one can move the higher court.” 12. The learned counsel for the Non-applicant submitted that these observations cannot form the ratio of the judgment since they only reproduce concession made by the counsel. It may be seen that the Apex Court has merely clarified that the appeal, as is popularly understood, is in fact an application under Section 439(2) made to High Court, against an order of bail granted by a subordinate Court. In view of this, even if it be a concession made by the counsel, since the Court has 8 approved it and it pertains to question of law and not question of fact, it would have to be followed. In any case, label is irrelevant since while considering the application for cancellation of bail granted by the subordinate Court, the High Court could be entitled to look into all the aspects, which the subordinate Court could have gone into at the time of grant of bail. It is not necessary for the High Court to restrict itself to only the post-bail conduct or supervening circumstances. In view of this, it is not necessary to elaborately discuss the several other judgments which have been referred to by both the learned counsel, namely : (i) (2005) 8 SCC 38 (Jaswant Raj Soni Vs. Prakash Mal), (ii) 2000 ALL MR (Cri) 1102 (Say Gaud Kondagaud Bhurewar Vs. State of Maharashtra), (iii)(2004) 7 SCC 528 (Kalyan Chandra Sarkar Vs. Rajesh Ranjan), (iv) 1999 ALL MR (Cri) 1682 (Subhendu Mishra Vs. Subrat Kumar Mishra & Anr.) (v) 2007 ALL MR (Cri) 1764 (S.C.) (Rizwan Akbar Hussain Syyed Vs. Mehmood Hussain), (vi) 2007 ALL MR (Cri) 2600 (S.C.) State of Maharashtra & Ors. Vs. Vashishtha Rambhau Andhale), (vii) 2008 ALL MR (Cri) 2605 (S.C.) Manjit Prakash & Ors. Vs. Shobha Devi & Anr.), (viii) 2006 ALL MR (Cri.) 1315 (Mirza Ilyas Baig Mirza Sharif Vs. State of Maharashtra), (ix) 2008(1) Crimes 151 (Del) (Ashok Kumar Gupta Vs. State.), 9 13. According to the learned Public Prosecutor, the entire material, which has now been placed before me, was also made available to the learned Sessions Judge while considering the application for bail. The material was also made available for the perusal of the learned counsel for the Non-applicant as well. The only documents which the prosecution came to secure after the impugned order was passed, are, a letter dated 14th January, 2008, received by the Investigating Officer from Sanmitra Urban Co-operative Bank and accompanying stamped authorities executed in favour of the non-applicant by proprietors of Unique Traders and Sapna Enterprises. These documents would show that Hujefabhai as well as Hussainibhai had executed an agreement in favour of the non-applicant authorising him to do everything including financial transactions in respect of the supply to General Hospitals in Amravati, Akola, Buldana districts and other Government Hospitals. The learned Public Prosecutor pointed out that even the Non-applicant had categorically stated in his application in paragraph 2 of his application before the Sessions Judge that P.R. Corporation, Unique Traders and Sapna Enterprises had appointed non-applicant as their authorized supplier on their behalf to L.D.H. Hospital, Murtizapur. 14. Statements of Hujefabhai Khurshidbhai, Proprietor of Unique Traders and Hussainibhai Khurshidbhai, Proprietor of Sapna Enterprises, recorded on 20th and 23rd October, 2007 10 were already before the learned Additional Sessions Judge when she granted anticipatory bail to the applicant. Both these persons had categorically stated that they had merely signed all the documents and even blank cheques at the instance of the Non-applicant, who used to pay them about Rs.Two Thousand per month for signing blank cheques and all the documents, which Non-applicant used to place before these two persons. 15. In view of this, prima-facie the non-applicant appears to be the only person who can throw light about the various ramifications about these transactions which would need further probe. The magnitude of the fraud is stated to be to the tune of Rs.Twenty Six Crores. Several officers, including Medical Officers, according to the learned Public Prosecutor, have been arrested. Some have been released on bail and anticipatory bail as well. 16. The learned Public Prosecutor submitted that because some of the accused persons have been released on bail or anticipatory bail it does not follow that the applicant should automatically be admitted to anticipatory bail. He submitted that what seems to have weighed with the learned Additional Sessions Judge is that Medical Superintendent of the Hospital are already released on anticipatory bail and therefore, custodial interrogation of the applicant may not be necessary. The learned Additional Sessions Judge seems to have 11 overlooked the fact that the role attributed to the Medical Superintendent and that attributed to the applicant is different. They may all have participated in the conspiracy. All the same, the role of Medical Superintendent was to place bogus orders and to prepare bogus bills. But as can be seen from the stamped documents, which have been secured by letter dated 14.01.2008 from Sanmitra Urban Co-operative Bank it was Non-applicant who was dealing with the entire transaction on behalf of three firms i.e. P.R. Corporation, Unique Traders and Sapna Enterprises which fact was stated by non-applicant himself in his application before the Sessions Court. Since the Proprietors of the two firms have categorically stated to the police that they only were in receipt of the salary or payment of Rs. Two Thousand per month to sign the blank cheques at the instance of the Non-applicant, who was dealing with all the aspects of the transactions, including financial aspects, in terms of the agreements which the Non-applicant had obtained from those persons, it would be necessary for the Investigating Agency to probe further in order to find out as to where the huge amount, received from the Hospitals, has gone. 17. The learned counsel for the Non-applicant submitted that it would be wrong to presume that a huge amount has, in fact, been siphoned off when there is nothing to show that the supplies were not received by the hospitals concerned. He pointed out that he had sought information under the Right to 12 Information Act on 21st July, 2008 about the goods received in Laxmibai Deshmukh Hospital, Murtizapur and is yet to receive the said information. He submitted that while opposing his application for anticipatory bail, the Investigating Officer had stated before the Court of Session that the Store Keeper and Cashier, Avinash Deshmukh, had stated that the goods had been received from the suppliers, and after keeping it in the godown he had signed the receipts / invoices. It may be seen from the portion of the Investigating Officer's reply, extracted by the Non-applicant, in paragraph 30 of his reply to present application, that Deshmukh had stated that he had kept these goods without ascertaining the quantity. This may be a mere escape route for Deshmukh, and possibility that, nothing has been received, does not get ruled out by this stand. Merely because a co-accused states that he had omitted to check quantity it does not follow that his word that goods were received, may be accepted. 18. In view of this, the learned Additional Sessions Judge should have seen that there were at least statements of two persons before her who had stated that all the transactions was carried out by Non-applicant Fida Hussain, who used to obtain blank chques from proprietors of front concerns, and used to pay them only a sum of Rs.Two Thousand per month. The learned Public Prosecutor also rightly pointed out that the Non-applicant is involved not only in offence in relation to 13 Murtizapur Hospital, but similar offences in Amravati, Nasik and Chandrapur districts. Thus, it is not that the Non-applicant did not have criminal antecedents. The learned Additional Sessions Judge should not have been swayed by the fact that the Medical Superintendent or other accused were admitted to regular or anticipatory bail. She should have seen that the role attributed to the Non-applicant was that of a 'Kingpin' which needed to be checked out. 19. The learned Additional Sessions Judge should have seen that direction to the Non-applicant to attend office of C.I.D. Akola thrice a week between 11.00 a.m. to 3.00 p.m. was unlikely to enable the investigators to unravel the mystery of seamless operation which resulted in loss of crores to the exchequer. She should have seen that investigation may necessitate taking the accused to various places, to confront him with different persons. In Dukhishyam Benupani Vs. Arun Kumar, reported at (1998) 1 SCC 52 on which the learned Public Prosecutor placed reliance, while considering similar directions in the context of an economic offence, the Apex Court found that such directions of restricted time of interrogation are not useful. In paragraph 7 the Court observed as under : “7. .... It is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating 14 agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in such offences. A blanket order fully insulating a person from arrest would make his interrogation a mere ritual.” 20. In view of this, the application is allowed. The impugned order, passed by the learned Additional Sessions Judge on 19.10.2007, is set aside. The learned counsel for the Non-applicant seeks eight weeks time to surrender since his client would like to approach the Apex Court. The learned Public Prosecutor submitted that the Investigating Officer needs custody of the Non-applicant immediately and therefore, opposed the request. The Non-applicant has been on bail for almost an year now. Four weeks more may not make much difference. This however need not be construed as leave granted to approach the Apex Court. The Non-applicant, Fida Hussain Bohra, shall surrender within a period of four weeks from today. JUDGE RR.