CR.MA/9374/2005 1/82 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 9374 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================== BHOLABHAI CHATURBHAI PATEL - Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ============================================================== Appearance : MR SAURIN A SHAH for Applicant(s) : 1, MR AD OZA, LD.PUBLIC PROSECUTOR for Respondent(s) : 1, MR RAJESHWAR J DAVE for Respondent(s) : 2, ================================================================== CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 26/09/2005 CAV JUDGMENT 1. The petitioner is the original accused, who came to be arrested on 22nd October, 2002, in connection with C.R. No.I-452 of 2002 registered with Naranpura Police Station for the offences punishable under CR.MA/9374/2005 2/82 JUDGMENT Sections 167, 406, 409, 467, 468, 471, 477 r/w. Section 120-B of the Indian Penal Code and also under Section 46 of the Banking Regulation Act. The petitioner has introduced himself in paragraph:2 of the memo of the petition as a law abiding citizen of the country, having graduated in Science and Law. It is contended that he had started legal practice in the year 1953 and joined public life in the year 1960 as a Social Worker at Visnagar. It is not necessary to mention various activities mentioned in paragraph:2 of the memo of the petition because these aspects were brought to the notice of the Court initially when the petitioner had approached this Court for bail after his arrest and when he had attempted to get regular bail even pending investigation of the crime. But in short, the say of the petitioner is that he is a man of very high reputation in the society as well as in the co- operative movement in the State of Gujarat. He has served as a Member of Legislative Assembly (MLA) of State of Gujarat for 10 years i.e. between 1985 and 1995, as well as Member of Public Accounts committee, Gujarat Legislative Assembly from 1986 to 1987. The petitioner has moved this Court on more than one occasions for bail and this Court has not CR.MA/9374/2005 3/82 JUDGMENT accepted the bail plea on merit on any of the earlier occasion. One such application moved to get regular bail was Criminal Misc. Application No.9498 of 2004. During pendency of the hearing of the said regular bail application, the petitioner was extended relief of temporary bail on the ground of health and the nature of treatment he was taking in the Civil Hospital and thereafter, in the private hospital. This Court vide order dated 10th February, 2005, rejected the prayer of regular bail and the petitioner was granted four weeks time to surrender before the Jail Authorities, especially in order to enable the petitioner to approach the Apex Court in between, if he so desired. Being aggrieved by this order, the petitioner preferred one petition being Special Leave Petition (Cri) No.1169 of 2005 and vide interim order dated 07th March, 2005, the time to surrender to the Jail Authorities granted by this Court was extended till further orders by the Apex Court. The Apex Court after hearing both the sides dismissed the said Special Leave Petition vide order dated 01st August, 2005. On the strength of one observation made by the Apex Court in the order, the present application has been filed saying that the petitioner has been granted permission by the Apex CR.MA/9374/2005 4/82 JUDGMENT Court to approach this Court afresh for regular bail observing that this Court has not decided the bail plea on merit. For the sake of brevity and convenience, it would be appropriate to reproduce the order dated 01st August, 2005 passed by the Apex Court in the above mentioned Special Leave Petition, which is as under : “By the impugned order, the High Court declined o extend the bail granted to the petitioner on medical ground and granted four weeks' time to him to surrender before the jail authorities. A perusal of the impugned order does show that any submission was made before the High Court for grant of bail on the grounds other than the medical ground. Mr.Sushil Kumar, learned senior counsel for the petitioner on instructions from Mr.Saurin Shah, learned advocate, who is said to have argued the matter before the High Court, submits that the arguments before the High Court were also addressed for grant of bail on merits, i.e. on the grounds other than the health condition of the petitioner. As already stated, it does not so appear from the impugned order. Insofar as the refusal by the High Court to grant further extension on medical ground is concerned, we find no ground to interfere with the impugned CR.MA/9374/2005 5/82 JUDGMENT order in exercise of power under Article 136 of the Constitution of India. Therefore, while dismissing the special leave petition, we extend the time granted to the petitioner to surrender by another four weeks so that the petitioner, if so advised, may move appropriate application before the High Court for considering his prayer for grant of bail on merits. The said application, if filed, would be considered on its own merits. We, however, express no opinion on the merits of the case. With aforesaid observations, the special leave petition is dismissed.” (emphasis applied for present order) 2. The memo of present petition is a detailed petition running into about 50 pages and Mr.A.D. Shah, learned senior counsel, has taken me through the history of the earlier petitions filed by the present petitioner and the orders passed thereon. He has also taken me through certain observations made by this Court while dealing with the earlier applications and the orders extending the temporary bail granted or extended by this Court on the ground of health. He has also taken me through some of the orders passed in favour of co-accused persons of the CR.MA/9374/2005 6/82 JUDGMENT same crime granting them bail on merit; especially the orders granting bail to the son of the petitioner-Kaushikbhai and the order passed in favour of another co-accused-Babubhai Shivlal Shah. 3. To appreciate the say of Mr.A.D. Shah, learned senior counsel appearing for the petitioner, firstly I would like to reproduce the nature of main reliefs prayed for in the main petition in paragraph:17, which is as under : “17(ii) that during pendency and final disposal of the present petition the Hon'ble Court be pleased to extend the time to surrender granted to the petitioner upto 31.8.2005 by the Apex Court until further orders; 17(iii) that the Hon'ble Court may be pleased to pass an appropriate order granting bail to the petitioner in connection with C.R. No.I-452 /2002 registered at Naranpura Police Station in view of the peculiar facts and circumstances stated above;” 4. This Court has been extending the time to surrender of the petitioner before the Jail Authorities from time to time and lastly the same is extended till CR.MA/9374/2005 7/82 JUDGMENT the date of decision of this Court in the present application so that the petitioner may not feel that when the Apex Court had granted extension pending hearing of Special Leave Petition (Cri) preferred by him, this Court ought not have forced him to surrender before the Jail Authorities ignoring the detailed petition for regular bail filed by him on the strength of the observations made by the Apex Court in the aforesaid order. 5. Mr.A.D. Shah, learned senior counsel appearing for the petitioner, has concentrated his arguments on various points including the ground of health and old age of the present petitioner. But this ground of health or advanced age of the petitioner would not help the present petitioner because this Court has dealt with the submissions on merit on more than one occasion and the Apex Court has also refused to grant regular bail on the ground of health or advance age while dismissing the Special Leave Petition vide order dated 01st August, 2005. On the contrary, the impression created in the mind of the Court is that the petitioner has regained his health on account of the opportunity to get best treatment given by the Court by passing earlier orders of CR.MA/9374/2005 8/82 JUDGMENT extension of temporary bail and granting of bail for a fixed period and in the event of some exigency, the State is able to take care of the present petitioner by providing health assistance through Civil Hospital; especially U.N. Mehta Cardiology and Research Centre where the petitioner has taken treatment for a reasonable good period because of the interim orders passed by this Court. 6. Mr.A.D. Shah has submitted that the contentions of the present petitioner to grant regular bail should be dealt with on merit and all the grounds were agitated before the Court for filing a detailed regular bail application, if need is considered a fresh as if these grounds were never discussed or decided because of the orders passed by the Apex Court while dismissing th aforesaid Special Leave Petition. The first submission of Mr.Shah is that the petitioner was not at all responsible for any wrong which has been committed in the Bank or by the Bank because the functioning of the Bank was mainly on two committees constituted i.e. Advisory Committee for several branches of the Bank and Loan Sanctioning Committee which was common for all branches of the Bank and these committees were very CR.MA/9374/2005 9/82 JUDGMENT well functioning till the Administrator was appointed on the Bank on 13th August, 2002 and overall responsibility was on the shoulder of the Manager and other managerial staff of the Bank and he had only supervisory status in the Bank. The names of about 16 persons have been mentioned in paragraph:9 of the memo of the petition who have been granted regular bail and it is submitted that the present petitioner was also granted bail by High Court from 30th June, 2003 to 29th July, 2003 and 01th October, 2003 to 09th February, 2003 and thereafter, he was granted time to surrender before the Jail Authorities upto 09th March, 2005 and at present he is on temporary bail on account of extension of time to surrender granted by the Apex Court as well as this Court. It is necessary to mention that one of the accused Babubhai Shivlal Shah is enjoying temporary bail because the substantial amount borrowed by Kaushikbhai Bholabhai Patel (son of the present petitioner) and son of Babubhai Shah is now being paid gradually. So in the event of failure in making payment undertaken by Kaushikbhai Bholabhai Patel and/or son of Babubhai Shah, may bring the cancellation of temporary bail of Babubhai Shah and regular bail granted to Kaushikbhai Patel. According CR.MA/9374/2005 10/82 JUDGMENT to me, the bail granted to two borrowers who had taken loan of crores of rupees from the very bank would not be a matter of much relevance and some of them have started paying amount to the Bank. The status of the borrower of a bank who has obtained loan under a conspiracy to siphon off money of the Bank with the help of present petitioner an other senior managerial cadre personnel is materially different. Undisputedly, the present petitioner was and is the captain of a team which defrauded the Bank and its depositors. The element of manipulation of account is also emerging because in absence of substantive recovery of interest of loan amount or net profit large sum was advanced to some of the borrowers against the adjustment of loan and some institutions have been paid donations beyond actual capacity to pay and there is ample evidence on record to show that the petitioner was not only key person in arriving at a particular decision by the respective committee. It also emerges that some loans were disbursed against the resolution and Mr.A.D. Oza, ld.Public Prosecutor, has rightly placed reliance on certain aspects which makes the case of the prosecution against the present petitioner a strong prima facie case. CR.MA/9374/2005 11/82 JUDGMENT 7. Mr.A.D. Shah, learned counsel appearing for the petitioner, has submitted that the Reserve Bank of India (RBI) Audit Report justifies many actions including act of giving donations to charitable educational institutions. It is not the say that the said amounts were donated against the policy or guidelines issued by the RBI. This aspect is likely to to against the present petitioner because the Audit Committee of the RBI has to see the account adjusted at the end of financial year and when the loans are adjusted immediately prior to the end of a financial year or to a given date when the borrower is supposed to repay the interest and loan amount by doing fresh advances, are not supposed to be counted upon unless it is noticed by the Audit Committee. If this version of Mr.Shah is accepted then it would amount to accepting one of the defence plea as to disbursement of amount by way of donation to the institutions where the petitioner might be craving to have command or influence merely because other banks were also donor to the institutions where the Bank in question had donated, by itself would not make the action of the petitioner justifiable. Here the say of the prosecution is that though there was CR.MA/9374/2005 12/82 JUDGMENT no actual capacity or net financial gain and the things shown to the RBI were a paper flower bouquet. This submission of Mr.Shah is not found accepted. So the details mentioned in the petition are not found convincing in weighing the case in favour of the present petitioner. Here I would like to note that on earlier occasions when the Court was not inclined to grant regular bail to the petitioner on merit and has shown inclination to assign reasons by appreciating material documents collected by the Investigating Agency but the same was not done only with a view to prevent prejudice to the petitioner- accused and the Court was aware that it might be indirectly evaluating evidence collected by the prosecution, which is not the business of the bail Court. On some occasions, even this Court has observed that the petitioner has no case on merit so far as regular bail is concerned but I would like to refer to those observations later. 8. It is true that the petitioner has been granted bail for three different offences registered with Visnagar Police Station, practically in compliance of the order passed by the Apex Court for committing similar offences for which he is being prosecuted on CR.MA/9374/2005 13/82 JUDGMENT earlier complaint filed with Naranpura Police Station registered in the year 2002 i.e. C.R. No.I- 452 of 2002. So under a larger conspiracy when the accused was found guilty of more than one offence by the Investigating Agency, a formal separate complaint can be filed and for how many times a person accused can be arrested for defrauding the same Bank at different places and with the help of different set of accused. So one of the questions, I am told, posed before the Apex Court when the petitioner was directed to appear before the competent Court at Visnagar and pray for bail. Of course, a copy of the aforesaid Special Leave Petition (Cri), filed by the petitioner before the Apex Court on earlier occasion under which he was directed to approach the competent Court for appropriate favourable order of bail, is not a part of the present proceedings. But the prosecuting agency positively can point out once the copy of the said petition was tendered to the Court for perusal and contents thereof. In the same way, in the present crime the Police had continued investigation and many of the borrowers have been arrested at a later stage during the course of investigation and more than one supplementary chargesheet has been CR.MA/9374/2005 14/82 JUDGMENT filed. But so far as the present petitioner is concerned, the case placed by the prosecution was available to the Court for appreciation in deciding whether the petitioner deserves any discretionary relief of bail and after submission of chargesheet against the present petitioner, the Court decided not to exercise discretionary jurisdiction of granting bail pending trial and keeping mind the condition of health of the present petitioner, the Court decided to grant bail for a fixed period. On all earlier occasions when the temporary bail was granted and subsequently extended on occasions, was based on papers of treatment which was being given to the petitioner. When the Court found that this is not a fit case for regular bail so far as petitioner is concerned, the petitioner was granted bail for fixed period so that he may not have to approach or to get extension after intervals of some days. It is true that the observations made in Condition “O” of the order (paragraph :26) dated 22nd April, 2004, passed in Criminal Misc. Application No.2926 of 2003, provides that : “(O) shall be at liberty to apply afresh after a period of six months for extension of temporary bail and/or for CR.MA/9374/2005 15/82 JUDGMENT regular bail and if such application is made, the same shall be heard and decided on merits and in accordance with law.” 9. However, this Condition “O” should be read in reference to the earlier paragraphs of the decision and the situation under which the Court decided to grant bail for a fixed period and the earlier order of extension of temporary bail pending hearing of the said bail petition. When the Court has refused to consider the regular bail, the ground of health only was pressed into service and that point was hammered and, therefore, that point pressed into service by Mr.S.A.Shah, learned counsel appearing for the petitioner, in the said petition, the Court decided to grant temporary bail. While passing such orders, the Court cannot even indirectly think that the condition of health of the petitioner-accused may become delicate or more serious and if complaints made before the doctor are really genuine and if the petitioner becomes disabled within a period of six months, then in that situation, he can pray for extension of bail, which was granted for a fixed period and simultaneously at that time, the Court can also consider the regular bail plea and CR.MA/9374/2005 16/82 JUDGMENT the petitioner may not get the order of rejection on technical ground that his request for bail is nothing but a successive application. So this small window by putting Condition “O” was kept in the order solely on a humanitarian ground and the Court perceives that the same has been wrongly projected by the learned counsel appearing for the petitioner before the Apex Court and, therefore, it seems that the learned counsel representing the petitioner before the Apex Court was able to submit that rejection of earlier bail application is a rejection of bail plea on the ground of health and the same was not on merit. Each point that has been placed in the present petition was argued, pressed into service and at one point of time, Mr.S.A. Shah, learned counsel appearing for the petitioner, had decided to press into service only ground of health for regular bail and the Court found that this is not a fit case wherein the regular bail should be granted to the petitioner but in view of earlier order of extension of temporary bail and the nature of treatment that the petitioner had taken in earlier years, he should be granted bail for a fixed period so that he can complete the treatment and in that period of six months, if the situation CR.MA/9374/2005 17/82 JUDGMENT takes the worst turn then he can approach this Court for regular bail on the ground of health and such ground of health and such ground of health if pressed into service for regular bail then the petitioner may not receive an order of rejection saying that the bail plea on the ground of health has been decided on merit and, therefore, regular bail on the same grounds again cannot be prayed or at least can be granted. It is fortunate that the Apex Court as well as Full Bench of this Court has observed that successive application in respect of the same offence of one accused, whose bail plea has been entertained by a particular Bench, the subsequent such petition should be heard and decided by the same Judge/Bench. The Full Bench of this Court in the case of Babubhai Bachubhai Bhabhor v. State, reported in 2004(3) GLH 101 has held that : “8.2 It is clear from the decision in Shahzad Hasan case that the proposition that if the bail applications of an accused are rejected by a particular Judge, subsequent bail applications by that accused should be placed before the same Judge, was not based only on the practice that prevailed in the Allahabad High Court, but was found to be rooted in principle. The convention that subsequent CR.MA/9374/2005 18/82 JUDGMENT bail applications should be placed before the same Judge prevents abuse of process of the Court, avoids passing of conflicting orders and saves Court's time. The Supreme Court in terms held :”Judicial discipline requires that such matter must be placed before the same Judge, if he is available for orders”. Thus, th ratio of this case could not have been confined to its facts on th basis of existence of a practice in Allahabad High (C.K. Buch, J) ourt or absence of practice in this High Court, as done by the learned Single Judge, while releasing the present application. The ratio of the decision of the Supreme Court is loud and clear that judicial discipline demands that where bail application of an accused is rejected by a Judge, his subsequent bail applications should be placed for hearing before the same Judge, if he is available for orders. Such a course is appropriate and desirable and rooted in sound principle.” 10. Mr.A.D. Shah, learned senior counsel appearing for the petitioner, has pointed out some other aspects also which can be mentioned in brief, are as under : (i) The donation to the charitable institutions by the Bank cannot be considered as an act of taking indirect CR.MA/9374/2005 19/82 JUDGMENT advantage because the day on which the Bank was to put under the administration of the Administrator, this very charitable institutions itself had large sum of deposits. So these charitable institutions themselves could not realise the full amount of donation. So on the contrary, where the petitioner had built up his image by offering donations from the Bank under his management are the losers because their investment and deposits are at stake. I have considered the relevant page:66 of the order dated 22nd April, 2004 and the bunch of papers supplied to the Court and the averments made in the petition (Pages:38 to 40). (ii) Conversion of nominal members to regular members should not be considered as mala fide or with ulterior motive and it is submitted that this has been done on the recommendation made by the RBI to convert nominal members into regular members at the earliest. CR.MA/9374/2005 20/82 JUDGMENT However, it appears that the petitioner wants to convert this advice given by the RBI on account of earlier defaults committed by the petitioner as a plea of explanation. The evidence on merit would make this thing clear as to how many nominal members were granted huge amount of loan or cash credit facility or other financial favour and how many of them have successfully maintained their accounts with the Bank in a professional manner. Any further comment on this point, would be evaluation of documentary evidence collected by the prosecution in