Case: Gulabrao Baburao Deokar Vs. State of Maharashtra &amp; Others

2. This appeal seeks to challenge the judgment and order dated 6.8.2012 rendered by a Judge of the Bombay High Court at Aurangabad allowing the Criminal Application No. 2522/2012 filed by the respondent Nos.2 to 4 herein under Section 439 (2) and 482 of Code of Criminal Procedure, 1973 (Cr.P.C. for short). The High Court order cancelled the bail granted to the appellant herein in Crime No.13/2006 registered at the City Police Station, Jalgaon. The appellant (alongwith 56 others) has been charged for offences under Sections406, 409, 411, 420, 465, 466, 468, 471, 109 read with Section 34 of Indian Penal Code (I.P.C for short), and under Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of Corruption Act, 1988. The appellant is accused no.34 in that case. The appellant was granted bail on 21.5.2012 by a common order below the applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C. by the Incharge Additional Adhoc District Judge No.1 and Additional Sessions Judge, Jalgaon. It is this order which has beenby the High Court. The operation of the High Court has been stayed by this Court on 7.8.2012.This appeal seeks to challenge the judgment and order dated 6.8.2012 rendered by a Judge of the Bombay High Court at Aurangabad allowing the Criminal Application No. 2522/2012 filed by the respondent Nos.2 to 4 herein under Section 439 (2) and 482 of Code of Criminal Procedure, 1973 (Cr.P.C. for short). The High Court order cancelled the bail granted to the appellant herein in Crime No.13/2006 registered at the City Police Station, Jalgaon. The appellant (alongwith 56 others) has been charged for offences under Sections, 409, 411, 420, 465, 466, 468, 471, 109 read with Section 34 of Indian Penal Code (I.P.C for short), and under Sections 13(2) read with 13(1) (c) and 13(1) (d) of the Prevention of Corruption Act, 1988. The appellant is accused no.34 in that case. The appellant was granted bail on 21.5.2012 by a common order below the applications filed by accused nos. 31 to 50 under Section 439(1) of Cr.P.C. by the Incharge Additional Adhoc District Judge No.1 and Additional Sessions Judge, Jalgaon. It is this order which has beenby the High Court. The operation of the High Court has been stayed by this Court on 7.8.2012.Mr. A.V. Savant, learned senior counsel and Mr. Sudhanshu Chaudhary have appeared for the appellant. Mr. Sanjay Kharde, learned counsel has appeared for the firstof Maharashtra. Mr. B.H. Marlapalle, learned senior counsel and Ms. Kamini Jaiswal, learned counsel have appeared for the respondent Nos.2 to 4.4. The above referred Crime/FIR No.13/2006 was registered at the City Police Station, Jalgaon on 3.2.2006. Thetherein came to be filed after completion of the investigation much later on 25.4.2012. It is essentially about the defalcation of public money resulting into a huge loss of over Rs.169.60 crores to the Jalgaon Municipal Corporation in Maharashtra. This Corporation was a Municipal Council until about January 2004. It had framed a housing scheme in the year 1997 named as(i.e. Small house) to construct 11,424 houses on the Municipal land for the benefit of slum dwellers. As stated above, although there are 57 accused, the main persons involved in this defalcation are stated to be two former Presidents of the erstwhile Municipal Council, namely, one Shri Sureshdada Jain and one Pradeep Raysoni, and two partners of a construction company known as Khandesh Builders viz. Rajendra Mayur and Jagannath Vani. Shri Sureshdada Jain is said to be the mainof this company.5. Shri Sureshdada Jain is stated to have been the President of Jalgaon Municipal Council from May 1985 to July 1994. Thereafter he was the Minister of Housing in the Shivsena–Bharatiya Janata Party (BJP) Government, in the State, duringHe is presently an MLA of Nationalist Congress Party (NCP) from Jalgaon city. He was a minister in the presentGovernment until recently. The appellant is also an MLA of NCP from Jalgaon (Rural) Constituency, and on the date of the impugned order he was a Minister of State in the State Government. Subsequently he has resigned as a Minister. Out of the 57 accused persons 4 have died. Out of the remaining, 2 accused are absconding, and the above referred 2 former Presidents and 2 contractors are in custody. Remaining 47 accused including the appellant have been granted bail.6. In 1997 when he was a Minister of Housing, Shri Sureshdada Jain persuaded HUDCO to give loan of about 66 crores to the Jalgaon Municipal Council for the above Housing Scheme. He is said to have been instrumental in constituting a ‘High Poweredin the Municipal Council which was to supervise this work. The appellant was one of its members. The scheme was to be completed in 9 months but has not been completed so far. Pradeep Raysoni was the President of the Municipal Council during May 1996 to May 1997. As per thethe execution of the scheme was entrusted to Khandesh builders, violating all norms, and statutory and other legal requirements. They have been given hugemobilization advances which amongst other reasons have led to this huge liability. The work not having been completed, and the loan not having been repaid, the liabilities for the Municipal Corporation towards the interest amount have increased, and it will take quite a few years for the Corporation to repay the loan.7. The above referred Shri Sureshdada Jain was arrested sometimes in March, 2012, and thehas been filed on 25.4.2012. The appellant was issued a notice dated 16.5.2012 under Section 160 of Cr.P.C. to attend at the Jalgaon Police Station on 19.5.2012. Accused nos. 31 to 50 including the appellant applied for bail under Section 439(1), and they were so released by the above referred order passed on 21.5.2012. This order has been set aside by the impugned order of the High Court. We are informed that the charges have been framed by the trial court, and the recording of the evidence is yet to start. Out of various charges, the charge under Section 409 has not been framed, but Mr. Sanjay Kharde, learned counsel for the State, has informed us that the State is going to apply for framing of the charge under this section also. A supplementary charge sheet has also been filed on 2.6.2012.8. The initialleading to the prosecution has been placed on record. It runs into more than 268 pages and contains various details. Shri Sureshdada Jain is said to have led the majority in the Jalgaon Municipal Council at the relevant time under a group known as the ‘Shahar Vikas(i.e. City Development Front). It is alleged that Shri Sureshdada Jain in his capacity as the Minister decided to use the lower income group scheme for wrongful gain, which has resulted into huge liability to the Municipal Corporation, and wrongful gain for himself and other conspirators. It is alleged that he arranged the funds from HUDCO for this particular project, and saw to it that the contract is given to Khandesh builders at exorbitant rates, ignoring the lower bid given by another contractor. The councilors were made to approve all the decisions of the above referred committee which was controlled by earlier referred Pradeep Raysoni. The investigation revealed that the committee was only for the namesake, and it was Raysoni who was taking all the decisions. No written orders were passed. Large advances were released to the builders under what was called as ‘Ummeed(i.e. approval in anticipation), and all the Municipal Councilors were made to sign those decisions.9. When the accused no. 31 to 50 including the appellant moved for bail under Section 439, the respondent No.2 herein appeared in the proceeding and sought permission to assist the Special Public Prosecutor. This is recorded in the order of the Sessions Judge. The order records the objection that it was a serious economic offence involving public money, and that the appellant was a powerful and influential person in Jalgaon, and there was a possibility that he may misuse his liberty and tamper with the prosecution. The learned Sessions Judge has however observed that beyond the aforesaid apprehension nothing has been pointed out that the appellant had misused his status. The learned Judge has then observed that considering the nature of the offence, it may be said that the evidence to be collected and available with the prosecution must be in the form of documents, and the apprehension by pressurizing the prosecution witnesses can be checked by imposing reasonable conditions. The learned Judge therefore observed that there was no point in detaining the accused in jail particularly in the circumstances when the investigation of the crime was on the verge of completion. The Judge, therefore, released all those accused nos. 31 to 50 on personal bonds in the sum of Rs.50, 000/with one solvent surety in the like amount.10. The respondent Nos. 2 to 4 sought tothis order by filing Criminal Application No. 2522 of 2012 dated 11.6.2012, and the High Court has allowed it, by passing the impugned order. The High Court has noted in its order(i.e. investigation officer) toThe matter was heard immediately there and then.(iii) Even so, the special prosecutor had requested for police custody at least for 2 days. The same was, however, refused. He then filed a reply running into 8 pages to oppose the application, but the order passed by the learned Session Judge did not refer to this reply or the contents thereof. (iv) Paragraph 15 of the impugned order notes that the appellant was not detained nor kept behind the bars even for a single day. This was in spite of the fact that there was a record like giving 5 work orders to the brother of the appellant, and during custodial investigation more material could have been collected.The learned Judge has noted in paragraph 16 of his order that cogent and overwhelming circumstances are necessary for an order of cancellation of bail already granted, as laid down by this Court from time to time. He has referred to the judgment in Dolat Ram Vs. State of Haryana reported in 1995 (1) SCC 349  in this behalf. He has, however, also observed in paragraph 17 that if the order is by a wrong and arbitrary exercise of discretion, it deserves to be cancelled. He has further observed that nature and seriousness of the offence and impact on the society particularly in economic offences are always important considerations in such a case.

Reasoning:
30. In our view the objection raised by the appellant cannot be sustained in view of what is observed by this Court in paragraph 17 in Puran Vs. Rambilas (supra) which reads asFurther, even if it is an interlocutory order, the Highinherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis ofrestriction is a different aspect. It cannot be denied that for securing the ends of justice, the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified (Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551  and Krishnan v. Krishnaveni (1997) 4 SCCr all these reasons, we do not find any merit in this appeal and the same does not deserve to be entertained.31. Although this appeal is not being entertained, what we find is that the appellant along with 4 other accused who have been denied bail, had made numerous attempts to intimidate the witnesses, and even threatened the investigating officer. Some of the witnesses are the employees of the Jalgaon Municipal Corporation, and obviously the appellant and the 4 accused, though in jail, may still make every effort to influence them hereafter, and vitiate the trial if it is conducted in Jalgaon. Mr. Kharde, learned counsel appearing for the State has submitted that it will be in the fitness of things that the trial be transferred outside the district. Mr. Savant, learned senior counsel appearing for the appellant has no objection for the same. Mr. Marlapalle and Ms. Kamini Jaiswal appearing for the respondents No.2 to 4 have also supported this submission. We quite see the merit of this submission. A trial of this nature, for that matter every trial, ought to be conducted in a free and fearless atmosphere. Hence, in the facts and circumstances of the present case we are of the view that the trial of this Sessions case ought to be transferred outside that district. The transfer to the district Dhule, would be appropriate since that district is adjoining to the Jalgaon district, and it also falls within the jurisdiction of the Aurangabad Bench of the Bombay High Court.In the instant case, the attempts made by the appellant to pressurize the witnesses and even the investigating officer are clearly placed on record through the affidavit of the Deputy S.P. Mr. Pawar. On that ground also it could be said that the appellant will be pressurizing the witnesses if he is not restrained. This being the position, we cannot find any fault with the order of the High Court cancelling the bail on that ground also. The order does record the cogent and overwhelming circumstances justifying cancellation of bail. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case, and they must squarely be dealt with by the Court while passing an order on bail applications.