Bail can be rejected because prima facie case exists against accused ?

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.514 OF 2013
WITH
CRIMINAL APPLICATION NO.515 OF 2013

1) LALIT LAXMANDAS SONI
2) VINOD KISHANCHAND SONI …APPLICANTS

V/s.

THE STATE OF UNION TERRITORY & ANR. …RESPONDENTS

Mr.B.D.Chauhan Advocate for the Applicants.
Mr.D.A.Nalawade Advocate for Union Territory / Respondent No.1.
Mrs.G.P.Mulekar APP for the State / Respondent No.2.

CORAM: ABHAY M. THIPSAY, J.
DATE : 11th JULY, 2013.

ORAL ORDER :

1 These two applications can be conveniently disposed of by this common order as the applicants in both the applications are the same and the questions needing determination are also same.

2 The applicants are the accused in two cases registered by Nani Daman Police Station. The cases are in respect of the offences punishable under Sections 406 and 420 of the Indian Penal Code (IPC) read with Section 34 thereof. In one case, i.e. C.R.No.30 of 2013, the applicants were apprehended on 24.1.2013. While they were in custody in that case, they were apprehended in C.R.No.101 of 2012 on 12.2.2013. The police completed the investigation of both these cases and filed charge-sheets in both the matters. The learned Magistrate by two separate orders, one passed on 3.4.2013 and the other on 15.4.2013, directed the applicants to be released on bail in the sum of Rs.25,000/- each. Aggrieved by the orders releasing the applicants on bail, the Union Territory of Daman moved the Sessions court for cancellation of bail granted to the applicants. The Sessions Judge after hearing the parties, by two separate orders, passed on 9.5.2013, canceled the bail granted by the Magistrate to the applicants. The applicants, being aggrieved by this cancellation, have approached this court, by way of the present application.

3 I have heard B.D.Chauhan, the learned counsel for the Applicants, and Mr.D.A.Nalawade, the learned Public Prosecutor for Union Territory. With the assistance of the learned Public Prosecutor, I have ascertained the nature of allegations against the applicants. Undoubtedly, the applicants are alleged to have committed the offences of cheating and defrauding a number of persons. The amount allegedly earned by the applicants by committing the offences in question is estimated to be around Rs.40 Lac. It also appears that this amount could not be recovered from, or at the instance of the applicants, in the course of investigation.

4 I have carefully gone through the orders passed by the learned Magistrate, as also the orders passed by the learned Sessions Judge.

5 The Magistrate, in his orders, observed that charge-sheet had been filed and investigation was over. He also observed that the case would not be decided immediately, and that, it would take sometime for the disposal of the case. He also observed that the offences allegedly committed by the applicants were neither punishable with death nor imprisonment for life. Upon these considerations, he passed the bail orders.

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6 The learned Sessions Judge observed that the applicants were involved in a financial fraud of huge amounts, and that, one of the applicants was arrested earlier in a crime registered in the year 2007. The view of the learned Sessions Judge was that the Magistrate had not passed any reasoned order and that the order passed by the Magistrate was “cryptic and vague.” The Sessions Judge also observed that the order had been passed arbitrarily without considering the fact that right of public at large and society was involved in the matter, and that, the Magistrate had not considered the nature, seriousness of the offense, and the impact on the society. By terming the order of the Magistrate as perverse, he canceled the bail.

7 A substantial part of the order passed by the learned Sessions Judge consists of recording the contentions advanced by the learned Public Prosecutor and the learned counsel for the accused persons. He has also referred to, and re-produced, the observations made by the Supreme Court of India and various High courts in several reported cases on which reliance was placed by the Public Prosecutor. His reasoning, however, is found only in paragraph 12 of the impugned order, in which the learned Sessions Judge discussed the nature of allegations against the applicants, that there were two previous cases registered against the accused no.1, and that, the present offences were committed when the accused no.1 was on bail in a previous case. The learned Sessions Judge observed –

“…….the JMFC has not passed reasoned order. His order is cryptic and vague. He has released the respondents-accused on bail only on the ground that charge-sheet has been filed against them. He has not taken into consideration the material in the form of documents and the evidence of the witnesses brought on record before him. Therefore, the order passed by JMFC, Daman is not justifiable. JMFC, Daman has passed order arbitrarily without considering the fact that right of the public at large and society is involved in the matter. He has not considered the nature, seriousness of the offence and the impact on the society while deciding the application for bail. Therefore, in my opinion, the order under revision is perverse and cannot be sustained in law.”

8 It is not possible to accept the reasoning of the learned Sessions Judge. In the first place, it is difficult to hold that the learned Magistrate had not given any reasons for granting bail to the applicants. All the factors mentioned by the learned Magistrate, namely, that the completion of investigation, the inability to proceed with the trial forthwith, and the fact that the offences were not punishable with death or imprisonment for life, were relevant considerations, while deciding whether or not, to grant bail to the applicants.

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9 The principles governing grant of bail are well settled.

Grant of bail is discretionary. The law does not favour pre-trial detention for an unduly long period. It is also well settled that the power to refuse bail is not to be exercised, as if punishment before the trial, is being imposed. It is only in cases of offences which are punishable with death or imprisonment for life, that the courts are ordinarily reluctant to release an accused on bail, but even that is not because the desire to inflict punishment upon the supposed offender before trial; but only because of the inherent possibility of the accused persons absconding in view of the severity of the punishment, that would be imposed upon an accused on conviction.

10 Moreover, it is also well settled that considerations for grant of bail and considerations for cancellation of bail are quite distinct and different. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. [See Dolatram v. State of Haryana, (1995) 1 SCC 349].

11 Though it cannot be said that bail once granted can be cancelled only on account of some supervening circumstances, for cancelling the bail once granted on other grounds, the order granting bail must appear to have been passed on totally irrelevant considerations or exhibit non-application of mind, or would be categorized as ‘perverse.’ The criticism of the order passed by the Magistrate as ‘perverse’, as done by the Sessions Judge, does not seem to be justified, as the grounds on which the Magistrate granted bail cannot be termed as irrelevant.

12 In Bhagirath Singh Judeja vs. State of Gujarat, AIR 1984 Supreme Court of India 372, Their Lordships of the Supreme Court have held that the only two material considerations for cancellation of bail are – Apprehension of the accused absconding, of his and tampering with prosecution witnesses.

13 The learned Sessions Judge did not discuss, in his order, as to whether there was any likelihood of the applicants absconding or not facing the trial, or tampering with the witnesses. Thus, he cancelled the bail without being satisfied on these aspects.

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It does not appear that the applicants would not be available to face the trial.

14 All said and done, the elementary principle that ‘pre-trial detention can never be punitive in nature’, has not undergone any change over the years. Bail is not to be refused merely because a prima facie case exists (except in cases of statutory prohibition, as imposed by some special statutes). The learned Sessions Judge overlooked the basic concept of bail and rather unnecessarily criticized the order passed by the learned Magistrate. The orders passed by him give an impression that he refused bail because he was of the view that the accused appeared to have committed the alleged offences.

15 In my opinion, the cancellation of bail granted to the applicants, as done by the learned Sessions Judge, was not justified. The orders passed by the Sessions Judge, therefore, need to be interfered with, and the liberty of the applicants needs to be restored to them.

It, however, appears that the amount of bail fixed by the Magistrate is on a little lower side. It is customary, in case of an offense involving financial frauds, to fix the amount of bail somewhat higher. It would also be necessary to impose appropriate conditions upon the applicants, to reduce the possibility, if any, of their absconding, or not being available for trial.

17 The orders dated 9.5.2013, passed by the learned Sessions Judge, canceling the bail granted to the applicants, are set aside. The applicants shall remain on bail.

However, the bail amount is enhanced to Rs.50,000/- each, in each of the cases.

18 The learned counsel for the applicants submits that the applicants have already furnished a surety in the sum of Rs.25,000/- each, in both the cases. In that case, they would be required only to furnish an additional security in the sum of Rs.25,000/- each, in each of the cases. This security may be offered by them by depositing cash of Rs.25,000/- each, in each case, within a period of ten (10) days from today.

19 The applicants shall report to the learned Magistrate on the First and Third Monday of every calendar month, till the disposal of the case against them.

Should the court remain closed on any given Monday on account of a holiday, the applicants shall report to the learned Magistrate on the next working day.

21 The applications are allowed in the aforesaid terms and stand disposed of accordingly.

(ABHAY M. THIPSAY, J.)

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