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દાહોદ માં નકલી સરકારી ઓફિસ ખોલી ને કરોડો નું કૌમ્ભાન્ડ ના ગુના માં આરોપી ની આગોતરા જામીન અરજી રદ કરી.
Gujarat High Court
Vishvadeepsinh Mahipatsinh Gohil vs State Of Gujarat on 20 February, 2024
NEUTRAL CITATION
R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION (FOR ANTICIPATORY BAIL) NO. 2349
of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI Sd./-
1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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VISHVADEEPSINH MAHIPATSINH GOHIL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR BHARGAV BHATT, MS POONAM M MAHETA(11265) for the
Applicant(s) No. 1
MS AV PATEL, PUBLIC PROSECUTOR for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 20/02/2024
CAV JUDGMENT
1. This is an application by the petitioner, filed under NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined Section 438 of the Code of Criminal Procedure, 1973 (‘the Code’, in brief), seeking anticipatory bail in connection with the offence registered as C.R. No.11821011230942 of 2023, registered with ‘A’ Division Police Station, Dahod, under Sections 170, 419, 465, 467, 468, 471, 472, 474, 120B of the Indian Penal Code, 1860 (in short, ‘IPC‘).
2. The brief facts of the case of the prosecution are that one Mr. Bhaveshbhai Rajeshbhai Bamaniya, who is discharging duties as Sr. Clerk in the office of Project Administrator, Dahod, lodged the FIR in question, wherein, he stated that it is his duty to prepare the orders of allotment of grant, salary bills, contingency bills etc. Online, on I.F.M.S. Software and put-up the same before Accounts Officer for sanction. It is stated in the FIR that pursuant to the registration of FIR, with regard to floating of a fake and bogus government office in the name of Project Administrator at Chhotaudepur, with Chhotaudepur Police Station on 26.10.2023, the Project Administrator, namely Smit Lodha, of the office of the complainant issued instructions to inquire, as to whether, any such incident of floating a fake Project Administrator office and misappropriation of government funds has taken place at Dahod or not.
2.1 It is, further, stated in the FIR that pursuant to issuance of the aforesaid instructions, one Mr. Pranav R. Vaghela, Accounts Officer, Office of Project Administrator, Dahod, Dated:
09.11.2023, which revealed that there were as many as six fake government offices were functioning within the district.
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined The FIR reveals that by floating such fake government offices a misappropriation of the government funds to the tune of Rs.18,59,96,774/- is alleged to have been done by all the accused persons, including the present petitioner, in connivance with each other. Hence, the FIR in question is lodged. Since, the petitioner apprehends that he may be arrested in connection with the aforesaid FIR, he has filed the present petition.
3. Heard, learned Advocate, Mr. Bhargav Bhatt, along with learned Advocate, Ms. Poonam Maheta, appearing for the petitioner and learned APP, Ms. Patel, for the Respondent- State.
4. Learned Advocate, Mr. Bhatt, appearing with the learned Advocate, Ms. Maheta, for the petitioner submitted that the petitioner is innocent and he is falsely arraigned as an accused in the alleged offence.
4.1 It was submitted that the petitioner was appointed on the post of Assistant Commissioner, Integrated Tribal Development Project, with the Office of the Project Administrator, Dahod, in the year 2018. It was submitted that, here, the petitioner was supposed to discharge his duties as per the directions of the Project Administrator, who would be either a GAS or IAS cadre officer, who would be instrumental in implementing various government schemes with regard to integration and development of the tribal.
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined 4.1.1 It was, further, submitted that the petitioner was also given the additional charge of Assistant Commissioner Tribal Development, Dahod.
4.2 Learned Advocate, Mr. Bhatt, referring to the facts of the case submitted that, as per the case of the prosecution or as per the allegations leveled in the FIR, as many as six fake government offices were floated in Dahod District and under the pretext of implementation of various government projects / proposals, totaling to 100 in numbers, are shown to have been implemented and thereby, a huge amount of Rs.18,59,96,774/- is allegedly siphoned of by the accused persons in the name of the Office of the Project Administrator. However, he would submit that, as per the work-flow chart or in the decision making process, the petitioner is no where directly or indirectly involved, so as to attract the allegations of siphoning of a huge amount.
4.3 It was submitted that the petitioner was working under the supervision of Project Administrator, who was authorized to sanction and approve the schemes as well as bills and to disburse the amount, whereas, the task or the duty of the petitioner was relatively less and that he has to just verify the papers of the various schemes and nothing more than that. Therefore, it was submitted that the petitioner is nowhere connected with the alleged offence.
4.4 It was submitted that the allegations leveled against the petitioner are unsustainable for the reason that the petitioner NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined was also posted on Assistant Commissioner in Tribal Development Department, Dahod, where, he was in independent charge, where, the work of tribal development to the tune of about Rs.100 crore is done and that there is no allegations are made that the petitioner has embezzled or siphoned of any amount, during the course of implementation of the above schemes.
4.5 It was submitted that one Mr. B.D. Ninama, who was discharging duties as Project Administrator and is alleged to have done identical scam / racket at Chhotaudepur is the main accused. He has masterminded the alleged fraud and executed it. He was decision making and executing person and at his instance scam took place.
4.6 It was submitted that there is no direct allegations or direct actions alleged in the FIR against the present petitioner for creation of false documents and therefore, the provisions of Section 467 of the IPC shall not apply in the case of the petitioner.
4.7 It was submitted that in order to attract a criminal offence against a government servant, the prosecution is, prima facie, required to prove not only the involvement of the concerned accused persons but also the breach of the conditions of service or the intention and knowledge of the accused is to be shown from the FIR, itself, which, in the case on hand, is missing.
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined 4.8 It was submitted that, considering the allegations leveled in the FIR, the offence punishable under Sections 7 and 7A of the Prevention of Corruption Act, 1988 (‘PC Act‘, hereinafter) would also be attracted, however, for the reasons best known to the prosecution. The prosecuting agency has not invoked the same, perhaps only with a view to bypass the SOP issued by the State Government, which mandates that the concerned IO shall follow the provisions of Section 17A of the PC Act before commencing an inquiry / investigation qua a public servant under the PC Act.
4.8.1 It was submitted that there are a number of public servants involved in the offence in question and they are alleged to have done something, which they are not supposed to do, or they did not do something, which they were required to do and despite that only with a view to give a go-bye to the provision of Section 17A of the PC Act, the relevant provisions of the PC Act are not involved in this case, which goes to show that how hollow the case of the prosecution is.
4.9 Reference was made to the decision of the Hon’ble Apex Court in the case of ‘Satender Kumar Antil Vs. CBI and Another‘, rendered in Miscellaneous Application No. 1849 of 2021, Dated: 11.07.2022, wherein, the Apex Court has defined the term ‘Bail’, which is nothing, but, a surety inclusive of a personal bond from the accused, which means the release of an accused person, either by the orders of the Court or by the police or by the Investigating Agency. It is further observed that it is a set of pre-trial restrictions imposed on a suspect, NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined while enabling any interference in the judicial process. In other words, it is a conditional release, on the solemn undertaking by the suspect, that he would cooperate, both with the investigation and the trial, since, bail is the rule and jail is the exception.
4.10 Reference was also made to the decision of the Hon’ble Apex Court, rendered in the case of Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, wherein, it is observed thus;
“”19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows: (SCC pp. 586- 88 , paras 27-30) “27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti, In re [ Nagendra Nath Chakravarti, In re, 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 : 1924 Cri LJ 732] , AIR pp. 479-80 that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the “Meerut Conspiracy cases” observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [ K.N. Joglekar v. Emperor, 1931 SCC OnLine All 60 : AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the Court that there was no hard-and-fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14 : AIR 1931 All 356 : 1931 Cri LJ 1271] , AIR p. 358 it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. State [Gudikanti Narasimhulu v. State, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para
1) “1. … the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. … After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of “procedure established by law”. The last four words of Article 21 are the life of that NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined human right.”
29. In Gurcharan Singh v. State (UT of Delhi) [ Gurcharan Singh v. State (UT of Delhi), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that: (SCC p. 129, para 29) “29. … There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or canceling bail.”
30. In AMERICAN JURISPRUDENCE (2 nd, Vol. 8, p. 806, para 39), it is stated:
“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.”
It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
4.11 Reliance was placed upon the decision of the Hon’ble Apex Court in the case of ‘Sanjay Chandra v. CBI‘, reported in (2012) 1 SCC 40, Paragraphs-21 and 22, which are referred, read as follows;
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.”
4.12 Learned Advocate, Mr. Bhatt, submitted that innocence of a person accused of an offense is presumed through a legal fiction, placing the onus on the prosecution to prove the guilt before the Court. Thus, it is for that agency to satisfy the Court that the arrest made or to be made is warranted and enlargement on bail is to be denied.
4.13 It was submitted that in the present case, the investigating agency has failed to show the circumstances or the exigency warranting the arrest of the petitioner. In this regard, reliance is also placed on the decision of the Apex Court in the case of ‘Siddharam Satlingappa Mhetre Vs. State of Maharashtra‘, reported in 2011 SIR SCW 3813.
4.14 It was submitted that even if there are allegations of NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined commission of an economic offence, the concerned Court has to find out the role exclusively played by the petitioner in the commission of the same and only then, the Court is required to decide the bail application of the petitioner. He would further submit that Court should not sway away only on use of the word ‘Economic Offence’ in the FIR. In support of his submission, learned Advocate, Mr. Bhatt, placed reliance on the decision of the Coordinate Bench of this Court, rendered in the case of ‘Sunder Rajendran Sumbayah Vs. State of Gujarat’, Dated: 01.09.2022, rendered in Criminal Misc. Application No. 10525 of 2022.
4.15 It was submitted that, though, the presumption of innocence is running in favour of an accused, the prosecution is required to prove allegations against accused. It was submitted that the petitioner is also ready and willing to undergo the scientific tests, as mentioned in the case of ‘Selvi & Others Vs. State of Karnataka and Another‘, reported in (2010) 7 SCC 263, so as to prove his absolute innocence. Ground ‘X’ of the petition is pressed into service for this argument.
4.16 In addition to the above, it was also submitted that the petitioner has already been transferred from Dahod to Valsad and as he being a Class-I government officer, there is no risk of either tampering with the witnesses or hampering the trial and he is also readily available for the investigation and to cooperate with the same.
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined 4.17 By making the above submissions, it was prayed that this application be allowed.
5. Per contra, learned APP, Ms. Patel, submitted that the present petitioner is one of the master-minds, who has committed the alleged offence. It was submitted that, though, the petitioner was not authorized to issue cheques and make the payment, yet, in several cases of fake implementation of the scheme, he issued cheques in connivance with other government officials and thereby, in connection with about 100 such schemes, the petitioner caused financial loss of Rs.18,59,96,774/- to the State. It was submitted that it is the Treasury Office alone, which can issue cheques. It was submitted that the petitioner was second in the hierarchy of the government officials responsible for work flow and disbursement as well as in decision making system and therefore, his custodial interrogation would be necessary. It was submitted that the statement of one of the co-accused, namely Abu Bakar Zakirali Saiyed, clearly indicates the involvement of the petitioner in the commission of the alleged offence. It was submitted that the petitioner was given the task of verifying the documents for implementation of various schemes / projects and taking disadvantage of the same, he allowed the papers of the fake schemes and further allowed to roll on fake schemes on paper to swindle the huge amount and therefore, a prima facie case is clearly made out against him. It was, further, submitted that the time period of the alleged offence is between 2018-2023, whereas, the petitioner was holding two different posts, namely Assistant Project NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined Administrator and Accountant in Office of Project Administrator, Integrated Tribal Development Project. It is also submitted that his involvement in huge scam, where amount is around Rs.18 crore and odd is involved, cannot be ruled out. Learned APP would submit that that only because petitioner was holding another post during that time, independently, wherein no allegations of fraud are alleged per se would not count that accused is innocent and falsely implicated.
6. Having heard the learned Advocates for both the sides and having perused the material on record, at the outset, it would be relevant to refer to the observations made by the Apex Court in the case of ‘Siddharam Satlingappa Mhetre’ (Supra), wherein, at Paragraphs-121 and 122 thereof, it is observed thus;
“121. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia’s case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused’s likelihood to repeat similar or the other offences;
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined affecting a very large number of people;
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined events, the accused is entitled to an order of bail. “
6.1 The Hon’ble Apex Court in the case of ‘Jai Prakash Singh Vs. State of Bihar and Another‘, reported in 2012 CriLJ 2101, observed as under;
“The court may not exercise its discretion in derogation of established principles of law, rather it has to be in strict adherence to them. Discretion has to be guided by law; duly governed by rule and cannot be arbitrary, fanciful or vague. The court must not yield to spasmodic sentiment to unregulated benevolence. The order de hors the grounds provided in Section 438 Cr.P.C. itself suffers from non- application of mind and therefore, cannot be sustained in the eyes of law.”
6.2 In the settled principle of law, now, if we go through the facts of the case on hand, what is revealed that Petitioner was at second to top position in the decision making hierarchy, as per the work-flow chart. What further emerges from the record that, as many as six fake or bogus government offices were floated, viz. (1) Deputy Executive Engineer, Minor Irrigation Sub Division, Narmada Jal Sampati, Water Supply Department, Jhalod, (2) Executive Engineer, Narmada Irrigation Division No.3, Dabhoi, (3) Executive Engineer, Irrigation Project Division, Dahod, (4) Executive Engineer, Irrigation Project Division-2, Dahod, Narmada Nagar Colony, Jhalod – Dahod NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined Road, Taluka: Jhalod, District: Dahod, (5) Executive Engineer, Irrigation Project Division, Nr. I.T.I., Jhalod Road, Dahod, District: Dahod, (6) Executive Engineer, Pipeline Project Division, Dahod, District: Dahod, to siphon government money under pretext of implementing government scheme.
6.2.1 It also appears that the entire scam came to light, once alike scam in Chhotaudepur was unearthed. Since, the Project Director / Project Administrator, Chhotaudepur, noticed a number of anomalies in various proposals, i.e. though, such proposals were not sent by the Executive Engineer, Irrigation Department, the same were being cleared / approved by the concerned offices. Therefore, an inquiry was also initiated at District Dahod. In inquiry it was found that under similar modus operandi identical racket was also taken place. It was also found that during the relevant period, the petitioner was holding two different posts and one of them, he was holding independently. From the record, prima facie, it appears that about 100 proposals were forwarded by the aforesaid fake or so called government offices and out of them, in about 96 proposals, the present petitioner is found to be involved. The present petitioner was, though, supposed to only examine the documents of the proposed schemes, he, without properly verifying, not only approved the same but also issued cheques towards the same, which he was not at all authorized to do so. The amount so misappropriated by floating such fake government offices is about Rs.18/- crore and odd amount. Thus, the petitioner along with the co-accused, prima facie, appears to have caused a huge financial loss to the public NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined exchequer. It, further, appears that various amounts were transferred to about 130 different bank accounts and thereby, the petitioner and other co-accused siphoned of government amount.
6.3 Considering the posts held by the petitioner, at the relevant point of time, i.e. he being second in the decision making and implementation process, he appears to have played a key-role in the entire scam, which can be termed as systemically designed and very well planned ‘Economic Offence’.
6.4 Hence, the Apex Court in the case of ‘Nimmagadda Prasad Vs. CBI‘, reported in (2013) 7 SCC 466, wherein, the observations mad at Paragraph- 26 and 27 reads as under;
“26) Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fiber of the country’s economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC 364 this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under:-
“5…..The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest….”
27) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words “reasonable grounds for believing”
instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined to have the evidence establishing the guilt of the accused beyond reasonable doubt.
28) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.”
6.5 At this stage, it would also be relevant to refer to the observations made by the Hon’ble Apex Court in the case of ‘Y.S. Jagan Mohan Reddy Vs. CBI‘, reported in (2013) 7 SCC 439, wherein, at Paragraphs- 15 to 17 thereof, it is observed that;
“15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
16. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.
17. Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct the CBI to complete the investigation and file the charge sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal.”
6.6 In the recent judgment in the case of ‘Directorate of Enforcement Vs. M. Gopal Reddy ‘, reported in 2023 (3) SCALE 272, the Hon’ble Apex Court observed as under at Paragraph-6 thereof;
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined “6. Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. As per the investigating agency, they have collected some material connecting respondent No. 1 having taken undue advantage from Srinivas Raju Mantena. From the impugned judgment and order passed by the High Court, it appears that the High Court has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under IPC.
6.1 Now so far as the submissions on behalf of respondent No. 1 that respondent No. 1 was not named in the FIR with respect to the scheduled offence and that the other accused are discharged/acquitted is concerned, merely because other accused are acquitted, it cannot be a ground not to continue the investigation against respondent No. 1. An enquiry/investigation is going on against respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation itself is sufficient at this stage.
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined 6.2 While granting the anticipatory bail, what is weighed with the High Court and what is observed by the High Court is as under: –
“A careful reading of the aforesaid legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1 st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and he is being summoned for disclosure and in case of his non-disclosure of any material, on the pretext of non-co-operation, the 1 st respondent may proceed to arrest him. The petitioner is a retired employee aged about 60 years and is a permanent resident of Hyderabad, Further, major part of the investigation has been completed with respect to the incriminating documents and digital devices, which have already been seized. Hence, there may not be a chance of tampering with the investigation at this stage, because as rightly pointed out by the learned Senior Counsel for the petitioner that a criminal case has already been filed against the other accused and the same is pending before the Special Court at Bhopal.”
6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. “
6.7 The act of the petitioner and the other co-accused is an economic offence, which involves misappropriation of huge government funds, whereby, the funds, which were meant to be spent for social and economical upliftment of the common- men, are allegedly siphoned of by the petitioner and the co- accused. Considering the magnitude of the scam and the huge amount allegedly misappropriated by the petitioner and the co-accused, in the opinion of this court, a prima facie case is made out for seeking custodial interrogation of the petitioner.
6.8 In the case of ‘Satender Kumar Antil‘ (Supra), the Hon’ble Apex Court while dealing with the economic offences, referred to the decision in the case of ‘P. Chidambaram Vs. Directorate of Enforcement‘, reported (2020) 13 SCC 791, as well as case of ‘Sanjay Chandra‘ (Supra) and observed thus at Paragraph-66 thereof;
“ECONOMIC OFFENSES (CATEGORY D)
66. What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined issue has already been dealt with by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categories all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:-
Precedents P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791:
23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of “grave offence” and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial.
Sanjay Chandra v. CBI (2012) 1 SCC 40:
“39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
xxx xxx
xxx
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.” “
6.8.1 Coming back to the facts of the case on hand and considering the nature of offence, where, the tax-payers’ money to the tune of Rs.18,59,96,774/- has been siphoned of or misappropriated by the government officials, including the present petitioner, the same would display the gravity of the offence. This is a systematic design and modus operandi of the accused persons to corrode the financial and social fabric of the society, while remaining within the system. This Court also cannot lose sight of the fact that the petitioner, himself, is a government officer of Class-I rank, who appears to have facilitated the floating of as many as six fake government offices and through which nearly 100 fakes proposals were made, resulting into financial loss to the government to the tune of Rs.18,59,96,774/- crore The consequences of such an offence of financial irregularities shall be-fall on the society at large and therefore, as per the judgment of the Hon’ble Apex Court in the case of ‘P. Chidambaram‘ (Supra), the same would fall in the category of a grave offence and therefore, the present application for anticipatory bail does not deserve to be entertained.
6.8.2 Considering that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, the Hon’ble Apex Court in the case of ‘State of Gujarat Vs. Mohanlal NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined Jitamalji Porwal’, reported in (1987) 2 SCC 364, held as under at Paragraph-5;
“5. …The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of a moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.”
6.8.3 On going through the facts and circumstances of the case, what appears is that there are allegations of creation / floating of fake government offices and forwarding of more than 100 fake proposals for swindling of the money and therefore, the petitioner is required to be confronted with various documents and statements by way of custodial interrogation. In this regard, it would be relevant to refer to the decision of the High Court of Delhi in the case of ‘Haresh Kumar Choudhary V. State (NCT of Delhi)’, reported in 2023 SCC OnLine Del 1877, wherein, it is observed that:
NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined “”6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.
21. This Court is of the opinion that grant of anticipatory bail to the present applicant would prejudice the ongoing investigation in the present FIR. In the present case, custodial interrogation of the applicant is required for the aforesaid NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined purposes.””
6.9 Now, that brings this Court to the last submission made by the learned Advocate, Mr. Bhatt, that the petitioner is ready and willing to undergo the scientific tests, as laid down in the case of ‘Selvi & Others‘ (Supra), so as to prove his absolute innocence and bona fide. Identical kind of submissions was dealt by the Hon’ble Apex Court in the case of ‘Sangitaben Shaileshbhai Datanta Vs. State of Gujarat‘, reported in (2019) 14 SCC 522, at Paragraphs-7 and 8 are relevant, they reads as;
“7. Having heard the counsels for the parties, it is surprising to note the present approach adopted by the High Court while considering the bail application. The High Court ordering the above-mentioned tests is not only in contravention to the first principles of criminal law jurisprudence but also violates statutory requirements. While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein Court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, NEUTRAL CITATION R/CR.MA/2349/2024 CAV JUDGMENT DATED: 20/02/2024 undefined and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court.
However, the court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.
8. In the instant case, by ordering the above- mentioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini-trial indeed. This assumption of function of a trial court by the High Court is deprecated.
“
6.10 In view of above, the submission made by the learned Advocate for the petitioner cannot be accepted and the request of the petitioner to undergo the scientific tests, as stated in the case of ‘Selvi & Others‘ (Supra), at the time of considering anticipatory bail application, cannot be allowed. An application for anticipatory bail has to be decided on its own merits.
7. For the reasons stated herein above, this application fails and stands REJECTED, accordingly. Rule is discharged.
Sd./-
(J. C. DOSHI,J) UMESH/-