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Cri. Appln. No. 2522/121

IN THE HIGH COURT AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

CRIMINAL APPLICATION NO. 2522 OF 2012

1. Premchand Bansi Jadhav,Age 40 years, Occu. Social Worker,R/o. Ishwar Colony, Jalgaon.Taluka and Dist. Jalgaon.

2. Nitin Kautik Chaudhari,Age 40 years, Occu. Service,R/o. Bhushan Colony, Jalgaon,Taluka & District Jalgaon.

3. Chhagan Gangaram Patil,Age 49 years, Occu. Agriculturist,R/o. Shrikrushna Colony, Jalgaon,Taluka & District : Jalgaon. ....Applicants.

Versus

1. The State of Maharashtra,Through City Police Station,Jalgaon, Investigating Officer,Jalgaon, District Jalgaon.

2. Gulabrao Baburao Deokar,Age 50 years, Occu. Business,R/o. Ramdas Colony, Jalgaon,Taluka & District Jalgaon. ....Respondents.

Mr. S.P. Brahme, Advocate for applicants.

Mr. P.P. Chavan, Special P.P. for respondent No. 1/ State.

Mr. Aniket U. Nikam, Advocate for respondent No. 2.

CORAM : T. V. NALAWADE, J.DATED : 6th August, 2012.

ORDER :

1. This application is filed under section 439 (2) of

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Criminal Procedure Code for cancellation of bail granted to

respondent No. 2 - Shri. Gulabrao Bapurao Deokar in Crime No.

13/2006 registered in City Police Station, Jalgaon for offences

under sections 120-B, 406, 409, 411, 420, 465, 466, 468, 471,

109 r/w. 34 of Indian Penal Code and under section 13 (2) r/w. 13

(1)(c) and 13 (1)(d) of the Prevention of Corruption Act.

Subsequent to grant of bail by Special Court, charge-sheet came

to be filed and now the Special Case bearing No. 4/2012 is

pending against the respondent No. 2. Both the sides are heard.

2. The learned Special Prosecutor appointed by the State

supported the application.

3. The crime is registered on the basis of report dated

2.2.2006 given by the Commissioner of Jalgaon Municipal

Corporation. The report and the record shows that there was

scheme prepared by Jalgaon Municipal Corporation in the year

1997 for making construction of houses for slum dwellers. Around

11424 houses were to be constructed and 9 places for such

construction were selected. The estimated cost of this scheme

was Rs. 8913.74 lacs and out of this amount, the amount of Rs.

7519.14 lacs was to be taken from HUDCO as a loan. The

Commissioner found that there was no resolution of the

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Corporation in respect of necessity of such scheme and also for

the implementation of such scheme. For preparing plan estimate,

some architects were appointed without calling tenders by

publishing tender notice and to the architects the fees at the rate

of 3% of the estimated cost (Rs. 250/- lacs) was paid. One High

Power Committee was shown to be constituted for this work and

one Pradip Gyanchand Raisoni was shown to be made President of

this Committee. There is no provision in Corporation Act for

constitution of such committee.

4. Commissioner realized that at the time of preparation

of the scheme, there was no space available at the 9 sites of the

Corporation, where the construction could have been made. Some

lands owned by private persons, were considered for the scheme.

There was no technical approval to the aforesaid estimates

prepared, but in spite of that, public notice was given and tenders

were called from the contractors for making construction. Only

two builders filled the tenders. There was no response shown to

the tender notice due to change made in the initial conditions.

The initial period of 2-3 years fixed for construction was reduced

to 9 months and during this period, it was practically impossible

to make the construction.

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5. M/s. Khandesh Builders filled the tender of 42% to

47% above the estimated costs. Another Builder M/s. Golani

Brothers filled the tender in respect of three places and it was

22.25% to 27% above the estimated costs. Even when there was

the tender of lower price of M/s. Golani Brothers, Khandesh

Builders was called for negotiations on 22.4.1999. As per the

record, there was the possibility of relaxation of some conditions

shown by Khandesh Builders, but no negotiation was done on

those conditions. In the negotiations, mobilization advance was

reduced to 15% from 30% and there was relaxation only in this

condition proposed by Khandesh Builders. In the tender notice, it

was made clear that no mobilization advance will be given and

the construction work will started only after actual possession of

the site is received. As the site was not in possession, the decision

of Corporation to give such mobilization advance was to the

benefit of the contractor as the contractor was to get the advance

amount, which was huge amount before receiving the possession

of the site for construction. The Corporation was required to pay

interest on this amount. When it was made clear in the tender

notice that there will not be any concession in payment of octroi

on the raw material, which was to be used by the contractor, such

benefit was given. Khandesh Builders was allowed to use cement

blocks instead of bricks which further reduced the cost of

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construction for builder. Even when the Assistant Engineer of

Corporation brought to the notice of Corporation that the

aforesaid changes were in breach of the conditions shown in

tender notice, this opinion was not considered.

6. When as per the practice, mobilization advance of

more than 10% amount could not have been given, the

Corporation agreed to give 15% amount and that too without

charging any interest. Khandesh Builder had already made

construction of 1336 houses at Pimparala and so it was having

machinery for the work which was to be done, but Corporation

agreed to give the mobilization advance without charging any

interest. The mobilization advance was worked out at Rs. 1183

lacs. The Corporation collected loan of Rs. 2266 lacs from HUDCO

on 31.3.1999 at the interest of 13.5% p.a. Agreement was entered

into with Khandesh Builder on 24.4.1999 and work order was

given on 29.4.1999. Mobilization advance of Rs. 1183.60 lacs was

given on 3.5.1999.

7. At the sites, which were mentioned in tender notice,

there was no need of pile foundation work, but Khandesh Builders

got approval of such work and so the cost of the construction was

increased. From above sites, 6 sites were changed and they were

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shifted to Pimparala where Khandesh Builder had already

executed some work and where there was necessity of pile

foundation. A decision was taken to purchase the land

admeasuring 22 H. at Pimparala. The Commissioner formed

opinion that it was probably already decided by the concerned to

shift site to Pimparala, though it was not shown in the tender

notice. The entire land cost was not paid to the land owner even

when the amount of Rs. 2266/- lacs was available as loan was

taken.

8. It was not possible to make complete construction

within 9 months and such time was fixed with dishonest intention.

The extension of time was given from time to time and time of 92

months was given which was up to December 2006. Such

condition, to complete work within 9 (nine) months was imposed

to prevent other builders from filing the tenders. Even when it was

brought to the notice of the President that tender of cost which

was higher by 10% could not have been accepted, the tender of

cost which was higher by 17.5% of Khandesh Builder was

accepted. Subsequently also even when there were adverse

remarks of the auditor, advances were given on many occasions

and that too without making any measurement of the work. On

11.2.2000 the contractor applied for relaxing the bank guarantee

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and the bank guarantee came to be released even when the Chief

Officer and Assistant Engineer of the then Jalgaon Municipality

had opposed to it. Subsequently escalation was allowed as the

work period extended beyond the period of 9 month, even when

there was condition that escalation was not to be allowed. When

there was provision to impose penalty, in case of delay was

caused by the contractor, this clause was never used by the

Corporation. Notice given by the administration of the Corporation

was treated as illegal by the Corporation.

9. The main allegations show that the amount of Rs.

15,89,50,000/- was illegally given as mobilization advance, the

electricity and water was supplied free of costs, concession was

given to use the cement blocks in place of bricks, escalation was

allowed in respect of extended period etc. Thus, there is

allegation that there is embezzlement of more than an amount of

Rs. 29,59,09,040/-. Due to the aforesaid approach of the

Corporation, loss of more than 169 Crores is already sustained by

the Corporation.

10. The present respondent No. 2 was a councilor during

the relevant period and he was the President of the Corporation

for about six months during the relevant period. He was President

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for the period from 10.5.1999 to 3.12.1999. There are following

allegations against the respondent No. 2 that during his regime as

councilor and the President:-

(i) agreement was signed with the aforesaid

contractor,

(ii) resolution was passed on 8.10.1999 and atleast

6 sites were changed and shifted to other place. Due

to such shifting, the work of piling was added in the

initial work, but in spite of that no fresh tender notice

was issued and this work was also given to the same

contractor.

It was submitted for the applicant that inference can be easily

drawn that the President and the Councilors certainly received

some benefits, though there is record to show that most of the

amount went to the account of the main person who was

controlling the Local Body and who is behind bars. Some record is

collected by the Investigating Agency to show that to a concern

owned by brother of the present applicant, atleast 5 work orders

were issued during relevant period of the construction of roads.

On the other hand, it was submitted for the respondent that the

Investigating Agency has come with the case that the President

worked on the instructions of Shri. Pradip Raisoni and on

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instructions of the main accused, who was controlling this Local

Body. Such defence of the President or Councilor cannot be

considered in a criminal case of present nature.

11. The attention of this Court was drawn to the order

made by the Special Court and it was submitted that no speaking

order as such is made by the Special Court. It was submitted that

even when it was brought to the notice of the Special Court that

bail was refused to many accused even by the High Court, this

circumstance is not considered by the Special Court. It was

submitted that criminal anticidents were pointed out, but they

were also not considered. In this regard, it was submitted for the

respondent that to many councilors and to some past Presidents

bail was granted by the Special Court and so the Court could not

have refused the bail to the present applicant. There is force in

the submissions made for the applicants.

12. The portion of the order which can be called as the

reasons given for the bail is under :-

"Having considered the submission in the

light of the case papers produced by the

investigating officers, nothing is highlighted

which may lead to conclude that the I.O. had

occasion to come across such events of

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pressurizing the witnesses. Considering the

nature of the offences it may be said that the

evidence whatever collected and available with

the prosecution must be in the form of

documents. The apprehension of pressurizing

prosecution witnesses can be checked by

imposing reasonable conditions. I am therefore

of the view that there is no point in detaining

the accused in jail particularly in the

circumstance when the investigation of the

crime is on verge of completion. Hence, the

following order;"

13. This Court has gone through the entire order made by

the Special Court and also the contents of the application and

reply filed by the Investigating Officer. There are many peculiar

circumstances, not only in respect of the present matter, but in

respect of other councilors. They are as under :-

(i) The crime came to be registered on 2.2.2006

which is also for the offence under section 409 of

I.P.C., which is punishable with imprisonment for life;

(ii) The present respondent No. 2 and also the

other Councilors or the Presidents of the Local Body

did not feel it necessary to file application for

anticipatory bail at any time. They were not arrested

for 6 years. The applicant is M.L.A. and also Minister

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for State of one Department. No progress was made

in the investigation for six years. On previous day of

arrest of respondent, some Councillors (ladies) were

arrested and produced before Special Court. State

gave no objection to grant them bail and they were

granted bail on the same day.

(iii) Present respondent No. 2 came to be arrested

on 21.5.2012 and he came to be produced before the

Special Court along with some other Councilors on the

same day with remand report.

(iv) The investigating agency had requested for

police custody of two days, but the custody was

refused and present applicant and others came to be

committed M.C.R. on the same day.

(v) On the same day viz. 21.5.2012 application for

bail came to be moved before the Special Judge on

which the following order came to be made.

"Order

I.O. to say."

(vi) On 21.5.2012 itself the Special Prosecutor filed

reply which runs into eight pages to oppose the

application; and this reply was signed by Additional

Superintendent of Police.

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(vii) Both the sides advanced argument on the same

day and aforesaid bail order came to be made

immediately after the argument.

(viii) The circumstance that High Court had refused

bail to some Councillor is not considered by Special

Court and aforesaid material and circumstances are

not considered in the order.

(ix) The State preferred not to challenge both the

orders.

(x) Within few days of the bail order, charge-sheet

came to be filed.

14. The relevant provision with regard to the procedure

which needs to be followed in such a case is follows :-

Section 439 (proviso) :-

"Provided that the High Court or the Court

of Session shall, before granting bail to a person

who is accused of an offence which is triable

exclusively by the Court of Session or which,

though not so triable, is punishable with

imprisonment for life, give notice of the

application for bail to the Public Prosecutor

unless it is, for reasons to be recorded in

writing, of opinion that it is not practicable to

give such notice."

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In spite of aforesaid provision, no order was made for giving

notice to public prosecutor and no reasons for the same are given

in the aforesaid orders made on the bail application by Special

Court.

15. The economic offences need to be considered on

different footings at all the stages by the Courts. The aforesaid

order shows that respondent was not detained, kept behind bars,

even for a single day. Though it is not necessary that police

should effect arrest in every case only because they have the

power to do so, in a case like present one, there must be

something to show that attempt was made to collect some

material with regard to the benefit received by person like present

respondent. Though there is the record like giving of 5 work

orders to the brother of respondent, during custodial interrogation

more material could have been definitely collected to show that

as to how and to what extent such a person is benefited in such

an offence. The aforesaid circumstances show that nothing was

done fairly and every favour was shown to the councilors and to

the present respondent. This happened probably due to influence

which applicant could have over investigating agency. These

circumstances are important considerations for bail proceeding. If

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such influence is allowed to be continued, one cannot expect fair

and speedy trial of the case.

16. For respondent No. 2, reliance was placed on following

reported cases :-

(i) (2009) 8 SCC 325 [Savitri Agarwaland Ors. Vs. State of Maharashtra andAnr.],

(ii) (2009) 10 SCC 652 [Hazari Lal DasVs. State of West Bengal and Anr.],

(iii) (2007) 12 SCC 506 [Imran Ali Vs.Habibullah and Anr.],

(iv) (2007) 9 SCC 387 [Afzal Khan aliasBabu Murtuzakhan Pathan Vs. State of

Gujrat],

(v) Order delivered by this Court inCriminal application No. 1929/12 dated4th July 2012 [Chandrabhaga SudhakarMore Vs. The State of Maharashtra &Anr.],

(vi) 1998 Cri.L.J. 277 [Sardela DamodarVs. State of Andhra Pradesh and Ors.],

(vii) AIR 1984 SC 372 [BhagirathsingJudeja Vs. State of Gujarat],

(viii) (1995) 1 SCC 349 [Dolat Ram andOrs. Vs. State of Maharashtra]

(ix) 1989 CRI.L.J. 785 [SambhuriathBhattacharjee Vs. State of Sikkim]

(x) 2006 ALL MR (Cri) 1952 [Rajesh

Babanandan Shah @ Damchya Vs. State ofMaharashtra]

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(xi) 2000 CRI.L.J. 2555 [Kukkadapu BalaKrishna Vs. State of A.P.],

(xii) 2004 CRI.L.J. 2950 [Dronendu Jha Vs.State of Jharkhand],

(xiii) 1999 CRI.L.J. 4094 [Yunis and Anr. Vs.State of U.P.],

(xiv) 1992 CRI.L.J. 1371 [Shobha Ram Vs.State of U.P.],

(xv) (1992) 4 SCC 272 [Aslam BabalalDesai Vs. State of Maharashtra],

(xvi) AIR 2012 SC 830 [Sanjay Chandra v.Central Bureau of Investigation],

(xvii)(1997) Bom.L.R. 535 [Rafique A.Malik Vs. State of Maharashtra],

(xviii) 1967 Cri.L.J. 1704 [Mang KaraiDeb Barma and Ors. Vs. The State],

(xix) 1998 (1) B Cr. C 150 BOMBAY HIGHCOURT [Bhaveneshwar Babulbhai Patil Vs.State of Maharashtra].

The sum and substance of the observations made by the Apex

Court is that "very cogent and overwhelming circumstances are

necessary for an order of cancellation of bail already granted."

Some of the general grounds for cancellation are quoted by the

Apex Court as follows :-

(i) inference in the administration of justice by

accused,

(ii) attempt to evade due course of justice or abuse

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of concessions granted,

(iii) possibility of absconding etc.

17. The Apex Court has laid down that the considerations

for cancellation of bail are drastically different from the

considerations for granting or refusing the bail. In the case

reported as 2012 ALL MR (Cri) 822 [Salim Khan Saheb Khan

& Ors. Vs. State of Maharashtra], this Court has made

observations that the bail granted illegally or improperly by

wrong, arbitrary exercise of judicial discretion can be cancelled

even if there is absence of supervening circumstances. On this

point more cases can be cited as follows :-

(i) 2009 (3) SC 542 [Masroor Vs. State of U.P.

and Anr.],

(ii) AIR 2007 SCW 5598 [Sudha Varma vs.

State of U.P. and Anr.],

(iii) 1999 (10) JT 406 [Salim Khan Vs.

Sanjay Singh],

(iv) 2008 ALL MR (Cri) 2337, [Smt.

Ranjanabai w/o. Kisansing Dumale vs.

State of Maharashtra and Ors.]

(v) 2010 CRI.L.J. 4357, [Mahendra Manilal

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Shah and etc. Vs. Rashmikant

Mansukhlal Shah and Anr.],

The aforesaid cases show that in one case when relevant factors

were not considered by the High Court, the bail order was

cancelled by the Apex Court. In the case of Dolat Ram cited

supra, the Supreme Court has observed that the general grounds

on which bail can be cancelled and which are quoted in the case

are illustrative and not exhaustive. Thus, on one hand, due to

existence of supervening circumstances, [general grounds which

are not exhaustive] bail can be cancelled and on the other hand

even if supervening circumstances are absent, bail can be

cancelled if bail is granted illegally or improperly by a wrong,

arbitrary exercise of judicial discretion.

18. Section 439 of Cr.P.C. gives special power to Sessions

Court and high Court to grant bail even in serious cases, but that

does not mean that the Sessions Court or High Court can ignore

the distinction made by the legislature between serious offences

and less serious offences. Such discretion can be found in section

437 and 439 of Cr.P.C. Thus, when there appears reasonable

ground for believing that person arrested has been guilty of the

offence punishable with death or imprisonment for life, the

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Sessions Court and High Court is expected to give reasons as to

why the accused is entitled to bail. These provisions show that the

State is expected to take care of the interest of the society. When

offence is, punishable with imprisonment for life, serious in

nature, it needs to be presumed that the interest of the society as

a whole are involved. The case becomes more serious when it is

economic offence also.

19) In a case like present one all the material collected by

investigating agency against the accused which can be used as

evidence needs to be considered by the Court and then finding is

required to be given that in spite of all the circumstances the

accused is entitled to bail for some reason. It is the right of the

society to know such reasons and if the reasons are not given, the

society may get feeling that it is not getting justice. The nature

and seriousness of the offence and its impact on the society are

always important considerations in such a case and they must be

squarely dealt with by the Court while passing order on bail

application. The rights of accused of personal liberty is also

important consideration. So, it becomes the duty of the Court to

strike balance between the rights of accused and the interests of

the society. The provisions of section 437 of Cr.P.C. and for that

matter the provisions of section 439 show that bail, not jail, is not

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the rule of law. So the special power given under section 439 of

Cr.P.C. must be used both by the Sessions Court and High Court in

judicious manner and not as a matter of course. If the bail order

shows that no reasons as expected above are given or the

reasons given are not at all acceptable in law, such order can be

called as perverse and such order cannot sustain in law. The

aforesaid material from the present case shows that there is a

material to make out offences, which are mentioned in the F.I.R.

and the chargesheet. The aforesaid material also speaks about

the direct involvement of the respondent No. 2 and also the

specific role played by him. Only because in similar manner bail is

granted to other accused, the aforesaid illegality cannot be

ignored. On this point some reported cases were cited for the

applicant, as follows :-

(i) (2001) 6 SCC 338, [Puran Vs.Rambilas],

(ii) AIR 2011 SC 274, [Prakash Kadam &etc. Vs. Ramprasad Vishwanath Gupta and

Anr.],

(iii) (2006) 12 SCC 131, [GajanandAgarwal Vs. State of Orissa],

20. The cases like present one create a feeling that

influential persons can do anything. It needs to be observed that

this Court was required to consider the aforesaid circumstances

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only due to the application, which is filed by some residents of

Jalgaon. Their courage needs to be appreciated. There is no need

to discuss the cases cited on locus standi of the applicants or the

jurisdiction of this Court under section 439 (2) of Cr.P.C. High

Court can take cognizance of such matter even suo-moto in view

of the wordings of section 439 (2) of Cr.P.C. So the cases cited in

this regard are not discussed by this Court. In the result, this

Court passes following order.

O R D E R

1. Application is allowed. Order of bail made

in favour of respondent No. 2 - Gulabrao Deokar

is hereby cancelled. This Court directs that

respondent No. 2 - Gulabrao Deokar be arrested

and committed to custody in C.R. No. 13/2006

registered in City Police Station, Jalgaon.

Advocate for respondent No. 2 requested for

stay for four weeks. Such relief is also refused.

[ T. V. NALAWADE, J. ]

ssc/

App Ln 252212060812

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