Cri. Appln. No. 2522/12 1 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. Nitin Kautik Chaudhari, Age 40 years, Occu. Service, R/o. Bhushan Colony, Jalgaon, Taluka & District Jalgaon. Chhagan Gangaram Patil, Age 49 years, Occu. Agriculturist, R/o. Shrikrushna Colony, Jalgaon, Taluka & District : Jalgaon. Versus 1. The State of Maharashtra, Through City Police Station, Jalgaon, Investigating Officer, Jalgaon, District Jalgaon. Gulabrao Baburao Deokar, Age 50 years, Occu. Business, R/o. Ramdas Colony, Jalgaon, Taluka & District Jalgaon.

2.

3.

....Applicants.

2.

....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 DATED ORDER : 1. This application is filed under section 439 (2) of : : T. V. NALAWADE, J. 6th August, 2012.

Cri. Appln. No. 2522/12 2 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

Cri. Appln. No. 2522/12 3 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.

Cri. Appln. No. 2522/12 4 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

Cri. Appln. No. 2522/12 5 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

Cri. Appln. No. 2522/12 6 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

Cri. Appln. No. 2522/12 7 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

Cri. Appln. No. 2522/12 8 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

Cri. Appln. No. 2522/12 9 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

Cri. Appln. No. 2522/12 10 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

Cri. Appln. No. 2522/12 11 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.

Cri. Appln. No. 2522/12 12 (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."

Cri. Appln. No. 2522/12 13

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

Cri. Appln. No. 2522/12 14 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 Agarwal and Ors. Vs. State of Maharashtra and Anr.], (ii) (2009) 10 SCC 652 [Hazari Lal Das Vs. State of West Bengal and Anr.], (iii) (2007) 12 SCC 506 [Imran Ali Vs. Habibullah and Anr.], (iv) (2007) 9 SCC 387 [Afzal Khan alias Babu Murtuzakhan Pathan Vs. State of Gujrat], (v) Order delivered by this Court in Criminal application No. 1929/12 dated 4th July 2012 [Chandrabhaga Sudhakar More Vs. The State of Maharashtra & Anr.], (vi) 1998 Cri.L.J. 277 [Sardela Damodar Vs. State of Andhra Pradesh and Ors.], (vii) AIR 1984 SC 372 [Bhagirathsing Judeja Vs. State of Gujarat], (viii) (1995) 1 SCC 349 [Dolat Ram and Ors. Vs. State of Maharashtra] (ix) 1989 CRI.L.J. 785 [Sambhuriath Bhattacharjee Vs. State of Sikkim] (x) 2006 ALL MR (Cri) 1952 [Rajesh Babanandan Shah @ Damchya Vs. State of Maharashtra]

Cri. Appln. No. 2522/12 15

(xi) 2000 CRI.L.J. 2555 [Kukkadapu Bala Krishna 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 Babalal Desai Vs. State of Maharashtra], (xvi) AIR 2012 SC 830 [Sanjay Chandra v. Central Bureau of Investigation], (xvii) (1997) Bom.L.R. 535 [Rafique Malik Vs. State of Maharashtra], A.

(xviii) 1967 Cri.L.J. 1704 [Mang Karai Deb Barma and Ors. Vs. The State], (xix) 1998 (1) B Cr. C 150 BOMBAY HIGH COURT [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

Cri. Appln. No. 2522/12 16 of concessions granted, (iii) possibility of absconding etc.

17. for

The Apex Court has laid down that the considerations 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

Cri. Appln. No. 2522/12 17 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

Cri. Appln. No. 2522/12 18 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

Cri. Appln. No. 2522/12 19 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) Rambilas], 6 SCC 338, [Puran Vs.

(ii) AIR 2011 SC 274, [Prakash Kadam & etc. Vs. Ramprasad Vishwanath Gupta and Anr.], (iii) (2006) 12 SCC 131, Agarwal Vs. State of Orissa], 20. [Gajanand

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

Cri. Appln. No. 2522/12 20 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.

ORDER 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/