2013 Supreme(SC) 1149

Supreme Court of India
H.L. GOKHALE & J. CHELAMESWAR, JJ.
Gulabrao Baburao Deokar
Versus
State of Maharashtra & Others
Criminal Appeal No. 2113 of 2013 (@ Special Leave Petition (Criminal) No. 6020 of 2012)
Decided On : 17-12-2013

Headnote:Criminal Procedure Code, 1973—Sections 439(2) and 482—Bail—Cancellation— Major economic offence—Sessions Court had not complied with mandatory proviso to Section 439(1)—Sessions Judge ought to have granted adequate time to prosecutor to reply on the basis of charge-sheet, for him to pass a considered order—Order of bail does not reflect upon contents of charge sheet—There was a wrongful loss of about Rs.169 crores to Jalgaon Municipal Council—Liberty of a citizen even if he is an accused is important, but when prosecutor had pointed out to Court that role of appellant was no less than that of three others whose bail had been rejected, Judge ought to have considered these circumstances justifying custodial interrogation with due diligence—Attempts made by appellant to pressurize witnesses and even investigating officer are clearly placed on record—High Court does have power under Section 439 (2) of Cr.P.C. to set aside an unjustified, illegal or perverse order granting bail—This is an independent ground for cancellation as against ground of accused mis-conducting himself—Order does record cogent and overwhelming circumstances justifying cancellation of bail—Nature and seriousness of an economic offence and its impact on society are always important considerations and they must squarely be dealt with by Court while passing order on bail applications—Appeal dismissed.

       Held: We have noted the submissions of the counsel for the appellants as well as the respondents. In the present case we are concerned with the question as to whether High Court was in error in cancelling the bail granted to the appellant. Having noted the above aspects we are clearly of the view that the Sessions Court had not complied with the mandatory proviso to Section 439(1). This proviso lays down that before granting bail to a person who is accused of an offence which is punishable with imprisonment for life, and which is exclusively triable by the Court of Sessions, it shall give a notice of the application for bail to the public prosecutor. In the instant case, the facts reveal that the appellant appeared before the learned Sessions Judge on 21.5.2012, when his application for bail was taken up for consideration. The Sessions Judge passed an order ‘I.O. to say’. The matter was taken up there and then. The prosecutor applied for remand of at least 2 days which was declined. The notice under the proviso under the Section 439 (1) implies a proper and full opportunity to the prosecutor to point out as to why bail should not be granted. The initial chargesheet in the instant case was itself running into more than 268 pages. The Sessions Judge ought to have granted adequate time to the prosecutor to reply on the basis of this chargesheet, for him to pass a considered order. Consequently the order of bail does not reflect upon the contents of the charge sheet.

       As pointed out by Mr. Pawar, Deputy S.P. in his affidavit that although the matter was heard there and then, the prosecutor did make a detailed argument pointing ought the prima facie case against the appellant. The past conduct of the appellant after the registration of the present crime was also pointed out in detail as well as his criminal antecedents with proof, and also the fact that the bail applications of 3 of the main accused (i.e. Sureshdada Jain and others) had been rejected by another Sessions Judge by the order dated 17.5.2012 and 19.5.2012. That there was a wrongful loss of about Rs.169 crores to Jalgaon Municipal Council was also brought to the notice of the Court. The counsel for the State of Maharashtra has therefore rightly submitted that the order passed by the Trial Court was a perverse order since none of these factors were considered by the Court.

       The appellant and the accused have been charged for an offence which may result into the punishment for imprisonment for life. It is a serious charge supported by a detailed charge-sheet running into over 268 pages. It is stated therein that the Jalgaon Municipal Corporation had illegally given more than 30 contracts to Jalgaon Construction Company belonging to the appellant as a beneficiary in the conspiracy. Obviously the prosecutor required time to interrogate the accused, and the custodial interrogation in such a situation, for at least two days, could not have been denied. It could have aided the investigation by unearthing relevant information. The bail order was however passed on the same day, there and then. We are conscious of the fact that the liberty of a citizen even if he is an accused is undoubtedly important, but at the same time when the prosecutor had pointed out to the Court that the role of the appellant was no less than that of the three others whose bail had been rejected, the learned Judge ought to have considered these circumstances, justifying custodial interrogation, with due diligence.

       Thus it could certainly be said that the order passes by the Sessions Judge was an order passed in breach of the mandatory requirement of the proviso to Section 439(1) of Cr.P.C. It is also an order ignoring the material on record, and therefore without any justification and perverse. As held by this Court in Puran Vs. Rambilas (supra), the High Court does have the power under Section 439 (2) of Cr.P.C. to set aside an unjustified, illegal or perverse order granting bail. This is an independent ground for cancellation as against the ground of accused mis-conducting himself.

       In the instant case, the attempts made by the appellant to pressurize the witnesses and even the investigating officer are clearly placed on record through the affidavit of the Deputy S.P. Mr. Pawar. On that ground also it could be said that the appellant will be pressurizing the witnesses if he is not restrained. This being the position, we cannot find any fault with the order of the High Court cancelling the bail on that ground also. The order does record the cogent and overwhelming circumstances justifying cancellation of bail. The nature and seriousness of an economic offence and its impact on the society are always important considerations in such a case, and they must squarely be dealt with by the Court while passing an order on bail applications.

       The appeal is accordingly dismissed. The appellant will surrender to the City Police Station Jalgaon, within two weeks hereof. The Sessions case arising out of Crime/FIR No.13/2006 registered at the City Police Station Jalgaon on 3.2.2006 is hereby transferred to the Addl. Sessions Judge, Dhule, incharge of cases under the Prevention of Corruption Act, 1988. The learned Addl. Sessions Judge, Jalgaon seized of this matter will transfer the records of the concerned proceeding within four weeks to the said Court. Registrar General of the Bombay High Court is directed to see to it that necessary follow up steps are taken forthwith. Registry to send a copy of this Judgment to the Registrar General High Court Bombay, District Judge, Jalgaon and District Judge, Dhule.

       Result: Appeal dismissed.