2009(3) Crimes 745 (Bom.)
BOMBAY HIGH COURT
A.H. Joshi, J.
Dattatray –Applicant
versus
State of Maharashtra –Respondent
Criminal Application Nos.1654, 1466, 1467, 1448 to 1452, 1485, 1530, 1958 and 1588 of 2008
Decided on 25-9-2008

IMPORTANT POINT
The rule of bail and not jail is, no doubt, a salutary rule to be followed, nevertheless, while reading this rule, it cannot be read in disjunction with primary rules on which said rule is founded, namely that when the case is one governed by Section 473 (1) of Criminal Procedure Code, i.e., where the sentence attracted is of a life imprisonment, liberty by way of bail is to be earned and not a natural fallout.

Headnote:Criminal Procedure Code, 1973—Sections 438 and 439—Anticipatory bail and regular bail—In relation to certain loans by Directors/employees, accused were named to be responsible for pilferage or destruction of documents—They were alleged to have cheated Bank by sanctioning bogus loan proposals and misappropriated the amount—Rule of bail and not jail could not be read in disjunction with primary rule that where sentence attracted was of life imprisonment, liberty by way of bail was to be earned and not a natural fall out—Sections attracted insofar as offence by Chaiman, Directors and employees were concerned when proved, for life imprisonment (Sections 464 and 471 IPC), ten years (Section 409) and seven years (Sections 420 and 468)—Section 437 (1) Cr.P.C. was prima facie attracted and accused did not deserve anticipatory bail—Appellant borrowers, whether they were relative of Directors or employees, their case stood on different footing as they were not accused of tampering record and forgery—They were entitled to anticipatory bail.

       Held: What is seen from the Statements of Accounts of different borrowers is that the loans, which are referred to in FIR No. 3/08, were sanctioned in one meeting and allegation is of tampering of the record after the proceedings of meeting were over. The contents and imputations contained in FIR 3/08 are made part of report of larger crime reported at Crime No. 30/08.

       So far as the other loans are concerned, various irregularities, as noted in the First Information Report, are prima facie seen present. The manner of disbursement, and the availment of loan also corroborates the allegations contained in the First Information Report. Information collected by the prosecution also concurs with the type of sanctions with irregularities of grave character as noted in all the cases, relied upon by the prosecution.

       The case is based on documentary evidence. Bank’s money has been siphoned by using legally available channel by illegal means and ends. Prima facie there is nothing on record that can be denied, nor on facts, any one has denied having signed.

       Thus, prima facie, it is seen that facts are pattern, nothing is latent or hidden. (Paras 17 to 20)

       The rule of bail and not jail is, no doubt, a salutary rule to be followed, nevertheless, while reading this rule, it cannot be read in disjunction with primary rules on which said rule is founded, namely that when the case is one governed by Section 473 (1) of Criminal Procedure Code, i.e., where the sentence attracted is of a life imprisonment, liberty by way of bail is to be earned and not a natural fallout, lest the provision contained in Section 437 of Criminal Procedure Code would be rendered nugatory. Court ought to arrive at a prima facie opinion that the accused is not guilty, and also on facts, he is entitled to be released on bail. (Para 23)

       The considerations for regular bail, which apply in case Dr. Gotmare, cannot be departed while deciding the applications for anticipatory bail. On the other hand, those will have to be applied with more rigor, namely as to whether the case alleged in FIR and revealing from the investigation record is of such a casual nature that in any situation arrest would not be warranted. Therefore, the considerations discussed by this Court in the matter of grant of regular bail do in pari materia apply to applications for anticipatory bail, however, with larger rigors. The case against accused applying for anticipatory bail who are Directors and employees, cannot be considered to be false, politically motivated or otherwise untenable where the accused would be entitled to avoid arrest by seeking aid of special scheme of Section 438, Criminal Procedure Code.

       Solitary case of grant of bail to Shri Shailesh son of Arun Mahajan, one amongst the accused in Crime No. 30 of 2008, does not lend the value either of parity or precedent. Magnitude of loan, manner of grant, disbursement, security and degree of dereliction has to be evaluated separately. Moreover, if some matters relevant to the case had not come before the Court, prosecution can move for cancellation of bail in such case, if found necessary and if advised.

       In this background, the applicants in the category of Directors, employees/officers etc., do not stand to earn the right of bail, as these cases fall in the category of accused referable to the conduct denoted in paragraph Nos. 29 to 3l and 32. Their applications are rejected.

       Insofar as applications by borrowers are concerned, whether they are relatives of the Directors or employees, their cases stand on different footing. Record does not, at this stage, disclose that they are accused of tampering record or did the act of forgery. They would be guilty of cheating, abatement of other offences etc. Their involvement, however, is prima facie standing slightly on different pedestal which is as compared to Chairman, the Directors and employees, less in gravity. These employees are, therefore, entitled for anticipatory bail. (Paras 33 to 36)