Investigation”, [(2012) 1 SCC 40], the Apex Court has held
thus:
“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
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.
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, 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.
Apart from the question of prevention being
the object of a 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.”
15. In the case of “BhagirathiSinh Judeja Vs. State“ (AIR
1984 SC 372), the Apex Court has observed thus:
“ 5. ...... But even where a prima faice case is
established, the approach of the Court in the
matter of bail is not that the accused should be
detained by way of punishment but whether the
presence of the accused is likely to abuse the
discretion granted in his favour by tampering with
evidence. ....................
8. …....... And the trend today is towards granting
bail because it is now well-settled by a catena of
decisions of this Court that the power to grant bail
is not to be exercised as punishment, before trial,
is being imposed. The only material considerations
in such a situation are whether the accused would
be readily available for his trial and whether he is
likely to abuse the discretion granted in his favour
by tampering with evidence.”
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPLICATION (BAIL) NO. 84 of 2014.
WITH
STAMP NUMBER (APPLICATION) NO. 1262 OF 2014.
Shri Amit Anand Pai Raikar
@ Amit Pai
Versus
The State of Goa,
Coram :- U. V. BAKRE, J.
DATE : 30thApril, 2014.
Citation;2016 ALLMR(CRI)268,2014(2)BomCR(Cri)498
Heard Mr. Lotlikar, learned Senior Counsel appearing on
behalf of the applicant, Mr. Rivankar, learned Public Prosecutor
appearing on behalf of the respondents and Mr. De Sa, learned
Counsel appearing on behalf of the intervener.
2. The applicant, who has been arrested on 22/11/2013 in
Crime No.168 of 2013 registered with Porvorim Police Station for
offences punishable under Sections 489-A, 489-B, 489-C, 420,
465, 467, 468, 472, 474, 475, 409 read with Section 34 of Indian
Penal Code (IPC), has filed the above Criminal Application (Bail)
No. 84 of 2014 for bail, whereas the complainant M/s. Goa
Coastal Resorts and Recreation Private Limited through its
Director, at whose instance the said Crime No. 168 of 2013 has
been registered, has filed the above Stamp Number (Application)
No. 1262 of 2014 praying for leave to intervene in the bail
application.
3. A reply resisting the application for bail has been filed by
the Investigating Officer. The intervenor has also resisted the
application on various grounds stated in the application for
intervention.
4. Shri Tarun Khattar, the Director of M/s. Goa Coastal
Resorts and Recreation Private Limited, Porvorim, Goa has
lodged a complaint on 20/11/2013 with Porvorim Police Station
alleging as follows :
Between 11/11/2013 to 18/11/2013, the applicant and the
manager of Goa Urban Co-operative Bank Ltd, St. Inez Branch
and other unknown persons, with their common intention,
dishonestly induced the complainant to deliver Casino gaming
chips worth ` 6 Crores by taking a sum of ` 6 Crores in cash
from the complainant in lieu of Pay Orders bearing nos. 004523,
004524 and 004525 dated 19/10/2013 for the sum of `80,00,000/-
` 60,00,000/- and ` 90,00,000/- respectively as genuine, drawn on
Goa Urban Cooperative Bank and when the same was deposited
in Ratnakar Bank, Porvorim, they were returned back
dishonoured on the ground that the same were fake / forged.
Further two more pay orders bearing numbers 004545 dated
11/11/2013 for Rs. 2,00,00,000/- and 004544 dated 11/11/2013
for Rs. 1,70,00,000/- were returned from the bank on the ground
that the same were fake/forged. Thus, the accused persons
cheated M/s. Goa Coastal Resorts and Recreation Private Limited
to deliver cash to the tune of ` 6,00,00,000/-.
5. The applicant had earlier filed Criminal Application (Bail)
No. 242 of 2013 before this Court and by order dated
21/12/2013, the same was dismissed mainly on the ground that
the investigation was not yet completed. The present position is
that the entire investigation has now been completed and the
case which was charge-sheeted before the Judicial Magistrate,
First Class, Mapusa as charge sheet No.08/2014, has been
already committed to the Court of Sessions and pending trial
before the learned Sessions Judge vide Sessions Case No. 13 of
2014. The applicant is in judicial custody as from 06/12/2013.
More than five months have passed from the date of arrest of the
applicant.
6. The offence under Section 489-A which pertains to
counterfeiting currency note or bank note provides for
punishment of imprisonment for life or imprisonment for a term
which may extend to 10 years and fine. Section 489-B of IPC
which pertains to using as genuine forged or counterfeited notes
or bank notes provides for punishment for imprisonment for life
or imprisonment which may extend to 10 years and fine. Section
489-C which pertains to possession of forged or counterfeit
currency notes or bank notes provides for punishment of
imprisonment which may extend to 7 years or fine or both.
Section 420 of IPC concerns cheating and provides for
imprisonment which can extend to 7 years and fine. Section 465
of IPC pertains to forgery and provides for imprisonment for 2
years or fine or both. Section 467 of IPC pertains to forgery of
valuable security, will or authority to make or transfer any
valuable security or to receive any money, etc when the valuable
security is promissory note of the Central Government and it
provides for punishment of imprisonment for life or
imprisonment which may extend to 10 years and fine. Section
468 pertains to forgery for the purpose of cheating and which
provides for imprisonment which may extend to 7 years and fine.
Section 472 of IPC pertains to making or counterfeiting a seal,
plate, etc with intent to commit forgery punishable under Section
467 of IPC or possessing with like intent any such seal, plate, etc
knowing the same to be counterfeited and it provides for
punishment of imprisonment for life or imprisonment which may
extend to 7 years and fine. Section 474 of IPC pertains to having
possession of a document knowing it to be forged, with intent to
use it as genuine if the document is one of the description
mentioned in Section 466 of IPC and it provides for
imprisonment which may extend to 7 years and fine. Section 475
of IPC pertains to counterfeiting a device or mark used for
authenticating documents described in Section 467 of IPC or
possessing counterfeit marked material and provides for
punishment of imprisonment for life or imprisonment which may
extend to 7 years and fine. Lastly, Section 409 of IPC pertains to
Criminal Breach of Trust by public servant or by banker,
merchant or agent, etc. which provides for imprisonment for life
or imprisonment which may extend to 10 years and fine. Thus,
none of the offences is punishable with death or with some
minimum mandatory imprisonment, if convicted.
7. The reply reveals that the statement of all the relevant
witnesses have been recorded. Pay Orders and other documents
have been attached. The hard disc of the DVR of CCTV camera
installed in 'Casino Pride' ship has been attached. The specimen
handwriting, signatures and numericals in English of the
applicant have also been obtained and have been sent to Director
of CFSL, Hyderabad along with the hard disk of Casino and two
blank hard disks to retrieve all the deleted as well as existing
available data from the hard disk. In the reply, the only objection
that is stated is that if the applicant is released on bail, he will
jump the bail and threaten the complainant and the witnesses
and it will become very difficult to trace and arrest his
associates, if any.
8. It is not stated in the reply as to who are those associates
and the words “if any” have been used. It is not known as to how
the arrest of the associates, if any, would become difficult, if the
applicant is released on bail. Even otherwise, tracing of other
accused persons cannot be a ground for detaining a person in
custody.
9. Almost all the witnesses, who are the staff members of the
Goa Urban Co-operative Bank Ltd. or of the Casino Pride know
the applicant and the applicant is not stated to be having any
criminal antecedents. The case, otherwise, would mostly depend
upon documentary evidence. The fear of the Investigating Officer
that the applicant would threaten the complainant and other
witnesses, if released on bail, appears to be fanciful and does not
seem to be having any force.
10. That the applicant would jump bail if released on bail is a
ground taken in almost all the bail applications to object grant of
bail. It is not made clear as to why the investigating officer feels
so. There is no past experience for saying so. The applicant has
no criminal antecedents. It is not known as to how much time
would be consumed for conclusion of the said Sessions Case No.CRMAB84/14
8
13/2014. It cannot be expected that the applicant should remain
in custody for unlimited period till the conclusion of the case.
That would amount to punishment which, otherwise, starts only
after conviction. Deprivation of liberty, in this manner, must be
considered a punishment.
11. Mr. De Sa, learned Counsel appearing on behalf of the
intervener has relied upon various judgments. In the case of
“Gulabrao Baburao Deokar Vs. State of Maharashtra and
others”, [2014(1) Bom.C.R. (Cri.) 477], which pertained to
cancellation of bail in a case involving offences under Sections
120-B, 406 409, 411, 420, 465, 466, 468, 471, 109 read with
Section 34 of IPC and Section 13(2) read with Section 13(1)(c)
and 13(1)(d) of the Prevention of Corruption Act, 1988, it was
found the charge was serious supported by a detailed charge
sheet running into 268 pages; role of the appellant was not less
than that of three others whose bail had been rejected; and no
adequate opportunity was given to the Public Prosecutor to reply
on the basis of the charge sheet. The judgment in the case of
“Hanuman Vishwanath Nehare Vs. State of Maharashtra
and others”, [2001 Bom. CR. (Cri.) 879] also pertained to
cancellation of bail granted by JMFC to respondents no. 2 and 3,
who were charged for offence punishable under Section 302 readCRMAB84/14
9
with Section 34 of IPC. Here also, bail was granted without
hearing the learned Assistant Public Prosecutor. The learned
Counsel next relied upon the case of “State of Maharashtra
Vs. Rajendra Shantilal Nahar”, [2004(1) Bom. C.R. (Cri.) 498]
which again pertained to cancellation of bail granted to accused
no. 1, who was charged with offence punishable under Section
167 of Maharashtra Control of Organized Crimes Act, 1999.
Here, the accused was charged for circulating fake currency
notes in the market and also depositing them in the banks. The
order of release on bail was found to be manifestly perverse.
Learned Counsel next relied upon the case of “Puran Vs.
Rambilas and another”, [(2001) 6 SCC 338] which also
pertained to cancellation of bail granted to the appellant, who
was charged under Section 498-A and 304-B of IPC. It was held
that an order granting bail passed by ignoring the material and
evidence on record and without giving reasons would be
perverse and contrary to principles of law and such an order
would itself provide a ground of moving an application for
cancellation of bail. Reliance was also placed on the case of
“Santosh Bhaurao Raut Vs. State of Maharashtra”, [1989(1)
Bom.C.R. 119] in which the offence was punishable with death or
imprisonment for life and it was held that bail cannot be granted
if there is reasonable ground for believing that the accused hasCRMAB84/14
10
committed offence punishable with death or imprisonment for
life, even if discretion is given to the Court to impose lesser
punishment. I have gone through all the above judgments and I
am of the considered view that none of them is applicable to the
facts and circumstances of the present case.
12. Learned Counsel appearing on behalf of the intervenor
urged that there are reasonable grounds to believe that the
applicant is guilty of the offence punishable with imprisonment
for life and therefore he should not be released on bail. He relied
upon the case of “Gurcharan Singh and others Vs. State
(Delhi Administration)”, [AIR 1978 SC 179(1)]. The Apex
Court has observed that since the Sessions Judge or the High
Court will be approached by an accused only after refusal of bail
by the Magistrate, it is not possible to hold that the mandate of
the law of bail under Section 437 Cr.P.C. for the Magistrate will
be ignored by the High Court or by the Sessions Judge. In
paragraph 21, it is observed as under :
“Section 437 Cr. P. C. is concerned only with the
court of Magistrate. It expressly excluded the
High Court and the court of session. The
language of S. 437 (1) may be contrasted with S.
437(7) to which we have already made a
reference. While under sub-sec. (1) of S. 437 Cr.
P. C. the words are : "If there appear to be
reasonable grounds for believing that he has been
guilty". Sub- Sec. (7) says : "that there are
reasonable grounds for believing that the accused
is not guilty of such an offence". This difference in
language occurs on account of the stage at which
the two sub--sections operate. During the initial
investigation of a case in order to confine a
person in detention, there should only appear
reasonable grounds for believing that he has been
guilty of an offence punishable with death or
imprisonment for life, whereas after submission
of charge-sheet or during trial for such an offence
the court has an opportunity to form somewhat
clear opinion as to whether there are reasonable
grounds for believing that the accused is not
guilty of such an offence. At that stage the degree
of certainty of opinion in that behalf is more after
the trial is over and judgment is deferred than at
a pre-trial stage even after the chargesheet.
There is a noticeable trend in the above
provisions of law that even in case of such non bailable
offences a person need not be detained
in custody for any period more than it is
absolutely necessary, if there are no reasonable
grounds for believing that he is guilty of such an
offence. There will be, however, certain
overriding considerations to which we shall refer
hereafter. Whenever a person is arrested by the
police for such an offence, there should be
materials produced before the court to come to a
conclusion as to the nature of the case he is
involved in or he is suspected of. If at that stage
from the materials available there appear
reasonable grounds for believing that the person
has been guilty of an offence punishable with
death or imprisonment for life, the court has no
other option than to commit him to custody. At
that stage, the court is concerned with the
existence of the materials against the accused
and not as to whether those materials are
credible or not on the merits.”
13. The judgment in the case of “Gurcharan Singh and
others”(supra) also pertained to cancellation of bail, granted by
the Sessions Court in the case involving the offence under
Section 120-B read with Section 302 of IPC. The Delhi High
Court had canceled the bail. The appellants had approached the
Hon'ble supreme Court against the order of cancellation of bail.
In the present case, no offence punishable with death is involved.
The present case, though, involves economic offences, however,
does not pertain to currency notes, but is in respect of bank
notes and does not concern public and/or public money. The
present case is concerned with the money of M/s. Goa Coastal
Resorts and Recreation Private Limited only. It is seen from the
complaint of the Director of Goa Coastal Resort and Recreation
(P) Ltd. that the applicant is not a stranger to the 'off shore
Casino' and is otherwise a regular customer of the said Casino
and maintains running account with them. There is also record
in the form of statement of Shri Shrinivas Nayak, a Director of
M/s Goa Coastal Resort & Recreation (P) Ltd. showing that the
applicant had allegedly requested the complainant to wait for
some days for him to clear the dues.
14. In the case of “Sanjay Chandra Vs. Central Bureau of
Investigation”, [(2012) 1 SCC 40], the Apex Court has held
thus:
“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
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, 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 a 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.”
15. In the case of “BhagirathiSinh Judeja Vs. State“ (AIR
1984 SC 372), the Apex Court has observed thus:
“ 5. ...... But even where a prima faice case is
established, the approach of the Court in the
matter of bail is not that the accused should be
detained by way of punishment but whether the
presence of the accused is likely to abuse the
discretion granted in his favour by tampering with
evidence. ....................
8. …....... And the trend today is towards granting
bail because it is now well-settled by a catena of
decisions of this Court that the power to grant bail
is not to be exercised as punishment, before trial,
is being imposed. The only material considerations
in such a situation are whether the accused would
be readily available for his trial and whether he is
likely to abuse the discretion granted in his favour
by tampering with evidence.”
16. The applicant, as stated in the complaint itself, is a
permanent resident of Old Goa, Panaji and is not a stranger to
the complainant and other witnesses who are mostly the
employees of the said Company. It is not the case of the
respondents that there are any criminal antecedents with regard
to the applicant. Appropriate conditions can be imposed upon
the applicant to ensure his presence during trial.
17. Considering all the facts and circumstances of the case, I
am of the view that the stage has come now to release the
applicant on bail as no purpose will be served by detaining him in
custody any more.
18. In the result, the application is allowed.
(a) The applicant shall be released on bail in Crime No.
168 of 2013 registered with Porvorim Police Station for offences
punishable under Sections 489-A, 489-B, 489-C, 420, 465, 467,
468, 472, 474, 475, 409 read with Section 34 of Indian Penal
Code (Sessions Case No. 13 of 2014) on execution of Personal
Bond in the sum of ` 1,00,000/- (Rupees One Lakh only) with one
solvent surety in the like amount, before the Trial Court, on the
following conditions:
(i) The applicant shall surrender his passport, if he has
one, before the Trial Court to remain there until further
orders of the Trial Court.
(ii) The applicant shall not, directly or indirectly, make
an inducement, threat or promise to any person
acquainted with the facts of the case so as to dissuade
him from disclosing such facts to the Court.
(iii) The applicant shall not leave India without any
previous permission of the Trial Court.
(iv) He shall not indulge in any criminal activities
during the period of bail.CRMAB84/14
17
19. The application stands disposed of. So also, the
intervention application stands disposed of accordingly.
U. V. BAKRE, J.
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