Sunday, 13 March 2016

When cancellation of anticipatory bail is justified?

 In Siddharam Satlingappa Mhetre v. State of
Maharashtra and others (2011) 1 SCC 694Page 10
, in sub-para (viii) of para 112, this
Court has held as under: -
“(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two
factors, namely, no prejudice should be caused to the
free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;”

 In Bhadresh Bipinbhai Sheth v. State of Gujarat and
another 52015 (9) SCALE 403
, laying down the principles regarding cancellation of
anticipatory bail in sub paras (vi) and (ix) of para 23, this
Court has observed as under: -
“(vi) It is a settled legal position that the court
which grants the bail also has the power to
cancel it. The discretion of grant or
cancellation of bail can be exercised either at
the instance of the accused, the Public
Prosecutor or the complainant, on finding new
material or circumstances at any point of
time.”

(ix) No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of
anticipatory bail because all circumstances
and situations of future cannot be clearly
visualized for the grant or refusal of
anticipatory bail. In consonance with
legislative intention, the grant or refusal of
anticipatory bail should necessarily depend on
the facts and circumstances of each case.”
 Having considered the submissions made by learned
counsel for the parties, and after considering the gravity of the
offence, circumstances of the case, particularly, the allegations
of corruption and misappropriation of public funds released
for rural development, and further considering the conduct of
the appellants and the fact that the investigation is held up as
the custodial interrogation of the appellants could not be done
due to the anticipatory bail, we are of the opinion that the
High Court has rightly cancelled the anticipatory bail granted
to the appellants by the Additional Sessions Judge, Jalgaon.
Therefore, we are not inclined to disturb the same.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1286-1287 OF 2015
(Arising out of S.L.P. (Crl.) Nos. 1753-54 of 2015)
Sudhir … Appellant
Versus
The State of Maharashtra and another …Respondents

citation;(2016)1SCC146

2. All these four appeals are directed against common order
dated 29.1.2015, passed by the High Court of Judicature at
Bombay, Bench Aurangabad, in Criminal Application Nos.
4526 of 2013, 4527 of 2013, 4528 of 2013 and 4529 of 2013
whereby anticipatory bail granted by the Additional Sessions
Judge, Jalgaon, to the appellants in connection with C.R. Nos.
71 of 2013 and 73 of 2013, registered at Police Station
Dharangaon, relating to offences punishable under Sections
409, 420, 467, 468, 477A read with Section 34 of Indian Penal
Code (IPC) and under Section 13(1)(d) read with Section 13(2)
of Prevention of Corruption Act, 1988, is cancelled.
3. We have heard learned counsel for the parties and
perused the papers on record.
4. Brief facts of the case are that appellants Chandrkant
Wagh and Sudhir Dahake are Executive Engineer and
Sectional Engineer respectively in Rural Water Supply
Department of Zilla Parishad, Jalgaon. Two First Information
Reports were registered against them with the serious
allegations of criminal misappropriation of funds released for
implementation of schemes of drinking water in the villages of
Waghlud and Sonwad Khurd in Tehsil Dharangaon. C.R. No.
71 of 2013 relates to Waghlud and C.R. No. 73 of 2013 relates
to village Sonwad Khurd. The FIRs in respect of these crimes
appeared to have been registered only after enquiries were
made under directions of Revenue Commissioner, by Deputy
Commissioner (Development), Nasik Region, who found
substance in the allegations against the appellants. In C.R.
No. 71 of 2013 there is allegation of misappropriation of
Rs.28.35 lacs, and in C.R. No. 73 of 2013 the allegations relate
to misappropriation of Rs.13.75 lacs. In respect of village
Waghlud one Mangal Ganpat Patil was shown as contractor,
but no such contractor was found in existence. Vouchers
shown regarding payment of Rs. 14.94 lacs were found false,
which related to construction of overhead water tank in
Waghlud village which was already in existence in said village
under another scheme. The amount of first installment of
Rs.1.43 lacs and second installment of Rs.1.44 lacs for
construction of public toilet was found to have been made
falsely, as no construction of public toilet was made in the
village. The amount was shown to have been made to one
Rohitdas Aawasu Koli. Two measurement books were kept to
submit exaggerated revised estimates. Rs.1.30 lacs was
shown to have been spent on erection of barbed wire in village
Waghlud, but no work of fencing was done in the village. In
the village Sonwad Khurd (C.R. No. 73 of 2013) work included
relating to digging of bore well, fixing of pump and machinery,
construction of pump house, and laying the pipeline. Barbed
fence was also one of the works to be executed in village
Sonwad Khurd. Most of the payments in respect of these
works are shown to have been made in cash.
5. The High Court has taken note of the fact that initially
Mr. V.S. Dikshit, learned Additional Sessions Judge, Jalgaon,
declined to grant anticipatory bail to the accused-appellants,
and appellant Chandrakant Wagh moved Criminal Application
Nos. 2908 and 2909 of 2013 in connection with above two
FIRs before the High Court praying pre arrest bail. The
applications were withdrawn and the High Court, after
recording statement of the counsel, disposed of the two
applications as withdrawn. Thereafter, appellant
Chandrakant Wagh moved fresh anticipatory bail application
Nos. 867 and 868 of 2013 before Mr. D.P. Surana, learned
Additional Sessions Judge, and succeeded in obtaining the
order of anticipatory bail. The High Court took serious note of
this fact in the impugned order passed on the applications
moved by the complainant for cancellation of bail before it.
Appellant Sudhir Dahake, Sectional Engineer, also appears to
have obtained anticipatory bail from the Court of Additional
Sessions Judge, Jalgaon. Allegations against him were
specific as he was supervising the work under appellant
Chandrakant, the Executive Engineer. Strangely, the State
did not file any application for cancellation of bail, however, it
supported such application for cancellation of bail moved by
the complainant before the High Court.
6. Learned counsel for the State has submitted before us
that there is requirement of the custodial interrogation of the
appellants. It is further submitted that the investigation could
not progress as the appellants could not be interrogated.
7. On the other hand, learned counsel for the appellants
argued before us that the High Court has erred in law in
cancelling the anticipatory bail granted to the appellants
without there being any sufficient reason. They referred to the
cases of Shri Gurbaksh Singh Sibbia and others v. State
of Punjab1
, and Ravindra Saxena v. State of Rajasthan2
.
8. In Ravindra Saxena (supra), the rejection of application
for anticipatory bail by the High Court was set aside by this
Court on the ground that the dispute between the complainant
and the accused was in substance, civil in nature, as it was a
property dispute arising out of commercial transaction, and
1
(1980) 2 SCC 565
2
(2010) 1 SCC 684Page 7
Page 7 of 11
the alleged offences were punishable under Sections 448, 456,
457, 420, 467, 468, 471, 380, and 120B IPC. In the present
case before us, there are serious allegations of
misappropriation of public funds, and corruption and the
offences include one punishable under Section 409 IPC and
also under Section 13 of Prevention of Corruption Act, 1988.
As such, the case of Ravindra Saxena (supra) is of little help
in the present facts and circumstances of the case.
9. In Gurbaksh Singh (supra), the Constitution Bench of
this Court, while laying down the guidelines relating to grant
of anticipatory bail, has observed in paragraph 14 as under: -
“14. Generalisations on matters which rest on
discretion and the attempt to discover formulae of
universal application when facts are bound to differ
from case to case frustrate the very purpose of
conferring discretion. No two cases are alike on
facts and therefore, courts have to be allowed a little
free play in the joints if the conferment of
discretionary power is to be meaningful. There is no
risk involved in entrusting a wide discretion to the
Court of Session and the High Court in granting
anticipatory bail because, firstly, these are higher
courts manned by experienced persons, secondly,
their orders are not final but are open to appellate
or revisional scrutiny and above all because,
discretion has always to be exercised by courts
judicially and not according to whim, caprice or
fancy. On the other hand, there is a risk in
foreclosing categories of cases in which anticipatory
bail may be allowed because life throws up
unforeseen possibilities and offers new
challenges…….”
The Constitution Bench in the above mentioned case, in
paragraphs 16 and 17, while observing that the relief of
anticipatory bail cannot be said to be barred merely for the
reason that the allegations relate to economic offences or
corruption, has clarified that where the allegations are
malafide, the prayer for anticipatory bail can be accepted. In
the present case, at this stage, there appears to be no malice
on the part of Revenue Commissioner, who ordered enquiry, or
Deputy Commissioner, who conducted enquiry, before getting
lodged the First Information Reports against the appellants.
10. In State of A.P. v. Bimal Krishna Kundu and
another3
, which relates to offences punishable under Sections
420, 468 and 406 IPC arisen out of leakage of question paper
in respect of examination conducted by Public Service
Commission, this Court has made following observations: -
3
(1997) 8 SCC 104
“12. We are strongly of the opinion that this is not a
case for exercising the discretion under Section 438
in favour of granting anticipatory bail to the
respondents. It is disquieting that implications of
arming the respondents, when they are pitted
against this sort of allegations involving
well-orchestrated conspiracy, with a pre-arrest bail
order, though subject to some conditions, have not
been taken into account by the learned Single
Judge. We have absolutely no doubt that if the
respondents are equipped with such an order before
they are interrogated by the police it would greatly
harm the investigation and would impede the
prospects of unearthing all the ramifications
involved in the conspiracy. Public interest also
would suffer as a consequence. Having apprised
himself of the nature and seriousness of the
criminal conspiracy and the adverse impact of it on
“the career of millions of students”, learned Single
Judge should not have persuaded himself to
exercise the discretion which Parliament had very
thoughtfully conferred on the Sessions Judges and
the High Courts through Section 438 of the Code,
by favouring the respondents with such a pre-arrest
bail order.”
11. In Siddharam Satlingappa Mhetre v. State of
Maharashtra and others (2011) 1 SCC 694Page 10
, in sub-para (viii) of para 112, this
Court has held as under: -
“(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck between two
factors, namely, no prejudice should be caused to the
free, fair and full investigation and there should be
prevention of harassment, humiliation and unjustified
detention of the accused;”

12. In Bhadresh Bipinbhai Sheth v. State of Gujarat and
another 52015 (9) SCALE 403
, laying down the principles regarding cancellation of
anticipatory bail in sub paras (vi) and (ix) of para 23, this
Court has observed as under: -
“(vi) It is a settled legal position that the court
which grants the bail also has the power to
cancel it. The discretion of grant or
cancellation of bail can be exercised either at
the instance of the accused, the Public
Prosecutor or the complainant, on finding new
material or circumstances at any point of
time.”

(ix) No inflexible guidelines or straitjacket formula
can be provided for grant or refusal of
anticipatory bail because all circumstances
and situations of future cannot be clearly
visualized for the grant or refusal of
anticipatory bail. In consonance with
legislative intention, the grant or refusal of
anticipatory bail should necessarily depend on
the facts and circumstances of each case.”
13. Having considered the submissions made by learned
counsel for the parties, and after considering the gravity of the
offence, circumstances of the case, particularly, the allegations
of corruption and misappropriation of public funds released
for rural development, and further considering the conduct of
the appellants and the fact that the investigation is held up as
the custodial interrogation of the appellants could not be done
due to the anticipatory bail, we are of the opinion that the
High Court has rightly cancelled the anticipatory bail granted
to the appellants by the Additional Sessions Judge, Jalgaon.
Therefore, we are not inclined to disturb the same.
14. Accordingly, we decline to interfere with the order of
cancellation of anticipatory bail, passed by the High Court. All
the four appeals are dismissed.
..…………………..…………J.
[Dipak Misra]
 …………………..……………J.
[Prafulla C. Pant]
New Delhi;
October 01, 2015.
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