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CR.MA/11557/2010 1/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11557 of 2010
=========================================================
SANTOSH
SASHIKANT DABHOLKAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance :
MR
NIKHIL S KARIEL for
Applicant(s) : 1,
MR MR MENGDEY, APP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 07/10/2010
ORAL
ORDER
1. Rule.
Learned APP Mr. MR Mengdey waives service of rule on behalf of
respondent State.
2. Present
application has been filed by the applicant for grant of regular bail
under Section 439 of the Code of Criminal Procedure, 1973. The
applicant accused is charged with having committed offence punishable
under Sections 406, 409, 420, 467, 468, 471, 114 read with Section
120B of the Indian Penal Code for which the FIR being C.R.No. I-243
of 2004 has been registered with Bhuj City Police Station.
3. Learned
Advocate Mr. N.S.Kariel referred to the FIR and submitted that there
are no allegations against the applicant and applicant has not made
any promise. He further submitted that as he was Managing Director at
the relevant time, he has been implicated.
It was submitted that considering the nature of offence where the
company had made a scheme which ultimately lead to the filing of the
FIR for the alleged offence. However, he cannot be said to have
committed any breach of trust and therefore present application may
be allowed. He has also submitted that the other co-accused has been
released. Therefore, the present application may be allowed.
4. Learned
APP Mr. Mengdey referred to the papers and submitted that the
applicant has been involved in a large scale scam with a systematic
design to defraud the people and thereby collected huge amount. He
further submitted that the company in which he was Managing Director
made a scam, and as it appears from the FIR and the other papers, he
has collected huge amount through agents and dupe the people which
lead to the filing of the different complaints including the
complaints in State of Maharashtra. He has submitted that in fact the
present application is a successive bail application as the applicant
had also filed Special
Criminal Application No. 494 of 2010
at Annexure-E and the same was disposed of by this Court (Coram:
A.S.Dave, J.) vide order dated 05.05.2010 in view of the fact that
the trial has commenced and about 21 witnesses have already been
examined and only 5 witnesses remained to be examined. Thereafter,
the present application has been filed. He strenuously
submitted that no change of circumstances has been pointed out and in
fact when the trial is proceeded already, the present application
cannot be entertained. He further submitted that the applicant had
filed Special
Leave to Appeal (Crl.) No. 5392 of 2009
which came to be allowed as per the order dated 09.11.2009 with a
condition that the petitioner can be released on a stringent
condition to be determined by the Trial Court. Thereafter, the Trial
Court has imposed the condition to deposit Rs. 50 lacs as one of the
conditions of the bail. Again the present applicant moved the Hon ble
Apex Court by way of an application for modification of the condition
regarding depositing the amount of Rs. 50 lacs. That condition was
modified by the Hon ble Apex Court and the petitioner was directed
to deposit Rs. 25 lacs as a condition for bail. In spite of that the
present application has been filed and compliance has not been made
with the condition imposed by the Hon ble Apex Court while
modifying and reducing the amount of Rs. 25 lacs as per the order
dated 26.02.2010
in CRLMP
No. 2074 of 2010 in Special Leave to Appeal (Crl.) No. 5392 of 2009.
He, therefore, submitted that the present application may not be
entertained as, in spite of indulgence by the Hon ble Apex Court
also he has failed to comply with any condition.
5. In
view of the rival submissions, it is required to be considered
whether the present application can be entertained or not. It is well
accepted that the Court
is not required to appreciate and scrutinize the evidence in detail
at this stage. However, for considering prima facie case, as it
transpires that the applicant was Managing Director of the company
which has, by way of scam, duped the people and thereby a systematic
design was made to defraud the people which lead to filing of the
complaints including in the State of Maharashtra. Therefore, it
cannot be said that there is no prima facie case as sought to be
canvassed.
6. Further,
as it is evident from the record, particularly the order of the High
Court in Special Criminal Application No. 494 of 2010 dated
05.05.2010 that 21 witnesses have been examined and only 5 witnesses
remained to be examined. This would suggest that the trial has
proceeded and progressed. Therefore, it also cannot be said that
there is a delay in the trial. Further, this being a successive bail
application, no change of circumstances has been pointed out.
Moreover, the fact that the applicant is in custody cannot be a
ground for entertaining the successive bail application when there is
no material change of circumstance pointed out. The Hon ble Apex
Court had considered such arguments with regard to the delay in trial
and Article 21 of the Constitution of India in its judgment in the
case of Kalyan Chandra Sarkar etc. v. Rajesh Ranjan alias Pappu
Yadav and another, reported in AIR 2005 Supreme Court
P. 921. The Hon’ble Apex Court has pointedly referred to the
aspect of successive bail application and has considered the right of
the accused under Article 21. It has been observed in paras 18 and 19
as under:
18. It
is a trite law that personal liberty cannot be taken away except in
accordance with the procedure established by law. Personal liberty is
a constitutional guarantee. However, Article 21 which guarantees the
above right also contemplates deprivation of personal liberty by
procedure established by law. Under the criminal laws of this
country, a person accused of offences which are non-bailable is
liable to be detained in custody during the pendency of trial unless
he is enlarged on bail in accordance with law. Such detention cannot
be questioned as being violative of Article 21 since the same is
authorised by law…………..
19. The
principles of……………… Ordinarily, the issues which had been
canvassed earlier would not be permitted to be re-agitated on the
same grounds, as the same would lead to a speculation and uncertainty
in the administration of justice and may lead to forum hunting.
7. The
Hon ble Apex Court has also, while entertaining the Special Leave
Petition (Crl.) No. 5392 of 2009 vide its order dated 9.11.2009,
allowed it subject to the condition regarding deposit of the amount
to the satisfaction of the trial Court as a stringent condition which
was left to the trial Court. When the Trial Court has imposed the
condition to deposit Rs. 50 lacs it has not been complied with.
Thereafter, again the petitioner has moved the Hon ble Apex Court
by way of CRLMP No. 2074 of 2010 in Special Leave to Appeal (Crl) No.
5392 of 2009 which also came to be disposed of vide order dated
26.02.2010 by the Hon ble
Apex Court and it has been specifically observed, We accordingly
modify this condition and direct that the petitioner shall deposit
Rupees twenty five lakhs as a one time payment as one of the
conditions for bail. The application is allowed in the above terms.
Thus, in spite of the indulgence granted by the Hon ble Apex Court
with a further condition of depositing lesser amount, the petitioner
has tried to wriggle out the said condition by way of present
application which cannot be permitted. It is required to be mentioned
that in fact the petitioner has sought the modification of the
condition imposed by the Hon ble Apex Court vide its order dated
26.02.2010 in CRLMP No. 2074 of 2010 in Special
Leave to Appeal (Crl) No. 5392 of 2009, which is not
permissible as the condition imposed by the Hon ble Apex Court
cannot be substituted or modified by this Court and the Hon ble
Apex Court has, on the contrary, granted indulgence to modify the
condition and reduced the amount to be deposited. Therefore, once the
condition imposed by the Hon ble Apex Court has not been complied
with, the present application cannot be entertained as it would
amount to interfere with the order of the Hon ble Apex Court
substituting the condition of the Hon’ble Apex Court. Therefore, the
present application deserves to be rejected and accordingly stands
rejected. Rule discharged.
(RAJESH
H. SHUKLA, J.)
jani
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