Fida Hussain Bohra vs State Of Maharashtra

Fida Hussain Bohra ... Appellant

Versus

The State of Maharashtra ... Respondent

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a Judgment

and Order dated 3rd December, 2008 passed by the High Court of Judicature

at Bombay, Nagpur Bench, Nagpur whereby and whereunder an Order dated

19-12-2007 passed by the learned Additional Sessions Judge, Akola

granting anticipatory bail in his favour was set aside. 2

3. Civil Surgeon, Akola lodged a First Information Report on or about

30th November, 2006 alleging that since the year 2000, several officers of

the LDH Hospital Murtijapur and National Cooperative Consumer

Federation of India Ltd., its authorized suppliers, subordinate suppliers etc.

committed criminal misappropriation of the public fund.

Appellant was not named therein. Indisputably most of the accused

named in the First Information Report or made accused subsequently filed

applications for grant of anticipatory bail and/or regular bail which have

been allowed. It is stated that brother of the appellant was also arrested. He

named the appellant as also the authorized suppliers. It was disclosed by the

authorized suppliers that the appellant is the real beneficiary of the amount

misappropriated as they were being paid only a sum of Rs. 2000/- per month

by him.

4. Appellant applied for and was granted anticipatory bail by the learned

Sessions Judge, Akola subject to the condition that he would attend the

office of C.I.D Akola thrice a week between 11:00 a.m. to 3:00 p.m. till

completion of investigation. Indisputably the said order has been complied

with.

5. On an application filed by the appellant for relaxation of the said

condition and the response thereto filed by the C.I.D., the said condition 3

was relaxed by an Order dated 18th April, 2008 directing the appellant to

attend the office of the C.I.D only twice a month. It is said that the C.I.D

itself stated that it was not necessary for him to attend their office thrice a

week.

6. Prior thereto the State filed an application purported to be under

Section 482 of the Code of Criminal Procedure (Cr.P.C.) before the High

Court questioning the correctness of the said order granting anticipatory bail

to the appellant on 19-12-2007. By reason of the impugned judgment, the

said application has been allowed.

7. Mr. Naresh Kumar, learned counsel appearing on behalf of the

appellant would submit that the High Court has committed a serious error in

passing the impugned Judgment as by reason whereof anticipatory bail

granted in favour by the learned Sessions Judge has illegally been cancelled.

It was urged that keeping in view the fact that the appellant had

abided by the conditions laid down in the order granting anticipatory bail

and the investigating agency itself having given out that the strict conditions

imposed thereby may suitably be relaxed, the High Court must be held to

have committed a serious error in passing the impugned Judgment.

8. Ms. Aparajita Singh, learned counsel appearing on behalf of the

respondent, on the other hand, would contend that the learned Additional 4

Sessions Judge committed a serious error in granting anticipatory bail to the

appellant on the premise that the period involved in respect of commission

of the offence was 2001-2007; whereas in fact the period involved was

1-04-2005 to 7-10-2006.

It was urged that no reliance should have been placed on the

statement of the store keeper of the hospital that the medicines etc. allegedly

supplied by the authorized suppliers had been received, inasmuch as he

himself being an accused must have made such a statement with a view to

save his own skin.

Appellant was the kingpin and the amount involved in the matter is

about 26 crores which has been embezzled by the accused without making

any supplies and by raising bogus bills.

The High Court in its impugned Judgment has rightly pointed out that

there exists a distinction between an appeal from an order granting bail and

an order of cancellation of bail.

9. Correctness or otherwise of the orders passed by the appellate court

setting aside an order granting bail or an order of cancellation of bail, in our

opinion is required to be considered on the factual matrix involved in each

case.

5

10. For the purpose of grant of bail the amount involved may be of some

relevance but not the only consideration.

The First Information Report was lodged in 30th November, 2006.

Appellant was not named therein. His complicity in the commission of the

alleged crime came to light only from the statements made by the other

accused persons during investigation.

He was granted anticipatory bail subject to the conditions mentioned

therein. He indisputably complied with the said conditions. According to

the appellant he had produced all books of accounts and has fully been

cooperating with the investigating agency. The investigating agency, as

noticed hereinbefore, accepted that the conditions for grant of anticipatory

bail may be relaxed. If the investigating agency itself was satisfied with the

conduct of the appellant vis-a-vis of the orders passed by the learned

Additional Judge and furthermore did not object to relaxation of the

conditions of bail, we fail to understand as to on what premise they could

approach the High Court for setting aside the order granting bail.

11. Appellant had remained on bail for a long time; the impugned

judgment having been passed only on 3-12-2008. If the investigating

agency was of the opinion that custodial interrogation or interrogation of the 6

appellant in presence of the other accused was necessary, the learned

Sessions Judge could have moved in that behalf.

12. If matters relating to the involvement of the appellant in the crime

vis-`-vis the other accused were required to be further probed, the Sessions

Judge again could have been approached.

We would assume that the appellant was involved in regard to the

commission of offence for the period in question namely 1-04-2005 to

7-10-2006.

We would also assume that the statement of store-keeper was not

correct. If his statement was not correct and if a huge amount has been paid

on the basis of bogus bills without any supply of medicine or other articles

having been made, we fail to understand as to on what basis bail could be

granted to other accused persons including the store-keeper while depriving

the appellant from obtaining the said benefit. It is also beyond anybody's

comprehension as to why the High Court was not moved for cancellation of

bail granted in favour of other public servants including the store keeper.

13. We, therefore, are of the opinion that in the facts and circumstances

of this case interest of justice would be sub-served if it is directed that the

appellant shall in the event, any application therefor is filed by the

investigation agency may be interrogated at any time suitable for the 7

Investigating Officer either alone or with other accused persons, shall be

allowed. Appellant shall comply with such other direction or directions as

may be issued by the learned Sessions Judge, if and when, the learned

Sessions Judge passes an order at the instance of the investigating agency or

otherwise relying or on the basis of these observations.

14. For the reasons aforementioned, the impugned judgment is set aside

and the appeal is allowed with the aforementioned directions.

.........................J. [S.B. SINHA]

..........................J. [Dr. Mukundakam Sharma]

New Delhi;

March 3, 2009