Y. G. Mali v. Union of India and others — 1993 DIGILAW 186 (BOM)

JUDGMENT- A.V. SAVANT, J.:---This is a petition by an advocate from Dhule seeking the cancellation of bail granted to the third respondent Harshad Mehta under two different orders : the first is the Order passed on the 27th August, 1992 by the learned Special Judge (justice Variava) in Remand Application No. 24 of 1992 in R.C. Case No. 8 of 1992 and the other is the bail granted on the 9th September 1992 by the Additional Chief Metropolitan Magistrate in R.A. No. 363 of 1992 which relates to the violation of the provisions of the Foreign Exchange Regulation Act, 1973 (for short, "F.E.R.A."). The bail granted by the learned Magistrate in the F.E.R.A. case has been confirmed by this Court while dismissing Criminal Application No. 2595 of 1992 on September 21, 1992. The first respondent is the Union of India, through the Central Bureau of Investigation, which is the investigating agency, in connection with the offences triable under the Special Court (Trial of Offences relating to transactions in securities) Act, 1992 (for short, "the Special Court Act"). The second respondent is the State of Maharashtra, which is a formal party. The third respondent is Harshad Mehta, who is the concerned accused and the fourth respondent is the Directorate of Enforcement, which is the concerned investigating agency, under the F.E.R.A. in respect of the offences alleged to have been committed by the third respondent. 2. The petitioner alleges in particular the breach of Condition No. 3 imposed by the learned Special Judge in his Order dated 27th August, 1992. Condition No. 3 reads as under: "3. The accused is directed not to tamper with any evidence and not to attempt to meet any of the prosecution witnesses. It is clearified that this includes his employees and business contacts. In the event of the accused wanting to contact anybody, he shall first intimate C.B.I. the person he wants to contact and the purpose for which he so wants to contact". As far as the case under the F.E.R.A. is concerned, what is alleged is the breach of Condition No. 4 imposed by the learned Magistrate, and confirmed by this Court. Condition No. 4 in the order of the learned Magistrate reads as under : "4. As far as the case under the F.E.R.A. is concerned, what is alleged is the breach of Condition No. 4 imposed by the learned Magistrate, and confirmed by this Court. Condition No. 4 in the order of the learned Magistrate reads as under : "4. That the accused shall not make directly or indirectly any 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 or any Enforcement Officer". 3. As far as the violation of the conditions imposed by the learned Special Judge is concerned, the petitioner contends that the third respondent has attempted to influence the prosecution witnesses and he has not obtained the permission of the C.B.I. before giving the Press interview at Bombay, the details of which have been published in the two newspapers, copies of which are annexed to the petition. Grievance made is in respect of certain portion appearing at Page No. 16 which is the xerox copy of the edition of "Newsday" of Wednesday 16th June, 1993. Similarly, grievance is made of what appears at Page No. 18, being Page 21 of the edition of "Mid-Day" of Thursday, the 17th June, 1993. The two newspapers are supposed to carry the details of the Press Conference held by the third respondent in the afternoon of Wedesday, the 16th June, 1993. The petitioners grievance is that the first respondent C.B.I. is under the control of the Prime Minister and hence, what appears at page 18 referring to the C.B.I. is likely to hamper the investigation. The exact words, of which grievance has been made, appear at Page 18 are as under : "The conduct of the CBI, which is virtually an agency of the Prime Minister, in this case, wholly corroborates my story that the CBI did not formally want to know the truth". This is preceded by the following portion : "Significantly, I have never been interrogated by the CBI on the matter since my letter. Of course, they wrote that they were not in a position to grant me immunity. When the JPC questioned the CBI about their inaction in this matter, they seem to have provided false explanations, including that the letter had been written by my lawyer without my authority and instructions". 4. Of course, they wrote that they were not in a position to grant me immunity. When the JPC questioned the CBI about their inaction in this matter, they seem to have provided false explanations, including that the letter had been written by my lawyer without my authority and instructions". 4. As far as the breach of Condition No. 4 imposed in the F.E.R.A. case is concerned, the petitioner relies upon the averments made in Para 6 of the petition at Pages 6 and 7. Para 6 of the petition opens with the following words: "6. The petitioner submits that in the abovesaid offence involving mis-appropriation and illegal user of large public funds, the investigation is still in progress. Day by day involvement of number of persons is surfacing. The charge sheets in the said offences are not yet been filed in the Court of Law. The petitioner most respectfully submits that in these circumstances, it is not desirable to keep the main accused free in the Society, whereby he can directly influence and affect the investigation". The petitioner contends that the giving of the Press Interview in the afternoon of 16th June, 1993 by the third respondent amounts to mis-use of the liberty granted by this Court in the F.E.R.A. case. It is alleged that as a result of this Press Interview, the third respondent has committed breach of Condition No. 4 imposed by the learned Magistrate, and confirmed by this Court. In support of his averment seeking cancellation of the bail on the ground of breach of Condition No. 4, the petitioner has sought to rely on some further averments in Para 7 of the petition, which are as under : "The petitioner submits that a person who is granted bail does not enjoy liberty to the extent privileged by any common citizen of this country under the Constitution....... The petitioner submits that respondent No. 3 is flagrantly violating the basic norms and conditions of bail". In para 8 of the petition, it is alleged, "The said public interviews to the press and to the communication media have a direct effect of influencing the investigating and adjudicating machinery of the abovesaid offence. It is a total misuse of the liberty granted to the respondent No. 3 by this Honourable High Court". In para 8 of the petition, it is alleged, "The said public interviews to the press and to the communication media have a direct effect of influencing the investigating and adjudicating machinery of the abovesaid offence. It is a total misuse of the liberty granted to the respondent No. 3 by this Honourable High Court". Finally, in Para 9 the petitioner avers as follows : "The petitioner submits that by taking utmost advantage of the bail granted by this Honourable High Court, respondent No. 3 is giving threats, which are published in the newspaper that respondent No. 3 would disclose the names of persons involved in the abovesaid offence". Since the correctness of the news item appearing in the two newspapers at Pages 16, 17 and 18 of the petition was not disputed in this Court, the petitioner contends that if the investigating agencies are under the influence of the Prime Minister, it is but natural that pressure must have been brought, both on the C.B.I. and the Enforcement Directorate and, therefore, the investigation is being hampered which amounts to a breach of Condition No. 4 imposed in the F.E.R.A. case. 5. At the outset, Shri Gorwadkar, the learned Counsel appearing for the petitioner contends that the locus standi of the complainant is a concept foreign to criminal jurisprudence, save and except where the statute creating the offence provides for the eligibility of the complainant and, by necessary implication, the general principle gets excluded by such specific statutory provision. He contends that punishing an offender is the concern of the Society. He has invited my attention to the obervations of the Supreme Court in the cae of (A.R. Antulay v. Ramdas Sriniwas Nayak and another)1, reported in A.I.R. 1984 Supreme Court p. 718:1984(1) Bom. C.R. 348. He relies on the relevant portion in para 6 at page 722 where it has been observed as under : "It is a well recognised principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enacting or creating an offence indicates to the contrary. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant by necessary implication the general principle gets excluded by such statutory provision. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant by necessary implication the general principle gets excluded by such statutory provision. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception." 6. He then invited my attention to the recent Supreme Court decision in the case of (The Janata Dal v. H.S. Chowdhary and others)2, (the Bofors case) reported in A.I.R. 1993 Supreme Court, p. 892. Shri Gorwadkar placed reliance on Para 66 at page 910, which reads as under: "66. Though we have, in our country, recognised a departure from the strict rule of locus standi as applicable to a person in private action and broadened and liaberalised the rule of standing and thereby permitted a member of the public, having no personal gain or oblique motive to approach the Court for enforcement of the constitutional or legal rights of socially or economically disadvantaged persons who on account of their poverty or total ignorance of their fundamental rights are unable to enter the portals of the courts for judicial redress, yet no precise and inflexible working definition has been evolved in respect of locus standi of an individual seeking judicial remedy and various activities in the field of PIL. Probably, some reservation and diversity of approach to the philosophy of PIL among some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. Probably, some reservation and diversity of approach to the philosophy of PIL among some of the Judges of this Court as reflected from the various decisions of this Court, is one of the reasons for this Court finding it difficult to evolve a consistent jurisprudence in the field of PIL. True, in defining the rule of locus standi no `rigid litmus test can be applied since the broad contours of PIL are still developing space seemingly with divergent views on several aspects of the concept of this newly developed law and discovered jurisdiction leading to a repaid transformation of judicial activism with a far-reaching change both in the nature and form of the judicial process." Relying upon the above two decisions of the Supreme Court, Shri Gorwadkar contends that the petitioners locus standi for filing this petition for cancellation of bail cannot be questioned. 7. On the question as to what should be the approach of the courts in dealing with economic offences of the type alleged to have been committed by the third respondent, Shri Gorwadkar contends that ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the Public Prosecutor is also entitled to justice. In support of this proposition, he has invited my attention to the observations of the Supreme Court in the case of (State of Gujarat v. Mohanlal Jitamalji Porwal and another)3, reported in A.I.R. 1987 Supreme Court p. 1321. This was a case of producing additional evidence before the High Court in an Appeal against acquittal, in a case arising under the Customs Act, 1962. The relevant observations are to be found in Para 5 at page 1324, as under : "To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender. Ends of justice are not satisfied only when the accused in a criminal case is acquitted. The Community acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions". In the above background, the Supreme Court permitted additional evidence being led and set aside the order of acquittal passed by the trial Court. The matter was relegated to the High Court for proceeding further in accordance with law. The cause of the Community deserves equal treatment at the hands of the Court in the discharge of its judicial functions". In the above background, the Supreme Court permitted additional evidence being led and set aside the order of acquittal passed by the trial Court. The matter was relegated to the High Court for proceeding further in accordance with law. Counsel has also contended that a fair trial is the main objective of the Criminal Procedure Code and any threat to such a fair trial must be taken serious note of. He has invited my attention to the observations of the Supreme Court in the case of (Talab Haji Hussain v. Madhukar Purshottam Mondkar and another)4, reported in A.I.R. 1958 Supreme Court, p. 376. The relevant portion is at page 380 in para 10 as under : "As we have already observed, if a fair trial is the main objective of the criminal procedure, any threat to the continuance of a fair trial must be immediately arrested and the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise of inherent power". 8. In the light of the above submissions, both on the question of locus standi and the approach of the Court in ensuring a fair trial, Counsel has contended that in an application for cancellation of bail, one need not aply the standard of proof "beyond reasonable doubt" as is applied for proving the guilt of the accused. He contends that proof of facts by "preponderance of probabilities", as in civil cases, is not totally foreign to criminal jurisprudence and in an application for cancellation of bail, all that the petitioner is required to show is the preponderance of probability that the investigation is being hampered and the fair trial is in jeopardy. In support of this contention, he has invited my attention to the observations of the Supreme Court in the case of (The State through the Delhi Administration v. Sanjay Gandhi)5, reported in A.I.R. 1978 Supreme Court, p. 961, dealing with cancellation of bail. He relies upon the observations in para 14 of the Judgment at page 966 of the Report to contend that the standard of proof in an application for cancellation of bail need not necessarily be that of "beyond reasonable doubt". He relies upon the observations in para 14 of the Judgment at page 966 of the Report to contend that the standard of proof in an application for cancellation of bail need not necessarily be that of "beyond reasonable doubt". The Supreme Court observed in Para 14 at Page 966 as under : "Is it necessary for the prosecution to prove by a mathematical certainty or even beyond a reasonable doubt that the witnesses have turned hostile because they are won over by the accused? We think not. The issue of cancellation of bail can only arise in criminal cases, but that does not mean that every incidental matter in a criminal case must be proved beyond a reasonable doubt like the guilt of the accused. Whether an accused is absconding and therefore his property can be attached under section 83 of the Criminal P.C., whether a search of person or premises was taken as required by the provisions of section 100 of the Code, whether a confession is recorded in strict accordance with the requirements of section 164 of the Code and whether a fact was discovered in consequence of information received from an accused as required by section 27 of the Evidence Act are all matters which fall peculiarly within the ordinary sweep of criminal trials. But though the guilt of the accused in cases which involve the assessment of these facts has to be established beyond a reasonable doubt, these various facts are not required to be proved by the same rigorous standard. Indeed, proof of facts by preponderance of probabilities as in a civil case is not foreign to criminal jurisprudence because, in cases where the statute raises a presumption of guilt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof as of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail". 9. Relying upon the above observations in Sanjay Gandhis, case, Shri Gorwadkar contends that even an attempt to tamper with the evidence is enough to warrant cancellation of bail. He further states that even a reasonable apprehension in the mind of the Court based on the attempt on the part of the third respondent to tamper with the evidence is enough to cancel the bail. Counsel also sought to place reliance on the recent Supreme Court decision in the case of (Aslam Babalal Desai v. State of Maharashtra)6, reported in A.I.R. 1993, Supreme Court, page 1 The Supreme Court has in Para 11, at page 10 ennumerated the various circumstances in which bail can be cancelled. He relies upon Circumstance No. (ii) viz. interferes with the course of investigation, (iii) attempts to tamper with the evidence or witnesses and (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation. According to the petitioner, giving Press Interview by the third respondent in the peculiar facts of this case attracts all the three circumstances mentioned above. Hence, the bail is liable to be cancelled. 10. The application for cancellation of bail has been opposed by the third respondent and is not supported by any of the other respondents. Shri Jaisinghani, the learned Counsel, appearing on behalf of the third respondent Harshad Mehta contends that he is not questioning the jurisdiction of this Court under section 439(2) of the Code of Criminal Procedure to cancel either of the two bails viz., the one granted by the Special Court or the other granted by the learned Magistrate in the F.E.R.A. case, and confirmed by the High Court. Having regard to the scheme of the provisions of the Special Court Act, 1992 and the provisions of the Code of Criminal Procedure, Counsel contends that the powers of this Court under section 439(2) Cr.P.C. would nevertheless be available for considering the question of cancellation of bail in either of the two cases. 11. Regarding the locus of the petitioners, Shri Jaisinghani did not seriously dispute that a citizen can move this Court for cancellation of bail or that this Court can suo motu cancel bail in a given case. The question, however, is as to whether any case has been made out for cancellation of bail. On the question of locus, Counsel has invited my attention to the observations of the Supreme Court in the case of (S.P. Gupta and others v. President of India and others etc.)7, reported in A.I.R. 1982 Supreme Court, p. 149. He relied upon the observations appearing in Para 17, at page 188, which read as under : "17. It may therefore now be taken as well established that where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or determinate class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons. Where the weaker sections of the community are concerned, such as undertrial prisoners languishing in jails without a trial inmates of the Protective Home in Agra or Harijan workers engaged in road construction in the Ajmer District, who are living in poverty and destitution, who are barely eking out a miserable existence with their sweat and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, this Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their cause and seeking relief for them. This Court will readily respond even to a letter addressed by such individual acting pro bono publico. It is true that there are rules made by this Court prescribing the procedure for moving this Court for relief under Article 32 and they require various formalities to be gone through by a person seeking to approach this Court. But it must not be forgotten that procedure is but a hand-maiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities". In view of the above, Counsel contends that when the two independent agencies like the C.B.I. and the Enforcement Directorate are before the Court, it is doubtful as to whether the petitioner can have any locus to apply for cancellation of bail. 12. On merits, Shri Jaisinghani justified the giving of Press Interview by the third respondent and he contends that the occasion for making the said statements was the investigation by the C.B.I. and the probe by the Joint Parliamentary Committee (J.P.C.). The third respondent had already made an Affidavit on 24th February, 1993. However, he had to cross two hurdles : one was that the 3rd respondent was afraid of making a disclosure involving the Prime Minister; the second was that the third respondent wanted to be armed with sufficient material. Though the third respondent has written to the C.B.I. through his Advocate Shri Mahesh Jethmalani, on 17th February, 1993 and though the C.B.I. had sent a reply to the said Advocate on the 25th February, 1993, the C.B.I. had suppressed this information from the J.P.C. Hence, there was a necessity of making such a disclosure, contends Shri Jaisinghani. 13. Though the third respondent has written to the C.B.I. through his Advocate Shri Mahesh Jethmalani, on 17th February, 1993 and though the C.B.I. had sent a reply to the said Advocate on the 25th February, 1993, the C.B.I. had suppressed this information from the J.P.C. Hence, there was a necessity of making such a disclosure, contends Shri Jaisinghani. 13. Coming to the merits of the prayer for cancellation of bail, Shri Jaisinghani has criticised the petitioner as a very irresponsible person, who does not know even the terms on which the bail was granted while he prays for cancellation of the said bail. Counsel has invited my attention to the opening portion of Para 5 where the petitioner has stated as under : "5. The petitioner is a member of the Society and is a common man. He is not aware as to what conditions were imposed on respondent No. 3 while releasing him on bail." Counsel then invited my attention to the concluding portion of Para 6, which appears at Page 7 of the petition in the following words : "There is no restriction on respondent No. 3 from meeting certain categories of people. The petitioner is aware that such restriction is impossible to be implemented and therefore, it is desirable that respondent No. 3 is taken in custody and kept away from the Society". Relying upon these two averments in the petition itself, it is contended on behalf of the third respondent that no case is made out of breach any of the conditions, either Condition No. 3 imposed by the Special Court, or Condition No. 4 imposed by the Magistrate in the F.E.R.A. case. According to the third respondent, the petition lacks bona fides. The third respondent denies having exerted any pressure on anyone. According to Shri Jaisinghani, the Prime Minister is not a prospective witness in the F.E.R.A. case. He is an accomplice. Naming an accomplice is not threatening a witness, contends the counsel. He then contends that the ratio of the Supreme Court decision in A.R. Antulays, case reported in A.I.R. 1984 Supreme Court p. 718 (supra) can have no application, because the question before the Supreme Court was not of cancellation of bail at the instance of a private party, but of the maintainability of a private complaint under the Prevention of Corruption Act, 1947. Counsel, therefore, contends that the ratio of the said decision can be of no assistance to the present case. 14. Similarly, dealing with Sanjay Gandhis, case (supra), Shri Jaisinghani contends that it was a case where the Supreme Court came to the conclusion that the evidence of "Maruti witnesses" was attempted to be tampered with, as observed in para 26 of the Judgment. At Pages 968 and 969 of the Report in Sanjay Gandhis, case, the Supreme Court has dealt with the question of attempt to tamper with the evidence of the "Maruti witnesses" viz., Yadav and Charan Singh. It was in this background that the Supreme Court was constrained to cancel the bail in Sanjay Gandhis, case. Counsel contends that there are no details in the present case of the alleged attempt to tamper with the evidence of any witness. The petition is bereft of any details as to the name, date, place or time on which the alleged breaches were committed, in the sense that the evidence of any witness was attempted to be tampered. Counsel in fact relied upon the observations of the Supreme Court in (Raghubir Singh v. State of Bihar)8, reported in A.I.R. 1987, Supreme Court, p. 149 dealing with the cancellation of bail. He invited my attention to the observations of the Supreme Court in Raghubir Singhs, case in para 22 at page 161 of the report where the Supreme Court has summarised the general grounds for cancellation of bail, such as interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. While it is true that the ratio of this decision in Raghubir Singhs, case has been reiterated in Aslam Babalal Desais, case, A.I.R. 1993 S.C. page 1, Shri Jaisinghani contends that no case is made out on facts to come to the conclusion that there is a breach of any of the conditions in any of the two orders. 15. Shri Namjoshi, the learned Counsel, appearing on behalf of the C.B.I. in the case under the Special Court Act, 1992 has filed the affidavit of S.S. Jha, Deputy Superintendent of Police, C.B.I. Shri Namjoshi attempted to question the jurisdiction of this Court to cancel the bail granted by the Special Court. 15. Shri Namjoshi, the learned Counsel, appearing on behalf of the C.B.I. in the case under the Special Court Act, 1992 has filed the affidavit of S.S. Jha, Deputy Superintendent of Police, C.B.I. Shri Namjoshi attempted to question the jurisdiction of this Court to cancel the bail granted by the Special Court. He invited my attention to the provisions of sections 3, 6, 7, 8, 10 and 13 of the said Special Courts Act, 1992 to contend that if the bail was granted by the Special Court, an application for cancellation of the said bail cannot lie to this Court. However, analysing the scheme of the said provisions of the Special Court Act, 1992 and the provisions of section 439 Cr.P.C., the learned Counsel was not in a position to dispute that the High Courts powers under section 439(2) Cr.P.C. would be unaffected by the provisions of the said Special Court Act, 1992. In his affidavit S.S. Jha contends that the petitioner has no locus to complain to this Court and pray for cancellation of bail. He says that the C.B.I. comes under the Ministry of Personnel for administrative purposes and that there is no pressure from any quarter. He also says that the C.B.I. was examining the conduct of the third respondent and if any violation of the conditions of bail was noticed, the C.B.I. would bring the same to the notice of the appropriate Court. 16. Shri Namjoshi says that the breach of the conditions of bail cannot be merely inferred. The conclusions which the petitioner wants the Court to draw are far-fetched. Counsel contends that the C.B.I. is not averse to the public utterances of Harshad Mehta. There is no allegation of violation of Condition No. 3 regarding contacting the employees or business contacts. Out of 11 cases which the C.B.I. is investigating, Shri Namjoshi states that charge-sheet has been filed in two cases; charge-sheets are almost ready in four cases, but since certain formalities are yet to be completed, they are not yet filed. In the remaining five cases, since foreign countries are involved, responses to the Letters Rogatory are awaited. Counsel, therefore, did not support the petitioners prayer for cancellation of bail. 17. As far as the Enforcement Directorate is concerned, Shri Patwardhan has filed the affidavit of Johnson K. George, Enforcement Officer, of the Enforcement Directorate. In the remaining five cases, since foreign countries are involved, responses to the Letters Rogatory are awaited. Counsel, therefore, did not support the petitioners prayer for cancellation of bail. 17. As far as the Enforcement Directorate is concerned, Shri Patwardhan has filed the affidavit of Johnson K. George, Enforcement Officer, of the Enforcement Directorate. The affidavit sets out the details of the proceedings in different courts so far, including the application for anticipatory bail which was heard by Justice Daud, and was dismissed on 19th July, 1992. However, Para 2 of the affidavit makes an interesting reading. It says as under: "2. The Directorate has so far not noticed any apparent violation of conditions imposed by the Ld. Magistrate while granting bail to Shri Harshad Mehta. ..... The prosecution could not have conceived of a condition that while on bail an accused should not hold press conferences or should not give interviews to media. The facts, circumstances and developments mentioned by the petitioner are unprecedented. This respondent cannot comment as to whether these events directly or indirectly violate the explicit and/or implied conditions of bail and it is for this Honble Court to interprete the effect or impact of the facts mentioned in the petition". 18. From the above averments in para 2 it is difficult for me to judge as to whether the Enforcement Directorate is supporting the application for bail or is opposing the application for bail. Shri Patwardhan, the learned Counsel, contends that as far as the jurisdiction of this Court to cancel the bail granted by the Special Court is concerned, the powers under section 439(2) Cr.P.C. would prevail. Reliance is sought to be placed on the fact that when Justice Daud heard the application for anticipatory bail in the F.E.R.A. case, the C.B.I. never objected to the regular Court hearing the said matter, nor did it insist that it must go to the Special Court. Shri Patwardhan further says that Niranjan Shah, who is the conspirator in the case under the F.E.R.A., was absconding since June, 1992. Two floppy discs were recovered from Niranjan Shah in the raids carried out on 30th and 31st May 1992. However, since Niranjan Shah is now brought to India, the investigation is progressing and the Enforcement Directorate would need some further time to complete the investigation. 19. Two floppy discs were recovered from Niranjan Shah in the raids carried out on 30th and 31st May 1992. However, since Niranjan Shah is now brought to India, the investigation is progressing and the Enforcement Directorate would need some further time to complete the investigation. 19. The State of Maharashtra is a formal party and has nothing to say in the matter. 20. I have heard all the learned Counsel for the parties at some length in the light of the submissions summarised above and the authorities cited. On the question of jurisdiction of this Court, to hear the application for cancellation of bail in so far as the bail granted by the Special Court is concerned, I need not express any opinion since during the course of arguments before me the matter has proceeded on the footing that the High Court would be competent to hear the application for cancellation of bail under section 439(2) Cr.P.C., notwithstanding the provisions of the Special Court Act, 1992. Moreover, in the view that I am taking, it is not necessary for me to decide this point specifically. 21. Similarly, on the question of locus of the petitioner, though Counsel on either side have cited a number of authorities, none of them have seriously disputed that a petition can be presented by a citizen complaining of the breach of the conditions of an order of bail, in which case the Court can even suo motu act in the matter. I would prefer to go to the merits of the matter, rather than pronounce any judgment on either of these two contentions. 22. Coming to the merits of the matter, it is no doubt true that in the recent decision in Aslam Babalal Desais, case, the Supreme Court has reiterated its earlier view in Raghubir Singhs, case and has enlisted certain grounds on which an application for cancellation of bail can be made either under section 437(5) or under section 439(2) of the Cr.P.C. As many as 7 grounds have been mentioned which are merely illustrative, and not exhaustive. It is also true, as observed by the Supreme Court in Sanjay Gandhis, case, that the standard of proof in an application for cancellation of bail is not the same as the one for the proof of guilt in a criminal trial. It is also true, as observed by the Supreme Court in Sanjay Gandhis, case, that the standard of proof in an application for cancellation of bail is not the same as the one for the proof of guilt in a criminal trial. The question, however, is has the petitioner made out any such case even applying the test of "preponderance of probabilities". 23. There is substance in the contention of Shri Jaisinghani that the petitioner, when he approached this Court for cancellation of bail, was not even aware as to what were the conditions on which the bail was granted and of the breach of which he was making a grievance. The petitioner has in no uncertain terms said in Para 5 of the petition and has reiterated this at the end of para 6 that there was no restriction on the third respondent from meeting certain people. It is true that Shri Gorwadkar tried to question the necessity and the occasion for making the declaration to the Press. In my view, this objection has been effectively answered by Shri Jaisinghani by pointing out that the investigation carried on by the C.B.I. and the probe conducted by the J.P.C. was the occasion to make the said declaration. Reading Condition No. 3 in the Order of the Special Court, I find it difficult to come to the conclusion that the third respondent has tampered with the evidence or that he has attempted to meet any of the prosecution witnesses. Indeed, there are no details, no dates, no place, no time mentioned of even an alleged attempt to meet any of the prosecution witnesses. In Sanjay Gandhis case, the Supreme Court has recorded a finding that the accused had attempted to tamper with the evidence of two "Maruti witnesses" viz. Yadav and Charan Singh. None is named before me as having been attempted to be contacted for the purpose of tampering the evidence. It is true that Condition No. 3 in the Order of the Special Court also prevents the third respondent from meeting his employees and business contacts. Here again, there are no details as to which are the employees or business connections the third respondent has met resulting in violation of Condition No. 3. Admittedly, the third respondent has not applied to the C.B.I. for permission to meet any one. Here again, there are no details as to which are the employees or business connections the third respondent has met resulting in violation of Condition No. 3. Admittedly, the third respondent has not applied to the C.B.I. for permission to meet any one. There is no complaint from the C.B.I. of the breach of Condition No. 3. While absence of a grievance by the C.B.I. would not, in my view, be conclusive, it is a strong circumstance in favour of the third respondent. The C.B.I. which is concerned with the investigation into the `scam, has not even whispered of any breach of any of the conditions of the order of bail, much less of Condition No. 3 in particular. The affidavit of Jha is categoric in this behalf. They have denied anybodys pressure or interference in the course of investigation. Shri Namjoshi has explained the progress of the investigation in the 11 cases as far as the C.B.I. is concerned. Under the circumstances, it is difficult to appreciate the petitioners contention that Condition No. 3 of the Order passed by the Special Court has been violated necessitating the cancellation of bail. 24. Coming to Condition No. 4 of the Order of bail in the F.E.R.A. case, it talks of the third respondent not making any direct or indirect inducement to any person acquainted with the facts of the case or of giving any threats or promises to a person so acquainted so as to dissuade him from disclosing such facts to the Court. The usual practice while applying for cancellation of bail is that Affidavits of some witnesses are produced before the Court to say that they were being influenced or that inducements were being offered to them or that threats were being administered to them. There is no such material available in the present case. Indeed, as contended by Shri Jaisinghani, the petition is conspicuous by the absence of these usual details, which accompany an application for cancellation of bail. It is true that the Enforcement Directorate is non-committal about the attitude of the third respondent in giving Press Interview. There is no such material available in the present case. Indeed, as contended by Shri Jaisinghani, the petition is conspicuous by the absence of these usual details, which accompany an application for cancellation of bail. It is true that the Enforcement Directorate is non-committal about the attitude of the third respondent in giving Press Interview. If, however, any details were to be placed before the Court for coming to the conclusion that Condition No. 4 imposed by the learned Magistrate had been violated as a result of the Press Interview, despite the failure on the part of the Enforcement Directorate to take a categoric stand in a given case, the Court could have come to the conclusion that there was a breach of the conditions of the grant of bail. The petitioner has placed no material before this Court to enable the Court to record a finding that Condition No. 4 has been violated. In the circumstances, I am of the view that no case is made out by the petitioner even in respect of breach of Condition No. 4 of the order in the F.E.R.A. case. 25. In the circumstances, the application for cancellation of bail is rejected. 26. Shri Jaisinghani prays for heavy costs being awarded against the petitioner. He contends that the petitioner, who is an Advocate, was totally irresponsible in approaching this Court for cancellation of bail in the facts and circumstances of the case. It may be that the petitioner has not been able to furnish details of what he alleges to be a breach of the conditions of the grant of bail. However, I do not find any mala fides on his part so as to saddle him with costs. Hence, the prayer for costs is rejected. Application rejected.