Judgment S.S. PARKAR, J. :---Petitioners in all the above four applications have applied for anticipatory bail under section 438 of the Criminal Procedure Code. Since all the applications arise under one and the same complaint registered under C.R. No. 95 of 1996 with General Branch, Crime Branch, C.I.D. Bombay and some common questions of facts and law are involved, the said applications were heard together and are, therefore, being disposed of by common judgment for the sake of convenience. 2.These applications for anticipatory bail arise in the following manner :- All the petitioners are dealing in the business of leather products that is foot-wear in the names of their firms or companies. They are essentially doing the business of buying and selling the finished products of leather goods i.e. foot-wear. They purchase foot-wear from manufacturers who have formed co-operative societies and then sell the finished products under their business names. The manufacturing co-operative societies are formed by the cobblers. Formerly these cobblers were carrying on their individual business of manufacture of foot-wear. Later on for the sake of convenience and in order to increase their business they had started forming co-operative societies. The petitioners in all these applications had dealings with the societies formed by the cobblers since the middle of 1970s, as appears from the record and the arguments advanced before me. 3.With a view to help the upliftment of these cobblers who come from the lower strata of society and form weaker section of the society, the Central Government had introduced a scheme by providing loan to these cobblers' societies at subsidised interest rates, sales tax exemptions etc. This scheme is modified form of automatic refinance scheme and was executed through Khadi and Village Industries Board allowing individual cobbler member of these societies to get subsidised loans from the Banks of Rs. 25,000/- each. The said loan was granted only to the cobblers who constituted themselves into co-operative societies. The loan had to be applied for in the name of the societies and the nationalised and Co-operative Banks were advancing the loans at the rate of Rs. 25,000/- per member. The said loan was to be utilised by the societies for the purchase of raw materials and after manufacturing finished products of leather foot-wear like shoes etc. the same were sold to the dealers like the petitioners. 25,000/- per member. The said loan was to be utilised by the societies for the purchase of raw materials and after manufacturing finished products of leather foot-wear like shoes etc. the same were sold to the dealers like the petitioners. Before giving loans to these cobbler societies the Banks had to follow certain norms like, the Banks had to ascertain and were to be satisfied about the identity of the member cobblers. Every borrower member had to be identified by the society. The Bank had to interview every borrower member. The Bank also insisted on the undertaking to be given by the society for repayment of the said loan by regular instalments. The Bank also insisted on the guarantee being given by the dealers in finished products like the petitioners. 4.It is not disputed that these societies were having members numbering hundreds and also thousands and the petitioners in all the above applications had stood guarantors at the request of the societies as well as the Banks. It is not disputed that the Banks had addressed letters to the societies asking for guarantees from the solvent firms and their partners/members like the petitioners as the amount of loan stood in crores sometimes, depending on the number of the members of the societies. Initially when these societies were formed the membership of the societies was in 10s and 20s. However, the said number had swollen in hundreds and thousands after the scheme of subsidised loan was commenced by the Central Government . 5.In the month of October 1995 it was learnt by the C.I.D., Bombay that these cobbler societies were indulging in malpractices and the amount of loan supposed to have been given for the benefit of the cobbler class was not utilised for their benefit but the same was raised in the names of the cobblers and utilised for the personal benefits of those who were at the helm of the affairs of these societies and, therefore, the Registrar of Co-operative Societies, Bombay was requested to scrutinise the record and transactions of number of such cobblers' societies. Pursuant to the said reference the Divisional Joint Registrar, Co-operative Societies, Bombay Division, New Bombay had held enquiries in the affairs of the societies and sent a report dated 7th September 1996 to the Deputy Commissioner of Police, Crime Branch IV, Bombay. Pursuant to the said reference the Divisional Joint Registrar, Co-operative Societies, Bombay Division, New Bombay had held enquiries in the affairs of the societies and sent a report dated 7th September 1996 to the Deputy Commissioner of Police, Crime Branch IV, Bombay. The said report was received by the latter on 9th September 1996. The main findings of the said report were that these petitioners with the help of some individuals had misused the Leather Industrial Co-operative Societies and took loans from the Banks amounting to lacs and crorers of rupees and used for their own benefits. The said societies were formed at the instance of the dealers in footwears like the petitioners who had also stood guarantors for the repayment of loan to the Banks. It is further alleged in the said report that the officers of the financial institutions were either duped or had deliberately connived in the said malpractices. The members of the societies kept on changing so also the addresses of the societies without the requisite permission from the Co-operative Department. The list of bogus membership was prepared with the addresses which were not traceable. In order to make full investigation in the matter the said report also had suggested the ways in order to investigate the matter further. The said report also annexed a list of the societies which were involved in the said malpractices so also the list of financial institutions which were concerned in the matter. The said report also gave the names of the individuals involved in the alleged fraud committed in the name of the said leather co-operative societies and the said list consists of 30 individual persons. After the receipt of the said report from the Divisional Joint Registrar, Co-operative Societies, Bombay Division, Konkan Bhavan, F.I.R. dated 10th September 1996 was lodged against the 4 accused persons and others by S.M. Naik, Sub-Inspector of Police attached to General Branch, Crime Branch, C.I.D., Bombay. After the receipt of the said report from the Divisional Joint Registrar, Co-operative Societies, Bombay Division, Konkan Bhavan, F.I.R. dated 10th September 1996 was lodged against the 4 accused persons and others by S.M. Naik, Sub-Inspector of Police attached to General Branch, Crime Branch, C.I.D., Bombay. The names of the four individuals mentioned in the said F.I.R. are as follows:- i) Sadruddin Daya of Dawood Shoes Pvt. Ltd. ii) Rafique Malik of Metro Shoes Pvt. Ltd. iii) Rafiq Tejani, M.D. Metro Shoes Pvt. Ltd. iv) Kishore Signapurkar of Milano Shoes Pvt. Ltd. 6.Although the said F.I.R. is dated 10th September 1996 there is some controversy as to when the said F.I.R. was lodged and copy was furnished to the Court of learned Metropolitan Magistrate, Greater Bombay. The learned Public Prosecutor Mr. Tulpule stated across the bar that the said F.I.R. was lodged in the Court on 12th September 1996. 7.The main allegations in the F.I.R. are that the leather industrial co-operative societies formed in different names which are mentioned in the F.I.R. opened under the Central Government Scheme for weaker section for their upliftment by providing them loans at lesser interest had been misused to extract crores of rupees from the nationalised Banks and other financial institutions by forming societies in the name of bogus or non-existing members. For the said purpose bogus records and bogus documentary papers were prepared and the signatures of the Government officers, of Co-operative Department, Sales-Tax were found to have been forged. The said leather societies were initially registered with 10 to 15 members and thereafter interested parties increased the number of members to thousands. The Bank loan was obtained in the names of the societies at the rate of Rs. 25,000/- per member which amount was misappropriated inter alia by the four accused persons named in the F.I.R. and some other members of their shops. The F.I.R. also mentions the names of various individuals who were found to have been indulging in malpractices of procuring loans of crores of rupees from the nationalised Banks, Co-operative Banks and other financial institutions in the names of bogus co-operative societies. 8.Out of the four petitioners in the above four applications, names of three petitioners in Criminal Application No. 2551 of 1996, Criminal Application No. 2554 of 1996 and Criminal Application No. 2562 of 1996 appear in the main proforma itself. 8.Out of the four petitioners in the above four applications, names of three petitioners in Criminal Application No. 2551 of 1996, Criminal Application No. 2554 of 1996 and Criminal Application No. 2562 of 1996 appear in the main proforma itself. Their names also appear in the statement of the complainant, Police Sub-Inspector S.M. Naik. However, the name of the petitioner Mrs. Aziza Rafiqua Malik being petitioner in Criminal Application No. 2552 of 1996 is conspicuously absent. It is also pertinent to note at this stage that the name of this petitioner does not appear also in the list of individuals being Appendix 'C' giving the list of persons mainly involved in fraud of leather co-operative societies, which was annexed to the report dated 7th September 1996 of the Divisional Joint Registrar, Co-operative Societies, Bombay Division, Bombay which was sent to the Deputy Commissioner of Police, Crime Branch, Bombay. 9.After lodging of the said F.I.R. the Investigating Agency started interrogating the persons whose names are mentioned either in the list of persons involved furnished by the Divisional Joint Registrar or the persons named in the F.I.R. The Investigating Agency also started seizing the documents and records from the offices of the leather societies as well as from the offices of the petitioner who are dealing in foot-wear as dealers of finished products. It may be mentioned here that Kishore Shanker Signapurkar, petitioner in Criminal Application No. 2562 of 1996, comes from the cobblers family and, therefore, he is the member and Chairman of some of the leather societies and has also stood as guarantor to other leather societies. The other three petitioners in other applications admittedly do not belong to cobblers family nor are they members or office bearers in the cobblers societies but are concerned as guarantors to the cobblers societies in their individual as well as corporate capacities. 10.In the course of investigation which commenced a day or two after the aforesaid F.I.R. was lodged, the petitioners apprehending their arrests, filed applications for anticipatory bail in the Sessions Court, Bombay. The said applications came to be rejected on 30th September 1996 and, therefore, the petitioners have filed these applications seeking anticipatory bail in the event of their arrest pursuant to the aforesaid complaint lodged under C.R. No. 95 of 1996. The said applications came to be rejected on 30th September 1996 and, therefore, the petitioners have filed these applications seeking anticipatory bail in the event of their arrest pursuant to the aforesaid complaint lodged under C.R. No. 95 of 1996. 11.The case of these petitioners as appears from the above applications and the arguments advanced at the bar by their respective counsel, is that the petitioners who are dealers in the foot-wear had been purchasing leather foot wear products manufactured by the co-operative societies or artisans (Karigars) as also their other organised sectors. The petitioners in first two Criminal Application Nos. 2551 and 2552 of 1996 who are husband and wife respectively and are the Directors of Metro Shoes Ltd., had dealings with two co-operative societies viz. Jai Hind Sahakari Charmoutpadak Sangh Ltd. and Jai Bharat Leather Industrial Co-operative Producers Society Ltd. These societies had to purchase raw materials etc. and, therefore, they had to approach the Banks for loan amount for financing purchase of the raw materials. The Banks to whom the said societies approached for advance required some solvent party and preferably prospective purchasers of leather goods to give guarantees for the amount advanced by the banks to the said societies. At the request of the Societies, these petitioners stood guarantors to the Bank which was readily accepted by the Banks. The petitioners had regularly honoured the commitments with the said societies and had also discharged their liabilities to the said societies. These petitioners in first two petitions had entered into an agreement dated 30th August 1992 with Jai Hind Sahakari Charmoutpadak Sangh Ltd., under which as per clause 4 the petitioners were entitled to retain with them the amount of bills payable to the said societies towards the goods supplied to them to the extent of amount of loan together with interest payable to the creditor-Bank by the borrowers as societies. Similar is the case in respect of the other petitioners, like petitioner in Criminal Application No. 2554 of 1996 who is partner in M/s. Dawood Co. Similar is the case in respect of the other petitioners, like petitioner in Criminal Application No. 2554 of 1996 who is partner in M/s. Dawood Co. A letter dated 28th January 1992 was issued by Jeevan Vikas, to whom the petitioner and the said Dawood Co., had stood guarantor, to which resolution of the society dated 21st January 1992 was annexed to the effect that the petitioners are requested to stand surety for the facility of taking loan from the Bank on the condition that the said societies would always allow M/s. Dawood Co., to retain the equal amount of outstandings at all times of the amounts so guaranteed by them. Similar is the case of the petitioner in Criminal Application No. 2562 of 1996. 12.On the basis of the aforesaid arrangement it was argued on behalf of the petitioners that the petitioners had given guarantees because they had interest in the said societies from whom they were purchasing finished products which they sold under their firm's names. By standing guarantors these petitioners were not the losers inasmuch as the petitioners had to pay the amounts of bills to these societies for the purchase of the finished goods which they made from the societies and these petitioners were given facility or right to retain with them the amount of guarantee to the extent of liability which the societies had to discharge to the creditors-Banks. It is further contended that the Banks would not have given these loans but for the guarantees which were given by these petitioners who were financially solvent parties. The co-operative societies were formed and registered under the Co-operative societies Act and, therefore, there could be check by the Registrar of Co-operative Societies and the petitioners had no hand at all in the affairs of the said societies. 13.As against this it is the case of the prosecution that these petitioners, who are apparently guarantors, were actually managing the affairs of the societies through their nominees. The said societies were formed and the office bearers of the said societies were appointed by and at the instance of these petitioners. Large number of members of the societies were non-existent and were bogus and the loan was obtained in the names of these bogus or non-existing members which were ultimately withdrawn and utilised by the petitioners. The said societies were formed and the office bearers of the said societies were appointed by and at the instance of these petitioners. Large number of members of the societies were non-existent and were bogus and the loan was obtained in the names of these bogus or non-existing members which were ultimately withdrawn and utilised by the petitioners. It is also the case of the prosecution that the facilities of subsidised loans was offered under the scheme of the Central Government to the class of cobblers. In other words the members of all these leather societies essentially ought to belong to the classes of cobblers. However, the prosecution has found in the course of investigation and enquiry that many members in fact who are at the helm of affairs of these societies or the office bearers of these societies did not belong to the classes of cobblers and these office bearers were the nominees of the present petitioners and were working at the instance of and as per the directions of these petitioners. It was however further argued on behalf of the petitioners that all the documents were seized by the investigating agency in the course of investigation and nothing untoward has been found. The books of accounts of these petitioners as well as the books of account and other documents of the societies are also in the custody of the investigating agency. The petitioners had been interrogated at length and they will make themselves further available for investigation as and when required by the Investigating Agency and the custodial interrogation is not necessary when the entire case rests on the documentary evidence. 14.Going by the applications as well as the say of the prosecution which was filed in the Sessions Court while contesting the applications for anticipatory bail and also the orders passed by the Sessions Court while rejecting their applications, the arguments advanced on behalf of the petitioners appear to be attractive and frankly speaking I could not find the necessity for the custodial interrogation of the petitioners on the basis of the report and the F.I.R. which is lodged in the matter. In the course of the arguments, the learned Public Prosecutor Mr. Tulpule made available to me the various files and the statements recorded during the course of investigation. In the course of the arguments, the learned Public Prosecutor Mr. Tulpule made available to me the various files and the statements recorded during the course of investigation. From the statements recorded by the Police till the date of hearing one circumstance, which according to me is very telling, noticed by me is that large amounts of money in lacs have been withdrawn apparently by the societies from their Bank accounts which had given loans to the societies but the statements of some of the office bearers of these societies mention that those cash withdrawals or at least substantial part of those cash withdrawals were handed over directly to the petitioners in Criminal Application No. 2551 of 1996 and Criminal Application No. 2554 of 1996. It appeared that the petitioners and their Counsel were not aware of this part of the investigation. The statements as well as the names of the witnesses whose statements were recorded were kept and are still kept secret to the petitioners and their Counsel. After going through the statements with the help of learned Public Prosecutor Mr. Tulpule, I mentioned about it across the bar to the Counsel for the petitioners in order to be fair to them and in order to elicite, if there is any cogent explanation for the same. The Counsel for the petitioners had no doubt given apparently plausible explanation for the same when they contended that these societies were formed not now or recently but they were formed since the middle of 1970s with which these petitioners had dealings right from then and it was for the benefit of these societies and the members of the said societies that they had stood guarantors. If any witnesses stated that the amounts which were withdrawn in cash were paid to any of these petitioners who had stood as guarantors cannot be given any credence for the simple reason that ultimately as guarantors they were liable to repay that amount to the Banks in case default is made by the societies and, therefore, these petitioners as guarantors could not have gained anything by receiving those cash withdrawals from the societies' accounts and, therefore, even for this purpose also according to the counsel for the petitioners, the custodial interrogation would not be necessary. But in this matter as I said earlier, the entire prosecution case which is normally disclosed by filing affidavit, was not done in these cases for obvious reasons as said by Mr. Tulpule, learned Public Prosecutor that in that case the witnesses will not come forward to record their statements and tell the truth as to who is behind all these things. 15.Going by the apparent case of the prosecution which is mentioned in the F.I.R. and the reports filed by them in the Sessions Court, no Court would have felt that the custodial interrogation would be necessary. Even the lower Courts who had the occassion to go through the files, had not given any indication as to what sort of statements or evidence was available against these petitioners. After hearing the arguments from both sides at considerable length, the learned Public Prosecutor handed over a large number of bulky files to me for my own perusal. The number of the files was so large that it was not possible to go through these files without having a free week-end and, therefore, these matters had to be adjourned for the said purpose after reserving the orders. At the time of the hearing of the arguments I was all the time confronted with the facts on the one hand that is on the prosecution side and the principles of law laid down by our Apex Court upholding the dignity and the liberty of the citizens on the other hand which Mr. Tulpule chose to call as facts against fiction with which I would not agree. 16.On behalf of the petitioners the conduct of the Investigating Agency was under scathing criticism. It begins with the lodging of the F.I.R. itself. The F.I.R. is dated 10th September, 1996 which was one day after the receipt of the report from the Joint Divisional Registrar of the Co-operative Societies and, as stated earlier, Mr. Tulpule, the learned Public Prosecutor fairly stated that although the F.I.R. is dated 10th September, 1996, it was filed in the Court on 12th September 1996. Mr. Pradhan appearing for one of the petitioners had tried to point out that what was filed on 12th September, 1996 was not full F.I.R. along with the statement but only the proforma that is the first page and not the statement of the complainant. Mr. Pradhan appearing for one of the petitioners had tried to point out that what was filed on 12th September, 1996 was not full F.I.R. along with the statement but only the proforma that is the first page and not the statement of the complainant. Secondly, it was pointed out on behalf of the petitioners that the petitioner-Rafique Malik who was admitted to the hospital was taken from the hospital straightway to the Police Station for the purpose of interrogation as soon as he was discharged from the hospital, and during his hospitalisation the Police were posted there and the disease of which he was suffering was heart ailment of which he is patient right from the year 1981. Thirdly it has been stated in the petition and also said time and again across the bar that the petitioner Aziza Malik, although a lady, was detained at the Police Station for the purpose of interrogation upto 10-10.30 in the night and she was also slapped on 17-9-96 by Police Officer Mahadik in the presence of Mr. Sanjay Pande, Deputy Commissioner of Police and this fact was never denied either in the Sessions Court or in this Court on behalf of the prosecution. 17.In the conflict between the facts and the legal principles I had to take guidance from the decision of the Constitution Bench of the Supreme Court in the case of (Gurbaksh Singh v. State of Punjab )1, reported in A.I.R. 1980 S.C. 1632 which was elaborately cited and read on behalf of the petitioners. The Constitution Bench of the Supreme Court in this case was interpreting the scope of section 438 of the Criminal Procedure Code with regard to the grant of bail before the arrest with which I am vitally concerned in this group of petitions. While interpreting the section 438 of Cr.P.C. the Apex Court had throughout emphasized that the legislature has given unfettered discretion on the Sessions Court and the High Court with regard to power to grant what is generally called as anticipatory bail, but like any other discretion, this discretion has to be exercised judically. The Supreme Court has pointed out that section 438 has left the matter of release of the accused on anticipatory bail to the complete discretion and judicial sense of the Sessions Court and the High Court. The Supreme Court has pointed out that section 438 has left the matter of release of the accused on anticipatory bail to the complete discretion and judicial sense of the Sessions Court and the High Court. It has further pointed out that when the legislature itself has given unfettered discretion to these courts, no guidelines or restrictions can be read into the said provision. Adverting to the trust reposed by the legislature in the Sessions Court and High Court while giving unfettered powers to these courts in grant of or rejecting the application for anticipatory bail, it is stated in para 14 of the said judgment that 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. The Supreme Court has further observed, "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." The Supreme Court has further emphasized the trust reposed in these courts by observing that "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. Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges." 18.Since the legislature has placed so much trust in the higher judiciary and the said trust has been emphasised so eloquently by our Apex Court, it becomes imperative on this Court to weigh in golden scale the pros and cons of granting the anticipatory bail or granting the custodial interrogation to the Police. As recently as in the year 1994 our Apex Court had once again occasion to deal with the powers of the Court with regard to grant or refusal of bail, whether the same is before or after the arrest. That case is of (Joginder Kumar v. State of U.P.)2, reported in Judgment Today 1994(3) Supreme Court 423. While disapproving the conduct of the Police to make arrest indiscriminately who are required to serve the cause of justice or to further the case of the prosecution, the Supreme Court in the aforesaid decision with approval cited the forthright words of Justice Cardozo when he observed "that society came first, and that the criminal should not go free because the constable blundered." In the said case the Supreme Court has cautioned that the horizon of human rights is expanding but at the same time, the crime rate is also increasing and, therefore, a realistic approach should be made in this direction. To quote from para 9 of the said judgment, it is observed by the Supreme Court :- "... The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other, of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively..." 19.Guided by the aforesaid observations of the Apex Court, I proceed to consider the facts in brief of these individual petitioners. 20.Taking the case of petitioner Rafique Malik in Criminal Application No. 2551 of 1996, it may be mentioned that he is one of the Directors of M/s. Metro Shoes Ltd. which according to the application was founded by his father as far back as in the year 1948 and was converted into a Limited Company in the year 1977. He along with his company and the other Directors of the said company had stood guarantors to Jai Hind Sahakari Charmoutpadak Sangh Ltd. and Jai Bharat Industrial Leather Producers Society Ltd. So far as Jai Hind Society is concerned, the amount was borrowed by the said society from Citibank and after reading the newspaper reports, the said Bank sent notice dated 25th September 1996 to Metro Shoes Ltd. and its Directors for repayment of the sum of Rs. 93,46,182-30. 93,46,182-30. The said notice was replied to by the firm and the Directors on 28th September 1996 showing their readiness and willingness to pay the said amount on the Bank furnishing to them the statement of accounts. Mr. Shirodkar, the learned counsel appearing on behalf of the said petitioner had stated and kept ready in his hand the cheque for the repayment of the said amount due to the said Bank on behalf of the Societies of which petitioner and his company had stood guarantors. The matter would not rest there. It is not simply the case of repayment of loan which lies within the jurisdiction of the Civil Court and probably the suit would follow after the said notice. The question is about who had taken the funds or loans from the Bank in the name of these societies. Whether the loan amount went to the cobblers for whose benefit the scheme was made or the amount had gone in other packets as alleged by the prosecution. The prosecution has recorded the statements of two witnesses whose names appear in the list of accused mentioned in the F.I.R. who were also vitally concerned as office bearers of the societies to which the petitioner had stood guarantor. (Their names are kept undisclosed on the request of the Ld. Public Prosecutor.) The large amounts of cash were withdrawn from these Banks and half of the said amount was given to him either by the said witnesses directly or through other person named in that statement. Sometimes the amount was paid to the petitioner through the Chief Officer of the Metro Shoes of which he was Director. The name of the Chief Officer also is mentioned in the statement. The other witness who was also joint signatory for the purpose of signing the cheques on behalf of the societies has stated that that witness was made to sign on blank cheques and ultimately that witness resigned much before the present controversy arose. That witness however has not named or did not even know who withdrew the cash and to whom it was paid. These witnesses who apparently do not belong to cobblers class were at the helm of affairs of the said societies. One of them admitted that he or she was an employee of Metro Shoes. That witness however has not named or did not even know who withdrew the cash and to whom it was paid. These witnesses who apparently do not belong to cobblers class were at the helm of affairs of the said societies. One of them admitted that he or she was an employee of Metro Shoes. None of these witnesses however, state that the petitioner Aziza Malik in Criminal Application No. 2552 of 1996 was concerned with those cash withdrawals. One of the witnesses in fact stated that he or she had refused some times to sign on blank cheques in presence of petitioner Aziza Malik and she did not utter a single word as if she was not aware about the same. 21.Similar allegations are made about the petitioner S.H. Daya in Criminal Application No. 2554 of 1996. This petitioner is one of the partners of Dawood Co., which was established as far back as in the year 1911. This petitioner's firm had purchased foot-wear from Jeevan Vikas Co-operative Cottage Leather Industries Ltd. during the period between 1975 and 1994 and thereafter from Samta Charmotpadak Co-operative Society Ltd. which was started in the year 1980. The association of this petitioner with the said societies seems to be from their inception when the present scheme was not announced or was not in operation. According to this petitioner his firm had complained to the Bank of Baroda from whom the loan was taken by Jeevan Vikas Society, against its secretary Rauf Memon in the year 1994 and the complaint was about the forgery by this man of the signatures of the members of the said society. Because of this conduct of the said Secretary of Jeevan Vikas Society, the petitioner had discontinued to purchase foot-wear from the said society and started purchasing foot-wears from Samata Society. It is pointed out on behalf of the petitioners that a suit has been filed being Summary Suit No. 2949 of 1996 in this Court on its Original Side for the recovery of various sums amounting to 8 and 1/2 crores of rupees. The suit has been filed against the petitioner and his partners and the firm for the recovery of the said amount as guarantors. One of the persons working with one of those societies viz. The suit has been filed against the petitioner and his partners and the firm for the recovery of the said amount as guarantors. One of the persons working with one of those societies viz. Samta Leather Society has stated in his statement that the loan which was received from the Bank in the name of the society was used by Dawood Shoes of which the petitioner is one of the partners. Another witness associated with the same society has also stated before the police that he along with other witness had withdrawn lacs of rupees from the society's account and handed over to the representative of the petitioner Mr. S.H. Daya. He further states that some time the amount was deposited in the office of the petitioner. 22.These statements about the withdrawal of cash in lacs of rupees and payment to these two petitioners could have been explained by the plausible explanation which was offered by their learned Counsel Mr. Adhik Shirodkar that ultimately it is these petitioners who, being guarantors, had to repay the amount and, therefore, why should they receive the said amount and even if they have received, ultimately it is they who are liable to repay if the default is committed by the society. The aforesaid explanation though appears to be plausible at first blush, it has to be considered in the following circumstances. Firstly, the ultimate liability is not that of the guarantor but of the original debtor or the borrower i.e. the society in this case. Secondly, it has to be looked at in the context of other allegations that a large number of membership of these societies was non-existent or bogus, coupled with the fact that the membership of these societies had swollen into thousands as against initial membership of 10 to 15 numbers. In the third instance, it has been prima facie found in the enquiry that many of the members did not belong to the classes of cobblers for whose benefit the scheme was started. The unfortunate part of this case or investigation is that although the prosecution has made loud cries that this is a case of scam involving the amount of Rs. 500 crores and several societies and the persons are involved, only few persons were sought to be arrested by the investigating agency. The unfortunate part of this case or investigation is that although the prosecution has made loud cries that this is a case of scam involving the amount of Rs. 500 crores and several societies and the persons are involved, only few persons were sought to be arrested by the investigating agency. Though the Bank officials and Government departments are found involved in abetting the malpractices, they are not being booked. It is true, as pointed out on behalf of the petitioners, that most or probably all the documents of books of accounts, not only of the Banks and societies, but also of these petitioners and their firms have been seized by the Police and these petitioners had reported to the police for the purpose of their interrogation which again has to tell a sad story. The investigating agency has not conducted itself in a very fair manner which is always dreaded not only by the accused but also by the courts as it involves the violation of human rights. 23.The petitioner-Rafique Malik in Criminal Application No. 2551 of 1996 had made himself available for interrogation between 13th September 1996 till 7th October 1996 on 25 days. On most of these days the petitioner was interrogated only for some time and with regard to the property only. The petitioner has filed the details of the interrogation made by the investigating agency which has not been disputed on behalf of the prosecution. This petitioner along with his wife who is petitioner in Criminal Application No. 2552 of 1996 were called or had reported to the investigating agency time and again and they were detained at the police station for long number of hours upto 10 or 10.30 in the night and most of the time the investigating agency has not chosen to interrogate these petitioners. Yet another petitioner Mr. S.H. Daya in Criminal Application No. 2554 of 1996 had reported to the investigating agency for a period of 13 days beginning from 20th September 1996 to 5th October 1996 and on many occasions no enquiry was made, no questions were asked to him and on some days the questions put to him were with regard to his property and assets only. This conduct coupled with the calling a lady accused at the police station and detaining her upto late night even when her husband was in the hospital against the express statutory prohibition laid down in section 160 of Cr.P.C., which was highlighted by our Apex Court in the case of (Nandini Satpathy v. P.L. Dani)3, reported in A.I.R. 1978 S.C. 1025, and assaulting her would make any Court hesitant to grant custodial interrogation of the persons like the petitioners who are men of status in the society. However, as pointed out by the Apex Court in the aforesaid decisions, in cases where the individual interest or right conflicts with the rights of the society, the former must yield to the latter. As a Court of justice and the Court of law, this Court also owes its duty to the society and has to see the larger interest of the society. The evidence which is found against these petitioners for misappropriation of funds is not borne by the documentary evidence and, therefore, the ratio of the decision in the case of (Shyam Bhatia v. State of Maharashtra)4, decided by this Court in Criminal Application No. 605 of 1988 on 23rd March 1988 would not be applicable. In such matters where the discretion has been given to the Court and the so much trust is reposed in the courts by vesting it with absolute and unrestricted discretion, it is the duty of this Court to exercise this discretion in the larger interest of the society so that the crime does not go unpunished. There is one more aspect of this matter which is to be considered. During the course of arguments the learned Public Prosecutor was emphatic in demanding custodial interrogation for the purposes which are not subject matter of the charges which are levelled in the F.I.R. That would make it appear as if the custody was demanded not for the purpose of unfolding the prosecution case with regard to the alleged scam but for the purpose of violation of alleged Havala transactions or the F.E.R.A. provisions. Secondly it was argued that some of these petitioners are having link with the under-world which again is not the subject matter of the charges which are levelled against these petitioners. Secondly it was argued that some of these petitioners are having link with the under-world which again is not the subject matter of the charges which are levelled against these petitioners. That probably would explain in part why the prosecution wanted to book these petitioners before the other accused who were directly and vitally concerned or connected with the misappropriation of the loan amount obtained by the societies. This aspect seems to have been also argued before the lower Court and the judgment delivered by the Sessions Court in Anticipatory Bail Application No. 1444 of 1996 makes a reference to it in para 16 as follows :- "16. So far as the connection of petitioner with Bombay Bomb Blast Case of March, 1993 is concerned, I think that the prosecution has no sufficient evidence in its possession to prove this. The Confidential record which I have perused only shows numerous telephone numbers of notorious criminal persons staying in Dubai or Karachi. The telephone calls made by petitioner frequently to these persons do not themselves show prima-facie that petitioner has got any hand in that Bomb Blast case. On the contrary, some documents in that record show that it is concerned only with present leather scam. Hence, I do not appreciate the arguments advanced by Chief P.P. Mr. Paranjpe in this regard." In my view these allegations have not crossed the limits of suspicion. It is well settled that the suspicion cannot be the basis for demanding custodial interrogation or the custody of the person unless and until that suspicion has to be founded on reasonable grounds which can only be in case there is something tangible to go by on the basis of which the suspicion could be justified. The reliance, therefore, on the decision of this Court in the case of (Harshad Mehta v. Union of India)5, reported in 1992 Criminal Law Journal 4032 would not be justified. But these considerations apart, which have not been proved by the prosecution to justify the custodial interrogation, would not mean, as argued on behalf of the petitioners, that the custodial interrogation would not be necessary in respect of the charges which are levelled against these petitioners. But these considerations apart, which have not been proved by the prosecution to justify the custodial interrogation, would not mean, as argued on behalf of the petitioners, that the custodial interrogation would not be necessary in respect of the charges which are levelled against these petitioners. The said considerations can, in the words of the Supreme Court in the case of Gurbaksh Singh (supra), be terms as ulterior motives which stem not from the motives of furthering the ends of justice but the object being to injure and humiliate the petitioners by having them arrested. However for the reasons mentioned earlier the applications for anticipatory bail cannot be granted in respect of the petitioners in Criminal Application No. 2551 of 1996 and Criminal Application No. 2554 of 1996. 24.Coming to the case of the petitioner in Criminal Application No. 2552 of 1996, it is pertinent to observe firstly that on perusal of the files which were entrusted to this Court by the prosecution, I find no iota of evidence involving the petitioner with regard to the misappropriation of the funds of the societies in any manner. The witness who states that the cash withdrawals made in lacs from the societies- account were handed over to her husband does not say a word about handing over of this cash amount to this lady although she is one of the Directors of the said company. On the contrary said witness says in terms that when that witness refused to sign on some occasions the blank cheques in the presence of this petitioner, this petitioner did not say anything about it as if she was not aware about this arrangement. It is further significant to note that her name does not appear either in the F.I.R. itself nor in the list of individuals which has been annexed to the report of the Divisional Joint Registrar of Co-operative Societies. That list pertains to the persons mainly involved in fraud of leather co-operative societies. Out of 30 names, which are mentioned in the said list, the name of this petitioner does not appear. This petitioner in para 19. (a) of the petition avers that she is one of the Directors of Metro Shoes Ltd. and that "the husband of the petitioner, Mr. Out of 30 names, which are mentioned in the said list, the name of this petitioner does not appear. This petitioner in para 19. (a) of the petition avers that she is one of the Directors of Metro Shoes Ltd. and that "the husband of the petitioner, Mr. Rafique A. Malik is in the Management of the Company." This averment in the petition has not been controverted or disputed or joined issue with on behalf of the prosecution. In the next place it is also significant to mention that in para 28 of the petition this petitioner has stated that on 17th September 1996 when she was physically assaulted by the police, was put to threat of being taken in custody if she did not co-operate with the police by giving a statement/confession as required by them to the effect that the petitioner's husband was guilty of the offences of the so called scam. This averment also goes uncontroverted and from this statement in the petition it appears that even police wanted her for interrogation only for the purpose of collecting material, if any, against her husband who is the petitioner in the companion application. This is reinforced by the absence of her name either in the F.I.R. or in the list of persons involved submitted by the Divisional Joint Registrar of Co-operative Societies and the statements of the witnesses who seek to involve her husband but would not say a word against her. In this context the petitioner's averment in the application that her husband, Rafique Malik is in the management of the company of which she is one of the Directors assumes significance and that is normally done in case where the husband and wife both are shown as Directors of the same company. It is common knowledge that many times the ladies are shown Directors or Office bearers only for the name sake or for the purpose of distribution of income for the purpose of income tax, and this seems to be the case with this petitioner. She has stated in her petition that she is essentially a house wife and having children youngest of whom is only 10 years old and needs to be looked after by her. She has stated in her petition that she is essentially a house wife and having children youngest of whom is only 10 years old and needs to be looked after by her. Her occasional visits at the office of the company of which she was one of the Directors, would not go to show that she was vitally concerned with the management of the said company. If the discretion which is vested in this Court by the statute under section 438 of Criminal Procedure Code as eloquently explained by the Supreme Court in the case of Gurbaksh Singh (supra), is not exercised under section 438 in her favour there would be a travesty of justice. No case is made out so far as this petitioner is concerned for securing the custodial interrogation and, therefore, her application for anticipatory bail deserves to be granted. 25.Dealing with the case of the petitioner by name Kishore Shankar Signapurkar in Criminal Application No. 2562 of 1996, the main allegations against this petitioner are as follows :- He is the owner of Kishore Foot Wear, Shoe Plaza, M/s. Kishore Foot wear Pvt. Ltd., Milano Shoes and Signaps which is also the case of this petitioner as stated in para 3 of his application. His involvement in this case is in two ways. Firstly as Chairman, owner or the office bearer of the leather co-operative societies as he himself belongs to the class of cobblers who are entitled to form such co-operative societies and take the benefit of the subsidy granted by the Central Government in the year 1989. Secondly, he has also acted as guarantor to some of these co-operative societies. According to his own counsel Mr. Niteen Pradhan, this petitioner is the sole guarantor of Shramik Charmakar Audyogik Sahakari Sanstha Ltd., and is one of the guarantors in respect of the leather co-operative societies of Jai Bharat and Janseva. He was also the Chairman and owner of the leather co-operative society under the name of Rohidas Charmotpadak Co-operative Society which, according to him, was dissolved in the year 1992 and that this society had not taken the loan. In his capacity as guarantor he had received notice dated 12th September 1996 from Dena Bank which notice itself mentions that he had earlier promised to pay that amount in case the societies defaulted. The learned Public Prosecutor Mr. In his capacity as guarantor he had received notice dated 12th September 1996 from Dena Bank which notice itself mentions that he had earlier promised to pay that amount in case the societies defaulted. The learned Public Prosecutor Mr. Tulpule has shown me the withdrawals from the Canara Bank by this society in as recent period as May 1996. The said withdrawals were in cash when lacs of rupees were withdrawn amounting to 2 lacs, 4 lacs, 8 lacs etc. The petition itself shows that he was associated with five group of companies which are concerned with the manufacturing process of the leather goods. This petitioner being concerned with the leather co-operative societies and working at the helm of their affairs, was vitally concerned with the misuse of the subsidy or the facility of loan at cheaper rate which was granted under the Central Government Scheme. The witnesses have stated that this petitioner had instructed those witnesses to make false audit reports of the Janseva Leather Co-operative Society and the false audit report was prepared at the behest of this petitioner. It is further alleged that at his instance a duplicate stamp of Government auditor was procured where he himself put his own signature and stamped the auditor's report. Another witness has stated that he used to appoint the office bearers of the society, Treasurers and Secretaries of the Society, at his behest, made or got the applications made for loan from M.S.F.C. The said loan amount was withdrawn by this petitioner himself from the Development Credit Bank. This petitioner purchased Shramik Charmakar Audyogik Sahakari Sanstha from one Mr. Gajre and took the loan of Rs. 50 lacs from Dena Bank in the name of the society. The Government auditor also was at a loss to find out the office or the manufacturing unit of Janseva with which this petitioner was vitally associated. The learned Public Prosecutor has produced the record of the Bank from which large amounts of cash in lacs have been withdrawn in the name of the societies. The statements of accounts from Dena Bank and Bank of Baroda have been produced by the prosecution for perusal of this Court. This petitioner has stood guarantor to the Janseva Charmotpadak Co-operative Society Ltd., of which his own nephew is the Chairman. The statements of accounts from Dena Bank and Bank of Baroda have been produced by the prosecution for perusal of this Court. This petitioner has stood guarantor to the Janseva Charmotpadak Co-operative Society Ltd., of which his own nephew is the Chairman. Although it is the case of the petitioner that Rohidas Foot Wear Industrial Co-operative Society was dissolved in 1992 the registers of the same are produced to show the transactions of the year 1994-95 so also the Bank account. Said Society's Bank accounts shows huge withdrawals of cash amount in May 1996. This petitioner is implicated not only in his capacity as guarantor to the leather societies in respect of which of course there is no evidence for having withdrawn the cash and paid to this petitioner, but also in respect of societies in which he was Chairman. He himself being the member and Chairman of various leather societies has withdrawn large amount of cash from their Bank accounts and was party to make bogus members of the said societies. Although the records of these societies have been taken custody of by the investigating agency, yet many acts of commission attributed to this petitioner cannot be proved by virtue of the entries in the books of account and, therefore, the custodial interrogation of this petitioner also would be necessary to unfold and further the case of the prosecution. In the said circumstances the application of this petitioner for grant of anticipatory bail cannot be granted. 26.In the view which I have taken I reject the applications of the petitioners in Criminal Application Nos. 2551 of 1996, 2554 of 1996 and 2562 of 1996 and grant the application of the petitioner in Criminal Application No. 2552 of 1996. 27.In the event of her arrest by the General Branch, Crime Branch, C.I.D., Bombay in connection with the alleged offences registered under C.R. No. 95 of 1996, the petitioner Mrs. Aziza Rafique Malik in Criminal Application No. 2552 of 1996 shall be released on bail in the sum of Rs. 50,000/- with one surety and P.R. bond in the like amount with option to deposit cash bail on the condition that she shall make herself available to the investigating agency for the purpose of interrogation on prior notice at her residence as per section 160 of the Criminal Procedure Code in the presence of lady Police Officer. 50,000/- with one surety and P.R. bond in the like amount with option to deposit cash bail on the condition that she shall make herself available to the investigating agency for the purpose of interrogation on prior notice at her residence as per section 160 of the Criminal Procedure Code in the presence of lady Police Officer. 28.On the application of the petitioners in Criminal Application Nos. 2551 of 1996, 2554 of 1996 and 2562 of 1996 and after hearing learned Public Prosecutor Mr. V.T. Tulpule, the order rejecting their applications is stayed for a period of three weeks from the date of receipt of certified copy of the order by the petitioners. During this period of stay the petitioners are allowed to go to Delhi with prior intimation to the Investigating Officer. During the period of stay of this order the interim order "not to be arrested" shall continue in Criminal Application Nos. 2551, 2554 and 2562 of 1996, however they shall make themselves available for interrogation if summoned by notice. Applications in 3 cases allowed. *****