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2009 DIGILAW 482 (GUJ)

Riza Abdul Razak Zunzunia v. State of Gujarat

2009-07-20

H.N.DEVANI

body2009
JUDGMENT (1) By this application under section 397 read with 401 of the Code of criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the applicant has challenged the order dated 7th October, 2008 passed by the learned Chief Judicial magistrate, Surat on the application Exhibit 49 made by the applicant in Criminal Case no. 36128 of 2006, whereby the applicant's application under Section 437 (6) of the Code has been rejected. (2) The facts of the case stated briefly are that a first information report came to be lodged against the applicant herein before the Salabatpura Police Station alleging commission of offence punishable under Sections 408, 465, 467, 468, 471 (a) and 120 (B)of the Indian Penal Code, which came to be registered vide I C. R. No. 57 of 2006. At the relevant point of time, the applicant was already in police custody in connection with a similar offence registered against him; hence, he was produced before the concerned Court on 28th April, 2006 and was sent to judicial custody at Surat District Jail in connection with the said first information report. Subsequently, the charge-sheet came to be filed and the case was registered as Criminal Case No. 36128 of 2006. The charge was framed on 27th June, 2008 and 10th April 2008 was the first date for recording the evidence. However, it appears that the trial did not proceed further and since on 29th September, 2008, the trial was still not completed and a period of 80 days had already elapsed since the applicant was in judicial custody, the applicant moved the above referred application praying to enlarge him on bail under Section 437 (6) of the Code of Criminal Procedure, 1973. By the impugned order dated 7th October, 2008, the learned Chief Judicial Magistrate, Surat, after giving opportunity of hearing to the learned advocates for the parties, has rejected the application made by the applicant, which has given rise to the present application under Section 397 read with Section 401 of the Code. (3) Mr. N. D. Nanvaty learned Senior Advocate appearing with Mr. U. M. Panchal, learned advocate for the applicant, has submitted that the applicant is in judicial custody since 24th April, 2004. (3) Mr. N. D. Nanvaty learned Senior Advocate appearing with Mr. U. M. Panchal, learned advocate for the applicant, has submitted that the applicant is in judicial custody since 24th April, 2004. It is submitted that the first information report in the present case was lodged on 22nd February, 2006 and he was shown in custody in connection with this case by a transfer warrant of 25th February, 2006. That, the charge was framed on 17th February, 2008 and the first date for recording evidence was 31st july, 2008. Subsequnt to the framing of the charge, the Bank filed an application for framing separate charges in connection with each transaction referred to in the first information report, which came to be rejected by the trial Court. The said order of the trial court came to be challenged before this court by way of Special Criminal Application No. 1370 of 2008, wherein by an order dated 23rd July, 2008, the proceedings of the present Criminal Case came to be stayed. It is submitted that since the period of more than 60 days had elapsed since the first date for recording evidence, the applicant had moved the application under Section 437 (6)of the Code for being released on bail. (4) Inviting attention to the findings recorded by the learned Chief Judicial Magistrate while rejecting the applicant's application under Section 437 (6) of the Code, it is submitted that relevant factors have not been considered and irrelevant factors have been taken into consideration by the learned magistrate. It is pointed out that initially a case had been registered against the applicant on identical allegations in connection with which he was acquitted. It is submitted that there was a large scale defalcation in the Bank and later on the Bank was taken into liquidation by the Reserve Bank of India. Referring to the findings recorded by the learned Chief Judicial Magistrate while deciding Case No. 5223 of 2006, wherein the applicant had faced similar charge, it is submitted that the main charge against the applicant was that the applicant was allotted an exclusive password as a System Administrator, which is known as 'admin' password. That, with the use of this 'admin' password one could have direct access to the data-base. That, with the use of this 'admin' password one could have direct access to the data-base. That, the applicant had misused the 'admin' password and had transferred funds from the accounts of the depositors into his own account and that of his family members, whereas the learned Chief Judicial Magistrate has after appreciating the evidene on record found that for the purpose of having access to the data-base, it was not necessary to use the 'admin' password, and that, access to the data-base could be had even by using the 'user' password, which was used by the entire staff. It is submitted that with mala fide intention, the management had adopted the modus operandi of filing complaint after complaint against the applicant to see that the large-scale scam running into 80 crores rupees does not come to light. Referring to the impugned order passed by the learned Chief Judicial Magistrate, it is submitted that the reasons given by the learned Chief Judicial Magistrate were not germane to an application under Section 437 (6) of the Code. It is contended that the reasons should pertain to non-completion of trial within 60 days, like the accused not having co-operated in the trial or that the accused was absonding. If delay was occasioned on account of default on the part of the accused, the same would form a good ground for rejection of an application under section 437 (6) of the Code. It is argued that while considering an application under Section 437 (6) of the Code, the merits of the case are not required to be taken into consideration. That, the right to be enlarged on bail under Section 437 (6) of the Code is akin to the right of default bail under Section 167 (2) of the Code. Inviting attention to the findings recorded in the impugned order, it is pointed out that the learned Chief Judicial Magistrate has agreed with the contentions raised on behalf of the applicant and has also recorded that the trial is not likely to be completed within a reasonable period. However, in the concluding part, for irrelevant reasons the application has been rejected. It is submitted that the reasons for rejecting the application are not germane to the legislative intent embodied in Section 437 (6) of the Code. However, in the concluding part, for irrelevant reasons the application has been rejected. It is submitted that the reasons for rejecting the application are not germane to the legislative intent embodied in Section 437 (6) of the Code. (5) In support of his submission, the learned Senior Advocate has placed reliance upon a decision of this Court in the case of bhikaji Chaturji Thakor and others v. State of Gujarat and another, 2007 (7) GLH 580 : (2007 Cri LJ 4539) wherein it has been held that the right of an accused to be released on bail on default of not completing Magistrate triable trial within 60 days from its commencement, is an absolute right. (6) Reliance is also placed upon a decision of Punjab and Haryana High Court in the case of Rajkumar alias Reed v. State of haryana, 1996 (3) Crimes 375, wherein it was held that "the first date fixed for taking evidence" would mean the first date fixed for recording evidence after the accused was charge sheeted. On the facts of the said case, since the trial had not been concluded within 60 days as envisaged in Section 437 (6) of the Code, the Court was of the view that the applicant therein deserved the concession of bail. The decision of the Apex Court in the case of Chandraswami and another v. Central Bureau of Investigation, (1996) 6 scc 751 : (1997 Cri LJ 3124), is relied upon, wherein the Court had looking to the totality of the facts and circumstances of the case directed that the appellant therein be enlarged on bail under Section 437 (6) of the code. Reliance is a also placed upon a decision of the Supreme Court in the case of smt. Akhtari Bi v. State of M. P., AIR 2001 sc 1528 : (2001 Cri LJ 1727), wherein the court had held that to have speedy justice is fundamental right which flows from Article 21 of the Constitution of India. Prolonged delay in disposal of trial and thereafter, delay in Criminal Case, for no fault of the accused, confers a right upon him to apply for bail. Prolonged delay in disposal of trial and thereafter, delay in Criminal Case, for no fault of the accused, confers a right upon him to apply for bail. It is submitted that the complaint in question is totally based on documentary evidence which is already in the custody of the Court or the Police and, therefore, there is no likelihood of the evidence being tampered with, if the applicant is enlarged on ball. It is urged that the applicant is in jail since the date of his arrest in connection with the offence in question, that too, in a case which is triable by the Magistrate, and that, considering the overall circumstances of the case, the application under Section 437 (6) of the Code ought to have been granted. (7) Mr. S. I. Nanavati, learned Senior advocate appearing with Mr. Saurabh mehta, learned Advocate for the Memon Cooperative Bank Ltd. (hereinafterr to as 'the Bank'), has submitted that in the present case, the applicant is facing several criminal cases. That, despite the fact that vide judgment and order dated 8th January, 2007, the applicant has been acquitted of a similar offence, the Court has not thought it fit to grant the regular bail application. There is a strong prima facie case against the applicant in connection with the offence in question. That, while considering the application under Section 437 (6) of the Code, it is permissible for the Court to consider the factors which are taken into consideration at the time of granting regular bail. It is submitted that the provisions of Section 437 (6) of the Code are not akin to the default bail under Section 167 (2) of the Code, inasmuch as an exception is carved out by the legislature whereby that it is permissible for the learned Magistrate to reject the application under Section 437 (6) of the Code by recording reasons therefor. It is submitted that in the facts of the present case, considering that there is a prima facie case against the applicant, the gravity of the offence, likelihood of the conviction as well as conduct of the applicant, which give rise to a belief that the applicant is not likely to remain present at the time of trial, the learned Chief Judicial Magistrate was justified in rejecting the application under Section 437 (6) of the Code. Insofar as the judgment in the case of a similar offence wherein the applicant has been acquitted, the learned senior Advocate has submitted that an appeal has been preferred against the said judgment and order of acquittal, hence, the same has not attained finality. It is submitted that even otherwise, the applicant has been acquitted by giving him benefit of doubt. (8) Reliance is placed upon a decision of this Court in the case of Jigar Mayurbhai shah v. State of Gujarat, (2008) 2 GLR 1134 : (2008 Cri LJ 2750), wherein it has been held that : "6. xxx xxx xxx Thus, it is not mandatory or obligatory on the part of the Magistrate that once period of sixty days from the first date fixed for taking evidence is over, the applicant must be enlarged on bail. There is no such mathematical consequence. All that depends upon the facts and circumstances of the case, gravity of the offence, quantum of punishment and the manner in which the present applicant is involved in the offence as alleged by the prosecution. Looking to these circumstances, if the trial court is satisfied that the applicant is not to be enlarged on bail, despite period of sixty days is over, from the first date of fixing for taking evidence, the applicant cannot be enlarged on bail. The reasons ought to be recorded by the concerned trial Court if the bail is not to be given under Section 437 (6)of the Criminal Procedure Code. " The learned senior Advocate has also placed on record orders passed in applications for regular ball filed by the applicant in connection with the first information report in question as well as in connection with other offences registered against him, to point out the gravity of the offence allegedly committed by the applicant. (9) Reliance is placed also upon a decision of the Supreme Court in the case of himanshu Chandravadan Desai and others v. State of Gujarat, (2005) 13 SCC 234 : (2006 Cri LJ 136) and more particularly to the contents of paragraph 7 thereof. (9) Reliance is placed also upon a decision of the Supreme Court in the case of himanshu Chandravadan Desai and others v. State of Gujarat, (2005) 13 SCC 234 : (2006 Cri LJ 136) and more particularly to the contents of paragraph 7 thereof. (10) In conclusion, it is submitted that a large sum of public money is involved, the trial is yet to commence and at this stage of the trial, if the applicant is released, he is likely to tamper with the evidence and win over the witnesses and there is all likelihood of his absconding. In rejoinder Mr. N. D. Nanavaty, learned senior Advocate has invited attention to the judgment and order of the trial court in the case where the applicant has been acquitted, to pointed out that the allegation regarding the applicant having transferred funds from the accounts of customers to that of his family members, was not supported by the witnesses during the course of trial. That no amount was found from the account of the applicant or any of his family members. (11) As regards the decision in the case of Jigar Mayurbhai Shah (2008 Cri LJ 275o) (supra) on which reliance has been placed by the learned Advocate for the Bank, it is submitted that on the facts of the said case, the trial had been delayed on account of default of the accused. That in the present case, there has been no delay on a single occasion due to default on the part of the applicant. It is also contended that at present the Bank is under liquidation and is under the management and control of the liquidator, and that, it was the previous management which is opposing the grant of bail in favour of the applicant with a view to suppress the misdeeds of the management. (12) Having regard to the facts and contentions noted hereinabove, it would be relevant to refer to the contents of the impugned order dated 7th October, 2008 passed by the learned Chief Judicial magistrate. The learned Chief Judicial Magistrate has, after recording the facts of the case and the contentions raised on behalf of the respective parties, found that the learned Advocate for the accused has taken objection with regard to absence of the complaint. The learned Chief Judicial Magistrate has, after recording the facts of the case and the contentions raised on behalf of the respective parties, found that the learned Advocate for the accused has taken objection with regard to absence of the complaint. The learned Chief Judicial Magistrate has, observed that in the present case, the prosecution has cited 38 witnesses in the charge-sheet, hence, the circumstances are not such that the witnesses could be examined within 90 days. Therefore, it is not possible for the trial to be Completed within 60 days. Referring to the provisions of Section 437 (6)of the Code it is recorded that if the trial is not completed within a period of 60 days from the first date fixed for recording of evidence, the accused would also be entitled to move an application for bail under Section 437 (6) of the Code. After noting the aforesaid, the learned Chief Judicial Magistrate has held that on the facts of the present case, the accused is not entitled to the benefit of the mandatory provisions of Section 437 (6) of the Code. It is further recorded that on behalf of the accused it has been contended that while deciding an application under Section 437 (6) of the Code, it is not necessary for the Court to enter into the merits of the case. That, it is also the case of the applicant that the decision on which reliance has been placed upon supports the case of the applicant and, therefore, the applicant should be released on bail. After considering the aforesaid submissions, the learned Chief Judicial Magistrate has recorded that in the present case 60 days have elapsed since the framing of the charge. Over and above that, some more days have elapsed; however, it is true that the trial is yet not concluded. After agreeing that under Section 437 (6) of the Code, the accused has right to be enlarged on bail, the learned chief Judicial Magistrate has concluded that upon perusal of the record, the allegation against the accused is of misappropriation of a very large amount, hence, if the accused is enlarged entitled on bail, there is a possibility that he may threaten or win over the witnesses or try to make wrong efforts in his defence and has accordingly, rejected the application. A perusal of the aforesaid order shows that the only finding recorded by the learned Magistrate for the purpose of rejecting the application is that considering the amount involved, there all chances of the applicant tampering with the evidence. Except for the aforesaid finding, no other finding of fact is recorded by the learned magistrate. (13) At this juncture, it may be pertinent to refer to the provisions of Section 437 (6)of the Code which reads as under : "437. When bail may be taken in case of non-bailable offence. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate unless for reasons to be recorded in writing the Magistrate otherwise otherwise directs. " (14) Thus under the provisions of Section 437 (6), for a person accused of any non-bailable offence to be entitled to be released on bail, the following conditions are required to be satisfied : (i) the case must be a Magistrate triable one; (ii) the trial must not have been concluded within a period of sixty days from the date fixed for taking evidence in the case; (iii) such person should be in custody during the whole of such period and (iv) the bail shall be at the satisfaction of the Magistrate. If the aforesaid conditions are satisfied, such person would be entitled to be released on bail under the said provision, subject to the exception that the Magistrate may for reasons recorded in writing direct otherwise. On the facts of the present case, it is not in dispute that the case at hand is triable by a Magistrate; that a period of 60 days has elapsed from the first date fixed for taking evidence in the case but the trial has not been concluded and that the applicant has been in custody during the whole of the said period, hence, all the conditions precedent to be released on bail under Section 437 (6) are duly satisfied. The applicant was, therefore, entitled to move an application under Section 437 (6)of the Code for being released on bail. The applicant was, therefore, entitled to move an application under Section 437 (6)of the Code for being released on bail. From the language employed in the section, it is apparent that Section 437 (6) of the Code is mandatory in nature and is more in nature of default bail as enviseged under Section 167 (2) of the Code. However, there is a distinction between the two provisions. The right to bail under the proviso to Section 167 (2) is an absolute right and there is no discretion on the part of the Magistrate to withhold a bail in such a situation even for reasons to be recorded in writing; whereas the right to be released on bail under Section 437 (6) is not an absolute right inasmuch as the Magistrate may for the reasons to be recorded in writing not release the accused on bail. The proviso to Section 167 (2) of the code is intended to speed up the investigation by the police so that a person does not have to languish unnecessarily in prison facing trial. Similarly, the provisions of subsection (6) of Section 437 is intended to speed up trial without unnecessarily detaining a person as an under-trial prisoner. The question that arises for determination is as to what would be the considerations which would weigh with the Magistrate while deciding an application under section 437 (6) of the Code. Whether the reasons for not releasing an accused on bail would be similar to the reasons for not granting regular bail or whether some special circumstances should exist for the purpose of declining grant of bail under Section 437 (6)of the Code? On behalf of the Bank it has been contended that factors like existence of a prima facie case, gravity of the offence and the likelihood of conviction which give rise to a belief that the accused is not likely to remain present at the time of the trial are required to be taken into consideration, whereas on behalf of the applicant it has been contended that such factors are not germane while deciding an application under Section 437 (6) of the Act. On a plain reading of the provision as well as considering the object behind enacting the said provision if the contention advanced on behalf of the Bank viz. the prima facie case, gravity of offence, involvement of the accused, etc. On a plain reading of the provision as well as considering the object behind enacting the said provision if the contention advanced on behalf of the Bank viz. the prima facie case, gravity of offence, involvement of the accused, etc. are the factors which are to be taken into consideration while deciding the application under Section 437 (6) of the Code, were to be accepted, the same would render the said provision nugatory, inasmuch as if the same reasons for which the application for regular bail is refused, are to be considered while deciding the application under section 437 (6) of the Code, there would be no necessity for making such a provision. The application under Section 437 (6) of the code would stand rejected merely on the ground that the application for regular bail had been rejected. In the opinion of this court, the factors which should be kept in mind while considering an application under Section 437 (6) would be different from the factors that are to be taken into consideration while deciding an application for regular bail. Though it may not be possible to lay down any exhaustive list of such factors which may be taken into consideration while deciding the application under Section 437 (6) of the Code, some relevant factors would be whether the trial has been delayed on account of the default on the part of the applicant; whether the accused has at any stage during the course of investigation or as an under trial prisoner been absconding; if having regard to the facts of the case there is every likelihood of his jumping bail; or if there are special circumstances due to which it may be deemed expedient not to exercise powers under Section 437 (6), etc. But bail cannot be refused for reasons which are generally invoked for refusing bail. The following observations made by the Apex court in Aslam Babalal Desai v. State of maharashtra, (1992) 4 SCC 272 : (1992 Cri lj 3712) in the context of compulsive bail under the proviso to Section 167 (2) are apt even in the context of Section 437 (6) of the code : "15. The following observations made by the Apex court in Aslam Babalal Desai v. State of maharashtra, (1992) 4 SCC 272 : (1992 Cri lj 3712) in the context of compulsive bail under the proviso to Section 167 (2) are apt even in the context of Section 437 (6) of the code : "15. Even where two views are possible, this being a matter belonging to the field of criminal justice involving the liberty of an individual, the provision must be construed strictly in favour of individual liberty since even the law expects early completion of the investigation. The delay in completion of the investigation can be on pain of the accused being released on bail. The prosecution cannot be allowed to trifle with individual liberty if it does not take its task seriously or does not complete it within the time allowed by law. " (15) Drawing an analogy, it is can be safely stated that law expects early conclusion of cases triable by Magistrate. The delay in completion of trial in such cases, must therefore, be at the pain of the accused being released on bail, except where the Magistrate by reasons recorded in writing otherwise direct. The said provision therefore, has to be construed strictly in favour of individual liberty. Importing the grounds relevant for the purpose of granting regular bail, for the purpose of deciding an application for bail under Section 437 (6) of the Code would not only amount to doing violence to the statute but would defeat the very object of introducing such a provision and reduced it to a mere dead letter. The prosecution, therefore, cannot be permitted to trifle with individual liberty if it does not diligently pursue the proceedings before the Magistrate to ensure that the trial is concluded within the period prescribed under Section 437 (6) of the Code. (16) In the facts of the present case, a first information report has been lodged by the Bank in connection with several transactions. Earlier on similar facts, the applicant had faced a single trial in connection with several such transactions based on a common first information report, and had been acquitted. The allegations in the said first information report were similar to the allegations made in the first information report in question, inasmuch the main allegation therein was that the applicant had misused the 'admin' password given to him. The allegations in the said first information report were similar to the allegations made in the first information report in question, inasmuch the main allegation therein was that the applicant had misused the 'admin' password given to him. After framing of the charge in the present case, the Bank moved an application for framing different charges in connection with each of the transactions referred to in the first information report, which came to be rejected by the trial Court. The Bank challenged the said order before this Court by way of a writ petition being Special Criminal Application No. 1370 of 2008 wherein by an order dated 23rd July, 2008, this court granted ad-interim relief staying the proceedings of the trial. In the circumstances, if at all, it is the Bank which is responsible for the delay in the trial. The applicant herein cannot in any way be faulted with insofar as the delay in the conduct of the trial is concerned. The order staying the trial proceedings has been passed on 23rd july, 2008 and the matter may not be heard in the immediate future. In the circumstances, the trial is likely to be protracted for an indefinite period. As held by the Apex court in the case of Smt. Akhtari Bi (2001 cri LJ 1727) (supra) prolonged delay in disposal of trial for no fault of the accused, confers a right upon him to apply for bail. Besides the Bank, which is responsible for the trial being stayed, cannot be heard to contend that the liberty of the applicant be curtailed despite the trial not being concluded within the time allowed by law. In the circumstances, the applicant who is otherwise entitled to the benefit of provisions of Section 437 (6) of the Code cannot be deprived of such right when he is in no manner responsible for the delay in the conduct of the trial. From the facts recorded by the learned Magistrate in the impugned order, it is apparent that even otherwise it is not possible for the trial to be concluded within a short period. Besides, when on similar facts, the applicant has already been acquitted in connection with another offence, it cannot be said that the case against him is so grave as to require him to remain in custody, despite being entitled to the relief under Section 437 (6) of the Code. Besides, when on similar facts, the applicant has already been acquitted in connection with another offence, it cannot be said that the case against him is so grave as to require him to remain in custody, despite being entitled to the relief under Section 437 (6) of the Code. In the circumstances, the learned Chief Judicial magistrate was not justified in turning down the application made by the applicant for release on bail under Section 437 (6) of the code and as such the impugned order cannot be sustained. (17) For the foregoing reasons, the application succeeds and is, accordingly, allowed. The impugned order dated 7th October, 2008 passed by the learned Chief Judicial Magistrate, Surat, on the application Exhibit 49 in Criminal Case No. 36128 of 2006, is hereby quashed and set aside; and the applicant's application Exhibit 49 is hereby allowed. The applicant is directed to be released on bail, unless required to be detained by any order made in any other case, on furnishing bail bond for a sum of Rs. 25,000/- with one surety in like amount, subject to the applicant strictly adhering to the following conditions : (i) The applicant shall surrender, if he has not already surrendered, his passport before the learned Chief Judicial, Surat; (ii) The applicant shall not leave the territory of the State of Gujarat without prior permission of the trial Court; (iii) The applicant shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witness of this case or any other case against him or any other crime under investigation by any Government agency. (iv) The applicant shall co-operate in the early completion of the trial and shall attend all the hearings unless exempted; (v) The applicant shall intimate the place of his residence to the trial Court and shall not change the same without prior initimation to the trial Court of his intention to shift elsewhere; (vi) The applicant shall appear before the concerned investigating agency whenever required in connection with any crime or matter under investigation. (18) It is made clear that if the applicant violates any of the conditions abovementioned, the prosecution will be at liberty to seek cancellation of the concession of bail granted to him. Rule is made absolute accordingly. (18) It is made clear that if the applicant violates any of the conditions abovementioned, the prosecution will be at liberty to seek cancellation of the concession of bail granted to him. Rule is made absolute accordingly. (19) At this stage Mr. S. I. Nanavaty, learned senior Advocate appearing for the bank, has prayed that this order be stayed for a period of four weeks to enable the Bank to approach the higher forum. The prayer is strongly resisted by Mr. U. M. Panchal, learned Advocate for the applicant, on the ground that in case where an application for bail is granted, the Court ordinarily would not stay its order. (20) Having regard to the facts of the present case, this Court is not inclined to grant the request of the Bank. The prayer to stay this order is, accordingly, declined. Order accordingly.