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Deepthisudan (housewife)     30 October 2016

Anticipatory bail

Dear LCI experts,

Whether the accused charged u/s 406,420 & 468 CrPC can be givan Anticipatory Bail? Kindly confirm please.

Thanks & Regards,

Deepthi.



 7 Replies

Saptarshi Paul (Advocate)     30 October 2016

Whether police issued any notice u/S 41 crpc? Yes, better file Anticipatory Bail

Saptarshi Paul (Advocate)     30 October 2016

Whether police issued any notice u/S 41 crpc? Yes, better file Anticipatory Bail

Deepthisudan (housewife)     30 October 2016

Originally posted by : Saptarshi paul
Whether police issued any notice u/S 41 crpc? Yes, better file Anticipatory Bail

Dear Mr.Saptarshi Paul,

Thanks for your reply.  No any information to the Complainant about the issual of Notice u/s. 41 Crpc to the accused . The fact is that  the accused person is on AB inspite of committing the offences  which are termed as Cognizable offences and are non bailable.  I wonder how the accused was given AB.

Please clarify the following points.

1. Under what circumstances for such cognizable offences, the AB can be given?

2. Whether the complainant can approach the Judicial Magistrate where the case is filed for cancellation of AB?

Thanks & Regards,

Deepthi.

Ms.Usha Kapoor (CEO)     31 October 2016

If the offences are not heinous and not very serious in nature and compoundable AND THE ACCUSED APPLICANT MOVING  an anticipatory bail    application has HAD CLEAN CREDENTIALS ETC THE COUTS WPOULD GIVE HIM CONDITIONAL ANTICIPATORY BAIL. ALL THESE POINTS ARE DISCUSSED IN  GUJARATH  HIGH COURT CASE WHICH i'M REPRODUCINFG HERE IN.If you appreciate this answer please click  the thank you button on this forum.Operative  portions of the Judgment I've underlined for your use  in securing anticipatory bail.

 
 
 
 
 
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Gujarat High Court
Bharatbhai vs State on 11 May, 2012
Author: Abhilasha Kumari,
  
 Gujarat High Court Case Information System 
    
  
    

 
 
    	      
         
	    
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CR.MA/2400/2012	 28/ 28	JUDGMENT 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No. 2400 of 2012
 

 
 
For
Approval and Signature:  
 
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
 
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1
		
		 
			 

Whether
			Reporters of Local Papers may be allowed to see the judgment ? No
		
	

 
	  
	 
	  
		 
			 

2
		
		 
			 

To be
			referred to the Reporter or not ? No
		
	

 
	  
	 
	  
		 
			 

3
		
		 
			 

Whether
			their Lordships wish to see the fair copy of the judgment ? No
		
	

 
	  
	 
	  
		 
			 

4
		
		 
			 

Whether
			this case involves a substantial question of law as to the
			interpretation of the constitution of India, 1950 or any order
			made thereunder ? No
		
	

 
	  
	 
	  
		 
			 

5
		
		 
			 

Whether
			it is to be circulated to the civil  judge ? No
		
	

 

=========================================================

 

BHARATBHAI
JAYANTILAL SHAH & 3 - Applicants
 

Versus
 

STATE
OF GUJARAT - Respondents
 

=========================================================
 
Appearance
: 
MR
JM PANCHAL FOR MR UMESH A TRIVEDI
for
Applicant(s) : 1 - 4. 
MR NJ SHAH, ADDITIONAL PUBLIC PROSECUTOR for
Respondent(s) : 1, 
MR BB NAIK, SR. ADVOCATE WITH MR AMIT PANCHAL
FOR MS SHIVANI RAJPUROHIT for
Original-Complainant 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HON'BLE
			SMT. JUSTICE ABHILASHA KUMARI
		
	

 

Date
: 11/05/2012 

 

ORAL
JUDGMENT

Rule.

This application has been preferred under Section 438 of the Code of Criminal Procedure, 1973, for grant of anticipatory bail as the applicants apprehend their arrest in connection with FIR being I-C.R.No.41 of 2011, registered with DCB (Crime) Police Station, Ahmedabad, for offences punishable under Sections 406, 420, 467, 468, 477A and 120B of the Indian Penal Code.

The applicants had preferred Criminal Miscellaneous Application No.104 of 2012 before the City Sessions Court for grant of anticipatory bail, that has been rejected by order dated 02.02.2012. Thereafter, the applicants have approached this Court by way of the present application.

Mr.J.M.Panchal, learned advocate for Mr.Umesh A.Trivedi, learned advocate for the applicants, has made detailed submissions, which are briefly encapsulated as below:

1) That there are two Partnership Firms, namely New Age Industries and New Age Hose Manufacturing Company. There are disputes between the partners of these firms. One group of partners reside at Surendranagar (Surendranagar Group) and the other at Mumbai (Mumbai Group). The applicants reside at Mumbai. The partnership firms are running since more than 60 years. The applicants gave a notice for dissolution of the partnership firms on 10.08.2010. Public notice was also given for the said purpose on the same day in a newspaper having circulation in Surendranagar. On 11.08.2010, the applicants filed CMA No.55 of 2010 and CMA No.56 of 2010 before the District Court, Surendranagar, which are pending. Thereafter, arbitration proceedings have been initiated by the applicants, being Arbitration Petition Nos.48 of 2010 and 50 of 2010, before the High Court wherein a retired Judge of the High Court has been appointed as Arbitrator. The applicants have also instituted two civil suits before the City Civil Court on 17.01.2011, being Civil Suit Nos.110 of 2011 and 111 of 2011, by making prayers for restraining the defendants (Surendranagar Group) from using the partnership property for personal ends and for rendition of accounts. Applications for grant of injunction were also filed and ad interim injunction in favour of the applicants was granted by the City Civil Court on 17.01.2011, which has been confirmed and is in force till further orders. The defendants (Surendranagar Group) have caused a breach of the injunction, for which proceedings have been moved by the applicants.

2) That, the above goes to show that the disputes between the partners, namely the applicants (Mumbai Group) and the Surendranagar Group, are essentially civil in nature, pertaining to which civil proceedings as described have already been initiated and are pending. The said civil disputes are sought to be given a criminal colour and the FIR has been filed as a pressurising tactic. The applicants gave the notice for dissolution of the partnership firms on 10.08.2010 and thereafter initiated civil proceedings, whereas, the FIR has been filed on 21.10.2011, solely as an arm-twisting measure by the complainant group.

3) That, the conduct of the complainant group ought to be noticed by this Court. The Surendranagar Group, who are defendants/ respondents in the civil and Arbitration proceedings have issued several notices through their advocate not only to the applicants, but to the presiding Judicial Officers of the courts where cases between the parties are pending, making wild and reckless allegations. Notices have also been issued to the Arbitrator not to proceed with the arbitration on the ground that there is a fraud with the documents, and regretting their inability to participate in the proceedings. Such conduct on the part of the complainant group reveals that they are bent upon harassing the applicants and have not even spared Judicial Officers with a view to creating pressure. All the notices have been issued upon instructions from the Surendrangar Group.

4) That the Civil Court is already seized of the matter but the complainant party has put the police machinery into motion with a view to bringing pressure, and that too, much after the initiation of civil proceedings. The complainant side have no faith in the judiciary and the civil Court as can be seen from their conduct and the language of the notices issued on their behalf, but have faith in the police machinery which they want to use as a lever.

5) That, the case rests upon documentary evidence, therefore, there is no requirement for custodial interrogation of the applicants. The Sessions Court has rejected the anticipatory bail application of the applicants mainly on the ground that the alleged offences are serious and the investigation is at a preliminary stage. An application for anticipatory bail would, obviously, be filed at the preliminary stage. The documents are available to the investigating agency and there is no necessity for custodial interrogation.

6) That, the applicants are businessmen from Mumbai and have no past criminal antecedents. They are well-rooted in society and are ready and willing to cooperate with the investigating agency, therefore, they may be granted anticipatory bail.

In support of the above submissions, the learned advocate for the applicants, has relied upon the following judgments:

(1) Velji Raghavji Patel v. The State of Maharashtra - AIR 1965 SC 1433 (2) Solanki Ravibhai Dipubhai & Ors v. State of Gujarat & Anr. - 1992(1) GLR 631 (3) Siddharam Satlingappa Mhetre v. State of Maharashtra And Others - (2011)1 SCC Opposing the prayer for grant of anticipatory bail, Mr.Nikhilesh J.Shah, learned Additional Public Prosecutor, has drawn the attention of the Court to the affidavit dated 20.01.2012 filed by the Investigating Officer before the Sessions Court wherein, in Paragraph 7, it is stated that the applicants have purchased raw material from various firms and companies against bills to the tune of Rs.3,65,18,143/-. Funds have been used from the accounts of the partnership firms. However, the raw material has not been sent to the factory at Surendranagar but has been sold to some other persons and the proceeds have been put to private use, by the applicants. On the basis of this affidavit, it is submitted by the learned Additional Public Prosecutor that the applicants have indulged in misappropriation. It is further submitted that on three occasions on 14.12.2011, 12.01.2012 and 20.01.2012, attempts were made by the investigating agency to call them but on going to their homes, they were not available, and the housewives stated that they were out of station. It is contended that custodial interrogation of the applicants is necessary as they are not cooperating with the investigating agency.

Mr.B.B.Naik, learned Senior Advocate with Mr.Amit Panchal, learned advocate, has appeared for the complainant. The gist of the submissions advanced by him are as below:

1) That, the complainant is not one of the partners of the firms therefore he is not party to the civil litigations or the notices issued by the learned advocate for the Surendranagar Group, whose alleged conduct is being highlighted by the learned advocate for the applicants.

2) That, the FIR reveals that serious offences have been committed by the applicants. The offences can be put into three broad categories. The first relates to bills/ cheques for raw material purchased by the applicants from the funds in the partnership account. There is evidence to show that the raw material was lifted by the applicants in their own trucks but where the trucks have been diverted and to whom the raw material is sold is not known. These aspects can only be known when the applicants are put through custodial interrogation.

3) That, the second set of offences relate to huge amounts withdrawn by the applicants unauthorisedly from the accounts of the partnership firm, for payment of their personal Income Tax. On 23.06.2010, when withdrawal of the amount was discovered, there was a telephonic talk between the complainant and applicant No.1, who admitted this and said he would deposit the amount. The telephonic conversation has been tape recorded and is a part of the evidence. It is only as a cover-up that the applicants have initiated civil litigations.

4) That the other offences relate to withdrawal of amounts from the accounts of the partnership firm.

5) That, Clause 18 of the Partnership Deed stipulates that no amount can be withdrawn by the partners except with the consent of the other partners. As the applicants have withdrawn various amounts without consent, it amounts to misappropriation of money and the judgment in Velji Raghavji Patel v. The State of Maharashtra (supra) will not apply. Clause 21 of the Partnership Deed provides that the partnership shall continue in spite of the death or retirement of any of the partners, therefore, there was no partnership at will, which could have been dissolved by the applicants by giving the notice for dissolution.

6) That, it is settled law that a transaction may have both civil and criminal consequences and both proceedings can continue simultaneously. The initiation of civil proceedings does not mean that no criminal offences are made out. There is a criminal breach of trust for which the FIR has been filed. It is likely that the applicants will repeat the offences if they remain at large.

The learned Senior Advocate for the complainant has relied upon the following judgments:

Indian Oil Corpn. v. NEPC India Ltd. And Others - (2006)6 SCC 736 Directorate of Enforcement v. Ashok Kumar Jain - AIR 1998 SC 631 Jai Prakash Singh v. State of Bihar And Another - (2012)4 SCC On the basis of the above submissions, it is prayed that the application be rejected.

In rejoinder, Mr.J.M.Panchal, learned counsel for the applicants has referred to Clause 15 of the Partnership Deed where it is stated that it is a partnership at will. He has further referred to Clause 3 which stipulates that the principal place of business will be Surendranagar. Reference has further been made to Clause 12 which provides that the books of accounts are to be kept at Surendranagar. It is submitted that for all transactions mentioned in the complainant, payments are made through cheques. The accounts of the firms have been audited and the Income Tax Returns filed, that have been signed by the Surendranagar Group who did not protest at that point of time. It is contended that the complainant was never a partner in the firms with the applicants. He is the father of one of the partners of the Surendranagar Group and has been inducted as a partner by the Surendranagar Group after notice for dissolution was given by the applicants.

Distinguishing the judgments cited by the learned Senior Advocate for the complainant, it is submitted that the judgment in Indian Oil Corpn. v. NEPC India Ltd. And Others (supra) is in a case of quashing under Section 482 of the Criminal Procedure Code and not in a case of anticipatory bail. Further, Directorate of Enforcement v. Ashok Kumar Jain (supra), relates to economic offences on a large scale affecting the nation. The present dispute between two groups of partners cannot be said to be having national ramifications. Regarding Jai Prakash Singh v. State of Bihar And Another (supra), it is submitted that it was a case of murder and the observations of the Supreme Court have been made in that context. It is submitted that in any case, the principles of law enunciated in Siddharam Satlingappa Mhetre v. State of Maharashtra And Others (supra), have been relied upon, that are also relied upon by the applicants.

On the aspect of extending cooperation to the investigating agency, it is submitted that the applicants have a right to move the Court for anticipatory bail. On 14.12.2011, 12.01.2012 and 20.01.2012, when the investigating may have visited their houses, they may not have been there. That does not mean that they will not cooperate. Even after protection has been granted by this Court, the applicants have not been approached by the investigating agency. They are ready and willing to extend their cooperation as and when required.

On the strength of the above submissions, the learned counsel for the applicants has reiterated his prayer for grant of anticipatory bail.

I have heard the learned counsel for the respective parties at length, perused the material on record including the papers of the investigation and given my careful consideration to the rival submissions. It would be fruitful, at this stage, to advert to the judicial pronouncements relied upon by the learned counsel for the respective parties.

In Velji Raghavji Patel v. The State of Maharashtra (supra), the Supreme Court has held that:

Before a person can be said to have committed criminal breach of trust within the meaning of S.405, I.P.C., it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use. In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that this dominion was the result of entrustment.

(Para 6) In the case of a partnership, every partner has dominion over the partnership property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of this kind which satisfies the requirement of S.105. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused person. If in the absence of such special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or, in other words, cannot be held to have been "entrusted" with dominion over partnership properties.

(Para 6) Where, therefore under an agreement between the partners the working partner is authorised to recover the dues of the partnership and to spend the money for the business of the partnership, he cannot be said to have been guilty of criminal breach of trust even with respect to the dues realised by him from certain persons by not depositing them in the bank as alleged by the prosecution. AIR 1951 Cal 69 (FB), Approved.

(Para 7) An owner of property, in whichever way he uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But he does not thereby commit any misappropriation.

(Para 8) At the stage of anticipatory bail, it may not be necessary to go into the aspect whether offences under Sections 405 and 409 of the Indian Penal Code are made out against the applicants, or not. Though the principles of law enunciated in this judgment cannot be disputed, they may not be relevant at this stage when the Court is called upon to decide whether custodial interrogation would be necessary, or not.

In Solanki Ravibhai Dipubhai & Ors v. State of Gujarat & Anr. (supra), relied upon by the learned counsel for the applicants, the Court was dealing with an application for grant of anticipatory bail in a case of murder. Relying upon the principles of law enunciated by the Supreme Court in the case of Gurbaksh Singh Sibbia v. State of Punjab & Haryana (AIR 1980 SC 1632 : [(1980(2) SCC 565]), this Court held as under:

"5. In view of the above discussion, when then should be the guiding principles to exercise discretion under Sec.438 of the Code? Exercise of discretion under Sec. 438 of the Code is a stage prior to exercise of discretion under Sec. 437 or 439 of the Code. That prior to arrest. Thus, if the Court is satisfied that by allowing the persons apprehending arrest, the investigation is either to suffer or is likely to be prejudiced, as it may appear on perusing the case diary, the Court should refuse to exercise such discretion. On the other hand, if such person remained at large, the prosecution is neither to be prejudiced nor suffer any hindrance, then the application is required to be considered like one of the person arrested of non-bailable offence asking for bail. If from the facts and circumstances and evidence on record (including case diary), if person can be granted bail, even if arrested, then there may be no harm in granting anticipatory bail to such person, because such person is likely to be released on bail even if arrested. Keeping in mind this position of law having emerged from the discussion hereinabove, it is to be considered whether the applicants are entitled to exercise of discretion in their favour."

In Siddharam Satlingappa Mhetre v. State of Maharashtra And Others (supra), the Supreme Court has exhaustively dealt with the principles of law underlying the grant of anticipatory bail, after discussing a catena of judgments. The relevant paragraphs of the judgment are reproduced hereinbelow:

"89.

It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.

90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

... ... ... ...

111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or the other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

113. The arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused in these allegations are corroborated by other material and circumstances on record.

... ... ... ...

116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."

In Indian Oil Corpn. v. NEPC India Ltd. And Others (supra), the Supreme Court has held that in a case of breach of trust, when a civil remedy is availed of, the remedy under criminal law is not barred. The Apex Court was dealing with the provisions of Section 482 of the Criminal Procedure Code. While the principles of law enunciated in this judgment cannot be disputed, the judgment may not be relevant in a case for grant of anticipatory bail.

Directorate of Enforcement v. Ashok Kumar Jain (supra) was a case of anticipatory bail in relation to offences under the Foreign Exchange Regulation Act, 1973. On facts, the Supreme Court found that it was not a fit case for grant of anticipatory bail by the High Court, on the ground of acute heart condition of the accused. This is what the Supreme Court has observed:

"8.

We have noticed that learned Sessions Judge while dismissing the application for pre-arrest bail has taken due note of the aforesaid plea of the respondent and made necessary observations regarding the need to provide medical care and protection to the respondent in view of the medical reports. It cannot be contended, nor has it been contended before us, that respondent is immune from arrest on even interrogation simply on account of his physical conditions. No doubt investigating officials of the Directorate are duty bound to bear in mind that the respondent has put forth a case of delicate health conditions. They cannot overlook it and they have to safeguard his health while he is in their custody. But to say that interrogation should be subject to the opinion of the cardiologists of the AIIMS and that the officials of the Directorate should approach the Director of AIIMS to constitute a Board of cardiologists to examine the respondent etc. would, in our opinion, considerably impair the efficient functioning of the investigating authorities under FERA. The authorities should have been given freedom to chalk out such measure as are necessary to protect the health of the person who would be subjected to interrogatory process. They cannot be nailed to fixed modalities stipulated by the court of conducting interrogations. It is not unusual that persons involving themselves in economic offences, particularly those living in affluent circumstances, are afflicted by conditions of cardiac instability. So the authorities dealing with such persons must adopt adequate measures to prevent deterioration of their health during the period of custodial internment. Court would interfere when such authorities fail to adopt necessary measures. But we are not in favour of stipulating in advance modalities to be followed by the authorities for that purpose. According to us such anticipatory stipulations are interferences with the efficient exercise of statutory functions when dealing with economic offences. Hence learned single judge ought not have imposed such conditions on the Directorate."

The observations of the Apex Court are in the context of the interference caused in the investigation into economic offences on the ground of ill health of the accused. No such fact situation exists in the present case, therefore the above observations may not be relevant to the case in hand.

In Jai Prakash Singh v. State of Bihar And Another (supra), the Supreme Court, after referring to the factors and parameters to be considered to be kept in mind while considering an application for grant of anticipatory bail, as laid down in Siddharam Satlingappa Mhetre v. State of Maharashtra And Others (supra), has held as below:

"19.

Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See: D.K. Ganesh Babu v. P.T. Manokaran & Ors., (2007) 4 SCC 434; State of Maharashtra & Anr. v. Mohd. Sajid Husain Mohd. S. Husain & Ors., (2008) 1 SCC 213; and Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305).

20. The case at hand, if considered in the light of aforesaid settled legal proposition, we reach an inescapable conclusion that the High Court did not apply any of the aforesaid parameters, rather dealt with a very serious matter in a most casual and cavalier manner and showed undeserving and unwarranted sympathy towards the accused. The High Court erred in not considering the case in correct perspective and allowed the said applications on the grounds that in the FIR some old disputes had been referred to and the accused had fair antecedents."

The principles of law enunciated in the above-quoted judgment cannot be disputed and each case has to be seen in the context of its own facts, as has been done by the Supreme Court in that case.

Having noticed the legal position, it will be relevant to refer to the factual aspect of the matter as emerging from the material on record, to the extent it is necessary to reach a conclusion whether discretion can be exercised.

Having perused the material on record and the papers of the investigation, the following aspects emerge for consideration:

1) There are two partnership firms having two groups of partners, who can be referred to as the Mumbai Group (the applicants) and the Surendranagar Group. The complainant is affiliated to the Surendranagar Group. Notice for dissolution of the partnerships was issued on 10.08.2010 by the applicants. Soon thereafter, civil and arbitration proceedings were initiated by the applicants that are pending. According to the applicants, the Surendranagar Group have used partnership property and funds for their own personal use. The complainant (Surendranagar Group) alleges the same against the applicants. The two warring groups are also related to each other by family ties. The complainant, though affiliated with the Surendranagar Group, was not a partner before the notice for dissolution was issued, but was inducted as such thereafter. He is the father of one of the persons who was a partner before issuance of the notice. In the civil proceedings, notices appear to have been issued through the learned advocate for the defendants (Surendranagar Group) and upon their instructions, casting aspersions and making allegations against not only the applicants but also the Judicial Officers before whom proceedings are pending. In the arbitration proceedings also, a notice has been issued to the effect that there is a fraud on the part of the applicants, therefore the complainant group are unable to proceed further.

2) Civil proceedings have been initiated immediately after the applicants gave the notice for dissolution of the partnership firm on 10.08.2010. Arbitration proceedings were initiated soon thereafter. The FIR has been registered after about one year, on 21.10.2011 for offences that are alleged to have taken place between the year 2006 to May 2010.

3) Perusal of the FIR reveals that the allegations against the applicants are broadly to the effect that they have purchased raw material from various firms and companies, in the name of the partnership firms. The payments have been made from the Bank Accounts of the partnership firms. The raw material has been lifted by the applicants in their own trucks but has not reached the factory at Surendranagar. It is further alleged that huge amounts have been paid by the applicants from the funds of the partnership firms towards their own Income Tax. It is also alleged that the applicants have withdrawn money from the accounts of the partnership firms for their personal use. There is also a reference to the tape-recorded conversation between the complainant and one of the applicants who is alleged to have admitted to this.

4) The names of the firms/ companies, bill numbers and the amounts paid, have been recorded in detail in the FIR. The details of the Bank transactions are available to the investigating agency. Statements have also been recorded regarding the purchase of raw material by the applicants and the amounts received. There are statements of the family members of the applicants stating that the applicants were out of station on the day the investigating agency visited their residences.

From the above aspects, it prima-facie appears that the dispute is a private one between partners who are also family members. There appears to be an element of acrimony amongst the rival groups. Whether criminal offences are made out or not, is a matter of Trial. The complaint has been filed after about one year from the initiation of civil proceedings, in which notices of the tenor referred to hereinabove, have been issued at the behest of the complainant side. The complainant himself was not a partner with the applicants before notice for dissolution was given. He has been inducted as a partner thereafter.

The papers reveal that the case rests primarily upon documentary evidence, a substantial amount of which is already with the investigating agency. It is not a case involving economic offences having national ramifications. The evidence is a matter of appreciation by the Trial Court and the law will take its own course.

In the affidavit filed by the Investigating Officer before the Sessions Court, it is not stated that the applicants are not cooperating with the investigating agency. The affidavit has bee filed on 20.01.2012 and the investigating agency is stated to have visited the residences of the applicants on 14.12.2011, 12.01.2012 and 20.01.2012. It is stated by the family members of the applicants in Mumbai, that they have gone out of station. From this, an inference cannot be drawn that the applicants are not cooperating. It does not appear that the applicants have been called upon by the investigating agency even after the Court granted them interim protection, during the pendency of the application. The learned counsel for the applicants has stated that the applicants are ready and willing to cooperate with the investigating agency.

No past criminal antecedents of the applicants have been pointed out by the learned Additional Public Prosecutor. The applicants are businessmen and appear to be well-rooted in society. In the view of this Court formed on the basis of material on record, there does not appear to be a necessity for the custodial interrogation of the applicants. However, for the investigation to proceed smoothly, it is also imperative that the applicants extend cooperation to the investigating agency, so that the investigation is not hampered. Further, no dire apprehension has been expressed by the learned Additional Public Prosecutor.

For the aforestated reasons, in my considered view, it does not prima-facie appear that the grant of anticipatory bail would hinder or hamper the investigation as the material is documentary in nature, and most of it is already in the possession of the investigating agency. Hence, the following order:-

 coBond of Rs.50,000/- (Rupees Fifty Thousand only) each, with one solvent surety each, of the like amount, to the satisfaction of the concerned police officer, onnditions that they shall:-he application is allowed. It is directed that in the event of the arrest of the applicants in connection with FIR being I-C.R.No.41 of 2011, registered with DCB (Crime) Police Station, Ahmedabad, for offences punishable under Sections 406, 420, 467, 468, 477A and 120B of the Indian Penal Code, the applicants shall be released on bail, on furnishing a b

a) cooperate with the investigation and make themselves available for interrogation, whenever required;

b) remain present before the Investigating Officer of the concerned Police Station, on 16.05.2012 between 11:00 am to 2:00 pm.;

c) not hamper the investigation, either directly or indirectly, or make any inducement, threat or promise to any witnesses so as to dissuade them from disclosing the facts to the Court or to any Police Officer;

d) not obstruct or hamper the police investigation and shall not play mischief with the evidence collected or yet to be collected by the Police;

e) furnish their residential addresses to the Investigating Officer and the Court concerned at the time of execution of the Bond and shall not change their residences till the final disposal of the case or till further orders;

f) not leave India without the permission of the Court and, if they have Passports, shall deposit the same before the Trial Court within two weeks from today;

g) remain present before the Trial Court regularly, as and when directed, on the dates fixed;

It shall be open to the Investigating Agency to apply to the Competent Court for Police Remand of the applicants, subject to the right of the accused to take appropriate recourse against the order of remand. The applicants shall remain present before the Court on the first day of hearing of such application and on all subsequent occasions, as may be directed by the Court.

It is made clear that no observation made by this Court be construed as having any bearing on the merits of the case, at the time of Trial. The Trial Court shall proceed in accordance with law, unaffected and uninfluenced by any observation contained in this order.

Rule is made absolute. Direct service is permitted.

(SMT.ABHILASHA KUMARI, J.) (sunil)     Top

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A walk alone (-)     31 October 2016

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Sachin (N.A)     08 November 2016

 Cognizable Offenses-

  1. Section 2 (c) of The Criminal Procedure Code, 1973 says, that  cognizable offenses or cognizable cases are those under which a police officer can arrest without an arrest warrant.
  2. Cognizable offenses are those offenses which are serious in nature. Example- Murder, Rape, Dowry Death, Kidnapping, Theft, Criminal Breach of Trust, Unnatural Offenses.

 

 

 

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Sachin (N.A)     08 November 2016

Section 438 of the Code of Criminal Procedure, 1973 deals with the provisions regarding the Anticipatory Bail.

 

Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail

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