Mehta Vs C.B.I. & ANR.
[CRIMINAL APPEAL NO.
348 OF 2012 arising out of S.L.P. (CRL.) No. 8995 of 2011]
J U D G M E N T
appeal is directed against the judgment and order dated 20.10.2011 passed by the
High Court of Gujarat at Ahmedabad in Criminal Misc. Application No. 14224 of
2011 whereby the High Court rejected the application for regular bail filed by
the appellant herein.
a. The appellant herein is
the Joint Managing Director of Vishal Exports Overseas Ltd., a Public Limited Company
(hereinafter referred to as "the Company") incorporated in the year 1988
as a partnership firm which was converted into a Public Limited Company in 1995
under the provisions of Chapter IX of the Companies Act, 1956. The Company is
engaged in the business of import and export of diverse commodities including agricultural
products and diamonds. According to the appellant, the Company was a Government
of India recognized Four Star Trading House with a turnover of about Rs.3935 crores
in the year 2005-2006. It is also his claim that the Company has been accredited
with many awards and was ranked 1st in India under the merchant exporter
category in the years 2003-04 and 2005-06.
b. Due to non-payment of
advances from various banks, complaints were filed against the Company as well as
the promoters and Directors. The FIRs filed by various banks are:
the year 2008, Punjab National Bank lodged an FIR with CBI bearing No. RC-I(E)/2008/BSFC,
Mumbai. In the said case, only Pradip Shubhashchandra Mehta (A-3) was arrested.
Remand was not granted by the Special CBI Court at Ahmedabad and bail was
granted within a span of one day. The appellant herein was not arrested in this
case and formal bail was granted to him on filing charge sheet.
the year 2009, UCO Bank lodged an FIR with the CBI bearing No. RC 12(E)/2009 in
which charge sheet was submitted on 15.11.2010 and the appellant was arrested on
1.11.2010 and was released on temporary bail for various durations.
Bank had also lodged an FIR with the CBI bearing No. RC11(E)/2008 and submitted
charge sheet on 26.06.2010 in which the appellant herein was arrested after filing
of the charge sheet, he was also granted bail.
Bank of Hyderabad has also lodged an FIR and the same is under investigation. No
charge sheet has been submitted so far.
c. State Bank of India
and 17 other banks filed O.A. No. 11 of 2008 before the Debts Recovery Tribunal
(DRT), Ahmedabad seeking recovery of amount given by way of credit facilities under
consortium arrangement to the Company. Ad-interim orders have been passed on
28.02.2008 to secure the interest of the banks and to ensure that the
litigation does not become meaningless by the time final order is passed.
d. On 19.01.2010, the appellant
herein filed Civil Suit No. 145 of 2010 seeking damages to the tune of Rs.786 crores
against the informant Andhra Bank and other banks before the Ahmedabad City Civil
Court. The Andhra Bank, Zonal Office, Mumbai also lodged an FIR on 19.01.2010
which was registered by the CBI BS & FC/MUM bearing No. 1(E)/2010 for commission
of offences punishable under Sections 406, 420, 467, 468, 471 read with Section
120B of the Indian Penal Code, 1860 (in short `IPC'). In connection with the
said FIR, the appellant herein was arrested on 31.03.2010 and remanded to police
custody till 03.04.2010 and thereafter in the judicial custody. The appellant was
granted temporary bail on three occasions on medical ground. After completing
the investigation, the CBI submitted charge sheet on 10.06.2010 in which the appellant
was arrayed as accused No.4.
e. On 31.08.2010, the
appellant preferred an application for bail after charge sheet was filed before
the Special Court vide Criminal Misc. Application No. 141 of 2010 but the same
f. Being aggrieved by the
said order, the appellant filed Criminal Misc. Application No. 11415 of 2010
before the High Court for regular bail in connection with the FIR lodged by
Andhra Bank, Zonal Office Mumbai bearing No. 1(E)/2010 which was dismissed by
the High Court on 19.10.2010.
g. After investigation in
RC.12(E)/2009 lodged by UCO Bank charge sheet was submitted on 15.11.2010 and the
appellant was arrested on 01.11.2010 and he was released on temporary bail.
h. Against the order dated
19.10.2010 passed by the High Court, the appellant filed S.L.P.(Crl.)No. 83 of
2011 before this Court and the same was disposed of on 29.04.2011 directing the
special Court to take all endeavour for an early completion of the trial.
i. As there was no progress
in the trial, the CBI filed a supplementary charge sheet on 02.02.2011 which
was served on all the accused including the appellant herein only on
02.08.2011. Since the trial did not come to an end, the appellant filed
Criminal Misc. Application No. 195 of 2011 for regular bail before the Special Court.
In the meanwhile, Additional Chief Judicial Magistrate, vide order dated
15.09.2011 in Misc. Application No. 17/2011 in Spl. Case No. 03/2010 granted temporary
bail up to 20.10.2011 to the appellant herein on the ground of medical
exigencies. Again on 19.10.2011, considering the health of the appellant, the
Special Court extended the temporary bail till 30.11.2011. Vide order dated 27.09.2011,
Special Court rejected the application for regular bail filed by the appellant
j. The appellant filed an
application being Criminal Misc. Application No. 14224 of 2011 before the High Court
for regular bail but the same was rejected. Again the said application, the
appellant has filed the above appeal by way of special leave before this
Court.4) Heard Mr. Mukul Rohtagi, learned senior counsel for the appellant and Mr.
P.P. Malhotra, learned Addl. Solicitor General for the CBI.
only point for consideration in this appeal is whether the appellant herein has
made out a case for regular bail and whether the High Court is justified in dismissing
his bail application.
are conscious of the fact that this Court should not ordinarily, save in
exceptional cases, interfere with the orders granting/refusing bail by the High
Court. We are also provided with the facts and figures about the appellant's
involvement in similar other proceedings. In the case on hand, out of four accused,
A-1 is the Company and the appellant-A-4 is the Joint Managing Director of the
Company. It is not in dispute that A-2 and A-3 were granted bail by the High
Court on medical grounds. Mr. Rohtagi, learned senior counsel for the appellant
apart from highlighting that the appellant-A-4 is entitled for regular bail and
also submitted that he be considered on medical grounds because of his various ailments
as certified by leading doctors including the Medical Officer, Central Jail
as the merits of the claim of the appellant is considered, it is useful to refer
the recent decision of this Court in Sanjay Chandra vs. Central Bureau of Investigation,
2012 (1) SCC 40. Since in this decision, all the earlier decisions of this Court
relating to grant of bail in a matter of this nature have been considered, we feel
that no other earlier decisions need be referred to.
Those appeals were
directed against the common judgment and order of the learned Single Judge of the
High Court of Delhi dated 23.05.2001 in Sanjay Chandra vs. CBI by which the
learned Single Judge refused to grant bail to the appellant-accused therein. The
allegations against those accused appellants were that they entered into a
criminal conspiracy for providing telecom services to otherwise ineligible
companies and by their conduct, the Department of Telecommunications (DoT)
suffered huge loss.
The learned Special
Judge, CBI, New Delhi rejected the bail applications filed by them by order dated
20.04.2011. The appellants therein moved applications before the High Court under
Section 439 of the Code of Criminal Procedure, 1973. The same came to be
rejected by the learned Single Judge by his order dated 23.05.2011. Aggrieved
by the same, the appellants approached this Court by filing appeals.
considering the entire materials, arguments of the various senior counsel as well
as the Addl. Solicitor General for the CBI and marshalling the earlier
decisions of this Court and after finding that the trial may take considerable
time and the appellants who are in jail have to remain in jail longer than the
period of detention had they been convicted and also keeping in mind the fact that
the accused are charged with economic offences of huge magnitude, ultimately this
Court granted bail to all the appellants by imposing severe conditions.
is also relevant to refer the order passed by this Court on 29.04.2011 in SLP (Criminal)
No. 83 of 2011 filed by the appellant herein earlier. This Court directed as
under: "We have considered the rival contentions and also perused all the
relevant documents. In view of the fact that the other two accused, namely, A-2
and A-3 were released mainly on the ground of illness and old age and of the
assurance by the learned Additional Solicitor General that the trial will be completed
within a period of three months, we are not inclined to accede to the request
of the petitioner. However, we make it clear that for any reason if the trial continues
beyond the period assured by the learned Additional Solicitor General, the
petitioner is free to move bail application before the Special Court. In such event
the Special Court is permitted to consider it in accordance with law. We also direct
the Special Court to take all endeavour for an early completion of the trial as
suggested by the learned Additional Solicitor General.
on the last date of hearing, learned Addl. Solicitor General assured this Court
that the trial will be completed within a period of three months, in view of
various reasons considering the magnitude of the issues involved, frequent absence
of the accused at the hearing dates due to various reasons including health
grounds, filing of petition for discharge and also the pressure of work on the
Special Court hearing among other important matters, the fact remains that the
trial could not be concluded. In fact, it is pointed out that though the prosecution
has submitted charge sheet the charges have not been framed due to various reasons
as mentioned above.
have already pointed out that insofar as the present case is concerned among
the four accused A-1 is a Company, A-2 and A-3 were granted bail on medical
grounds. According to the present appellant i.e A-4, he was arrested on
31.03.2010 by the CBI and was remanded to police custody for three days. Since
03.04.2010, he is in the judicial custody at Sabarmati Central Jail, Ahmedabad
and on 15.09.2011, he was granted interim bail up to 20.10.2011 and again on 19.10.2011,
considering his health conditions, the Special Court extended his interim bail till
30.11.2011. As stated earlier, the CBI has completed the investigation and
submitted the charge sheet on 10.06.2010 and the offences alleged in the charge
sheet are of the years 2006 and 2007.
Rohtagi, learned senior counsel, after taking us through various proceedings by
the Civil Court as well as DRT under SARFESI Act submitted that entire properties
of the appellant and their companies/firms were attached by the orders of the Court/Tribunal.
According to him, before entering into transaction with the banks, all those properties
have been mortgaged and as on date, the appellant cannot do anything with those
properties without the permission of the Court/Tribunal. In such circumstances,
he submitted that there will not be any difficulty in realising the money
payable to the banks, if any. In addition to the above factual information, it was
pointed out that after the order of this Court, on 29.04.2011 there is no progress
in the trial. It is also pointed out that the trial has not even commenced
inasmuch as a supplementary charge sheet has been served 11upon the appellant herein
only on 02.08.2011. It is further pointed out that the charge has not been
framed till this date. It is also brought to our notice that prosecution has relied
upon 286 documents and listed 47 witnesses in the charge sheets filed by it.
addition to the above information, Mr. Rohtagi has also pointed out that at the
time of arrest of the appellant on 31.03.2010, he was taken to the hospital and
was diagnosed for hypertension and acidity. According to him, no other ailment was
noted by the hospital in the discharge card. While so, when he was in custody since
31.03.2010, the appellant has suffered 40 per cent permanent partial disability
in his left arm as a result of surgery for abnormal bone protrusion. It is also
highlighted that on account of uncontrolled high blood pressure while in custody
the appellant has suffered 30 per cent blindness in his right eye and has undergone
a surgery for vitreous hemorrhage.
It is further pointed
out that the hemorrhage having re-occurred, the doctors have advised a second surgery
to save his eyes. However, according to him, the said surgery could not be 12performed
due to continuing uncontrolled high blood pressure and resultant recurring bleeding
in the vessel even after first surgery. It is also pointed out that after passing
of order by this Court on 29.04.2011, the appellant while in custody has contracted
obstructive jaundice requiring long intensive treatment. As a result of such obstructive
jaundice, the appellant is also unable to undergo other required surgeries.
Learned senior counsel has also pointed out that the appellant is now suffering
from further disability of loss of hearing which can be corrected only through surgery.
In support of the
above claim, various certificates issued by doctors of private hospitals have
been placed on record. In addition to the same, Mr. Rohtagi by drawing our attention
to the certificate dated 07.08.2011 issued by the Central Prison Hospital,
Sabarmati, Ahmedabad stated that even according to the Medical officer of the Central
Jail Dispensary, the appellant is suffering from various ailments as mentioned in
the certificate which reads as under: "OUT NO. ACJD/346/2011 CENTRAL
PRISON HOSPITAL SABARMATI, AHMEDABAD Date : 07.08.2011 CERTIFICATE This is to
certify that Mr. Dipak Shubhash Mehta is an under trial prisoner of Central Jail,
Ahmedabad with prisoner NO. 4077.
He complains of continuous
precordial chest pain dullache like heaviness in chest, Gabharaman, giddiness,
chronic Rt. Hypochondriach pain in abdomen, bleeding P/R. dimness of vision Rt.
Eye vision deviation of Rt. Eye outward since 1 -1/2 years. Patient is a known
case of uncontrolled blood pressure since 4 years, chronic obstructive jaundice
since 6 months and fissure in anno with piles. Patient was sent to eye dept.
Civil Hospital Ahmedabad on 02.02.2011, seen by Dr. K.P.S. (Ophthalmic Surgical
Unit) and diagnosed as Rt.
Eye glaucoma, 3rd nerve
palsy in Rt. Eye with vitreous hemorrhage, macular degeneration and percentage of
blindness is 30%. CT report suggests Fatty replacement of belly and distal
tendinous insertion of superectus muscle on Rt. Side. On 25.03.2011, patient was
operated for vitreous hemorrhage in private hospital even though, on 17.06.2011
eye examination found fresh vitreous hemorrhage present due to uncontrolled
blood pressure and chronic obstructive jaundice. On 27.09.2010, patient was sent
to U.M. Mehta Institute of Cardiology & Research Centre for further
investigation and treatment where his Echocardiography was done and report suggests
Normal LV side and fair LV function reduced LV compliance and 55%. On 08.01.2011,
patient was operated for tardy ulner nerve paresis.
It forearm and neurolysis
done of Lt. ulner nerve and advised regular physiotherapy. Dated 26.02.2011
CDMO, Govt. General Hospital, Sola certified that patient is a case of physically
disabled and has 40% permanent physical impairment in relation to his Lt. upper
limb. Patient needs to be under continuous observation under treating doctor
and follow up. He is advised to avoid physical and mental stress to prevent any
serious complications. This certificate is issued on the basis of available
case records at Central Jail Dispensary. Date: 07.08.2011 Place: Ahmedabad
Central Jail Sd/- Medical Officer Central Jail Dispensary, Ahmedabad.
from the above certificate, the very same Medical Officer, Central Jail Dispensary,
Ahmedabad has issued another Certificate on 08.09.2011. In the said Certificate,
after reiterating the very same complaints finally he concluded "he needs treatment
from the Specialist, Super Specialist, Cardiologist and Gastroenterologist
& Ophthalmologist for his multiple problems".
above information by a Medical Officer of the Central Jail Dispensary, Ahmedabad
supports the claim of the appellant about his health condition. No doubt, Mr. P.P.
Malhotra, learned ASG by drawing our attention to various details from the counter
affidavit filed on behalf of the CBI submitted that in view of magnitude of the
financial involvement by the appellant with the nationalised banks, it is not
advisable to enlarge him on bail.
have gone through all the details mentioned in the counter affidavit of the Senior
Superintendent of Police, CBI, and Bank Securities and Fraud Cell, Mumbai. The
appellant has also filed rejoinder affidavit repudiating those factual details.
At this juncture, it is unnecessary to go into further details. In the earlier order,
we have noted the assurance of the ASG for completion of the case within three months.
Admittedly, the same was not fulfilled due to various reasons.
It is also not in dispute
that though the charge sheet and additional charge sheet were submitted to the
Court, the same have not been approved and framed. In the meanwhile, apart from
absence of some of the accused on various dates, due to some reasons or other including
medical grounds, the appellant herein has also filed a petition for `discharge'.
Further, even in the counter affidavit filed by the CBI, it is stated that the accused
persons moved applications under Section 239 of the Code of Criminal Procedure,
1973 for discharge and the same are pending for hearing and disposal and further
the Madhao Merchantile Bank case is going on day-to-day basis before the
Special CBI Court and in addition to the same, Sohrabuddin Fake Encounter case is
also pending for trial before the same Court. It is clear that the said Special
CBI Court is over burdened and in view of the voluminous materials the prosecution
has collected, undoubtedly the trial may take a longer time.
Court has taken the view that when there is a delay in the trial, bail should be
granted to the accused. [Vide Babba vs. State of Maharashtra, (2005) 11 SCC
569, Vivek Kumar vs. State of U.P., (2000) 9 SCC 443.] But the same should not
be applied to all cases mechanically.
Court granting bail should exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of granting bail, a detailed examination
of evidence and elaborate documentation of the merits of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted, particularly, where the accused is charged
of having 17committed a serious offence. The Court granting bail has to
consider, among other circumstances, the factors such as
a. the nature of
accusation and severity of punishment in case of conviction and the nature of supporting
b. reasonable apprehension
of tampering with the witness or apprehension of threat to the complainant and;
c. prima facie
satisfaction of the court in support of the charge. In addition to the same,
the Court while considering a petition for grant of bail in a non-bailable
offence apart from the seriousness of the offence, likelihood of the accused fleeing
from justice and tampering with the prosecution witnesses, have to be noted.
present scenario and there is no possibility of commencement of trial in the
near future and also of the fact that the appellant is in custody from 31.03.2010,
except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold
that it is not a fit case to fix any outer limit taking note of the materials collected
by the prosecution. This Court has repeatedly held that when the undertrial prisoners
are detained in jail custody to an indefinite period, Article 21 of the Constitution
is violated. As posed in the Sanjay Chandra's case (supra) we are also asking
the same question i.e. whether the speedy trial is possible in the present case
for the reasons mentioned above.
observed earlier, we are conscious of the fact that the present appellant along
with the others are charged with economic offences of huge magnitude. At the same
time, we cannot lose sight of the fact that though the Investigating Agency has
completed the investigation and submitted the charge sheet including additional
charge sheet, the fact remains that the necessary charges have not been framed,
therefore, the presence of the appellant in custody may not be necessary for further
investigation. In view of the same, considering the health condition as supported
by the documents including the certificate of the Medical Officer, Central Jail
Dispensary, we are of the view that the appellant is entitled to an order of bail
pending trial on stringent conditions in order to safe guard the interest of
the light of what is stated above, the appellant is ordered to be released on bail
on executing a bond with two solvent sureties, each in a sum of Rs. 5 lakhs to the
19satisfaction of the Special Judge, CBI, Ahmedabad on the following
appellant shall not directly or indirectly make any inducement, threat or promise
to any person acquainted with the facts of the case so as to dissuade him to disclose
such facts to the Court or to any other authority.
appellant shall remain present before the Court on the dates fixed for hearing
of the case, for any reason due to unavoidable circumstances for remaining absent
he has to give intimation to the Court and also to the concerned officer of CBI
and make a proper application that he may be permitted to be present through
appellant shall surrender his passport, if any, if not already surrendered and
in case if he is not a holder of the same, he shall file an affidavit;
case he has already surrendered the Passport before the Special Judge, CBI, that
fact should be supported by an affidavit.
is given to the CBI to make an appropriate application for modification/recalling
the present order passed by us, if the appellant violates any of the conditions
imposed by this Court.
appeal is disposed of on the above terms.