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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1286-1287 OF 2015 (Arising out of S.L.P. (Crl.) Nos. 1753-54 of 2015)

Sudhir … Appellant

Versus

The State of Maharashtra and another …Respondents

WITH

CRIMINAL APPEAL NO.1288 OF 2015 (Arising out of S.L.P. (Crl.) No. 2365 of 2015)

Chandrakant … Appellant

Versus

State of Maharashtra and another …Respondents

WITH

CRIMINAL APPEAL NO.1289 OF 2015 (Arising out of S.L.P. (Crl.) No. 2774 of 2015)

Chandrakant … Appellant

Versus

State of Maharashtra and another …Respondents

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J U D G M E N T

Prafulla C. Pant, J.

Leave granted.

2. All these four appeals are directed against common order

dated 29.1.2015, passed by the High Court of Judicature at

Bombay,  Bench  Aurangabad,  in  Criminal  Application  Nos.

4526 of 2013, 4527 of 2013, 4528 of 2013 and 4529 of 2013

whereby anticipatory bail granted by the Additional Sessions

Judge, Jalgaon, to the appellants in connection with C.R. Nos.

71  of  2013  and  73  of  2013,  registered  at  Police  Station

Dharangaon,  relating to  offences punishable  under  Sections

409, 420, 467, 468, 477A read with Section 34 of Indian Penal

Code (IPC) and under Section 13(1)(d) read with Section 13(2)

of Prevention of Corruption Act, 1988, is cancelled.

3. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

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4. Brief  facts  of  the  case are that  appellants  Chandrkant

Wagh  and  Sudhir  Dahake  are  Executive  Engineer  and

Sectional  Engineer  respectively  in  Rural  Water  Supply

Department of Zilla Parishad, Jalgaon.  Two First Information

Reports  were  registered  against  them  with  the  serious

allegations of criminal misappropriation of funds released for

implementation of schemes of drinking water in the villages of

Waghlud and Sonwad Khurd in Tehsil Dharangaon.  C.R. No.

71 of 2013 relates to Waghlud and C.R. No. 73 of 2013 relates

to village Sonwad Khurd.  The FIRs in respect of these crimes

appeared  to  have  been  registered  only  after  enquiries  were

made under directions of Revenue Commissioner, by Deputy

Commissioner  (Development),  Nasik  Region,  who  found

substance in the allegations against the appellants.  In C.R.

No.  71  of  2013  there  is  allegation  of  misappropriation  of

Rs.28.35 lacs, and in C.R. No. 73 of 2013 the allegations relate

to  misappropriation  of  Rs.13.75  lacs.   In  respect  of  village

Waghlud one Mangal Ganpat Patil was shown as contractor,

but  no  such  contractor  was  found  in  existence.   Vouchers

shown regarding payment of Rs. 14.94 lacs were found false,

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which  related  to  construction  of  overhead  water  tank  in

Waghlud village which was already in existence in said village

under  another  scheme.   The  amount  of  first  installment  of

Rs.1.43  lacs  and  second  installment  of  Rs.1.44  lacs  for

construction  of  public  toilet  was  found  to  have  been  made

falsely,  as no construction of  public  toilet  was made in the

village.  The amount was shown to have been made to one

Rohitdas Aawasu Koli.  Two measurement books were kept to

submit  exaggerated  revised  estimates.   Rs.1.30  lacs  was

shown to have been spent on erection of barbed wire in village

Waghlud, but no work of fencing was done in the village.  In

the village Sonwad Khurd (C.R. No. 73 of 2013) work included

relating to digging of bore well, fixing of pump and machinery,

construction of pump house, and laying the pipeline.  Barbed

fence  was  also  one  of  the  works  to  be  executed  in  village

Sonwad  Khurd.   Most  of  the  payments  in  respect  of  these

works are shown to have been made in cash.   

5. The High Court has taken note of the fact that initially

Mr. V.S. Dikshit, learned Additional Sessions Judge, Jalgaon,

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declined to grant anticipatory bail to the accused-appellants,

and appellant Chandrakant Wagh moved Criminal Application

Nos.  2908 and 2909 of  2013 in connection with above two

FIRs  before  the  High  Court  praying  pre  arrest  bail.   The

applications  were  withdrawn  and  the  High  Court,  after

recording  statement  of  the  counsel,  disposed  of  the  two

applications  as  withdrawn.   Thereafter,  appellant

Chandrakant Wagh moved fresh anticipatory bail application

Nos.  867 and 868 of  2013 before Mr.  D.P.  Surana,  learned

Additional  Sessions  Judge,  and  succeeded  in  obtaining  the

order of anticipatory bail.  The High Court took serious note of

this  fact  in  the impugned order  passed on the  applications

moved by the complainant  for  cancellation of  bail  before  it.

Appellant Sudhir Dahake, Sectional Engineer, also appears to

have obtained anticipatory bail from the Court of Additional

Sessions  Judge,  Jalgaon.   Allegations  against  him  were

specific  as  he  was  supervising  the  work  under  appellant

Chandrakant,  the  Executive  Engineer.   Strangely,  the  State

did not file any application for cancellation of bail, however, it

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supported such application for cancellation of bail moved by

the complainant before the High Court.

6. Learned counsel for the State has submitted before us

that there is requirement of the custodial interrogation of the

appellants.  It is further submitted that the investigation could

not progress as the appellants could not be interrogated.

7. On the  other  hand,  learned counsel  for  the appellants

argued  before  us  that  the  High  Court  has  erred  in  law  in

cancelling  the  anticipatory  bail  granted  to  the  appellants

without there being any sufficient reason.  They referred to the

cases of  Shri Gurbaksh Singh Sibbia and others v.  State

of Punjab1, and Ravindra Saxena v. State of Rajasthan2.

8. In Ravindra Saxena (supra), the rejection of application

for anticipatory bail by the High Court was set aside by this

Court on the ground that the dispute between the complainant

and the accused was in substance, civil in nature, as it was a

property dispute arising out of  commercial  transaction,  and

1 (1980) 2 SCC 565 2 (2010) 1 SCC 684

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the alleged offences were punishable under Sections 448, 456,

457, 420, 467, 468, 471, 380, and 120B IPC.  In the present

case  before  us,  there  are  serious  allegations  of

misappropriation  of  public  funds,  and  corruption  and  the

offences include one punishable under Section 409 IPC and

also under Section 13 of Prevention of Corruption Act, 1988.

As such, the case of Ravindra Saxena (supra) is of little help

in the present facts and circumstances of the case.

9. In  Gurbaksh Singh  (supra), the Constitution Bench of

this Court, while laying down the guidelines relating to grant

of anticipatory bail, has observed in paragraph 14 as under: -

“14. Generalisations  on  matters  which  rest  on discretion and the attempt to discover formulae of universal application when facts are bound to differ from  case  to  case  frustrate  the  very  purpose  of conferring  discretion.  No  two  cases  are  alike  on facts and therefore, courts have to be allowed a little free  play  in  the  joints  if  the  conferment  of discretionary power is to be meaningful. There is no risk involved in entrusting a wide discretion to the Court  of  Session and the  High Court  in  granting anticipatory  bail  because,  firstly,  these are higher courts  manned by  experienced  persons,  secondly, their orders are not final but are open to appellate or  revisional  scrutiny  and  above  all  because, discretion  has  always  to  be  exercised  by  courts judicially  and  not  according  to  whim,  caprice  or

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fancy.  On  the  other  hand,  there  is  a  risk  in foreclosing categories of cases in which anticipatory bail  may  be  allowed  because  life  throws  up unforeseen  possibilities  and  offers  new challenges…….”

The Constitution Bench in the above mentioned case, in

paragraphs  16  and  17,  while  observing  that  the  relief  of

anticipatory bail cannot be said to be barred merely for the

reason  that  the  allegations  relate  to  economic  offences  or

corruption,  has  clarified  that  where  the  allegations  are

malafide, the prayer for anticipatory bail can be accepted.  In

the present case, at this stage, there appears to be no malice

on the part of Revenue Commissioner, who ordered enquiry, or

Deputy Commissioner, who conducted enquiry, before getting

lodged the First Information Reports against the appellants.

10. In  State  of  A.P.  v.  Bimal  Krishna  Kundu  and

another3, which relates to offences punishable under Sections

420, 468 and 406 IPC arisen out of leakage of question paper

in  respect  of  examination  conducted  by  Public  Service

Commission, this Court has made following observations: -

3 (1997) 8 SCC 104

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“12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in  favour  of  granting  anticipatory  bail  to  the respondents.  It  is  disquieting  that  implications  of arming  the  respondents,  when  they  are  pitted against  this  sort  of  allegations  involving well-orchestrated conspiracy, with a pre-arrest bail order, though subject to some conditions, have not been  taken  into  account  by  the  learned  Single Judge.  We  have  absolutely  no  doubt  that  if  the respondents are equipped with such an order before they are interrogated by the police it would greatly harm  the  investigation  and  would  impede  the prospects  of  unearthing  all  the  ramifications involved  in  the  conspiracy.  Public  interest  also would  suffer  as  a  consequence.  Having  apprised himself  of  the  nature  and  seriousness  of  the criminal conspiracy and the adverse impact of it on “the career of millions of students”, learned Single Judge  should  not  have  persuaded  himself  to exercise the discretion which Parliament had very thoughtfully conferred on the Sessions Judges and the High Courts through Section 438 of the Code, by favouring the respondents with such a pre-arrest bail order.”

11. In  Siddharam   Satlingappa  Mhetre  v.  State  of

Maharashtra and others4, in sub-para (viii) of para 112, this

Court has held as under: -

“(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;”

4 (2011) 1 SCC 694

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12. In Bhadresh Bipinbhai Sheth v. State of Gujarat and

another5, laying down the principles regarding cancellation of

anticipatory  bail  in  sub paras  (vi)  and (ix)  of  para 23,  this

Court has observed as under: -

“(vi) It  is  a  settled  legal  position  that  the  court which grants  the  bail  also  has  the  power  to cancel  it.   The  discretion  of  grant  or cancellation of bail can be exercised either at the  instance  of  the  accused,  the  Public Prosecutor or the complainant, on finding new material  or  circumstances  at  any  point  of time.”

xxx xxx xxx

(ix) No inflexible guidelines or straitjacket formula can  be  provided  for  grant  or  refusal  of anticipatory  bail  because  all  circumstances and  situations  of  future  cannot  be  clearly visualized  for  the  grant  or  refusal  of anticipatory  bail.   In  consonance  with legislative  intention,  the  grant  or  refusal  of anticipatory bail should necessarily depend on the facts and circumstances of each case.”

13. Having  considered  the  submissions  made  by  learned

counsel for the parties, and after considering the gravity of the

offence, circumstances of the case, particularly, the allegations

of  corruption and misappropriation of  public  funds released 5 2015 (9) SCALE 403

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for rural development, and further considering the conduct of

the appellants and the fact that the investigation is held up as

the custodial interrogation of the appellants could not be done

due to the anticipatory bail,  we are of  the opinion that  the

High Court has rightly cancelled the anticipatory bail granted

to the appellants by the Additional Sessions Judge, Jalgaon.

Therefore, we are not inclined to disturb the same.

14. Accordingly,  we  decline  to  interfere  with  the  order  of

cancellation of anticipatory bail, passed by the High Court.  All

the four appeals are dismissed.

..…………………..…………J. [Dipak Misra]

…………………..……………J. [Prafulla C. Pant]

New Delhi; October 01, 2015.