REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.420  OF 2009 (Arising out of SLP (Crl.) No. 9250 of 2008)

Fida Hussain Bohra     … Appellant

Versus

The State of Maharashtra               … Respondent

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Appellant is before us aggrieved by and dissatisfied with a Judgment

and Order dated 3rd December, 2008 passed by the High Court of Judicature

at Bombay, Nagpur Bench, Nagpur whereby and whereunder an Order dated

19-12-2007  passed  by  the  learned  Additional  Sessions  Judge,  Akola

granting anticipatory bail in his favour was set aside.  

3. Civil Surgeon, Akola lodged a First Information Report on or about

30th November, 2006 alleging that since the year 2000, several officers of

the  LDH  Hospital  Murtijapur  and  National  Cooperative  Consumer

Federation of India Ltd., its authorized suppliers, subordinate suppliers etc.

committed criminal misappropriation of the public fund.   

Appellant was not named therein.  Indisputably most of the accused

named in the First Information Report or made accused subsequently filed

applications  for  grant  of  anticipatory bail  and/or  regular  bail  which have

been allowed.  It is stated that brother of the appellant was also arrested.  He

named the appellant as also the authorized suppliers. It was disclosed by the

authorized suppliers that the appellant is the real beneficiary of the amount

misappropriated as they were being paid only a sum of Rs. 2000/- per month

by him.  

4. Appellant applied for and was granted anticipatory bail by the learned

Sessions  Judge,  Akola  subject  to  the  condition  that  he  would  attend the

office of C.I.D Akola thrice a week between 11:00 a.m. to 3:00 p.m. till

completion of investigation.  Indisputably the said order has been complied

with.  

5. On an application  filed  by the  appellant  for  relaxation  of  the  said

condition and the response thereto filed by the C.I.D.,  the said condition

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was relaxed by an Order dated 18th April, 2008 directing the appellant to

attend the office of the C.I.D only twice a month.  It is said that the C.I.D

itself stated that it was not necessary for him to attend their office thrice a

week.   

6. Prior  thereto  the  State  filed  an  application  purported  to  be  under

Section 482 of the Code of Criminal Procedure (Cr.P.C.) before the High

Court questioning the correctness of the said order granting anticipatory bail

to the appellant on 19-12-2007.  By reason of the impugned judgment, the

said application has been allowed.   

7. Mr.  Naresh  Kumar,  learned  counsel  appearing  on  behalf  of  the

appellant would submit that the High Court has committed a serious error in

passing  the  impugned  Judgment  as  by  reason  whereof  anticipatory  bail

granted in favour by the learned Sessions Judge has illegally been cancelled.

It  was  urged  that  keeping  in  view  the  fact  that  the  appellant  had

abided by the conditions laid down in the order granting anticipatory bail

and the investigating agency itself having given out that the strict conditions

imposed thereby may suitably be relaxed,  the High Court must be held to

have committed a serious error in passing the impugned Judgment.   

8. Ms.  Aparajita  Singh,  learned  counsel  appearing  on  behalf  of  the

respondent,  on the other hand, would contend that the learned Additional

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Sessions Judge committed a serious error in granting anticipatory bail to the

appellant on the premise that the period involved in respect of commission

of the offence was 2001-2007; whereas in fact  the   period  involved  was

1-04-2005 to 7-10-2006.

It  was  urged  that  no  reliance  should  have  been  placed  on  the

statement of the store keeper of the hospital that the medicines etc. allegedly

supplied  by  the  authorized  suppliers  had  been  received,  inasmuch  as  he

himself being an accused must have made such a statement with a view to

save his own skin.

Appellant was the kingpin and the amount involved in the matter is

about 26 crores which has been embezzled by the accused without making

any supplies and by raising bogus bills.

The High Court in its impugned Judgment has rightly pointed out that

there exists a distinction between an appeal from an order granting bail and

an order of cancellation of bail.

9. Correctness or otherwise of the orders passed by the appellate court

setting aside an order granting bail or an order of cancellation of bail, in our

opinion is required to be considered on the factual matrix involved in each

case.   

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10. For the purpose of grant of bail the amount involved may be of some

relevance but not the only consideration.

The  First  Information  Report  was  lodged in  30th November,  2006.

Appellant was not named therein.  His complicity in the commission of the

alleged  crime came to  light  only from the statements  made by the  other

accused persons during investigation.   

He was granted anticipatory bail subject to the conditions mentioned

therein.  He indisputably complied with the said conditions.  According to

the appellant  he had produced  all  books  of  accounts  and  has  fully been

cooperating  with  the  investigating  agency.   The  investigating  agency,  as

noticed hereinbefore, accepted that the conditions for grant of anticipatory

bail may be relaxed.  If the investigating agency itself was satisfied with the

conduct  of  the  appellant  vis-a-vis  of  the  orders  passed  by  the  learned

Additional  Judge  and  furthermore  did  not  object  to  relaxation  of  the

conditions of bail, we fail to understand as to on what premise they could

approach the High Court for setting aside the order granting bail.   

11. Appellant  had  remained  on  bail  for  a  long  time;  the  impugned

judgment  having  been  passed  only  on  3-12-2008.   If  the  investigating

agency was of the opinion that custodial interrogation or interrogation of the

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appellant  in  presence  of  the  other  accused  was  necessary,  the  learned

Sessions Judge could have moved in that behalf.

12. If matters relating to the involvement of the appellant in the crime

vis-à-vis the other accused were required to be further probed, the Sessions

Judge again could have been approached.

We would assume that the appellant  was involved in regard to the

commission of  offence  for  the  period  in  question namely  1-04-2005 to

7-10-2006.   

We would  also  assume that  the  statement  of  store-keeper  was  not

correct.  If his statement was not correct and if a huge amount has been paid

on the basis of bogus bills without any supply of medicine or other articles

having been made, we fail to understand as to on what basis bail could be

granted to other accused persons including the store-keeper while depriving

the appellant from obtaining the said benefit.  It is also beyond anybody’s

comprehension as to why the High Court was not moved for cancellation of

bail granted in favour of other public servants including the store keeper.   

13. We, therefore, are of the opinion that in the facts and circumstances

of this case interest of justice would be sub-served if it is directed that the

appellant  shall  in  the  event,  any  application  therefor  is  filed  by  the

investigation  agency  may  be  interrogated  at  any  time  suitable  for  the

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Investigating Officer either  alone or with other accused persons, shall  be

allowed.  Appellant shall comply with such other direction or directions as

may be  issued  by  the  learned  Sessions  Judge,  if  and  when,  the  learned

Sessions Judge passes an order at the instance of the investigating agency or

otherwise relying or on the basis of these observations.

14. For the reasons aforementioned, the impugned judgment is set aside

and the appeal is allowed with the aforementioned directions.  

…………………….J.      [S.B. SINHA]

…………………..…J.            [Dr. Mukundakam Sharma]

New Delhi; March 3, 2009

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