Dismissed

Suresh Bhikamchand Jain v. the State of Mah

Bombay HC13 Sept 2012APPLN/3568/2012

Case brief

AI extract

What is this about?

Single judge of Bombay HC at Aurangabad dismissed criminal bail applications by a former Municipal President and Housing Minister accused of corruption. Court found prima facie material of misuse of office and potential tampering, declining bail despite medical pleas.

What did the court decide?

Criminal Application No. 3568 of 2012 dismissed; interim hospital custody continued for three weeks.

Suresh Bhikamchand Jain Vs the State of Mah — Corruption | Bombay HC (2012)

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(1) CRI. APPLN. 3568-2012+

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.3568 OF 2012

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Suresh S/o Bhikamchand Jain
Age : 69 years, R/o 7, Shivajinagar,
Jalgaon District,
JalgaonAPPLICANT

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VERSUS

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The State of Maharashtra
through City Police Station,
Jalgaon, Dist. Jalgaon

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RESPONDENT

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WITH

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CRIMINAL APPLICATION NO.3974 OF 2012

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WITH CRIMINAL APPLICATION NO.4028 OF 2012 IN CRIMINAL APPLICATION NO.3568 OF 2012

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WITH CRIMINAL APPLICATION NO.3973 OF 2012 IN

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CRIMINAL APPLICATION NO.3568 OF 2012

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Narendra S/o Bhaskarrao Patil,
Age : 52 years, Occu.: Business
and Social Work, R/o 71, Dixitwadi,
Jilla Peth, Jalgaon,
Dist. Jalgaon

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APPLICANT

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VERSUS

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1. The State of Maharashtra

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 through Additional Superintendent
 of Police, Jalgaon

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2. Suresh S/o Bhikamchand Jain
 Age : 69 years, R/o 7, Shivajinagar,
 Jalgaon District,
 Jalgaon RESPONDENT

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(2) CRI. APPLN. 3568-2012+

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.....

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Mr. Uday Lalit, Sr. Advocate with Mr. Ponda, Advocate i/b.
Mr. Sandeep Deshmukh, Advocate for the applicant. (Cri.
Application no. 3568 of 2012)

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Mr. S.B. Talekar, Advocate for Assist to A.P.P. (Cri.
Application nos.3974 of 2012 and 4028 of 2012 and 3973 of 2012)

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Mr. P.P. Chavan, Spl. Counsel for the Respondent-State in all
Applications.

¶24

.....

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CORAM : M.T. JOSHI, J. DATED : 13th September, 2012

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ORAL ORDER:

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1.Criminal Application no.3568 of 2012 is
filed by the accused-Suresh Jain, who is arrested in

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crime no.13 of 2006 (which is now Special Case No. 5
of 2012 before the learned Special and Additional
Sessions Judge, Jalgaon) registered with City Police
Station, Jalgaon, Dist. Jalgaon for the offences
punishable under section 120-B, 409, 411, 406, 408,
465, 466, 468, 471, 177, 109, 34 of the I.P. Code and
section 13(1)(d), 13(2) of the Prevention of
Corruption Act.

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2.Earlier, Criminal Application no.3876 of
2012 for intervention was allowed. Mr. Lalit,

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learned Senior counsel has now raised objection for
allowing the Application of the intervenor and prays

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(3) CRI. APPLN. 3568-2012+

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for recalling of the order on the ground that the
applicant was not the original complainant, as tried
to be posed by him. It is to be noted that the Apex
Court has allowed the intervention of one of the co-
accused. Mr. Deshmukh, learned counsel for the
applicant, however, points out that the Apex Court
has allowed the intervention of the accused only
because this Court in the said proceedings had
granted similar permission to the applicant.

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3.Considering the overall facts that the
allegations are regarding frittering away of public
money and the applicant is citizen of city of

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Jalgaon, and particularly, when a narrow view of

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locus in such cases, may result into non-placing of

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all relevant material, as has been allegedly done as

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regards the award passed by the learned arbitrator,

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which was strictly between the Municipal Council and
the defaulter, in my view, no harm would be caused,

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if the order of allowing the intervention is
maintained. The objection in this regard is therefore
overruled.

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(4) CRI. APPLN. 3568-2012+

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4.It was argued from the side of intervenor
that since the applicant-Suresh Jain was not in
custody on the date of decision of the application
for releasing him on bail, the very application was
not maintainable and the learned Judge ought not have
passed any order, including the interim arrangement.

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5.A preliminary objection is also raised on
the question as to whether the present application
would be tenable when, according to Mr. P.P. Chavan,
learned Spl. P.P. as well as Mr. S.B. Talekar,
learned counsel for the intervenor, the applicant was
not in custody of the Court when the order was passed
by the Special Judge, which is a pre-condition for
grant of regular bail.

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6.According to me, the history of the case
further would show that till the date of passing of
the final order by the learned Special Judge, the
applicant was released on interim bail and as such,
was in constructive custody. Since the applicant was
on interim bail, in law, it would mean constructive
custody and, therefore, the preliminary objection in

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this regard fails. The Criminal Application no. 3974

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(5) CRI. APPLN. 3568-2012+

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of 2012 filed in this respect stands rejected
accordingly.

¶47

7.The complaint in the case was filed by the
then Municipal Commissioner, Jalgaon, Dr. Pravin
Gedam on 3rd February, 2006. The gist of the
allegations is that while the complainant was working

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as Commissioner of the Municipal Corporation of
Jalgaon City from 9th October, 2005, he found certain
irregularities/illegalities in implementation of a
schemeforconstructing11424housesfor

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rehabilitation of the slum dwellers within the

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jurisdiction of the then Jalgaon Municipal Council.
The Municipal Council is upgraded to the Municipal

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Corporation with effect from 21st March, 2000. In

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effect, the complainant alleged that the said work of
construction of the houses was undertaken by the then
Municipal Council without any resolution having been
passed. Without there being any resolution, a tender

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notice was flashed in various newspapers. The

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architects were appointed against the provisions of

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the Act as well as the Rules governing the Municipal
Council. The period of construction of the houses in

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(6) CRI. APPLN. 3568-2012+

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the tender was given as two years and three years for
the nine sites. Only two tenders were received i.e.
one of M/s Khandesh Builders Pvt. Ltd. and another of
M/s Golani Builder. Second tender was for three
sites only. However, at the eleventh hour, a
condition regarding the period of construction was
changed only to nine months. Thus, Golani Builders
opted out of the tender process and only bidder
remained was M/s Khandesh Builders Pvt. Ltd. M/s
Khandesh Builders quoted the rates @ 22.25% to 27% as
regards various sites above the D.S.R. i.e. the rate
prescribed by the P.W.D. for the relevant year. The
municipal officers therefore recommended for calling

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fresh tenders. It was overruled. A show of
negotiations was made in which while M/s Khandesh

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Builders agreed to lower down the rate from 22%-27%
to 17% and without there being any provision or any
specification in the tender notice, mobilization
advance @15% and material advance was agreed to be

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paid to M/s Khandesh Builders. It was, however,

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found that except two sites, none of the sites were
availablewiththeMunicipalCouncilfor

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construction. On some of the sites while there were

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(7) CRI. APPLN. 3568-2012+

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reservations in the Development Plan for different
purposes, one of the sites was even in litigation
under the tenancy law. The mobilization advance is
generally granted for the purposes of securing
machinery and infrastructure. However, the Municipal

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Council knew that M/s Khandesh Builders was already
constructing houses in Pimprala area and as such,
there was no necessity for grant of any mobilization
advance. Further, the mobilization advance was
agreed to be given within fifteen days of issuing of

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work order and the work was to be started after the
possession of the land is given to the Developer. In

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the circumstances, the mobilization advance was
sanctioned at Rs. 1183.60 lakhs. Before issuing the
tenders, without any resolution, loan under the
Central Government's Scheme was sought. The proposals
were sent initially showing that out of nine sites,
seven were in possession of the Municipal Council.
The sub-contract was given by M/s Khandesh Builders

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for a period of more than nine months as agreed

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between the Municipal Council and M/s Khandesh
Builders. It would show that M/s Khandesh Builders

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were very well knowing that the time would be

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(8) CRI. APPLN. 3568-2012+

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extended. The contract above 17.5% of the DSR was
agreed while the PWD Manual clearly shows that the
contract should not be granted beyond 10% of the DSR.
The officials of the Municipal Council had opposed
all these activities. Even during the continuance of

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the contract, in the year 2000, the bank guarantee of
M/s Khandesh Builders was released as regards written
opposition of the Assistant Engineer and the then
Chief Officer of the Municipal Council. Many a times,
all these activities were carried without any
resolution having been passed and by appointing the
High Power Committee headed by Mr. Pradeep Raisoni,

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the then Deputy Mayor, who was closely related to the

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present applicant Mr. Suresh Jain. It is further
alleged that even escalation was given during the

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pendency of the contract which was continued for
years together for various reasons like change of
site, scarcity of water, ban on lifting of sand and

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even on the ground that in 2004, the then President

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of the Municipal Council had put spoke in the work
carried by the contractor. In the circumstances,
alleging that the directors of M/s Khandesh Builders

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i.e. Jagannath N. Wani, Raja Mayur in collusion with

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(9) CRI. APPLN. 3568-2012+

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Pradeep Raisoni-Vice President, the then Chief
Officer and the Legal Advisor, etc. of the Municipal
Council, entered into the agreement in order to cause
loss of the Government funds amounting to Rs. 29
crores and odd and the same is misappropriated, the
present FIR came to be filed.

¶82

8.The history shows that there was no regular
investigation in the offence. Various Committees
were appointed. This Court was moved in the nature
of civil writ petitions. Ultimately, an Arbitrator
was appointed by this Court and two awards came to be
passed by the then Arbitrator Hon'ble Shri Justice
Rajan Kochar (retired). The award however is branded

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as an outcome of a friendly fight between M/s
Khandesh Builders and the then Municipal Corporation
Officials willing to give concession to the builders.

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9.Ultimately, when the investigation was
started, two directors of M/s Khandesh Builders and
Pradeep Raisoni were arrested and the first
chargesheet came to be filed against them. Their
applications for releasing on bail were rejected by
this Court and presently, the same issue is being

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(10) CRI. APPLN. 3568-2012+

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agitated in the Supreme Court.

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10.So far as the present applicant-Suresh Jain
is concerned, he was arrested on 11th March, 2012.
He was remanded to police custody till 19th March,
2012. Thereafter, he was sent to judicial custody.
However, from time to time, he was released on
interim bail and till the date of rejection of his
application for bail, he was on interim bail till 2nd
July, 2012. Ultimately, the learned Sessions Judge,
Jalgaon, upon hearing both the sides, rejected the
application. However, he granted time to the
applicant till 5th July, 2012, for his admission to
Jaslok Hospital, with a direction to submit a weekly

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medical reports before him regarding the applicant's
health condition.

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11.In effect, the allegations against the

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present applicant Suresh Jain are that for a

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considerable period, previous to the present
occurrence, he was the President of the Municipal
Council, Jalgaon. At that time, Pradeep Raisoni was

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the Vice-President of the Municipal Council.
Thereafter, Mr. Suresh Jain was elected as M.L.A.

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(11) CRI. APPLN. 3568-2012+

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from Jalgaon constituency and thereafter he became
Minister of different Departments in the Government
of Maharashtra. During the relevant period, while
all the time, Pradeep Raisoni was the Vice-President
of the Municipal Council, applicant Suresh Jain was

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the Minister of Housing. As already pointed out,
false representations were made to the HUDCO i.e. a
Public Sector undertaking from whom loan was sought,

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that all the sites were in possession of Jalgaon
Municipal Council. The HUDCO officials time and

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again refused to accede to the request firstly on the
ground that financial condition of the Municipal
Council was not sound. Thereafter, only on the ground

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that the financial assistance in the nature of loan
can be granted against the Government guarantee and

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that too only when the Municipal Council would
mortgage its property, the loan would be granted.
Ultimately, the present applicant made a call to the
Chairman and Managing Director of HUDCO, Mr. V.
Suresh, asking him to sanction loan and to release

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the first loan installment. He also gave a written
assurance of getting the Government guarantee

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shortly. This assurance was given by applicant Suresh

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(12) CRI. APPLN. 3568-2012+

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Jain, when as a Minister of Housing, he had no
authority to give such assurance. While the loan of

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Rs. 79 crores was obtained at the interest of 13.5%,
the mobilization advance was granted to the Developer
M/s Khandesh Builder without any interest. It is
contended that now the loan has reached to staggering
amount of Rs. 150 crores while admittedly, upto this
date, the work in the value only of Rs. 35 crores is
done.

¶105

.As regards M/s Khandesh Builders i.e. the
Developer, it is alleged that M/s Khandesh Builders
is nothing but the cloak for operation of the
financial affairs of applicant Suresh Jain.
Previously, the wife of his younger brother, namely,
Yashomati Jain was one of the directors of M/s
Khandesh Builders. Later-on, in the year 1984, son
of the applicant, namely, Rajesh was appointed as
director of M/s Khandesh Builders. At the time of
entering into the contract, the said relationship
continued. Besides M/s Khandesh Builders, the
applicant or his blood relatives are concerned with
Krishidhan Cattle Fields Pvt. Ltd., Jalgaon, J.M.

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(13) CRI. APPLN. 3568-2012+

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Cotton, Ginning and Pressing Company Ltd., S.B. Jain
Oil Industries Ltd., etc. The address of all these
companies, including M/s Khandesh Builders, however,
is same i.e. 7, Shivajinagar, Jalgaon. This is, in
fact, the residential house of applicant Suresh Jain,

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which was thereafter transferred in the name of his
mother. It is alleged that no sooner the amount
towards the mobilization advance was paid to M/s
Khandesh Builders, the substantive part of the same
was diverted to various companies, details of which

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are given in the chargesheet. Some diversion was in
the nature of purchasing of share capitals, etc. as
is detailed.

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12.As regards the position of applicant Suresh

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Jain vis-a-vis Municipal Council, it is alleged that
he was the President of the party, which for all the
relevant time, was in power in the Municipal Council.
The statements of the then President Smt. Sindhutai

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Kolhe as well as the architects, who were allegedly
appointed illegally, without following any rules,
would also show that the present applicant-Suresh

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Jain was instrumental while allegedly the other

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(14) CRI. APPLN. 3568-2012+

¶115

functionaries of the party as well as office bearers
in Municipal Council were used as tools.

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13.In nutshell, alleging that the applicant-
Suresh Jain has his one foot firm as a party
president in Municipal Council, second in Government
as a Minister of Housing in the Government of
Maharashtra to prevail over HUDCO, both of his hands
were in the coffer of M/s Khandesh Builders and thus
has siphoned substantial amount that was allotted.

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14.Whilehighlightingindetails,to

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substantiate all these allegations, to show the prima

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facie case, Mr. P.P. Chavan, Special Public

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Prosecutor submits that this being a case of higher
functionary of the State of Maharashtra, working for

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his sole purpose to amass wealth from the public
funds, the learned Special Judge was right in
rejecting the application of the applicant for bail.

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15.Mr. Lalit, learned Senior Counsel, made

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submissions on behalf of the applicant. His line of

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arguments would show that there is no prima facie
material against the applicant. In the alternative,

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(15) CRI. APPLN. 3568-2012+

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even if we come to the conclusion that there is some
prima facie material, still it would not warrant
keeping the applicant in jail indefinitely. The next
submission is that the allegations would not show
that the ingredients of the offence punishable under
section 409 of the I.P. Code are made out, which is
the only section which provides for sentence of life
imprisonment. His last of the submission is on the
ground i.e. physical condition of the applicant,
which, according to him, above all would necessitate
that the applicant be released on bail.

¶127

16.Mr. Lalit, learned senior counsel submits

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that the award is passed by the Arbitrator Hon'ble
Shri Justice Rajan Kochar (retd.), while dealing with
the dispute between the Municipal Council and M/s
Khandesh Builders. The reading of the award, as a
whole would show that there were no malafides in
entering into contract. On the other hand, it is the
Municipal Council which has defaulted. Therefore, he
vociferously argued that the award of the Arbitrator

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can be equated with a decree of a civil Court. All
the charges levelled in the present matter would

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(16) CRI. APPLN. 3568-2012+

¶131

therefore go away. He further submits that mere
allegations that the applicant was the master-mind
for operating the affairs in the Municipal Council,
without any substance would go to show that
allegations are made against the democratic
principles. In effect, it would show that the peoples
representatives in the Municipal Council had no
independent opinion and as such, the entire house is
blamed.

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.He further argued that the documents

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collected by the Investigating Officer would show

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that the applicant has nothing to do with the

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sanction of loan from HUDCO which was granted in

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regular course. As regards the relation of the
applicant with M/s Khandesh Builders, it was

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submitted that the relations of the near relatives
would not lead us anywhere. Further unless and until

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the allegations that there was entrustment of the

¶139

property are prima facie substantiated, the mere fact

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that the applicant has to do something with M/s
Khandesh Builders would not lead us anywhere. He
further submits that the amount towards the

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(17) CRI. APPLN. 3568-2012+

¶142

mobilization advance, upon deposit of the same in the
bank account of M/s Khandesh Developers though may
have been paid to certain other companies in which
the applicant has concern, it would not amount to
misappropriation of the property. The Developer is

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free to manage the economic affairs of the company in
any manner, by making adjustments. He submits that
when the allegations are that more than Rs. 42 crores
are paid to M/s Khandesh Builders as against the
admitted construction of houses, valued at Rs.35
crores, this would not amount to frittering away of
public funds and as such, he submits that the
applicant be released on bail.

¶144

17.As regards the application of the

¶145

ingredients of the offence as defined under section
409 of the I.P. Code, principally, relying in "Sanjay

¶146

Chandra Vs. Central Bureau of Investigation (2012) 1

¶147

SCC 40, as has been explained by Delhi High Court in
the case of "Kanimozi Karunanithi Vs. C.B.I.", he
submits that in all these cases, though the offence
was punishable under section 409 of the I.P. Code and

¶148

two of the cases related to 2G scam case, wherein

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(18) CRI. APPLN. 3568-2012+

¶150

allegations of direct involvement of the applicants
therein was there, on the principle of safeguarding

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the personal liberty of the accused vis-a-vis
effective administration of criminal justice, the
applicants therein were released on bail. According
to him, the judgement in "Sanjay Chandra" (supra)is
the watermark as regards the principle of grant or
refusal of bail even in cases wherein maximum
punishment i.e. life imprisonment is provided.

¶152

18.Both the sides as well as Mr. Talekar,
learned counsel appearing for the intervenor, relied
in number of authorities to buttress their point as
to how the merit is to be found while dealing with an
application for releasing an accused on bail. It
now, however is well settled that the Court has to
find out as to whether there is a prima facie
material to show that the applicant has committed the
offence without sitting on the judgement. However,
the reasons are to be forwarded either for allowing
the application or for rejection of the same.

¶153

In this context, if we scan the material on

¶154

19.

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(19) CRI. APPLN. 3568-2012+

¶156

record as regards the role of applicant Suresh Jain
vis-a-vis Municipal Council, there is material to

¶157

show that he was not only the party-president but was
actively involved in the day-to-day business of the
Municipal Council atleast so far as the present
transaction is concerned. The statements of the
witnesses like the then President of the Municipal
Council, architects specially appointed for the
purpose, would prima facie show that the applicant
was actively involved in decision-making regarding
the construction of the houses, floating tenders,
appointing architects, etc.

¶158

20.The statement of the Chief Officer who held

¶159

the charge after the scheme was floated, would also
go to show that the applicant used to command the
situation and as such, the Chief Officer was helpless
and sometimes, even participated in the process on
the ground that the contract was already awarded.

¶160

21.As regards the use or misuse of the office

¶161

of applicant Suresh Jain as Minister of Housing, to
get loan from the PSU under him i.e. HUDCO, if we
scan the material in the light that the applicant was

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(20) CRI. APPLN. 3568-2012+

¶163

previously the President of the Municipal Council,
thereafter M.L.A. of the local constituency of
Jalgaon and was thereafter party-president of the
ruling party in Municipal Council, Jalgaon and was
actively dealing with the functionaries therein;
false representation made to HUDCO that atleast seven
sites were in possession of the Municipal Council and
the material that the applicant had called the
Chairman and Managing Director of HUDCO for grant of
loan by giving certain assurances, would show that
there is prima facie material against the applicant
in this regard as well.

¶164

22.As regards the role of applicant Suresh Jain

¶165

vis-a-vis M/s Khandesh Builders, to which the

¶166

contract was awarded, there is prima facie material
that the applicant-Suresh Jain's blood relatives were
not only the directors of M/s Khandesh Builders, but
the sister companies in which the applicant himself
is involved as detailed above, were operating from
the same residential address of the applicant and
there is transfer of funds from M/s Khandesh Builders
received towards the mobilization advance, to some of

¶167

(21) CRI. APPLN. 3568-2012+

¶168

his companies.

¶169

23.If all this material is read in isolation,
without linking the material to each other, as has
been argued by Mr. Lalit, then it could be said that
these solitary things would not show any prima facie
material against the applicant. However, the position
of applicant-Suresh Jain, as detailed supra, vis-a-
vis within the three functionaries, as demonstrated
by the documents as well as statements of the
witnesses recorded under section 164 of the Criminal
Procedure Code, would prima facie establish that
unfortunately, the applicant who was holding a high
position in the Government of Maharashtra as the
Housing Minister, was a party-president of the ruling
party in the Municipal Council, Jalgaon and had to do
with the Developer to whom the contract was allotted,
has misused his position.

¶170

24.The question may remain as to whether the
ingredients of the offence under section 409 of the
I.P. Code are attracted in the present case. Learned
Senior Counsel Mr. Lalit forcefully argued that since

¶171

there is no entrustment of the property as a public

¶172

(22) CRI. APPLN. 3568-2012+

¶173

servant to the applicant or that he in any way
dishonestly used the same, the offence under section
409 is not made out and in the circumstances, if the
same is left out of consideration, considering the
time that may be taken for trial, the applicant
deserves to be released on bail.

¶174

25.Mr. Lalit reads out the provisions of

¶175

section 409 of I.P. Code and reiterates that there is
no entrustment of the property even on the allegation
of the prosecution. He submits that the allegations

¶176

are that the applicant being Minister of Housing, has

¶177

used his office for the purpose of securing loan from

¶178

HUDCO. There was no entrustment as such of any
property to the applicant. The allegations are that

¶179

the entrustment was to the Municipal Council which
ultimately granted certain amount towards the

¶180

mobilization advance to M/s Khandesh Builders, out of
which certain amount towards certain other commercial

¶181

transactions may have been paid to the other

¶182

companies in which the applicant has certain role.
Therefore, submitting that section 409 of I.P.C. does

¶183

not contemplate that the very money or property

¶184

(23) CRI. APPLN. 3568-2012+

¶185

should be accounted for and only it is to be seen as
to whether the money entrusted was applied for the

¶186

designated purpose or over the heads of the said
accounts, the offence would not be made out. He
submits that the material itself would show that an

¶187

amount of Rs. 35 crores was expended by M/s Khandesh
Builders and as such, there is no misappropriation of
the funds.

¶188

26.In my view, however, the facts constituting
the offences are not to be read in isolation or in
any straight-jacket formula. There may be ways and
means of securing the money, getting it entrusted and
thereafter dishonestly using the same. Merely a

¶189

direct entrustment of money or property and non-

¶190

accounting of the same is not the only criteria for
attracting the provisions of section 409 of the I.P.
Code. Atleast, at this stage, without making further
observation on merit, prima facie material would show
that the provisions of offences are attracted.

¶191

In the circumstances, reliance of Mr. Lalit on the

¶192

ratio in the case of "Common Cause, A Registered

¶193

Society vs. Union of India and others" (1999) 6 SCC

¶194

(24) CRI. APPLN. 3568-2012+

¶195

667" wherein the allocation of petrol pumps was not
held to be entrustment of the property to the
Minister, as argued by Mr. Lalit, would not be
applicable in the facts of present case.

¶196

27.This takes me to find out whether, despite
of having prima facie material against the applicant,
he can be released on bail. Relying over the judgment
in "Sanjay Chandra"and other authorities, as
detailed supra, Mr. Lalit, learned Senior Counsel
submits that in the case of "Sanjay Chandra", though
the applicant therein had entered into criminal
conspiracy with A. Raja, etc. and got U.A.S. (Unified
Access Services) license for providing telecom
services to otherwise ineligible company and was
Managing Director of such a company, still,
particularly, keeping in mind the object of releasing
a person on bail, is merely to secure the appearance
of the accused person at the trial, he (the applicant
therein) was released on bail. Mr. Lalit, relied

¶197

upon the observations in paragraph no.21 to 23 of the
Supreme Court case in "Sanjay Chandra", which read as

¶198

under:-

¶199

(25) CRI. APPLN. 3568-2012+

¶200

"21. In bail applications, generally, it
has been laid down from the earliest
times that the object of bail is to
secure the appearance of the accused
person at his trial by reasonable amount
of bail. The object of bail is neither
punitive nor preventative. Deprivation
of liberty must be considered a
punishment, unless it is required to
ensure that an accused person will stand
his trial when called upon. The Courts
owe more than verbal respect to the
principle that punishment begins after
conviction, and that every man is deemed
to be innocent until duly tried and duly
found guilty.

¶201

22.From the earliest times, it was
appreciated that detention in custody
pending completion of trial could be a
cause of great hardship. From time to
time, necessity demands that some
unconvicted persons should be held in
custody pending trial to secure their
attendance at the trial but in such
cases, "necessity" is the operative test.
In this country, it would be quite
contrary to the concept of personal
liberty enshrined in the Constitution
that any person should be punished in
respect of any matter, upon which, he has
not been convicted or that in any
circumstances, he should be deprived of
his liberty upon only the belief that he
will tamper with the witnesses if left at
liberty, save in most extraordinary
circumstances.

¶202

23. Apart from question of prevention
being the object of refusal of bail, one
must not lose sight of the fact that any
imprisonment before conviction has a
substantial punitive content and it would
be improper for any court to refuse bail
as a mark of disapproval of former

¶203

(26) CRI. APPLN. 3568-2012+

¶204

conduct whether the accused has been
convicted for it or not or to refuse bail
to an unconvicted person for the purpose
of giving him a taste of imprisonment as
a lesson."

¶205

Chandra's case, it was not brought to the notice of

¶206

the Supreme Court that offence under section 409 of
the I.P. Code which is punishable for sentence of

¶207

life imprisonment, is also one of the offences. The
same was, however, brought to the notice of the Court
in other cases i.e. 'Dipak Shubhashchandra Mehta Vs.
Central Bureau of Investigation and anr. (2012) 4
S.C.C. 134" and "Siddhartha Behura Vs. Central Bureau

¶208

of Investigation"and despite these facts,
particularly by keeping the object of releasing the
accused on bail, as detailed supra, they were
released on bail.

¶209

29.It may be kept in mind that in the case of
Sanjay Chandra, other factors like conduct of the
accused were taken into consideration. Further,
though it was alleged that there is a possibility
that the applicant therein would tamper with the

¶210

(27) CRI. APPLN. 3568-2012+

¶211

witnesses, no material was placed in support of the
allegation etc. was taken into consideration. In the

¶212

circumstances, the applicant therein was released on
bail. The same standard was applied in the cases of
"Dipak Mehta and Siddhartha Behura" (supra).

¶213

.In the present case before us, there is
prima facie material to show otherwise. It is ex-
facie clear that the FIR which was filed in the year
2006, could be taken note of recently only in view of

¶214

various committees and commissions appointed and writ
petitions filed in the High Court, details of which
are not required to be given here.

¶215

further points towards the material on record in the
nature of complaint from Civil Surgeon that one of

¶216

the activists of the applicant tried to assault the
Civil Surgeon when the applicant was being examined

¶217

by him in Police custody. There were complaints in

¶218

the nature of pressurizing the Jail Superintendent by

¶219

the applicant in regard to the accused including
Pradeep Raisoni, being in jail. Further, there are
statements of the Investigating Officer immediately

¶220

(28) CRI. APPLN. 3568-2012+

¶221

after the alleged incident that while in the Court
hall itself, the applicant made a bald declaration
that the Investigating Officer had made a demand of
Rs.1 Crore and after the learned Judge left the dais,
he (applicant) in the Court hall had threatened the
Investigating Officer that he would see that his
(I.O.'s) career would be spoiled. All these different
officials from different organs at different points
of time had either sent the communication or made the
notes etc. immediately after the alleged incident.
Further, when complainant Pravin Gedam was
transferred from the post of Commissioner of Jalgaon
Municipal Corporation, the brother of the applicant
filed an FIR that Mr. Gedam had stolen a laptop of
the Municipal Corporation while leaving the charge.
After investigation the Police were required to close
the investigation. Besides this, the statements of
the witnesses recorded under section 164 of the
Cr.P.C., reference of which is made earlier in this

¶222

order, would show that the applicant is very
influential person. In the circumstances, though the
principles laid down in the case of Sanjay Chandra

¶223

and other authorities cannot be disputed, in the

¶224

(29) CRI. APPLN. 3568-2012+

¶225

facts of the present case, the ratio laid down
therein would not be applicable.

¶226

31.The next of the contention made on behalf of
the applicant is that though there may be prima facie
material to warrant a remark at this stage that the
applicant appears to have committed the offence
alleged against him, taking into consideration the
time that would be required for conclusion of the
trial, the applicant need not be kept in custody for
an indefinite period.

¶227

32.It is unfortunate that so far as economic
offences are concerned, while many times slow
investigation is there, the pendency of the same for
one or the other reason remains high for a long
period. However, we cannot at present guess as to
within how much time, the trial in the present case
would be concluded. The applicant would be at liberty
to make similar application in case any unreasonable
delay in disposal of the trial is there, but that
cannot be a ground for releasing the applicant on
bail.

¶228

(30) CRI. APPLN. 3568-2012+

¶229

33.This takes us to find out as to whether on
medical grounds, the applicant, above all, is
entitled for releasing on bail. The material on
record would show that during the period when the
applicant was on interim bail, he has undergone

¶230

bypass surgery and seven grafts were made. He was
discharged from Breach Candy Hospital on 13th April,
2012. The applicant is a known patient of type-II
diabetes. Both the sides took me through the weekly
medical reports, those are sought by the learned
Special Judge while rejecting the bail application of
the applicant. Both the sides, in their own way,
tried to interpret the weekly medical reports.

¶231

Mr. Lalit, learned Sr. counsel as well as Mr. Sandeep
Deshmukh, learned counsel, submitted that the reports

¶232

would show that even after next admission of the
applicant in Jaslok Hospital, in view of the order

¶233

dated 2nd July, 2012, the applicant continues to be
suffering from irregular beats of heart and is
suffering from high as well as low sugar level which
requires regular monitoring. On the other hand, Mr.
P.P. Chavan submits that the recent two medical

¶234

reports would show that the physical condition of the

¶235

(31) CRI. APPLN. 3568-2012+

¶236

applicant is well within control and normal.

¶237

34.As regards the principle as to when the
accused can be released on bail on medical grounds,
Mr. Chavan, learned Special P.P. relied in number of
authorities, which have been placed on record.
However, as to when the accused should be released on

¶238

bail on the medical grounds, will have to be
considered in the facts and circumstances of each of
the case. That is the principle behind all the
authorities, as has been canvassed by Mr. Chavan.

¶239

35.In the present case, what we find is that

¶240

the applicant was suffering from heart ailment, he
has undergone a bypass surgery and seven grafts were
required to be made. He is known patient of type-II
diabetes. He was however discharged from Breach Candy
Hospital on 13.4.2012. On the date, learned Special
Judge rejected his bail application and directed him
to surrender on 5.7.2012 by seeking reports from the
hospital, the applicant was not in the hospital.
Thereafter, however, he was admitted to Jaslok
Hospital and weekly reports are being forwarded to

¶241

the learned Special Judge.

¶242

(32) CRI. APPLN. 3568-2012+

¶243

36.Though, the Court is traditionally termed as

¶244

Expert of Experts , the Court should be cautious of its own limits about its expertise in other sciences.

¶245

It is specially so in the light of tremendous
advancement in all the faculties of sciences.
Besides, the material is not tested to cross
examinations etc. of the experts. We need not
therefore advert to the interpretation of the medical
reports made by the rival parties. It is sufficient
to note that after undergoing bypass surgery, the
applicant was discharged on 13.4.2012. He was taking
rest at his house or elsewhere till 5.7.2012. Only
because of the order of the learned Special Judge, he

¶246

was admitted to Hospital on 5.7.2012 and his weekly
medical reports are sought.

¶247

37.In the circumstances, whether the applicant

¶248

is required to be kept in a private hospital or his
illness can be managed either by the Medical Officer
of concerned Jail or the Civil Surgeon of the
District, needs to be better left to the wisdom of
these experts. When the accused remains in the
custody of the Court, the Court can also interfere as

¶249

(33) CRI. APPLN. 3568-2012+

¶250

and when the occasion arises on the application of
the accused.

¶251

38. Taking into consideration all the overall facts, as detailed supra, in my view, the application of the present applicant deserves to be dismissed, principally on the ground that though he was holding a high position in the Government of Maharashtra as a Housing Minister, M.L.A. and party president, the principle that " Caesar's wife should be above suspicion" is prima facie not only trampled with but prima facie element of mens rea is in existence. Criminal Application no.3568 of 2012 deserves to be dismissed, the same is therefore dismissed.

¶252

39.At this stage, Mr. Deshmukh, learned counsel
for the applicant submits that the interim

¶253

arrangement made by the learned Special Judge i.e. of
continuing the judicial custody of the applicant, by
keeping him in Jaslok Hospital, may be continued for
a couple of weeks. Mr. Chavan, learned Spl. P.P.
submits that the jail authorities have already
planned that in case the Application is dismissed,
the applicant would be shifted to Nasik Central Jail,

¶254

(34) CRI. APPLN. 3568-2012+

¶255

wherein all the medical facilities are available.

¶256

40.Without going into the merits or demerits of
the contentions, in my view, continuation of the
interim arrangement for a period of three weeks would
make no difference. In the circumstances, the interim
arrangement made by the learned Special Judge of
permitting the applicant for continuing to remain
admitted in Jaslok Hospital for a further period of
three weeks from today, including the submission of
weekly reports to the Special Judge, is hereby
continued for three (3) weeks from the date of the
order. All the other Applications stand disposed of
accordingly.

¶257

npj/CRI.APPLN.-3568-2012+

Suresh Bhikamchand Jain v. the State of Mah

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Suresh Bhikamchand Jain v. the State of Mah

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