1. This application is preferred under Section 439(2) of the Code of Criminal Procedure, seeking cancellation of the bail granted to the respondent under Section 438 of the Code of Criminal Procedure, vide order dated 9.1.2012, passed by learned Additional Sessions Judge, Court No.19, Ahmedabad City in connection with an FIR, being C.R. No.I-186 of 2011, registered with Karanj Police Station, Ahmedabad on 17.12.2011.
2. Learned Additional Public Prosecutor Ms. Chetnaben Shah has taken this Court to the contents of the FIR and emphasized that there is a clear allegation about misappropriation of the huge amount. Learned APP has also pointed out that the respondent had preferred a petition under Section 482 of the Code of Criminal Procedure (for short, 'the Code'), being Criminal Misc. Application No.17579 of 2011, which was dismissed by this Court, vide order dated 28.12.2011. She laid emphasis to the observations made by this Court in the said order, recorded in para 6, to point out that this Court has found that there is prima facie case against the respondent.
3. Learned APP would argue that when this Court observed in the petition filed by the respondent himself that offence is prima facie made out and when the investigation was at very prime stage, and when the allegation is about misappropriation of the huge amount and when it was found that the amount of Rs.39 lacs was spent for purchase of silver, by the respondent, the learned Judge was not justified in exercising the discretion under Section 438 of the Code in favour of the respondent.
4. I have considered the arguments advanced by the learned APP as also considered the reasoning given by the learned Judge while exercising the discretion under Section 438 of the Code in favour of the respondent. I find that the learned Judge has exercised his discretion on the basis that the celebration took place on a composite decision, wherein all the concerned, including the staff members, had participated and the respondent, who is the Chairman of the Institution, had taken decision to spend the amount for such an occasion along with granting of festival advance and the celebration was a public celebration and even if there was audit report about mis-utilization of the fund, then also, it cannot be said that the learned Judge has not exercised his sound discretion while granting bail under Section 438 of the Code to the respondent. Learned Judge has considered following three aspects, viz.:
(1) Decision was taken to celebrate an occasion of Swarna Jayanti (Golden Jubilee) and it was decided to give festival advance, (2) the respondent, being the Chairman of the Institution, had taken decision to celebrate the said occasion with other office bearers of the Institution, and (3) the respondent is 75 years of age.
It is also recorded in the order that the amount of festival advance paid to the employees was later on recovered from their salary. The aforesaid three important aspects have been considered and it was also considered that there was a resolution passed to give respect to the Chairman of the Institution and the occasion was a kind of celebration, wherein the staff members had participated. Learned Judge has also imposed conditions on the respondent while granting bail under Section 438 of the Code to co-operate with the investigation and also to comply with the other conditions under Section 438(2) of the Code. Therefore, it cannot be said that the discretion exercised by the learned Judge is, in any way, erroneous nor can it be said that the discretion exercised by the learned Judge is on any irrelevant consideration. This Court, therefore, would not like to interfere with such discretion exercised by the learned Judge while exercising the powers under Section 439(2) of the Code. At the time of hearing of this matter, learned senior advocate Mr. B.B. Naik, who had an occasion to appear in bail application of another co-accused, being accused No.2, had sought liberty to point out that co-accused Manojbhai M. Patel, who was also facing similar kind of allegations has already been released on bail by this Court while exercising the powers under Section 438 of the Code. He has shown order dated 23.1.2012 passed by this Court in Criminal Misc. Application No.222 of 2012. It is seen from the said order dated 23.1.2012 that the learned Judge while granting anticipatory bail to the co-accused has relied upon a decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others reported in (2011) 1 SCC 694.
It appears that the above-said order was passed by this Court in Criminal Misc. Application No.222 of 2012, after considering the merits of the case.
5. In view of the above, I find no reason to interfere with the order passed by the learned Judge and to cancel the bail granted to the respondent. Accordingly, this application is found without any substance and hence, the same is rejected.
Sd/-
(C.L.
SONI, J.) omkar Top