M/S Seascape Shipping Logistics Pvt. Ltd. v. The State And ORS
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] *** CRM(SB)/1/2024 M/s Seascape Shipping Logistics Pvt Ltd Vs.
The State and others Mr. Phiroze Edulji, Mr. Abhishek Dey, Ms. K. Sneha ...for the petitioner Mr.Bikash Ranjan Battacharya, Sr.Adv.
Mr.Sayan Chattopadhyay, Mr. Manas Ajai Sonkar ... for the private respondent (virtual mode] Ms. A.S.Zinu ... for the State June 24, 2024 [SR] Item No.4 Learned counsel for the petitioner seeks the cancellation of an order of anticipatory bail granted to the private respondents, which merged with the bail order subsequently passed in favour of the private respondents on surrendering. Learned counsel for the petitioner contends that in view of the serious nature of the crime, which is borne out of by the fact that the petitioner is run by Non-Resident Indians and was subjected to an act of grave fraud by the private respondents; the perception regarding ease of doing business in the Andaman and Nicobar Islands would be adversely affected in the event the order of the anticipatory bail, subsequently merged into bail, is sustained.
It is further submitted that the money trail having not yet been traced out, the grant of anticipatory bail was perverse and palpably illegal.
Even apart from the question of gravity, it is contended that this court ought to cancel the bail on the basis of the fact that the order of anticipatory bail, which later merged with the order of bail, did not take into consideration the heinous nature of the crime and merely proceeded on the premise that no explanation came forth for custodial interrogation of the accused persons.
Learned counsel for the petitioner cites the judgment of Sumitha Pradeep vs. Arun Kmar C.K and another reported at 2002 SCC OnLine SC 1529 as well as the Division Bench judgment of this Court in Chaitali Tiwari and others vs. State of West Bengal reported at 2023 SCC OnLine Cal 394 in support of the proposition that in many anticipatory bail matters, it was noticed by the Court that it was canvassed that no custodial interrogation is required. It was reiterated by the Supreme Court as well as the Division Bench of this Court, relying on the judgment of the Supreme Court, that the fact that custodial interrogation was not shown to be required cannot alone be a good ground to grant anticipatory bail, although it was one of the aspects to be considered.
Learned counsel next cites the judgment of Bharatbhai Bhimabhai Bharwad Vs State of Gujarat and others reported at (2020) 18 SCC 693 in order to contend that in a challenge to the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail.
In the present case, the learned Sessions Judge proceeded on two premises. First, that no need for custodial interrogation was made out and secondly, that the accused persons had apparently complied with Section 41A of the Code of Criminal Procedure. The latter finding was merely on the premise that the accused persons had purportedly given reply, personally and through learned counsel, to the notice under Section 41A. It is argued that Section 41A does not contemplate any reply but requires compliance by the accused person by appearing personally before the police.
Learned counsel next cites the judgment of State of Haryana vs. Dharamraj reported at 2023 SCC OnLine SC 1085 to reiterate the proposition of law that much like bail, grant of anticipatory bail is to be exercised with judicial discretion. It was laid down that when a prayer is made for the cancellation of grant of bail, cogent and overwhelming circumstances must be present.
Learned counsel lastly cites the judgment of Puran vs. Rambilas and another reported at (2001) 6 SCC 338 where the Supreme Court, while considering its previous judgments, laid down that it was to be noted that the said court had clarified that instances like cogent and overwhelming circumstances, although necessary for an order directing the cancellation of bail, were merely illustrative and not exhaustive. The Supreme Court went on to hold that one such ground for cancellation of bail would be where ignoring material and
evidence on record a perverse order granting bail is passed in a heinous crime of the nature which was being dealt with by the Supreme Court therein and that too without giving any reasons. Learned counsel for the State reiterates that after grant of anticipatory bail, the accused persons have surrendered and have been granted regular bail.
Learned senior counsel appearing for the accused persons strongly opposes the prayer for cancellation of bail and reiterates that the required grounds for a challenge to an order of grant of bail have not been met in the present case. In any event, the accused persons have raised a challenge to the case sought to be made out against them and the same should be tested in trial if a charge sheet is ultimately filed against the accused person. However, there is no irregularity or illegality in the order of grant of anticipatory bail and subsequent grant of bail to the accused persons. Heard learned counsel for the parties.
The premise of the argument of heinous crime made by the petitioner is that the perception of business people willing to do business in the Andaman and Nicobar Islands would be adversely affected if the persons guilty of grave fraud are permitted go scot free.
It is submitted that the orders of anticipatory bail and subsequent bail in the present case were passed in a cursory
and mechanical manner, without even looking into the evidence collected by the investigating officer and produced by the petitioner, and hence the parameters of grant of bail or anticipatory bail were not met while granting the anticipatory bail to the petitioner.
The first two judgments cited by the petitioner, however, are not apposite in the context of the present case. In both the said cases, the Supreme Court and the Division Bench of this Court observed that the mere fact that no case for custodial interrogation was made out by the prosecution alone (emphasis supplied) would not be a good ground to grant anticipatory bail. However, in both the judgements it was recognised by the Courts that custodial interrogation not being necessary can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. In the present case, lack of requirement of custodial interrogation was not the sole premise of the grant of anticipatory bail.
The learned Sessions Judge, while granting the said relief to the accused persons, observed that on perusal of the records and case diary, it appeared that the case relates to offences punishable under Sections 417, 418 and 420 of the Indian Penal Code and also considered the allegations made in the FIR that the petitioners therein had cheated the complainant and committed breach of trust by issuing cheques which were subsequently dishonoured.
perusal it appeared that the investigating officer had already seized the related documents i.e. bank transactions and other documents from the bank concerned, apart from observing that the accused persons had duly replied to the investigating officer by themselves and through their advocate on receipt of the notice under Section 41A of the Code of Criminal Procedure. Thus, one of the relevant considerations, as reflected in the order of anticipatory bail, was that the investigating officer had already seized the relevant documents i.e. bank transactions and other documents from the bank concerned, which was a relevant and legitimate premise for grant of such anticipatory bail.
Although Section 41A of the Code of Criminal Procedure does not envisage any reply being given but requires appearance of the accused person before the investigating officer, there is no allegation on the part of the prosecution in the present case, either before this Court or before the Sessions Judge, as to the accused persons having not so appeared and, thereby complying with the requirements of Section 41A. The question of the accused persons having replied to the notice under Section 41A was only being considered circumstantially by the learned Sessions Judge, in conjunction with the fact that the related documents and bank transactions as well as other documents had already been seized by the IO, which were valid considerations for grant of anticipatory bail. Hence, the premise of the judgement of Sumihta Pradeep and Chaitali Tiwari (supra), i.e. only custodial interrogation is not
the sole premise of grant of anticipatory bail, is not met in the present case, since there were other cogent reasons on which the order of anticipatory bail was passed.
Next coming to the judgement in the case of State of Haryana vs Dharam Raj (supra), there the Supreme Court laid down the principles and contours of anticipatory bail. There cannot be a quarrel with such general propositions. However, in paragraph no. 9 of the said judgement, while considering the case of Ms.X vs. The State of Telangana reported at (2018) 16 SCC 511, the Supreme Court also observed that it is required to be borne in mind that when the prayer is made for the cancellation of grant of bail, cogent and overwhelming circumstances must be present and bail once granted cannot be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered such cancellation conducive to allow fair trial.
It is noteworthy that in the present case, there is not a single allegation on the part of the prosecution that the accused persons are not cooperating with the investigation and or that there is any cogent and overwhelming circumstance to cancel the bail. In the absence of any such supervening circumstance, I find no reason to accede to the prayer of cancellation of bail on such count as well.
In Puran vs. Ram vilas (supra), the Supreme Court laid down the law that even apart from cogent and overwhelming circumstances, another ground for cancellation of bail would be
where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime, and that too, without giving reasons.
Such last-mentioned condition is not satisfied in the present case. The "heinous crime" mentioned in the said judgment was suffixed by the expression "of this nature". In the said case, the nature of allegations were extremely serious. Offences under Sections 498A and 304B of the Penal Code were being discussed. The circumstances of the said case also indicated that the crime committed was heinous, not justifying the grant of bail. Here, the gravity of the alleged offence is not so high at all.
Moreover, the ground of dearth of reasons is also not satisfied in the present case. The Sessions Judge gave cogent reasons for grant of anticipatory bail, since the related documents and bank transactions as well as other documents from the bank concerned had already been seized by the investigating officer. Thus, there is no scope of labelling the anticipatory bail order as perverse in the instant case. Ins far as the case of Bharatbhai Bhimabhai Bharwad (Supra) is concerned, although the said report has been relied on by the petitioner to support its contentions, the principle laid down therein aids the case of the accused persons more. In paragraph no. 9 of the said judgement, the Supreme Court categorically distinguished between the considerations applicable for cancellation of bail on the one hand and the
considerations for challenge to an order of grant of bail on the ground of arbitrary exercise of discretion on the other, which were held to be different by the Supreme Court. The Supreme Court went on to observe that while considering an application for cancellation of bail, the Court ordinarily looks for some supervening circumstances, examples of which were given as well. Such examples were tampering of evidence, either during investigation or during trial, threatening of witness, that the accused is likely to abscond and that the trial of the case is getting delayed on that count, etc. None of such grounds are present in the instant case at all.
The Supreme Court, Bharatbhai Bhimabhai Bharwad (supra), further observed that in an order challenging the grant of bail on the ground that it has been granted illegally, improper or arbitrary exercise of discretion would be a relevant consideration. However, as opposed to such a case, in the instant case the petitioner has sought a cancellation of the bail and not challenged the orders of grant of anticipatory bail or bail.
Even if the challenge was to the grant of anticipatory bail on the ground as stated above, this Court is of the opinion that the Learned Sessions Judge sufficiently took into consideration the relevant circumstance of the relevant documents in question having already been seized by the Investigating Officer. That apart, this Court fails to convince itself that the offence alleged in the present case is of such a grave and
heinous nature as exemplified in Puran .vs. Rambilas and another (supra). The perception of the business community who want to invest money in the Islands, if affected adversely merely by the fact that anticipatory bail has been granted to a particular accused person in an isolated case, must be eschewed at the outset. Perception of a person, for the purpose of doing business or otherwise, cannot vacillate merely with isolated instances of the administration of criminal justice in a particular jurisdiction. The present case has nothing to do with the commercial claim of the petitioner.
In fact, it is notable that no civil case or any other proceeding before any appropriate forum has yet been initiated by the petitioner to recover the sum allegedly due from the accused persons.
It is well-settled that a criminal forum cannot be abused as a substitute of ventilating a civil grievance or to make a civil claim in the garb of allegations of fraud.
Seen from such perspective, the notion of ease of doing business of NRI businessmen seeking to do business on the Islands might have been adversely affected in the event any commercial litigation of civil nature was unnecessarily protracted or it was perceived that civil justice is not taking expeditious recourse.
However, in the absence of such ingredients, it cannot be said that the crime alleged against the accused person is of
such heinous nature that the benefit of the anticipatory bail and or bail ought not to be granted to the accused person. In such view of the matter, this Court is not inclined to grant cancellation of anticipatory bail and subsequent bail granted to the accused persons.
Accordingly, CRM (SB)/1/2024 is dismissed on contest. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities. ( Sabyasachi Bhattacharyya, J. )