REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 348 OF 2012

(Arising out of S.L.P. (Crl.) No. 8995 of 2011)

Dipak Shubhashchandra Mehta ....

Appellant(s)

Versus

C.B.I. & Anr. .... Respondent(s)

J U D G M E N T

P.Sathasivam,J.

1)Leave granted.

2)This appeal is directed against the judgment and order

dated 20.10.2011 passed by the High Court of Gujarat at

Ahmedabad in Criminal Misc. Application No. 14224 of 2011

whereby the High Court rejected the application for regular

bail filed by the appellant herein.

1

3)Brief facts:

(a)The appellant herein is the Joint Managing Director of

Vishal Exports Overseas Ltd., a Public Limited Company

(hereinafter referred to as “the Company”) incorporated in the

year 1988 as a partnership firm which was converted into a

Public Limited Company in 1995 under the provisions of

Chapter IX of the Companies Act, 1956. The Company is

engaged in the business of import and export of diverse

commodities including agricultural products and diamonds.

According to the appellant, the Company was a Government of

India recognized Four Star Trading House with a turnover of

about Rs.3935 crores in the year 2005-2006. It is also his

claim that the Company has been accredited with many

awards and was ranked 1

st

in India under the merchant

exporter category in the years 2003-04 and 2005-06.

(b)Due to non-payment of advances from various banks,

complaints were filed against the Company as well as the

promoters and Directors. The FIRs filed by various banks are:

(i)In the year 2008, Punjab National Bank lodged an FIR

with CBI bearing No. RC-I(E)/2008/BSFC, Mumbai. In the

2

said case, only Pradip Shubhashchandra Mehta (A-3) was

arrested. Remand was not granted by the Special CBI Court

at Ahmedabad and bail was granted within a span of one day.

The appellant herein was not arrested in this case and formal

bail was granted to him on filing charge sheet.

(ii)In the year 2009, UCO Bank lodged an FIR with the CBI

bearing No. RC 12(E)/2009 in which charge sheet was

submitted on 15.11.2010 and the appellant was arrested on

1.11.2010 and was released on temporary bail for various

durations.

(iii) Vijaya Bank had also lodged an FIR with the CBI bearing

No. RC11(E)/2008 and submitted charge sheet on 26.06.2010

in which the appellant herein was arrested after filing of the

charge sheet, he was also granted bail.

(iv)State Bank of Hyderabad has also lodged an FIR and the

same is under investigation. No charge sheet has been

submitted so far.

(c)State Bank of India and 17 other banks filed O.A. No. 11

of 2008 before the Debts Recovery Tribunal (DRT), Ahmedabad

seeking recovery of amount given by way of credit facilities

3

under consortium arrangement to the Company. Ad-interim

orders have been passed on 28.02.2008 to secure the interest

of the banks and to ensure that the litigation does not become

meaningless by the time final order is passed.

(d)On 19.01.2010, the appellant herein filed Civil Suit No.

145 of 2010 seeking damages to the tune of Rs.786 crores

against the informant Andhra Bank and other banks before

the Ahmedabad City Civil Court. The Andhra Bank, Zonal

Office, Mumbai also lodged an FIR on 19.01.2010 which was

registered by the CBI BS & FC/MUM bearing No. 1(E)/2010

for commission of offences punishable under Sections 406,

420, 467, 468, 471 read with Section 120B of the Indian Penal

Code, 1860 (in short ‘IPC’). In connection with the said FIR,

the appellant herein was arrested on 31.03.2010 and

remanded to police custody till 03.04.2010 and thereafter in

the judicial custody. The appellant was granted temporary

bail on three occasions on medical ground. After completing

the investigation, the CBI submitted charge sheet on

10.06.2010 in which the appellant was arrayed as accused

No.4.

4

(e)On 31.08.2010, the appellant preferred an application for

bail after charge sheet was filed before the Special Court vide

Criminal Misc. Application No. 141 of 2010 but the same was

dismissed.

(f)Being aggrieved by the said order, the appellant filed

Criminal Misc. Application No. 11415 of 2010 before the High

Court for regular bail in connection with the FIR lodged by

Andhra Bank, Zonal Office Mumbai bearing No. 1(E)/2010

which was dismissed by the High Court on 19.10.2010.

(g)After investigation in RC.12(E)/2009 lodged by UCO

Bank charge sheet was submitted on 15.11.2010 and the

appellant was arrested on 01.11.2010 and he was released on

temporary bail.

(h)Against the order dated 19.10.2010 passed by the High

Court, the appellant filed S.L.P.(Crl.)No. 83 of 2011 before this

Court and the same was disposed of on 29.04.2011 directing

the special Court to take all endeavour for an early completion

of the trial.

(i)As there was no progress in the trial, the CBI filed a

supplementary charge sheet on 02.02.2011 which was served

5

on all the accused including the appellant herein only on

02.08.2011. Since the trial did not come to an end, the

appellant filed Criminal Misc. Application No. 195 of 2011 for

regular bail before the Special Court. In the meanwhile,

Additional Chief Judicial Magistrate, vide order dated

15.09.2011 in Misc. Application No. 17/2011 in Spl. Case No.

03/2010 granted temporary bail up to 20.10.2011 to the

appellant herein on the ground of medical exigencies. Again on

19.10.2011, considering the health of the appellant, the

Special Court extended the temporary bail till 30.11.2011.

Vide order dated 27.09.2011, Special Court rejected the

application for regular bail filed by the appellant herein.

(j)The appellant filed an application being Criminal Misc.

Application No. 14224 of 2011 before the High Court for

regular bail but the same was rejected. Again the said

application, the appellant has filed the above appeal by way of

special leave before this Court.

4)Heard Mr. Mukul Rohtagi, learned senior counsel for the

appellant and Mr. P.P. Malhotra, learned Addl. Solicitor

General for the CBI.

6

5)The only point for consideration in this appeal is whether

the appellant herein has made out a case for regular bail and

whether the High Court is justified in dismissing his bail

application.

6)We are conscious of the fact that this Court should not

ordinarily, save in exceptional cases, interfere with the orders

granting/refusing bail by the High Court. We are also

provided with the facts and figures about the appellant’s

involvement in similar other proceedings. In the case on

hand, out of four accused, A-1 is the Company and the

appellant-A-4 is the Joint Managing Director of the Company.

It is not in dispute that A-2 and A-3 were granted bail by the

High Court on medical grounds. Mr. Rohtagi, learned senior

counsel for the appellant apart from highlighting that the

appellant-A-4 is entitled for regular bail and also submitted

that he be considered on medical grounds because of his

various ailments as certified by leading doctors including the

Medical Officer, Central Jail Dispensary, Ahmedabad.

7)Insofar as the merits of the claim of the appellant is

considered, it is useful to refer the recent decision of this

7

Court in Sanjay Chandra vs. Central Bureau of

Investigation, 2012 (1) SCC 40. Since in this decision, all the

earlier decisions of this Court relating to grant of bail in a

matter of this nature have been considered, we feel that no

other earlier decisions need be referred to. Those appeals were

directed against the common judgment and order of the

learned Single Judge of the High Court of Delhi dated

23.05.2001 in Sanjay Chandra vs. CBI by which the learned

Single Judge refused to grant bail to the appellant-accused

therein. The allegations against those accused appellants

were that they entered into a criminal conspiracy for providing

telecom services to otherwise ineligible companies and by their

conduct, the Department of Telecommunications (DoT)

suffered huge loss. The learned Special Judge, CBI, New Delhi

rejected the bail applications filed by them by order dated

20.04.2011. The appellants therein moved applications before

the High Court under Section 439 of the Code of Criminal

Procedure, 1973. The same came to be rejected by the learned

Single Judge by his order dated 23.05.2011. Aggrieved by the

same, the appellants approached this Court by filing appeals.

8

8)After considering the entire materials, arguments of the

various senior counsel as well as the Addl. Solicitor General

for the CBI and marshalling the earlier decisions of this Court

and after finding that the trial may take considerable time and

the appellants who are in jail have to remain in jail longer

than the period of detention had they been convicted and also

keeping in mind the fact that the accused are charged with

economic offences of huge magnitude, ultimately this Court

granted bail to all the appellants by imposing severe

conditions.

9)It is also relevant to refer the order passed by this Court

on 29.04.2011 in SLP (Criminal) No. 83 of 2011 filed by the

appellant herein earlier. This Court directed as under:

“We have considered the rival contentions and also perused

all the relevant documents. In view of the fact that the other

two accused, namely, A-2 and A-3 were released mainly on

the ground of illness and old age and of the assurance by the

learned Additional Solicitor General that the trial will be

completed within a period of three months, we are not

inclined to accede to the request of the petitioner. However,

we make it clear that for any reason if the trial continues

beyond the period assured by the learned Additional Solicitor

General, the petitioner is free to move bail application before

the Special Court. In such event the Special Court is

permitted to consider it in accordance with law. We also

direct the Special Court to take all endeavour for an early

completion of the trial as suggested by the learned Additional

Solicitor General.

9

10)Though on the last date of hearing, learned Addl.

Solicitor General assured this Court that the trial will be

completed within a period of three months, in view of various

reasons considering the magnitude of the issues involved,

frequent absence of the accused at the hearing dates due to

various reasons including health grounds, filing of petition for

discharge and also the pressure of work on the Special Court

hearing among other important matters, the fact remains that

the trial could not be concluded. In fact, it is pointed out that

though the prosecution has submitted charge sheet the

charges have not been framed due to various reasons as

mentioned above.

11)We have already pointed out that insofar as the present

case is concerned among the four accused A-1 is a Company,

A-2 and A-3 were granted bail on medical grounds. According

to the present appellant i.e A-4, he was arrested on

31.03.2010 by the CBI and was remanded to police custody

for three days. Since 03.04.2010, he is in the judicial custody

at Sabarmati Central Jail, Ahmedabad and on 15.09.2011, he

was granted interim bail up to 20.10.2011 and again on

10

19.10.2011, considering his health conditions, the Special

Court extended his interim bail till 30.11.2011. As stated

earlier, the CBI has completed the investigation and submitted

the charge sheet on 10.06.2010 and the offences alleged in the

charge sheet are of the years 2006 and 2007.

12)Mr. Rohtagi, learned senior counsel, after taking us

through various proceedings by the Civil Court as well as DRT

under SARFESI Act submitted that entire properties of the

appellant and their companies/firms were attached by the

orders of the Court/Tribunal. According to him, before

entering into transaction with the banks, all those properties

have been mortgaged and as on date, the appellant cannot do

anything with those properties without the permission of the

Court/Tribunal. In such circumstances, he submitted that

there will not be any difficulty in realising the money payable

to the banks, if any. In addition to the above factual

information, it was pointed out that after the order of this

Court, on 29.04.2011 there is no progress in the trial. It is

also pointed out that the trial has not even commenced

inasmuch as a supplementary charge sheet has been served

11

upon the appellant herein only on 02.08.2011. It is further

pointed out that the charge has not been framed till this date.

It is also brought to our notice that prosecution has relied

upon 286 documents and listed 47 witnesses in the charge

sheets filed by it.

13)In addition to the above information, Mr. Rohtagi has

also pointed out that at the time of arrest of the appellant on

31.03.2010, he was taken to the hospital and was diagnosed

for hypertension and acidity. According to him, no other

ailment was noted by the hospital in the discharge card.

While so, when he was in custody since 31.03.2010, the

appellant has suffered 40 per cent permanent partial disability

in his left arm as a result of surgery for abnormal bone

protrusion. It is also highlighted that on account of

uncontrolled high blood pressure while in custody the

appellant has suffered 30 per cent blindness in his right eye

and has undergone a surgery for vitreous hemorrhage. It is

further pointed out that the hemorrhage having re-occurred,

the doctors have advised a second surgery to save his eyes.

However, according to him, the said surgery could not be

12

performed due to continuing uncontrolled high blood pressure

and resultant recurring bleeding in the vessel even after first

surgery. It is also pointed out that after passing of order by

this Court on 29.04.2011, the appellant while in custody has

contracted obstructive jaundice requiring long intensive

treatment. As a result of such obstructive jaundice, the

appellant is also unable to undergo other required surgeries.

Learned senior counsel has also pointed out that the appellant

is now suffering from further disability of loss of hearing which

can be corrected only through surgery. In support of the

above claim, various certificates issued by doctors of private

hospitals have been placed on record. In addition to the same,

Mr. Rohtagi by drawing our attention to the certificate dated

07.08.2011 issued by the Central Prison Hospital, Sabarmati,

Ahmedabad stated that even according to the Medical officer of

the Central Jail Dispensary, the appellant is suffering from

various ailments as mentioned in the certificate which reads

as under:

13

“OUT NO. ACJD/346/2011

CENTRAL PRISON HOSPITAL

SABARMATI, AHMEDABAD

Date : 07.08.2011

CERTIFICATE

This is to certify that Mr. Dipak Shubhash Mehta is an

under trial prisoner of Central Jail, Ahmedabad with

prisoner NO. 4077.

He complains of continuous precordial chest pain

dullache like heaviness in chest, Gabharaman, giddiness,

chronic Rt. Hypochondriach pain in abdomen, bleeding P/R.

dimness of vision Rt. Eye vision deviation of Rt. Eye outward

since 1 -1/2 years.

Patient is a known case of uncontrolled blood pressure

since 4 years, chronic obstructive jaundice since 6 months

and fissure in anno with piles. Patient was sent to eye dept.

Civil Hospital Ahmedabad on 02.02.2011, seen by Dr. K.P.S.

(Ophthalmic Surgical Unit) and diagnosed as Rt. Eye

glaucoma, 3

rd

nerve palsy in Rt. Eye with vitreous

hemorrhage, macular degeneration and percentage of

blindness is 30%. CT report suggests Fatty replacement of

belly and distal tendinous insertion of superectus muscle on

Rt. Side.

On 25.03.2011, patient was operated for vitreous

hemorrhage in private hospital even though, on 17.06.2011

eye examination found fresh vitreous hemorrhage present

due to uncontrolled blood pressure and chronic obstructive

jaundice.

On 27.09.2010, patient was sent to U.M. Mehta

Institute of Cardiology & Research Centre for further

investigation and treatment where his Echocardiography was

done and report suggests Normal LV side and fair LV

function reduced LV compliance and 55%.

On 08.01.2011, patient was operated for tardy ulner

nerve paresis. It forearm and neurolysis done of Lt. ulner

nerve and advised regular physiotherapy. Dated 26.02.2011

CDMO, Govt. General Hospital, Sola certified that patient is

14

a case of physically disabled and has 40% permanent

physical impairment in relation to his Lt. upper limb.

Patient needs to be under continuous observation

under treating doctor and follow up. He is advised to avoid

physical and mental stress to prevent any serious

complications.

This certificate is issued on the basis of available case

records at Central Jail Dispensary.

Date: 07.08.2011

Place: Ahmedabad Central Jail

Sd/-

Medical Officer

Central Jail Dispensary,

Ahmedabad.”

14)Apart from the above certificate, the very same Medical

Officer, Central Jail Dispensary, Ahmedabad has issued

another Certificate on 08.09.2011. In the said Certificate,

after reiterating the very same complaints finally he concluded

“he needs treatment from the Specialist, Super Specialist,

Cardiologist and Gastroenterologist & Ophthalmologist for his

multiple problems”.

15)The above information by a Medical Officer of the Central

Jail Dispensary, Ahmedabad supports the claim of the

appellant about his health condition. No doubt, Mr. P.P.

Malhotra, learned ASG by drawing our attention to various

details from the counter affidavit filed on behalf of the CBI

15

submitted that in view of magnitude of the financial

involvement by the appellant with the nationalised banks, it is

not advisable to enlarge him on bail.

16)We have gone through all the details mentioned in the

counter affidavit of the Senior Superintendent of Police, CBI,

and Bank Securities and Fraud Cell, Mumbai. The appellant

has also filed rejoinder affidavit repudiating those factual

details. At this juncture, it is unnecessary to go into further

details. In the earlier order, we have noted the assurance of

the ASG for completion of the case within three months.

Admittedly, the same was not fulfilled due to various reasons.

It is also not in dispute that though the charge sheet and

additional charge sheet were submitted to the Court, the same

have not been approved and framed. In the meanwhile, apart

from absence of some of the accused on various dates, due to

some reasons or other including medical grounds, the

appellant herein has also filed a petition for ‘discharge’.

Further, even in the counter affidavit filed by the CBI, it is

stated that the accused persons moved applications under

Section 239 of the Code of Criminal Procedure, 1973 for

16

discharge and the same are pending for hearing and disposal

and further the Madhao Merchantile Bank case is going on

day-to-day basis before the Special CBI Court and in addition

to the same, Sohrabuddin Fake Encounter case is also

pending for trial before the same Court. It is clear that the

said Special CBI Court is over burdened and in view of the

voluminous materials the prosecution has collected,

undoubtedly the trial may take a longer time.

17)This Court has taken the view that when there is a delay

in the trial, bail should be granted to the accused. [Vide

Babba vs. State of Maharashtra, (2005) 11 SCC 569, Vivek

Kumar vs. State of U.P., (2000) 9 SCC 443.] But the same

should not be applied to all cases mechanically.

18)The Court granting bail should exercise its discretion in a

judicious manner and not as a matter of course. Though at

the stage of granting bail, a detailed examination of evidence

and elaborate documentation of the merits of the case need

not be undertaken, there is a need to indicate in such orders

reasons for prima facie concluding why bail was being granted,

particularly, where the accused is charged of having

17

committed a serious offence. The Court granting bail has to

consider, among other circumstances, the factors such as a)

the nature of accusation and severity of punishment in case of

conviction and the nature of supporting evidence; b)

reasonable apprehension of tampering with the witness or

apprehension of threat to the complainant and; c) prima facie

satisfaction of the court in support of the charge. In addition

to the same, the Court while considering a petition for grant of

bail in a non-bailable offence apart from the seriousness of the

offence, likelihood of the accused fleeing from justice and

tampering with the prosecution witnesses, have to be noted.

Considering the present scenario and there is no possibility of

commencement of trial in the near future and also of the fact

that the appellant is in custody from 31.03.2010, except the

period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we

hold that it is not a fit case to fix any outer limit taking note of

the materials collected by the prosecution. This Court has

repeatedly held that when the undertrial prisoners are

detained in jail custody to an indefinite period, Article 21 of

the Constitution is violated. As posed in the Sanjay

18

Chandra’s case (supra) we are also asking the same question

i.e. whether the speedy trial is possible in the present case for

the reasons mentioned above.

19)As observed earlier, we are conscious of the fact that the

present appellant along with the others are charged with

economic offences of huge magnitude. At the same time, we

cannot lose sight of the fact that though the Investigating

Agency has completed the investigation and submitted the

charge sheet including additional charge sheet, the fact

remains that the necessary charges have not been framed,

therefore, the presence of the appellant in custody may not be

necessary for further investigation. In view of the same,

considering the health condition as supported by the

documents including the certificate of the Medical Officer,

Central Jail Dispensary, we are of the view that the appellant

is entitled to an order of bail pending trial on stringent

conditions in order to safe guard the interest of the CBI.

20)In the light of what is stated above, the appellant is

ordered to be released on bail on executing a bond with two

solvent sureties, each in a sum of Rs. 5 lakhs to the

19

satisfaction of the Special Judge, CBI, Ahmedabad on the

following conditions:

i)the appellant shall not directly or indirectly make

any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade

him to disclose such facts to the Court or to any other

authority.

ii)the appellant shall remain present before the Court

on the dates fixed for hearing of the case, for any reason

due to unavoidable circumstances for remaining absent

he has to give intimation to the Court and also to the

concerned officer of CBI and make a proper application

that he may be permitted to be present through counsel;

iii)the appellant shall surrender his passport, if any, if

not already surrendered and in case if he is not a holder

of the same, he shall file an affidavit;

iv)In case he has already surrendered the Passport

before the Special Judge, CBI, that fact should be

supported by an affidavit.

20

v)liberty is given to the CBI to make an appropriate

application for modification/recalling the present order

passed by us, if the appellant violates any of the

conditions imposed by this Court.

21) The appeal is disposed of on the above terms.

………….…………………………J.

(P. SATHASIVAM)

………….…………………………J.

(J. CHELAMESWAR)

NEW DELHI;

FEBRUARY 10, 2012.

21