gujarat hc - teesta - false statements made in anticipatory bail - r_cr.ma_4677_2014_j_12

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R/CR.MA/4677/2014 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 4677 of2014

With

CRIMINAL MISC.APPLICATION NO. 4679 of 2014

With

CRIMINAL MISC.APPLICATION NO. 4680 of 2014

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE J.B.PARDIWALA

================================================================

1 Whether Reporters of Local Papers may be allowed to seethe judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

Whether this case in!ol!es a substantial "uestion of law asto the interpretation of the #onstitution of $ndia% 1&'( or anyorder made thereunder ?

' Whether it is to be circulated to the ci!il judge ?

================================================================

TEESTA ATUL SETALVAD & 1....Applicant(s)

Versus

STATE OF GUJARAT....Respondent(s)

================================================================

Appearance:

MR MIHIR THAKORE, SR.ADVOCATE with MS MANISHA NARSINGHANI

WITH M/S. MIHIR DESAI AND KALPESH N SHASTRI, ADVOCATE for the

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Page 1 ofNIC Created On Sun Sep 06 22:50:01 IST 201563




Applicant(s) No. 1 - 2

MR MAHESH JETHMALANI, SPECIAL PUBLIC PROSECUTOR WITH MR PK

JANI, ADDL. ADVOCATE GENERAL WITH MR AC CHOKSHI, for the

Respondent(s) No. 1

#)R*+, HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 12/02/2015

CAV JUDGMENT

-ince all the three applications with a prayer for

anticipatory bail arise from a selfsame .$R% those were heard

analogously and are being disposed of by this common

judgment and order/

The #riminal +isc/ *pplication 0o/ of 2(1 is treated

as the lead matter/

This motion for anticipatory bail has been made on behalf

of the applicants husband and wife4 and relates to an .$R

registered with the 5/#/6/ #rime Police -tation% *hmedabad%

vide $7#R 0o/1 of 2(1 of the offence punishable under

-ections 2(% (% 8% 12(6 of the $ndian Penal #ode and

-ection 2*4 of the $nformation and Technology *ct/

I. The case of the prosecuto! "a# $esu""arse% as u!%er &

The -tate of 9ujarat witnessed one of the worst

communal riots in the year 2((2/ 5uring the period of riots% a

residential society in the name of 9ulbarg -ociety% situated in

*hmedabad% was ransac:ed and set on fire/ +any people

residing in the said society lost their li!es% which includes aged

women and children/ $n all & people lost their li!es/

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The applicants herein are running two trusts in the form

of 0on79o!ernmental )rgani;ations% viz. <#iti;ens for =ustice

and Peace> #=P4 and <-abrang Trust>/ The applicants who are

husband and wife are the trustees of the Trusts along with few

other persons/

* complaint in writing dated 12th +arch 2(13 was

addressed by 11 inhabitants of the 9ulbarg -ociety% which

includes one +r/.iro;:han -aeed:han Pathan% to the =oint

#ommissioner of Police% #rime 6ranch% *hmedabad city%stating that e!ery year the members of the 09)s ha!e been

organi;ing a function in the memory of those who lost their

li!es in the riot/ $t is alleged that during such functions% !arious

schemes for the rehabilitation of the riot !ictims% financial

support and support for the reconstruction of the houses were

announced by the applicant no/1% viz. Teesta -etal!ad% under

the banner of her two 09)s/

$t is alleged that o!er a period of time% the applicant

established a close rapport with the riot affected !ictims/ $n the

month of 5ecember 2((% the applicant no/1 put forward an

idea of purchasing the entire 9ulbarg -ociety at the then

mar:et price and thereafter con!ert the same into the

<9ulbarg -ociety +useum of Resistance>/ $t is alleged that she

promised to ma:e good the payment within a month if the

members of the society were ready and willing to sell their

respecti!e residential units/ $t is alleged that she also

re"uested the unfortunate inhabitants of the society to

cooperate and help her in raising funds through publications%

inter!iews% programmes% etc/ The formal proposal in thatregard was submitted by the -abrang Trust in =anuary 2((8/

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The members of the society were also assured of full

reimbursement towards the rent borne by them o!er a period

of time while occupying the rental premises since their

indi!idual houses were destroyed/ The consent of all the

members of the society was obtained in =une 2((8 and a

resolution to that effect

dated 2&th =une 2((8 was also passed by the society/

$t is alleged that although such representations were

made by the accused persons% no financial support was

etended for the reconstruction of the houses to the

inhabitants of the society nor any amount towards the

reimbursement of the rent was paid to them/ $t is alleged that

the society was also not con!erted into a museum e!en after a

period of more than years from the date of passing of the

resolution/ $t is the case of the first informant that the

members of the society% therefore% addressed a letter dated21st .ebruary 2(13 to the applicant no/1% re"uesting her to

furnish the details of the amounts collected as donations for

the reconstruction of their houses and for con!ersion of the

society into a museum/ The said letter was ne!er replied at

any point of time/ $t is the case of the first informant that the

applicants herein :ept on projecting the !ictims of the riots as

the unfortunate human7beings before the whole world and the

media% and thereby% the applicants :ept on see:ing sympathy

and recei!ed huge amount of donations/

@ltimately% a memorandum was submitted by 1'

members of the society to the #ommissioner of Police with a

re"uest to prohibit the outsiders from entering the 9ulbarg

-ociety/ -uch memorandum is dated 28 th .ebruary 2(13/ The

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said application referred to the ad!ertisement published in a

maga;ine called <#ommunalism #ombat> and its website

fer!ently re"uesting the people at large to generously donate

to help de!elop a memorial for the !ictims of the communal

!iolence% viz. <9ulbarg -ociety +useum of Resistance>/ The

<#ommunalism #ombat> is a maga;ine owned by the

applicants% wherein both the applicants are the Aditors/

$t is alleged that the #=P and -abrang Turst run and

managed by the applicants are guilty of collecting huge foreign

funds as donations from !arious international organi;ations in

the name of pro!iding financial assistance% legal assistance%

etc/ to the 2((2 9ujarat Riot !ictims/ The applicants also

referred to the details furnished by the +inistry of Bome

*ffairs% 9o!ernment of $ndia% stating that according to the .#

.orm73 submitted by the #=P% foreign donations to the tune of

Rs/3 lac were recei!ed between 2((& and 2(11 and were

credited in the $56$ 6an: *ccount 0o/(11((((2(2(3 of

the #=P and donations to the tune of Rs/88 lac were recei!ed

during the period between 2((8 and 2(11 and were credited in

the @nion 6an: of $ndia *ccount 0o/3&1(2(1(8(288' of the

-abrang Trust/

The #ommissioner of Police too: cogni;ance of the saidcomplaint lodged in writing% and ha!ing found more than a

prima facie case% ordered registration of the .$R% which came

to be registered with the 5/#/6/ #rime% *hmedabad% on th

=anuary 2(1/

$t appears from the materials on record that the

applicants herein are permanent residents of +umbai/ The two

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Trusts referred to abo!e are also registered at +umbai/

Therefore% apprehending arrest at the hands of the police in

connection with the present .$R% the applicants first

approached the Bigh #ourt of 6ombay by filing anticipatory

bail application 0o/1 of 2(1/ The Bigh #ourt of 6ombay% vide

its order dated 1(th =anuary 2(1% granted interim protection to

the applicants/ The matter was thereafter heard by a learned

-ingle =udge of the 6ombay Bigh #ourt and the application for

anticipatory bail was ordered to be rejected on 31 st =anuary

2(1 substantially on the ground of territorial jurisdiction of

the Bigh #ourt of 6ombay/ Bowe!er% the Bigh #ourt of 6ombay

granted a transit bail for a period of four wee:s to enable the

applicants to file an appropriate application before the

appropriate forum in the -tate of 9ujarat/

$t appears that the order of the 6ombay Bigh #ourt dated

31st =anuary 2(1 rejecting the anticipatory bail application

was challenged before the -upreme #ourt by filing -LP/ The

-LP #ri4 0o/1( of 2(1 was disposed of by the -upreme

#ourt vide order dated 2th .ebruary 2(1% which reads as

under ,

“The matter relates to grant of Anticipatory bail underSection 438 of the Code of Criminal rocedure. The!ombay "igh Court vide impugned order dated 3#st

$anuary% &'#4 allo(ed the petitioners to move beforeappropriate Court in )u*arat for said relief and grantedTransit !ail for four (ee+s so as to enable the petitionerto approach before the appropriate Court at )u*arat."aving heard the learned Counsel for the petitioners% (eare not inclined to interfere (ith the impugned order.

"o(ever% ta+ing into consideration the nature of the caseand submission made on behalf of the petitioners% (e

e,tend the Transit !ail in favour of petitioners upto 3#st

-arch% &'#4 so as to enable the petitioners to approach

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the appropriate Court in )u*arat. f such petition is filed%the appropriate Court in )u*arat (ill consider the sameindependently (ithout being influenced by anyobservation made by the !ombay "igh Court.

The /uestion of la( about *urisdiction of "igh Court is+ept open.

The special leave petition stands disposed of.0

*fter the disposal of the -LP% the applicants herein

preferred #riminal +isc/ *pplication 0o/1 of 2(1 before the

#ity -essions #ourt% *hmedabad% and prayed for anticipatory

bail/ The anticipatory bail application came to be rejected vide

order dated 2'th +arch 2(1 passed by the learned *dditional

-essions =udge% #ity -essions #ourt 0o/1'% *hmedabad/

6eing dissatisfied with the order passed by the #ity

-essions #ourt% the applicants ha!e come up with this

application% praying for anticipatory bail/

$t appears from the !arious orders recorded uptil now

that on 28th +arch 2(1 rule was issued in this application%

ma:ing it returnable on th *pril 2(1/ $n the course of hearing

of this application% $ was informed by both the sides that on

that particular date i/e/ on 28th +arch 2(1% an oral statement

was made on behalf of the -tate that till the conclusion of the

application% the applicants would not arrested/ $t appears that

thereafter on one ground or the other% the matter was being

adjourned from time to time/ @ltimately% the same was notified

before this #ourt on 12th =anuary 2(1'/ The arguments of both

the sides were concluded on th .ebruary 2(1' at around ',((

p/m/ and the judgment was :ept reser!ed/

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II. Su$"sso!s o! $eha'f of the App'ca!ts &

+r/+ihir Tha:ore% the learned senior ad!ocate appearing

on behalf of the applicants% !ehemently% submitted that the .$Rlodged against the applicants is nothing but an abuse of

process of law/ Be submitted that the same is politically

moti!ated/ The principal argument of +r/Tha:ore% while

ma:ing good his case for anticipatory bail is% the malafides

alleged against the -tate 9o!ernment/ +r/Tha:ore submits

that his clients ha!e fought !ery hard from day one against the

-tate 9o!ernment as% according to the applicants% it is only the

-tate 9o!ernment who was responsible for the 9odhra

carnage and the riots which flared up thereafter in the entire

-tate of 9ujarat/

+r/Tha:ore submits that his clients% through the two

Trusts% ha!e thoroughly eposed the -tate 9o!ernment so far

as their dubious role in the riots is concerned/ +r/Tha:ore

submits that his clients are instrumental in securing many

con!ictions of those persons who ha!e been found guilty of

murder during the period of riots/

+r/Tha:ore submits that with a !iew to see: re!enge% a

false case has been framed against the applicants% and on the

basis of such a false case% they are now sought to be arrested/

+r/Tha:ore submits that his clients are =ournalists by

profession and are highly reputed persons in the society/ They

ha!e been stri!ing hard for ser!ing the cause of justice by

helping the innocent !ictims of political !endetta/

+r/Tha:ore submitted that the allegations ofmisappropriation are totally false and baseless/ 0o such

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amount has been misappropriated by the applicants for their

personal use/ *ccording to +r/Tha:ore% the documents spea:

for themsel!es/ +r/Tha:ore submitted that his clients are

ready and willing to etend full cooperation for effecti!e

in!estigation but no case for custodial interrogation is made

out ha!ing regard to the nature of the allegations/

+r/Tha:ore submitted that the entire matter relates to

accounts/ $t is for the $n!estigating )fficer to loo: into the

accounts with the help of any epert and find out whether any

amount has been misappropriated or not/ .or that purpose%

arrest of the applicants and custodial interrogation is not

necessary/

+r/Tha:ore submitted that the other trustees of the two

Trusts are people with great reputation/ )ne of those is a

noted Poet and a Lyricist and one another is a well7:nown

*rchitect who had designed the 0ew Taj $ntercontinental at

+umbai/ Be has submitted that the accounts of the Trusts are

being regularly audited% and e!en the reports of the *uditor

ma:e the picture clear that nothing has gone in the poc:ets of

the applicants/

+r/Tha:ore has placed strong reliance on the following

decisions of the -upreme #ourt ,

14 9urba:sh -ingh -ibia !/ -tate of Punjab% 1&8(24-## ''C

24 Bema +ishra !/ -tate of @/P/% 2(14 -## '3C

34 Po:ar Ram !/ -tate of Rajasthan and others%1&8'24 -## '&C and

4 -iddharam -atlingappa +hetre !/ -tate of

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+aharashtra and others% 2(1114 -## &

$n such circumstances referred to abo!e% +r/Tha:ore

prays that the application merits consideration and the

applicants be ordered to be released on anticipatory bail in the

e!ent of their arrest by the police/

III. Su$"sso!s o! $eha'f of the Respo!%e!t (

State &

)n the other hand% this application has been !ehemently

opposed by +r/+ahesh =ethmalani% the learned -pecial Public

Prosecutor appearing for the -tate/ +r/=ethmalani submitted

that no case worth the name is made out for anticipatory bail/

Be submits that the allegations are !ery serious/ Be submits

that huge amounts ha!e been con!erted by the applicants for

their personal use through their credit cards/ The amount

which was recei!ed by way of donations was meant for the

poor and the needy i/e/ the riot !ictims/ 6y creating sympathy

for the riot affected !ictims% the applicants were successful in

obtaining huge amount by way of donations/ The documentary

e!idence on record would suggest that they ha!e not been

able to satisfactorily account for the same/ Buge amounts were

transferred from the TrustsD accounts to the personal accounts

of the husband and the wife% which are 1( in number/ Be has

submitted that there are huge cash withdrawals with no

corresponding !ouchers in that regard/ Be submitted that huge

amounts ha!e been paid towards their personal ependiture

on credit cards/ +r/=ethmalani pointed out that for years

together the accounts were not audited so far as the two

Trusts are concerned and then all of a sudden one fine day

they got the accounts of past couple of years audited through

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the two *uditors/ The principal argument of +r/=ethmalani is

that there has been total non7cooperation at the end of the

applicants so far as the in!estigation is concerned/ Be submits

that the money which was meant for the poor and the needy

ha!e been misappropriated by the applicants for their own

materialistic pleasure and comfort/ Buge amount has been

used for the purchase of items li:e wine% shoes% holiday

resorts% air7tic:ets% etc/ +r/=ethmalani pointed out that

although it is the case of the applicants that they ha!e spent

the money for their own personal use from their own income%

yet they did not e!en furnish their income ta returns before

the $n!estigating )fficer/

+r/=ethmalani submitted that by merely producing few

documents% the need for custodial interrogation cannot be

done away with/ $t is only the applicants who are in :now of

the matter and the facts which are within their personal

:nowledge/ +r/=ethmalani pointed out that the applicants are

also guilty of tampering with the witnesses% more particularly%

they ha!e restrained the *uditors from furnishing the

necessary details and data to the $n!estigating )fficer/

*ccording to +r/=ethmalani% this itself is a ground on which the

application deser!es to be rejected/

+r/=ethmalani submits that the two Trusts are being run

and managed by the applicants on their own/ The other

trustees are just for the name sa:e/ They ha!e no idea about

the management of the affairs of the Trusts/ Be submitted that

being trustees% they are also drawing salary% which is

otherwise not permissible in law and is an offence/

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+r/=ethmalani submitted that the applicants are guilty of

ma:ing false representations before the people and they are

guilty of duping not only the donors but e!en those who ha!e

been depri!ed of the financial help meant for them/

$n such circumstances referred to abo!e% +r/=ethmalani

prays that there being no merit worth the name in this

application% the same deser!es to be rejected/

I). ANAL*SIS &

Ba!ing heard the learned counsel appearing for the

parties and ha!ing gone through the materials on record% the

only "uestion that falls for my consideration in this application

is% whether any case is made out for grant of anticipatory bail/

*t this stage% $ need to point out that the arguments

were concluded on th .ebruary 2(1'/ The judgment was :ept

reser!ed/ )n 13th .ebruary 2(1'% +r/Tha:ore mentioned the

matter submitting that his clients ha!e furnished all the

!ouchers and other documents including the income ta

returns to the $n!estigating )fficer/ +r/Tha:ore wanted to

place few documents in that regard% howe!er% since the

arguments were already concluded and the judgment was :ept

reser!ed% $ did not deem fit to ta:e such documents on record/

The other side also !ehemently opposed such mentioning of

the matter after the arguments were concluded/

6efore $ proceed to consider the matter on merits% $ would

li:e to "uote few paragraphs of the a!erments made in the

affida!it7in7reply filed by the -tate of 9ujarat duly affirmed by-hri E/0/Patel% *ssistant #ommissioner of Police% #yber #rime

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#ell% #rime 6ranch% *hmedabad city ,

“The learned City Sessions $udge has also been pleasedto note that in the applications preferred by the presentapplicants the entire thrust of the etitioner1s defence isthat as 2)s and that they have been registered underthe ublic Trust Act% their accounts are duly audited andthat the Charity Commissioner% -umbai% has raised no/uery regarding their accounts. uring the course ofinvestigation the prosecution has been informed by theoffice of the Charity Commissioner that Sabrang Trusthas not filed audit reports for si, years i.e. from &''&5'3%&''35'4% &''45'6% &''65'7% &''75' and &''5'8.

9urthermore copies of the fe( audited accounts receivedfrom the Charity Commissioner shoc+ingly reveal hugediscrepancies and omissions to the e,tent that over andabove donations received% even amounts received fromthe )ovt of ndia as grants% are no (here reflected in the:ncome ; <,penditure Account1 of the trust. The same(ould be elaborately dealt (ith subse/uently in thereply. Suffice it to say that the resistance of the petitioners to any +ind of scrutiny by the )u*arat olice%being resisted under the guise of accounts being audited

is also a falsified.0

“The addressed a communication dated #8.3.&'#3 tothe present etitioners% see+ing copies of Auditedaccount statements and !alance Sheet% of C$ andSabrang Trust for the =ast ten years apart from otherinformation regarding foreign donations received fromnational and international institutions for providingfinancial and legal assistance to riots victims and theutilization of the said funds. Specific /ueries (ere raised(ith regard to the receipt and utilization of donationsreceived from the national>international bodies and private individuals for providing legal and financialassistance to riots victims in the accounts of C$ andSabrang Trust. n response thereto% vide communicationdated &7.3.&'#3% the petitioners declined to furnish anyspecific details sought for. <,cept maligning the )u*aratState olice% constitutional functionaries and allegingvictimization% the petitioners did not reply to any of the

/uerries raised.0

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“The concerned addressed the second communicationdated 8.6.&'#3% see+ing information as sought for videcommunication dated #8.3.&'#3% calling upon the petitioners to co5operate (ith the investigation andfurnish necessary details. ?ide letter dated &'.6.&'#3%the petitioners informed the that they had received@s. 4%7'%'''>5 to(ards the proposed “ream -useum0%their “accounts (ere audited and submitted to therelevant authorities and investigating into the matterreflects the vindictive attitude of the forces trying tosubvert the process of *ustice0 . "o(ever% no detailssought for by the (ere furnished.

The . addressed communications to the -inistry of

"ome Affairs -"AB% see+ing details of the permissiongranted to C$ and Sabrang Trust% enabling receipt offoreign donations under 9oreign Contribution@egulationB Act 9C@AB. The -"A intimated the thatC$ and Sabrang Trust obtained 9C@A registration on&#.##.&'' bearing registration no. '838#' and no.'838##'' under the category of “<ducational% Social0and “<conomic <ducational0 respectively. -"A alsofurnished copies of 9orm 9C57% mandatorily re/uired tobe submitted by every 2) annually declaring details of

the foreign funds received. Condition no. 3 of the 9C@Aregistration specifically stipulates that the associationcannot bring out any publication registered under @! Act% #87B or act as correspondent% columnist% editor% printer or publisher of a registered ne(spaper or engagein the production or broadcast of audio ne(s or audiovisual ne(s or current affairs programs throughelectronic mode or any other electronic form or any othermode of mass communication at a later stage therebyattracting provisions of the Section 3#BgB and hB of the

9C@B Act% &'#'. n addition thereto% the association isforbidden from getting involved in any activity of politicalnature. etails of accounts of C$ and Sabrang trust (erereceived from the ! !an+ and the Dnion !an+ of ndia.

t is note(orthy that (hen the etitioners failed to provide even the copies of audited balance sheets andboo+s of accounts of C$ and Sabrang Trust% the %addressed a communication to the CharityCommissioner% -umbai for providing the same. The

ffice of the Charity Commissioner% -umbai% hasfurnished some of the audit reports of Sabrang Trust and

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C$ (hich are clearly in variance (ith the ban+statements received. A bare scrutiny of the accountshave revealed huge discrepancies.

A) Sabrang Trust:

Audit reports of the follo(ing years i.e &''85'% &''5#'%&'#'##% &'##5#& and &'#&5#3 have been received.

Audit reports of 7 years i.e &''&5'3% &''35'4% &''45'6%&''65'7% &''75' and &''5'8 have not been filed (iththe Charity Commissioner.

B) Citizens for Justice & Peace:

Audit reports of follo(ing years i.e &''35'4% &''45'6%&''65'7% &''75'% &''5'8% &''85'% &''5#'% &'#'5##%&'##5#& and &'#&5#3 have been received from office ofthe Charity Commissioner.

t is respectfully submitted that on scrutiny of availableaudited reports ncome ; <,penditure Account ; < A>CB% as provided by the office of the Charity

Commissioner% -umbai% ma*or apparent discrepanciesare observed (hich are as underE

A. Sabrang Trust:

(i) As against receipt of @s.3%73%68%7&& (hich reflected inthe !an+ statement% in the audited reports [email protected]%6%467 has been sho(n. A huge discrepancy [email protected]%'4%73%#77 is noticed in *ust above five years. Sincefor the rest of the years audit reports are not available%

further investigation has not been possible.

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FinancialYear

Donation as er Au!it"eort

Donation as erban#state$ent

A$ountDifference

&''85' 34%'&%74 #%3#%''%86' 7%8%#7&''5#' #7%7%6'3 4'%#%#8 &3%4%784&'#'5## #'%''' #%'%66%'# #%'%46%'#&'##5#& %#&%6'' 66%#%4&4 48%68%&4&'#&5#3 3% &8%4'%'' &%77%%&#Total in @s %'%'%* +'*+'%'*,, 3%'4%73%#77





(ii) t is humbly submitted that on scrutiny of S!5)eneral A>c 2o.37#'&'#''363 of Sabrang Trust% it (asnoticed that the )ovt. of ndia% -inistry of "@% has paidthrough @T)S Appro, @s#.4' crores to Sabrang Trust as per details given belo(E

#. @s 68%&%6'' on #.'&.&'##&. @s &7%77%6' on #3.'.&'#&

3. @s 64%&'%848 on '7.'.&'#3

(iii) n scrutiny of Audit reports for the year &'#'5## ofSabrang trust it (as noticed that this amount of @s68%&%6'' is not reflecting in the ncome ; <,penditure Account for the year ending 3#st -arch5 &'##. Such a

huge sum received from )ovt. of ndia is found missingfrom the boo+s of account and the Auditors too havefound no reason to e,amine this.

(i-) t is humbly submitted that in the audit report ofSabrang Trust for the financial year &'##5&'#&% noincome as interest received is reflected in the boo+s ofaccounts ho(ever% scrutiny of the accounts of Sabrangtrust reveals that during the financial year &'##5#&% thetrust has earned interest income of @s.#%#3%3. These

details too seem to have missed the Auditor1s scrutiny.

B. CT/01S F2" J3STC0 & P0AC0E

2T<E The above analysis is based on only & accounts of

C$ (ith ! !an+ i.e. S! A>c 2'5'#4#'4'''#'6'6 and9C@A A>C 2o5'#4#'4'''&'437.

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9inancial Fear onation as per Audit @eport

onation as per ban+statement

Amountifference

&''35'4 #&%83%'68 &%86%4 G % %###

&''45'6 &4%4%7 &3%#8%4&7 G #%3#%&6#&''65'7 4#%86%'#6 43%6&%64' G #76&6

&''75' 47%'6%44 47%#4%87 G %'4&&''5'8 &3%6'%4# &6%7'%'4 G &%#'%&33&''85' 77%'3%&38 #%'3%73' 5 6%''%3&&''5#' 63%33%8' 4%7%73' 5 6%77%#6'&'#'5## 4&%%484 73%4%'87 5 &'%#%7'&&'##5#& 6#%&8%46& 4%#%8#& 5 3%67%74'&'#&5#3 8#%3%637 6%3%4#4 5 #4%63%88Total @ecdE &%4%8&%4' 3%&6%86%6& 7#%8%3'&





(i) t is humbly submitted that as in case of SabrangTrust referred above% the donations received as reflectedin the Audit reports of C$ are far less as against theamounts reflected in the ban+ statement. 9or e,ample%during the years &''85' upto &'#&5#3 the totaldonation amount sho(n in the audit reports of C$ aboveis @s.&%48%&%4' ho(ever as per the ban+ statement theamount of donation is @s.3%&6%86%6& i.e. discrepancy ofan amount of @s.3#%'3%'8& in *ust three years.

A bare scrutiny of above table reveals that the accused inconnivance (ith the auditors% have manipulated theiraccounts as (ell as the audit reports submitted before

statutory authorities. t (ill not be out of place tomention here that has also addressed letters to theconcerned Auditors of Sabrang trust and C$% to provideinformation related to their audit reports.0

“t is respectfully submitted that the Auditors havesubmitted their replies to the . The analysis of theirreplies reveal serious discrepancies>concealment of factsas per details given belo(E

A) SAB"A14 T"3ST

a) The investigating authority in its communication dated&.'3.&'#4 addressed to the Auditor of Sabrang Trust%->s - Sathe and Co.% -umbai has specifically soughtcomplete details of the accounts of the Sabrang Trust."o(ever% the auditors have choose to provide paymentdetails (ith regards to only one account% concealing thefact that the petitioners have (ithdra(n huge cashamounts% transferred large sums to their

personal>individual accounts as (ell as in the accounts oftheir privately o(ned companies% from & other accountsof Sabrang Trust during the same period as per thedetails given belo(E

A$ount transferre! fro$ t5ree accounts of SAB"A14T"3ST to Teesta Setal-a!

Particulars

Teesta Setalvad

FCRA A/c * In Rs.

HRD A/c** In Rs.

SB-Gen A/c*** In Rs.

of 63





a) Amunt as !er"an# accuntstatement

") Amunt as !erstatement !rvided "$D.%.Sat&e'auditr (Sa"ran Trust

'+,',

'0'111

0','+2

3 in(rmatin !rvided "$ C.A.

+',4'4

3 in(rmatin !rvided "$ C.A.

A$ount transferre! fro$ t5ree accounts of SAB"A14T"3ST to Ja-e! Anan!

Particulars

Javed Anand

FCRA A/c *n Rs!

"R# A/c**n Rs!

$%&'en A/c***n Rs!

()tal

a A+)unt as,er -an.acc)untstate+ent

- A+)unt as,er state+ent,r)vided -#!!$ateaudit)r )$a-ran (rust

1918676

1387650

758320

)in)r+ati)n,r)vided -C!A!

34743


2711538

1387650

A$ount transferre! fro$ t5ree accounts of SAB"A14

T"3ST to Sabrang Co$$unication & Publis5ing P-t 6t!.

Particulars$a-ranC)++unicati)n Pu-lisinPvt td

FCRA A/c *n Rs!

"R# A/c**n Rs!

$%&'en A/c***n Rs!

()tal

a A+)unt as,er -an.acc)unt

state+ent

4502848 2254766 1991870 8749484

of 63





- A+)unt as,er state+ent,r)vided -#!!$ate

audit)r )$a-ran (rust

2835920 )in)r+ati)n,r)vided -C!A!


2835920

A$ount transferre! fro$ t5ree accounts of SAB"A14T"3ST

Particulars

Cas&

5it&dra6al

FCRA A/c * In Rs.

HRD A/c** In Rs.

SB-Gen A/c*** In Rs.

Ttal

a) Amunt as !er "an#accuntstatement

") Amunt as !er statement

!rvided "$D.%.Sat&e'auditr (Sa"ran Trust

'4'111

1'11'111

'1'111

3in(rmatin

!rvided "$C.A.

0',2',

3in(rmatin

!rvided "$C.A.

+'41'111

1'11'111

H 9C@A A>c 2o.37#'&'#'8'&886 (ith D!HH "@ A>c 2o 37#'&'#'8'78# (ith D!.HHH S!5)eneral A>c 2o 37#'&'#''363 (ith D!

b B As per the information gathered from the office of the

Charity commissioner% -umbai% the etitioners have notsubmitted Audited Copies of the “!alance Sheet0 and“ncome ; <,penditure Account0 of Sabrang Trust till April &'#4% for the follo(ing 7 years i.e &''&5'3% &''35'4% &''45'6% &''65'7% &''75' and &''5'8 (hich ismandatory re/uirement.

2on submission of audited accounts to the CharityCommissioner continuously for 7 years automaticallydemolishes the argument of the etitioner1s that “Their

Accounts (ere audited and submitted to the relevantauthorities0. t appears that for this very reason the

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etitioners have refused to share any information (iththe authorities as regards to the (or+ing of the & 2)s.

c) t humbly submitted and also note (orthy that theauditor - Sathe in their reply to the % have given acertificate clearly stating that 7 2o grants (ere receivedby Sabrang TrustB in the 9inancial year &'#&5#3 and&'#35#40 but the !an+ statements reflect that SabrangTrust has received @s.&7%77%6' in the 9inancial year&'#&5#3 and @s.64%&'%848 in the 9inancial year &'#35#4as grants from the -inistry of "@% )ovt of ndia% 2e(elhi by (ay of an @T)S transfer.

!) t is also note (orthy that the Auditor - Sathe% in

their reply to the % have given payments details offinancial years &''5'8 to &'##5#& only% the years of(hich auditors have submitted audited copies to theCharity Commissioner ffice. They have not given any payment details of the etitioners for the years &''&5&''8% i.e. the 7 years for (hich audit reports (ere notsubmitted to the Charity Commissioner. This deliberateattempt by the auditors to conceal the facts frominvestigating authorities is a sub*ect mater ofinvestigation.

B) Citizens for Justice & Peace C$B

a) t is humbly submitted that similarly an analysis ofreply sent by ->s "aribha+ti ; Company% the Chartered Accountants of Citizens 9or $ustice ; eace C$B thefollo(ing discrepancies (ere noticed.

b) The aggregate amount mentioned by them to(ardscredit card payment of the etitioners (as sho(n as @s

#3%&7%7' ho(ever as per the ban+ statements thisamount is @s &'%'4%8#.

c) t is note (orthy that the etitioners in their variousreplies>pleadings have admitted to having madee,penditure of very personal nature including purchaseof (ines% branded shoes% grocery% clothes etc throughCredit Cards from the accounts of the Trust C$% ho(everthe Chartered Accountant in their reply has claimed that“none of such personal e,penses have been debited in

the boo+s of accounts of C$0. These contradictorystatements are sub*ect matter of investigation.

of 63





!) Chartered Accountant ->s "aribha+ti ; Company intheir reply also categorically stated that “Ie have notnoticed that the funds of C$ (ere used by its Trusteesfor the purpose other than its ob*ects0% ho(ever theyseem to have missed noticing that trustees havetransferred @s 8&.36 lac+s from the Trust account to theiro(n company i.e. Sabrang Communication ; ublishingvt =td.

e) The Chartered Accountant has also not commented on6' che/ues issued from the accounts of the C$ by theetitioners to(ards Credit Card payments. The Charteredaccountants has not given any *ustification on huge cash

(ithdra(al by the petitioners from these accounts also.

f) t is note (orthy that the informed the CA that “boththe accused persons in their reply in the session courthave claimed that they (ere authorized by the board oftrustees to ma+e such e,penses0 i.e. ersonal e,pensesBinformation (as sought for from the CA to provide thecopies of all such resolutions. n response to this specific/uestion% the CA of C$ instead of providing copies ofthose specific resolutions% has provided copies of

resolutions (hich (ere related to adoption of financialstatements for the year &''85% &''5#'% &'#'5## and&'##5#&% t is apparent that the etitioners (ere notauthorized by the board of Trustees to ma+e such personal e,penses from the Trust accounts.

9rom the scrutiny of replies received from Chartered Accountants of Sabrang Trust and C$% prima facie it isestablished that it is not only a serious case ofembezzlements of public funds received by the

etitioners for charitable purposes is also a case of gravenegligence on the part of auditors also.0

The investigation of accounts revealed the follo(ingfactsE

State$ent of Financial rregularities B8 TeestaSetal-a! & Ja-e! Anan! n T5e Account of CitizensFor Justice & Peace (CJP) & Sabrang Trust

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2ame of the nstitution 9oreignonationCredited

n @s.

=ocalonation@eceived

n @s.

Total Amount

n @s.

SAB"A14 T"3STE

AB 9C@A A>c2o.37#'&'#'8'&886(ith D!

eriod #'.'4.' to'7.'#.#4

!B S!5)eneral A>c 2o

37#'&'#''363 (ithD!

eriod '#.'#.'# to'3.'4.#4

CB "@ A>c 2o37#'&'#'8'78# (ithD!.

eriod &3.'&.## to'3.'4.#4

Total

CT/01S F2" J3STC0& P0AC0E

AB 9C@A A>c2o.#4'4'''&'437 (ith! !an+

eriod #&.'4.' to'8.'#.&'#4

!B S! A>c 2o .'#4#'4'''#'6'6 (ith!

eriod &7.'&.&''4 to#8.#&.&'#3Total

#%36%#'%3##

2=

2=

#%'&%'6%3#&

2=

2=

3%&6%47%7#3

#6%73'

2=

4%##%%&34

#%36%#'%3##

3%&6%47%7#3

#6%73'

'*9','%%

#%'&%'6%3#&

4%##%%&34

%';'9,'%*

)rand TTA= ''%';99

of 63





("s .

Crores)

2oteE Iith the emergence of these t(o ne( accounts%the total donation in Sabrang Trust has gone to @s 4.7#crores as against @s #.36 Crores as referred to earlier.These facts (ere never disclosed before any Court by thethe etitioners in their etitions and pleadings.0

“t is humbly submitted that on the Analysis of theersonal Account of Teesta Setalvad and $aved Anandfollo(ing facts have emerged.

AB Account Analysis Teesta SetalvadE

B S! A>c 2o.37#'&'#'''3883 (ith D!% -umbaiE Account pening ateE '#>'#>&''#

• eposit 9rom '#.'#.&''# to 3#.#&.&''# 2=

• eposit 9rom '#.'#.&''& to 3#.#&.&''& 2=

• eposit from #7.'3.&''3 to #.'#.&'#4 @s #%63%'%6#

B S! A>c 2o.'#4#'4'''#4&66 (ith ! !an+% -umbaiE Account pening ateE 3'>'4>&''6

•

eposit from 3'.'4.'6 to#6.'#.&'#4 @s78%&6%'''Total @s

&%&#%6%6#@s &.&& CroreB

!B Account Analysis $aved Anand EB S! A>c 2o.37#'&'#'''7884 (ith D!% -umbaiE Account pening ateE '#>'#>&''#

• eposit from '#.'#.&''# to 3#.#&.&''# 2=

• eposit from '#.'#.&''& to 3#.#&.&''& 2=

• eposit from #.#.&''3 to #8.'&.&'#4 @s7%43%'''

B S! A>c 2o.'#4#'4'''#4&7'# (ith ! !an+% -umbaiE Account pening ateE 3'>'4>&''6

• eposit from 3'.'4.'6 to &7.#&.#3 @s 3%76%''' Total @s#%37%'8%''' @s #.37croresB

of 63





2ote #E Analysis of above S! accounts of etitionersaccused no # ; &% it (as found that they are receivinghuge amount in their personal account from Citi !an+2.A. n in/uiry from Citi !an+ about these credit entries%the ban+ has informed that an amount of @s &%&'%'''has been received in the account of Accused no5#% from Asho+a 9oundation% Arlington% DSA. t appears that theetitioners have directly accepted the foreign donation intheir S! accounts (hich re/uires thorough investigation.

2ote &E Analysis of S! account no 37#'&'#'''3883% of Accused no #% it (as also noticed that an amount of @s7%'6%44& (as credited on #3.##.&''3 in this account. nin/uiry from D!% it (as informed that it (as a foreign

remittance Appr, J #36''B received in the S! accountof -s Setalvad. t appears that the etitioner no5# hasdirectly accepted the foreign remittance in her S!account (hich is also a sub*ect matter of investigation.2ote 3E The analysis of the & accounts of C$ and the 3accounts of Sabrang Trust and # account of SabrangCommunication ; ublication vt =td% has revealed thatthe etitioners Teesta Setalvad and $aved Anand% aredra(ing salary >reimbursement regularly from all the 7accounts simultaneously (hich re/uires thorough

investigation.

2ote 4E t is humbly submitted that & accounts of C$ in! !an+ and # account of Sabrang Trust in Dnion !an+of ndia (ere seized by the olice vide communicationdated #4.'#.&'#4. The !an+s in compliance (ith theinstructions% seized the accounts on &'.'#.&'#4. Till suchtime the olice had +no(ledge of only 3 accounts as theaccounts of C$ and Sabrang Trust. "o(ever as soon asthese three accounts (ere seized% on &3.'#.&'#4 the

petitioner immediately transferred @s &4%6'%''' and @s##%6'%''' from the other & accounts of Sabrang trustun+no(n to the investigation authority% i.e. from accountno 37#'&'#'8'78# and account no 37#'&'#''363of Sabrang Trust respectively by (ay of emand raftsof @s 37%''%''' has been drained in a single day.0

“t is respectfully submitted that etitioners no # ; & intheir *oint affidavit dated &'.'3.&'#4 before the Sessions

Court% Ahmedabad% have narrated several procedures ofho( the grants>donations are sanctioned and given to

of 63





the 2)s by the nternational bodies and its utilizationcertificate from the Auditors etc to boo+ the e,penditure.The cogent documentary ban+ details demonstratingdirect transfers of substantial amount in petitioner1sname% credit card payments running into lacs of @upees%ma*or discrepancies in Audit @eports%non submission of Audit reports % remains une,plained. -ere oral denialscannot obliterate facts received from 2ationalized ban+s%-"A% Charity Commissioner etc (hich clearlysubstantiate the charge of mis5appropriation of crores of public funds. -ere auditing of accounts cannot be presumptive of their lac+ of involvement and precludeinvestigation. The etitioners by their conduct haverevealed that they are not ready and (illing to co5

operate (ith the investigation. As trustees% they shouldhave readily offered their accounts for investigation andscrutiny.0

“t is respectfully submitted that in so far as theallegation of etitioners no # ; & for obtaining personalCredit Card details by the olice is concerned% it issubmitted that on scrutiny of account statement of C$and Sabrang Trust% it (as noticed that substantialamount has been paid from these accounts to(ards the

Credit card bill payments% hence it (as found necessaryto investigate the nature of payments made from theaccounts of Trusts for these Credit cards. After receivingthe Credit cards payment details it (as noticed that the payment of purely personal nature have beenunderta+en by the etitioners from the Trust Accounts.

aB !@<9 <TA=S 9 D@<=F <@S2A= <K<2TD@<-A< !F <TT2<@ 25# 9@- T"< 9D2S 9 C$E

9rom the scrutiny of credit card payments the mostshoc+ing revelation came from the payment madeto(ards (ine and li/uor purchases from Chincholi Iines-umbai and uty 9ree Shops of -umbai Airport% -ovieTic+ets% regular hair salon and grocery e,penses.

<,penditure on purchase of branded shoes% beauty products% urchase of clothes from branded sho( roomsin ndia% slamabad and @ome% online shopping from9lip+art% Amazon and )oogle storage in DS ollars%

purchases of electronic goods% music systems% dinninge,penses at five star hotels% purchases of *e(ellery%

of 63





(atches% suitcases% health e/uipments% articles fromemporiums% Art )alleries slamabad% payment to $LTourism% nline payments in foreign currency to(ardsSAT>college board entrance e,ams in DS% DL Dniversitiesfor admissions.

Shopping e,penses in a+istan% Lu(ait% DS% Canada%<urope have been noticed in the credit card e,penses%raises serious doubts about the nature of social (or+being underta+en by the accused no.# from the fundsreceived from various donors in C$

bB !@<9 <TA=S 9 D@<=F <@S2A= <K<2TD@<-A< !F <TT2<@ 25& 9@- T"< 9D2S 9

SA!@A2) T@DSTE

The data received from the Dnion !an+ of ndia sho(that substantial amounts are spent by etitioner no5&(as to(ards shopping% entertainment% foreign goods purchase% domestic re/uirements and other

ancillary e,penses of absolutely personal naturesuch as "air Salon e,penses% purchases from -ona=uc+y Stores% @eliance 9resh% !eauty Stores% cottagendustries% @oyal 9ashion Corner% -edicines% Ca+es% shoes

from ?ogele Shoes )eneva% -anor A) departmentalstore% )eneva% (atches% dining in high end restaurants inndia and abroad% clothes from branded sho( rooms% stayin -arriot "otel% slamabad% Agoda "otel% =ondon anduty free shopping at Abu habi airport etcraises serious doubts about the nature of social (or+being underta+en by the accused no.& from the fundsreceived from various donors in Sabrang Trust.0

$n the additional affida!it7in7rejoinder filed by the -tate of

9ujarat% the details of the false statements made by the

applicants on oath ha!e been furnished/ Those are as under ,

“t is respectfully submitted that in vie( of pleading(hich no( stand concluded% follo(ing relevant andundisputed facts of suppressions of materialsfacts>incorrect statements on oath before the variousCourts including this "on1ble Court are clearly borne out

of 63





on record as per details given belo(E5

AB The etitioners in Criminal Irit etition 2o #3>&'#4filed in the !ombay "igh Court on #6.'#.&'#4 for/uashing of present 9@ 2o #>&'#4% at page no ##% para)B of the etition stated thatE

“As re/uired under the !ombay ublic Trust Act%#6' the Accounts of Sabrang Trust are auditedannually by Chartered Accountants and are filed(ith the Charity Commissioner% -umbai along (iththe Auditor1s @eport every year. Similarly% asre/uired under the !ombay ublic Trust Act% #6'the Accounts of C$ are audited annually by

Chartered Accountants and are filed (ith theCharity Commissioner% -umbai along (ith the Auditor1s @eport every year0

Copies of relevant pages of CI 2o5#3>&'#4 areanne,ed here(ith as A22<KD@< C. !B The etitioners in Criminal Irit etition 2o &3>&'#4filed in the !ombay "igh Court on &4.'#.&'#4 for de5ceasing the accounts of Sabrang Trust ; C$ etc% at page

no M##6 para hB of the etition stated thatE

“As re/uired under the !ombay ublic Trust Act%#6' the Accounts of C$ are audited annually bythe Chartered Accountants and arefiled (ith theCharity Commissioner% -umbai along (ith the Auditor1s @eport every year. Similarly% as re/uiredunder the !ombay ublic Trust Act% #6' the Accounts of Sabrang Trust are audited annually bythe Chartered Accountants and are filed (ith the

Charity Commissioner% -umbai% along (ith the Auditor1s @eport every year0

Copies of relevant pages of CI 2o5&3>&'#4 areanne,ed here(ith as A22<KD@< .

CB The etitioners in -isc Criminal Application 2o7#>&'#4 filed before the Sessions Court% Ahmedabad on&#.'&.&'#4% in Affidavit5in5re*oinder of the Applicantsdated #'.'3.&'#4 for grant of anticipatory bail% at pageno 4 para 7B of the Affidavit5in5re*oinder stated thatE

“!oth the trusts have been regularly filing their

of 63





returns (ith the Charity Commissioner as (ell as(ith the ncome Ta, epartment.0

Copies of relevant pages of CI 2o57#>&'#4 areanne,ed here(ith as A22<KD@< <.

B The etitioners in -isc Criminal Application 2o47>&'#4 filed before this "on1ble Court on &.'3.&'#4for grant of anticipatory bail and /uashing *udgment andorder dated &6.'3.#4 passed by the =d City Session $udge% Ahmedabad in -CA 2o 7#>&'#4% at page no &4 para ccB of the etition stated thatE

“!oth the trusts have been regularly filing their

returns (ith the Charity Commissioner as (ell as(ith the ncome Ta, epartment0

Copy of relevant pages of CI 2o547>&'#4 is anne,edhere(ith as A22<KD@< 9.

<B The etitioners in Special Criminal Application 2o&#'>&'#4 filed before this "on1ble )u*arat "igh Court on'.'.&'#4 for de5freezing of accounts of Sabrang Trust%C$ etc% at page no #' para hB Bof the etition stated

thatE

“hB As re/uired under the !ombay ublic Trust Act%#6' the Accounts of C$ are audited annually bythe Chartered Accountants and are filed (ith theCharity Commissioner% -umbai along (ith the Auditor1s @eport every year. Similarly% as re/uiredunder the !ombay ublic Trust Act% #6' the Accounts of Sabrang Trust are audited annually bythe Chartered Accountants and are filed (ith the

Charity Commissioner% -umbai% along (ith the Auditor1s @eport every year0

The etitioners at para *B again repeated the samestatement as underE5

“ *B The Audited accounts of both the C$ ;Sabrang Trust that have beenregularly submitted%every year% (ith the Charity Commissioner and tilldate there have been no adverse remar+ by the

Auditors concerning any financial irregularity nothas there been any /uery from the Charity

of 63





Commissioner1s office regarding the same. Copiesof relevant pages of CI 2o5&#'>&'#4 areanne,ed here(ith as A22<KD@< ).0

-ome of the facts which are admitted by the applicants

ha!e also been highlighted/ Those are as under ,

“The etitioners in their various etitions% Applicationsand pleadings as mentioned herein above havecategorically and repeatedly mentioned that theaccounts of their both 2)s i.e. “Sabrang Trust andCitizens for $ustice ; eaceC$B are audited andsubmitted to the Charity Commissioner>ncome Ta,epartment along (ith Auditor1s @eports every year0.The entire thrust of the etitioner1s defence allthroughout has been that as 2)s% they have beenregistered under the ublic Trust Act and their accountsare duly audited and submitted to the CharityCommissioner% -umbai% every year and the CharityCommissioner has raised no /uery regarding theiraccounts till date.

nvestigation has revealed that the etitioners have notbeen filing their annual Audited @eports and statementsof Accounts to the Charity Commissioner% every year% asrepeatedly claimed by them and proved from thefollo(ing alarming facts emerged during theinvestigationE

aB Citizens for $ustice ; eace C$BE

Audited @eports and statement of Accounts of C$ for the

eriod from &''35'4 to &''5#' i.e. of years (eresubmitted on '7.'#.&'#& in the office of the CharityCommissioner. -r $aved Anand% etitioner 2o5&% alsoaccused no &% filed an Affidavit dated '6.'#.&'#& to theCharity Commissioner% -umbai% and sought condonationof this delay and stated that E

“ say that the delay occurred due to ourunderstanding of section 34 of the !ombay ublicTrusts Act% #6' and !ombay ublic Trust @ules#6# because of (hich trustees of C$ assumed

that it is the auditors (ho are re/uired to file theannual reports (ith the office of the eputy Charity

of 63





Commissioner. ur Auditors -essers "ariba+ti ;Company% chartered Accountants% have also beenfiling our ncome Ta, @eturns regularly (ith thencome Ta, epartment (hich (as the additionalreason for our assumption that they must also besubmitting Audit @eport (ith your office. Ierecently learnt from the Auditors that they had inturn assumed that the Trustees (ere filing thereports (ith your office. (ing to this unfortunateslip in communication the Audited statements ofaccounts% the stipulated schedules and the Auditorsreport have not filed (ith your office for the yearsending 3#st -arch &''4 till N-arch 3#%&'#' and hereby re/uest you to +indly condone the delay in

submission of accounts of our Trust.0

The etitioner 2o5& in the said Affidavit has also statedthat “ no( enclose here(ith the accounts duly auditedby the Chartered Accountants>Certified Auditor for the period from April#% &''3 to -arch% 3#% &'#' for your perusal and records. say in 9uture the Accounts of ourTrust (ill be submitted in time0

Copy of Affidavit dated '6.'#.&'#& filed by etitioner 2o5

& is anne,ed here(ith as A22<KD@< ". t is pertinent to note that the etitioners in theiradditional Affidavit in re*oinder dated &3.'.&'#4 servedin the Court on &7.'8.&'#4B running into 44 pages% havenot even once mentioned that audited reports of C$(ere also not submitted on time by the etitioners andthat they have sought years condonation of delay fromthe Charity Commissioner in $anuary &'#&.

bB Sabrang TrustE

Audited @eports and Statement of accounts of SabrangTrust for the eriod &''35'4 to &''5'8 i.e. of 6 years(ere submitted only on &7.'3.&'#4 in the office of theCharity Commissioner% that too% after the filing the present 9@. -r $aved Anand% etitioner 2o5&% submittedan Affidavit dated #.'&.&'#4 to the CharityCommissioner% -umbai% for condonation of delay andstatedE

“ say that the delay occurred due to our

of 63





understanding of section 34 of the !ombay ublicTrusts Act% #6' and !ombay ublic Trust @ules#6# because of (hich trustees of Sabrang Trustassumed that it is the auditors (ho are re/uired tofile the annual reports (ith the office of the eputyCharity Commissioner. ur Auditors -essers -Sathe ; Associates%% chartered Accountants% havealso been filing our ncome Ta, @eturns regularly(ith the ncome Ta, epartment (hich (as theadditional reason for our assumption that they mustalso be submitting Audit @eport (ith your office.Some of our original records of annual returns (eremaintained at the office of our Auditors. Ierecently learnt from the Auditors that they had in

turn assumed that the Trustees (ere filing thereports (ith your office. (ing to thismiscommunication% the Audited statements ofaccounts% the stipulated schedules and the Auditorsreport have not filed (ith your office for the yearsending 3#st -arch &''4 till N-arch 3#%&''8 and hereby re/uest you to +indly condone the delay insubmission of accounts of our Trust.0

The etitioner 2o5& in the said Affidavit has also stated

that “ no( enclose here(ith the accounts duly auditedby the Chartered Accountants>Certified Auditor for the period from April#% &''3 to -arch% 3#% &''8 for your perusal and records. say in 9uture the Accounts of ourTrust (ill be submitted in time0

Copy of Affidavit dated #.'&.&'#4 submitted byetitioner 2o5& on &7.'3.&'#4 i.e. after more than onemonth% in the office of the Charity Commissioner isanne,ed here(ith as A22<KD@< .

The etitioners in their additional Affidavit in re*oinderdated &3.'.&'#4 have admitted to have submitted 6 years Audited @eports of Sabrang Trust in one go on-arch% &7th% &'#4 i.e. after filing of the present 9@. Affidavit dated #.'&.&'#4 by etitioner no5&% along (ithaudited reports of Sabrang Trust% (as actually filed in theoffice of the Charity on &7.'3.&'#4 i.e. after a lapse of 6(ee+s. Ihen the accounts (ere yearly prepared andaudited% as repeatedly claimed by the etitioners% (hy

petitioner too+ more than 6 (ee+s to actually submit theaudited reports in the office of the Charity Commissioner

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is sub*ect matter of investigation. cB t is pertinent to note that the etitioner no5& in hisaffidavit dated '6.'#.&'#& to the Charity Commissionerfor condonation of years delay in the case of C$ and Affidavit dated #.'&.&'#4 for condonation of 6 yearsdelay in the case of Sabrang Trust made identical pleas.

iB n the case of C$% years delay in submitting theaudited accounts for the years A@= &''35 3#st -A@C"&'#' (as noticed by the etitioners in the year &'#& and years accounts (ere filed simultaneously see+ingcondonation of delay in $anuary &'#&. The grounds forthis gross lapse and irregularity in accounting for public

funds running into crores of rupees meant for thecharitable purposes is very casually e,plained a(ay bythe etitioners as “a communication gap bet(een the Auditor and the Trustees0 The culpability of the petitioners>accused is apparent from the fact that in thecase of Sabrang Trust% 6 years audited annual accountsfrom A@= &''3 To 3#st -A@C" &''8 (ere filed in the year &'#4% i.e. after the filing of the present 9@ in $anuary &'#4% raising an identical plea of“miscommunication (ith the Auditors0.

iiB t is pertinent to note that (hen the etitionersnoticed years delay in submission of audited annualaccounts ; reports of C$ in $anuary &'#&% it is beyond allreasonable comprehension% that as managing trusteesreceiving crores of rupees as funding% they did not chec+into the filing of the audited annual accounts of theiranother 2) Sabrang Trust till 9ebruary &'#4. 9rom theavailable records and admission% it is evidently clear that%it is only (hen the 9@ came to be filed in $anuary &'#4

for embezzlement of funds% that the petitionersapprehended the li+elihood of their accounts beingscrutinized and they rushed to get them prepared ; filedin -arch &'#4.

iiiB As -anaging Trustees of SA!@A2) T@DST% theetitioners have made incorrect statements on oath in & petitions before the "on1ble "igh Court of !ombay I2o5 #3>&'#4 filed on #6.'#.&'#4% CI 2o5&3>&'#4filed on &4.'#.&'#4B% S= 2o #'>&'#4 filed on

&'.'&.&'#4 in the "on1ble Supreme Court and -CA 2o7#>&'#4 filed on &#.'&.&'#4 before the Sessions Court%

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Ahmedabad and (hilst stating on oath that they haveannually submitted regular audited accounts% (hereas infact till &7th -A@C" &'#4% annual accounts for the period A@= &''3 to 3#st -A@C" &''8 i.e continuously of 6 years% (ere not even filed before the CharityCommission.

ivB These t(o Affidavits filed by the etitioners in theoffice of the Charity Commissioner for condonation ofdelay% eastablishes beyond reasonable doubt% that theetitioners (ere not filing their Annual Audited @eportand Statement of Accounts of both the trusts in the officeof the Charity Commissioner regularly every year% (hichis a mandatory re/uirement for every registered Trust%

and that they have repeatedly lied on oath before variousCourts as per details mentioned above. Since% the ncomeTa, department has not furnished any information to the% it is not +no(n (hether the etitioners are similarlylying about their regularly filing T @eturns to the ncomeTa, epartment.

This conduct of the accused also spea+s volumes abouttheir style of functioning% their faith in the $udicial Systemof the Country. t is humbly submitted that this "on1ble

court (ould ta+e a serious note of series of mis5conduct>mis5representation by the etitioners (hochoose to mislead the "on1ble court to secure favourableorders by stating falsehoods.0

Thus% from the abo!e% it is e!ident that the accounts were

also not audited for a long period of time% and it is only when

the .$R was registered wherein serious allegations of

misappropriation of lacs of rupees ha!e been alleged that all ofa sudden the accounts from *pril% 2((3 to +arch% 2((8 were

got audited in the year 2(1/

$t appears from the affida!it7in7reply filed by the -tate

and the submissions of +r/=ethmalani% the learned ad!ocate

appearing on behalf of the -tate% that detailed in!estigation of

the following transactions is necessary ,

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a4.rom the accounts of the -abrang Trust and #=P% a total

amount of Rs/1%&%8%&F(( ha!e been transferred to the

-abrang #ommunication G Publishing P!t Ltd% a company

owned by the petitioners/

b4.rom the accounts of the -abrang Trust and of #=P% an amount

of Rs/%&1%2'(F(( and Rs/28%3%8(F(( were transferred to

the personal accounts of the petitioner nos/ 1 G 2 respecti!ely/

c4 .rom the accounts of the -abrang Trust and #=P% the petitioners

ha!e withdrawn Rs/1%(8%3%82F(( as cash/

d4.rom the accounts of the -abrang Trust and #=P% the petitioners

ha!e paid Rs/2&%%121F(( towards #redit #ard payments/

e4The petitioners ha!e endea!ored to eplain the credit card

payment running into la:hs of rupees by stating that all such

personal ependiture were repaid to the 09) accounts/ This

employment of public donations to personal use needs to be

in!estigated/ The petitioners ha!e not submitted any debitH

credit !ouchers andHor che"ues details to pro!e their

statement/

f4 @pon scrutiny of the sa!ing accounts 0os/(11((((12'&' G

(11((((12(1 of the petitioner nos/ 1 G 2 with the $56$%

+umbai% it was noticed that both the accounts were opened on

3(/(/2(('/ The .#R* permission from +B* for #=P and

-abrang Trust was granted in 0o!ember% 2((/ Proposal to

purchase the 9ulbarg -ociety was mooted by petitioner no/1

orally in 5ecember% 2(( and formally in =anuary% 2((8%

Resolution was passed by the society accepting her proposal in

=une% 2((8 and thereafter the ad!ertisements commenced and

monies started pouring in/ .urther no substantial income of any

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nature% ecept from the #=P and -abrang Trust% is noticed in

both the abo!e mentioned personal accounts of the petitioners%

which were further in!ested in fied deposits% shares and

mutual funds such as $#$#$ Prudential% Reliance #apital% Eota:+ahindra% .ran:lin Templeton etc/

g4The donations recei!ed by the -abrang Trust and #=P are

utili;ed for personal purposes/

h4Receipt of donations to the tune of Rs/2&%2(%(((F(( from

*sho:a .oundation% *rlington% @-*% in the personal accounts of

+s/-etal!ad and Rs/%('%2F(( as foreign remittance in

+s/-etal!adIs personal account/

i4 +onthly withdrawal of salary by both the accused from all the

si accounts of #=P% -abrang Trust and -abrang

#ommunications/

$t also appears that the custodial interrogation is

necessary for the following reasons ,

1/ The case of the prosecution is based on cogent

documentary e!idence recei!ed from the #harity

#ommissioner% +umbai% +inistry of Bome *ffairs% 0ew

5elhi% !arious 6an:s% etc/ .inancial details recei!ed from

these authorities re"uire detailed in!estigation/

2/ The petitioners ha!e ne!er remained present before

any in!estigating agency and ha!e employed e!ery

means to a!oid the due process of law/ The petitioners

see: to a!oid custodial interrogation by the in!estigating

authorities by dismissing cogent documentary e!idence

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as accounting jugglery/ *pproimately J of the total

donations recei!ed in the -abrang Trust and

approimately 3'J of the total donations recei!ed in the

#=P% were transferred to their personal accounts/

3/ #ash withdrawal running into o!er Rs 1/(& crore need

to be further scrutini;ed and eamined wherein

Rs/'(%(((F(( to Rs/'%((%(((F(( ha!e been withdrawn

as cash on a single day/

/ #redit card details recei!ed from the @6$ and #iti

6an: re!ealed ependiture of purely personal nature

running into lacs of rupees being ser!iced from the #=P

and -abrang Trust accounts through che"ues signed by

the petitioners/

'/ $n!estigation has also re!ealed fre"uent foreigntrips to Pa:istan% *bu 5habi% Euwait% -wit;erland% @/*/A/

etc/ $n!estigation is merited into the nature of these !isits

and the epenses incurred thereon/

/ The petitioners ha!e sought to dismiss cash

withdrawals% ban: transfers and credit card payments on

the specious plea of ha!ing their accounts audited/

$n!estigation has already pro!ed that there are major

discrepancies in the *udits Reports/ The nature of

ependiture as re!ealed from the data recei!ed from the

#iti 6an: shows that substantial amount is spent on

entertainment% shopping% domestic re"uirements and

other epenses of purely personal nature/ )nlinepayment of hundreds of @/-/ 5ollars% Pounds% #anadian

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5ollars towards college board entrance eams in colleges

in @/-% @E% from the 09) Trust accounts raises doubts

about the nature of social wor: underta:en by these

09)s/

/ Whether the 6oard of Trustees of the -abrang Trust

and #=P ha!e e!er authori;ed the accused nos/ 1 and 2 to

incur such purely personal ependiture and whether the

same is permissible in law% is the subject matter of

in!estigation/ $t needs to be eamined as to how the

#hartered *ccountants who ha!e audited the accounts of

these two Trusts ha!e missed eamining the use of the

funds by the Trustees for the purposes other than

charitable/

8/ The statements of the 13 witnesses recorded till

date clearly indicate that not a single rupee is recei!ed

by them towards financial aid or rehabilitation or

construction of +useum/ $n!estigation has re!ealed that

it is only after the publication of inter!iews% photographs%

articles relating to the 9ujarat riots and more particularly

after the massi!e campaign in 2((8 onwards for

collecting funds for establishment of the <+useum of

Resistance> for the 9ulbarg -ociety that funds started

flowing into the two 09)s in crores% J of which in the

-abrang Trust and 3'J of the #=P ha!e been transferred

to their personal accounts/

&/ The #=P and the -abrang Trust were granted

registration under the .oreign #ontribution Regulation

*ct .#R*4 by the +inistry of Bome *ffairs in 0o!ember%2((/ The #=P and -abrang Trust respecti!ely opened the

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.#R* accounts in $/5/6/$/ and @nion 6an: of $ndia/ $n

5ecember% 2((% the accused placed a proposal before

the residents of the 9ulbarg -ociety% to purchase the

entire land and building of the 9ulbarg -ociety at the

current mar:et price and further reimburse them for the

rent which they had paid for all these years/ Lucrati!e as

the proposal sounded% it was unanimously accepted by all

the residents and members of the 9ulbarg -ociety%

*hmedabad% in =une% 2((8/

1(/ The manner in which the petitioners ha!e dealt with

the public funds needs to be in!estigated% considering

that whilst on the one hand% as stated by se!eral

witnesses% not a single rupee of financial aid has e!er

been recei!ed by any of the riots !ictims% crores of

rupees recei!ed for the upliftmentH rehabilitation of the

riots !ictims and for construction of a uni"ue <+useum ofResistance> has been transferred to their personal

accounts% credit card payments and epenses of purely

personal nature/ Whilst financial condition of the !ictims

remained unchanged o!er the years% the accused% who%

till .ebruary 2((3% had not e!en deposited Rs/1(%(((F((

in their accounts% in the short time% ha!e amassed crores

of rupees of funds/

11/ The matter in!ol!es commission of a gra!e

economic offence as the petitioners are managing

trustees of the two 09)s/

-ince a lot has been argued by both the sides so far asthe scope and ambit of -ection 38 is concerned% $ deem it

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necessary to consider the position of law/

$ may begin with the decision of the -upreme #ourt in the

case of 6alchand =ain !/ -tate of +/P/% *$R 1& -# 3/ .a;al*li% =/ obser!ed in no uncertain terms as follows ,

“Section 438 does not contain unguided or uncanalised po(ers to pass an order for anticipatory bail% but such anorder being of an e,ceptional type can only be passed if%apart from the conditions mentioned in S.43% there is aspecial case made out for passing the order. The (ords“for a direction under this section0 and “Court may% if itthin+s fit% direct0 clearly sho( that the Court has to beguided by a large number of considerations includingthose mentioned in S.43 of the Code.0

6alchand =ain supra4 was a case% wherein the primary

"uestion before Their Lordships was% whether anticipatory bail

can be granted with regard to an offence under rule 18 of the

5efence and $nternal -ecurity of $ndia Rules/ Bis Lordship

6hagwati% =/ in his concurring judgment first obser!ed as to the

nature of this power as follows ,

O2o(% this po(er of granting Panticipatory bailP issome(hat e,traordinary in character and it is only ine,ceptional cases (here it appears that a person mightbe falsely implicated% or a frivolous case might belaunched against him% or there are reasonable groundsfor holding that a person accused of an offence is notli+ely to abscond% or other(ise misuse his liberty (hile onbailP that such po(er is to be e,ercised. And this po(erbeing rather of an unusual nature% it is entrusted only tothe higher echelons of *udicial service% namely% a Court ofSession and the "igh Court.O

The eceptional nature of this power was further

highlighted by .a;al *li% =/ who prepared the main judgment in

the following words,77

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Ot (ould thus appear that (hile the =a( Commissionrecommended that provision for an order of anticipatorybail to be effective (hen a person is arrested should bemade% at the same time it stressed that this being ane,traordinary po(er should be e,ercised sparingly andonly in special cases.O

*s regards the guidelines and the limitations on the

eercise of the power under -ection 38% the -upreme #ourt

laid them down in the following terms at p/ 3 of *$R4,77

OIe have already stated that S. 438 of the Code does notcontain the conditions on (hich the order for anticipatorybail could be passed. As S. 438 immediately follo(s S.43 (hich is the main provision for bail in respect of non5bailable offence it is manifest that the conditionsimposed by S.43#B are implicitly contained in S. 438 ofthe Code. ther(ise the result (ould be that a person(ho is accused of murder can get a(ay under S. 438 byobtaining an order for anticipatory bail (ithout thenecessity of proving that there (ere reasonable groundsfor believing that he (as not guilty of offence punishable(ith death or imprisonment for life. Such a course (ouldrender the provisions of S. 43 nugatory and (ill give afree licence to the accused persons charged (ith non5bailable offences to get easy bail by approaching theCourt under S. 438 and by5passing S. 43 of the Code.This% (e feel% could never have been the intention of the=egislature. Section 438 does not contain unguided oruncanalised po(ers to pass an order for anticipatory bail%but such an order being of an e,ceptional type can onlybe passed if% apart from the conditions mentioned in S.

43% there is a special case made out for passing theorder. The (ords Ofor a direction under this sectionO andPCourt may% if it thin+s fit% directP clearly sho( that theCourt has to be guided by a large number ofconsiderations including those mentioned in S. 43 of theCode.0

6alchand =ain supra4 laid down the following proposition

for the grant of anticipatory bail/

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“#B That the po(er under Section 438% Criminalrocedure Code% is of an e,tra5ordinary character andmust be e,ercised sparingly in e,ceptional cases onlyQ

&B That the said po(er is not unguided or uncanalised%but all the limitations imposed in the proceeding S. 43%Criminal rocedure Code% are implicit therein and mustbe read into S. 438 as (ellQ and

34 That in addition to the limitations imposed in S.43% the petitioner must further ma+e out a special casefor the e,ercise of the po(er to grant anticipatory bail/>

The broad can!as against which the significant "uestion

aforesaid has to be eamined cannot be better spelled out

than in the memorable words of Lord Porter in Amperor !/

Ehwaja 0a;ir *hmad% *$R 1&' P# 18at p/ 224,

On their =ordshipsP opinion ho(ever% the more seriousaspect of the case is to be found in the resultantinterference by the Court (ith the duties of the police.

$ust as it is essential that every one accused of a crimeshould have free access to a Court of $ustice so that hemay be duly ac/uitted if found not guilty of the offence(ith (hich he is charged% so it is of the utmostimportance that the *udiciary should not interfere (iththe police in matters (hich are (ithin their province andinto (hich the la( imposes upon them the duty ofen/uiry. n ndia as been sho(n there is a statutory righton the part of the police to investigate the circumstancesof an alleged cognizable crime (ithout re/uiring anyauthority from the *udicial authorities% and it (ould% astheir =ordships thin+% be an unfortunate result if it shouldbe held possible to interfere (ith those statutory rightsbe an e,ercise of the inherent *urisdiction of the Court.The functions of the *udiciary and the police arecomplementary not overlapping and the combination ofindividual liberty (ith a due observance of la( and orderis only to be obtained by leaving each to e,ercise its o(nfunction% al(ays% of course% sub*ect to the right of the

Court to intervene in an appropriate case (hen movedunder Section 4#% Criminal rocedure Code% to give

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directions in the nature of habeas corpus.O

There is thus the authority of the Pri!y #ouncil itself

which has been re7affirmed by their Lordships of the -upreme#ourt times out of number for the proposition that the #ode

confers a statutory right on the police to in!estigate into

cogni;able crime without the sanction of any judicial authority/

Therefore% it is unnecessary to elaborate on this aspect and the

briefest reference to #hapter K$$ of the #ode regarding the

information of cogni;able offences to the police and their

powers to in!estigate therein would suffice/ -ection 1'

re"uires that information regarding the commission of

cogni;able offence shall be reduced in writing and prescribes

the procedure for recording the same/ -ection 1' in the

clearest terms lays down that the )fficer7in7charge of a police

station may without the order of a +agistrate in!estigate

forthwith into such a cogni;able case/ The succeeding -ection1' whilst pro!iding for the procedure for in!estigation in

terms empowers the police to ta:e measures for the disco!ery

and arrest of the offender/

$n this contet% it is worthwhile to recall that by !irtue of

-/ ' of the #ode% a police officer would be entitled to detain in

custody such a person for twenty7four hours eclusi!e of the

time necessary for the journey from the place of arrest to the

+agistrateDs #ourt without see:ing the sanction of any #ourt or

+agistrate/ This right of the police indeed seems to ha!e

constitutional sanction by !irtue of *rticle 2224 of the

#onstitution of $ndia which is almost in similar terms/ Bowe!er%

if the in!estigation cannot be completed with the period of 2hours aforesaid% the #ode ma:es epress pro!ision therefor by

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-ection 1 and sub7section 24 of the same is pertinent and

the rele!ant part thereof may be set down here for facility of

reference,77

O#7 #B , , , ,

&B The -agistrate to (hom an accused person isfor(arded under this section may% (hether he has or hasnot *urisdiction to try the case% from time to time%authorise the detention of the accused in such custody assuch -agistrate thin+s fit% for a term not e,ceedingfifteen days in the (holeQ and if he has no *urisdiction totry the case or commit it for trial% and considers furtherdetention unnecessary he may order the accused to be

for(arded to a -agistrate having such *urisdiction.

rovided that55

aB the -agistrate may authorise detention of theaccused person% other(ise than in custody of the police%beyond the period of fifteen days if he is satisfied thatade/uate grounds e,ist for doing so.O

0ow reading the rele!ant pro!isions together% it is plain

that in a serious cogni;able offence% the #ode authorises the

arrest and detention in custody of the offender for the first

twenty7four hours without the interposition of the +agistracy

and further police custody up to a period of 1' days with the

authority of the +agistrate/ $t is clear% therefore% that the arrest

and interrogation in police custody for cogni;able crime is not

only !isualised but epressly authorised by the #ode/ )n

behalf of the respondent7-tate% indeed the stand is that this is

not merely a right of the police but a duty enjoined upon them

and is the life blood of any effecti!e in!estigation into a serious

crime/ $t is contended on their behalf that if the power under

-ection 38% #r/P/#/% is used indiscriminately and as a routine it

would denude and render nugatory the pro!isions of -ection

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1 of the #ode e!en in those cases where the in!estigati!e

agency can lay legitimate claim to the effecti!e interrogation

and offender in their custody/

*fter 6alchand% the -upreme #ourt deli!ered the decision

in the case of 9urba:sh -ingh -ibia supra4/ $n 9urba:sh -ingh

-ibia supra4% the -upreme #ourt eamined the !arious facets

of this pro!ision/ The -upreme #ourt has obser!ed in regard to

the legislati!e intent of the pro!ision ,

OThe =egislature conferred a (ide discretion on the "igh

Court and the Court of Session to grant anticipatory bailbecause it evidently felt firstly% that it (ould be difficultto enumerate the conditions under (hich anticipatorybail should or should not be granted and secondly%because the intention (as to allo( the higher Courts inthe echelon a some(hat free hand in the grant of relief inthe nature of anticipatory bail. That is (hy% departingfrom the terms of Ss. 43% 43% S. 438iB uses thelanguage that the "igh Court or the Court of SessionsPmay if it thin+s fitP direct that the applicant be releasedon bail.O

While eamining the amplitude of judicial discretion gi!en

by -ection 38% the -upreme #ourt obser!ed ,

OThe true /uestion is (hether by a process ofconstruction% the amplitude of *udicial discretion (hich isgiven to the "igh Court and the Court of Session% to

impose such conditions they may thin+ fit (hile grantinganticipatory bail% should be cut do(n by reading into theStatute conditions (hich are not to be found therein% li+ethose evolved by the "igh Court or canvassed by thelearned Solicitor )eneral. ur ans(er% clearly andemphatically is in the negative. The "igh Court and theCourt of Session to (hom the application for anticipatorybail is made ought to be left free in the e,ercise of their *udicial discretion to grant bail if they consider it fit so todo on the particular facts and circumstances of the case

and such conditions as the case may (arrant. Similarlythey must be left free to refuse bail if the circumstances

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of the case so (arrant. n considerations similar to thosementioned in S. 43 or (hich are generally considered tobe relevant under Section 43 of the Code.O

While repelling the contention that the anticipatory bail

cannot be granted unless it is shown that proposed allegation

is mala fide% the -upreme #ourt obser!ed ,

Ot is understandable that if mala fides are sho(nanticipatory bail should be granted in generality of thecases. t is not easy to appreciate (hy an application foranticipatory bail must be re*ected unless accusation issho(n to be mala fide.O

$n regard to the scope and ambit of -ection 38% the

-upreme #ourt obser!ed ,

OThe e,pression Oif it thin+s fit (hich occurs in S. 438iB inrelation to the po(er of the "igh Court or the Court ofSession% is conspicuously absent in S. 43iB. Ie see novalid reason for re5(riting S. 438 (ith a vie( not to

e,panding the scope and ambit of the discretionconferred on the "igh Court and the Court of Session but%for the purpose of limiting it.O

The -upreme #ourt also eamined the fact as to whether

the discretion !ested in the #ourt under -ection 38 can be

eercised in relation to the offences punishable with death or

life imprisonment unless the #ourt is satisfied that such a

charge appears to be false or groundless and obser!ed as

under ,

OIe see no (arrant for reading into this provision theconditions sub*ect to (hich bail can be granted underSection 43iB of the Code. That section% (hile conferringthe po(er to grant bail in case of non5bailable offences% provides by (ay of e,ception that a person accused orsuspected of the commission of a non5bailable offence

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shall not be so released% if there appears to bereasonable grounds for believing that he has been guiltyof an offence punishable (ith death or imprisonment forlife. f it (as intended that the e,ception in S. 43iBshould govern the grant of relief under Section 438iBnothing (ould have been easier for the =egislature thanto introduce into the latter section a similar provision.O

The law on the subject is thus !ery clear and this #ourtDs

powers to grant anticipatory bail are unfettered/ That%

howe!er% does not sol!e the issue which is essentially of

eercise of discretion and% which discretion has to be eercised

judicially in the light of facts and circumstances of each and

e!ery case/

6alchand =ain supraB and 9urba:sh -ingh supra4 later

on came to be considered by the -upreme #ourt in -iddharam

-atlingappa +hetre supra4% wherein the -upreme #ourt

eplained in detail the scope and ambit of anticipatory bail/

“SC< A2 A-!T 9 A2TCAT@F !A=E

##8. A good deal of misunderstanding (ith regard to theambit and scope of section 438 Cr..C. could have beenavoided in case the Constitution !ench decision of thiscourt in SibbiaPs case supraB (as correctly understood%appreciated and applied.

##. This Court in the SibbiaPs case supraB laid do(n thefollo(ing principles (ith regard to anticipatory bailE

aB Section 438#B is to be interpreted in light of Article &# of the Constitution of ndia.

bB 9iling of 9@ is not a condition precedent toe,ercise of po(er under section 438.

cB rder under section 438 (ould not affect the rightof police to conduct investigation.

dB Conditions mentioned in section 43 cannot be

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read into section 438.

eB Although the po(er to release on anticipatory bailcan be described as of an Oe,traordinaryO characterthis (ould Onot *ustify the conclusion that the po(ermust be e,ercised in e,ceptional cases only.O o(ersare discretionary to be e,ercised in light of thecircumstances of each case.

fB nitial order can be passed (ithout notice to theublic rosecutor. Thereafter% notice must be issuedforth(ith and /uestion ought to be re5 e,aminedafter hearing. Such ad interim order must conform tore/uirements of the section and suitable conditionsshould be imposed on the applicant.

#&'. The =a( Commission in $uly &''& has severelycriticized the police of our country for the arbitrary use of po(er of arrest (hich% the Commission said% is the resultof the vast discretionary po(ers conferred upon them bythis Code. The Commission e,pressed concern that thereis no internal mechanism (ithin the police department to prevent misuse of la( in this manner and the star+reality that complaint lodged in this regard does not

bring any result. The Commission intends to suggestamendments in the Criminal rocedure Code and hasinvited suggestions from various /uarters. @eference ismade in this Article to the 4#st @eport of the =a(Commission (herein the Commission sa( Rno *ustificationP to re/uire a person to submit to custody%remain in prison for some days and then apply for baileven (hen there are reasonable grounds for holding thatthe person accused of an offence is not li+ely to abscondor other(ise misuse his liberty. iscretionary po(er to

order anticipatory bail is re/uired to be e,ercised+eeping in mind these sentiments and spirit of the *udgments of this court in SibbiaPs case supraB and $oginder Lumar v. State of D.. and thers #4B 4 SCC&7'.

@elevant consideration for e,ercise of the po(er

#&#. 2o infle,ible guidelines or strait*ac+et formula canbe provided for grant or refusal of anticipatory bail. Ie

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are clearly of the vie( that no attempt should be made to provide rigid and infle,ible guidelines in this respectbecause all circumstances and situations of future cannotbe clearly visualized for the grant or refusal ofanticipatory bail. n consonance (ith the legislativeintention the grant or refusal of anticipatory bail shouldnecessarily depend on facts and circumstances of eachcase. As aptly observed in the Constitution !enchdecision in SibbiaPs case supraB that the "igh Court orthe Court of Sessions to e,ercise their *urisdiction undersection 438 Cr..C. by a (ise and careful use of theirdiscretion (hich by their long training and e,periencethey are ideally suited to do. n any event% this is thelegislative mandate (hich (e are bound to respect and

honour.

#&&. The follo(ing factors and parameters can be ta+eninto consideration (hile dealing (ith the anticipatorybailE

i. The nature and gravity of the accusation and the e,actrole of the accused must be properly comprehendedbefore arrest is madeQ

ii. The antecedents of the applicant including the factas to (hether the accused has previously undergoneimprisonment on conviction by a Court in respect of anycognizable offenceQ

iii. The possibility of the applicant to flee from *usticeQ

iv. The possibility of the accusedPs li+elihood to repeatsimilar or the other offences.

v. Ihere the accusations have been made only (ith theob*ect of in*uring or humiliating the applicant by arrestinghim or her.

vi. mpact of grant of anticipatory bail particularly in

cases of large magnitude affecting a very large numberof people.

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vii. The courts must evaluate the entire availablematerial against the accused very carefully. The courtmust also clearly comprehend the e,act role of the

accused in the case. The cases in (hich accused isimplicated (ith the help of sections 34 and #4 of thendian enal Code% the court should consider (ith evengreater care and caution because over implication in thecases is a matter of common +no(ledge and concernQ

viii. Ihile considering the prayer for grant of anticipatorybail% a balance has to be struc+ bet(een t(o factorsnamely% no pre*udice should be caused to the free% fair

and full investigation and there should be prevention ofharassment% humiliation and un*ustified detention of theaccusedQ

i,. The court to consider reasonable apprehension oftampering of the (itness or apprehension of threat to thecomplainantQ

,. 9rivolity in prosecution should al(ays be consideredand it is only the element of genuineness that shall haveto be considered in the matter of grant of bail and in theevent of there being some doubt as to the genuinenessof the prosecution% in the normal course of events% theaccused is entitled to an order of bail.

#&3. The arrest should be the last option and it should berestricted to those e,ceptional cases (here arresting the

accused is imperative in the facts and circumstances ofthat case.

#&4. The court must carefully e,amine the entireavailable record and particularly the allegations (hichhave been directly attributed to the accused and theseallegations are corroborated by other material andcircumstances on record.

#&6. These are some of the factors (hich should be

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ta+en into consideration (hile deciding the anticipatorybail applications. These factors are by no meanse,haustive but they are only illustrative in naturebecause it is difficult to clearly visualize all situations andcircumstances in (hich a person may pray foranticipatory bail. f a (ise discretion is e,ercised by theconcerned *udge% after consideration of entire materialon record then most of the grievances in favour of grantof or refusal of bail (ill be ta+en care of. The legislaturein its (isdom has entrusted the po(er to e,ercise this *urisdiction only to the *udges of the superior courts. nconsonance (ith the legislative intention (e shouldaccept the fact that the discretion (ould be properlye,ercised. n any event% the option of approaching the

superior court against the court of Sessions or the "ighCourt is al(ays available.

#&7. rrational and ndiscriminate arrest are grossviolation of human rights. n $oginder LumarPs casesupraB% a three $udge !ench of this Court has referred tothe 3rd report of the 2ational olice Commission% in(hich it is mentioned that the /uality of arrests by theolice in ndia mentioned po(er of arrest as one of the

chief sources of corruption in the police. The reportsuggested that% by and large% nearly 7' of the arrests(ere either unnecessary or un*ustified and that suchun*ustified police action accounted for 43.& of thee,penditure of the *ails.

#&. ersonal liberty is a very precious fundamental rightand it should be curtailed only (hen it becomesimperative according to the peculiar facts and

circumstances of the case.0

Thus% considering 6alchand =ain supra4% 9urba:sh -ingh

supra4 and -iddharam -atlingappa +hetre supra4% it is clear

that a balance must be struc: between the two factors%

namely% no prejudice should be caused to the in!estigation%

and at the same time% the #ourt should also ensure that there

is no undue harassment and humiliation to the accused/ 6eside

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this% the nature and gra!ity of the accusation and the eact

role of the accused is also necessary to be loo:ed into after

e!aluating the entire material against the accused/ $n short%

what has been laid down by the -upreme #ourt in -iddharam

-atlingappa +hetre supra4 is that the arrest should be a last

option and should be restricted to those eceptional cases

where arresting the accused is imperati!e/ $ may add here that

custodial interrogation is one of the most important factors

which the #ourt should consider while considering the plea of

the accused for anticipatory bail/

+y attention has been drawn by +r/Tha:ore% the learned

senior ad!ocate appearing for the applicants% to a !ery recent

pronouncement of the -upreme #ourt in the case of Bema

+ishra !/ -tate of @ttar Pradesh and others% 2(14 -## '3%

wherein Bis Lordship 5r/*/E/-i:ri% =/ in a concurring but a

separate judgment made the following obser!ations in

paragraphs 3( and 31 ,

“3'. t is pertinent to e,plain that there may be imminentneed to grant protection against pre5arrest. The ob*ect ofthis provision is to relieve a person from being disgracedby trumped up charges so that liberty of the sub*ect isnot put in *eopardy on frivolous grounds at the instanceof the unscrupulous or irresponsible persons (ho may be

in charge of the prosecution. An order of anticipatory baildoes not in any (ay% directly or indirectly% ta+e a(ay forthe police their right to investigate into charges made orto be made against the person released on bail.

3#. The purposes for (hich the provisions of anticipatorybail are made are /uite obvious. ne of the purposes ofthe arrest is that the accused should be available to theinvestigating machinery for further investigation and/uestioning (henever he is re/uired. Another purpose is

that the trial should not be *eopardized and for this purpose the restrictions on the movements of the

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accused are necessary. The genuineness of the allegedneed for police custody has to be e,amined and it mustbe balanced against the duty of courts to uphold thedignity of every man and to vigilantly guard the right toliberty (ithout *eopardizing the state ob*ective ofmaintenance of la( and order.0

$ am not impressed by the submissions of +r/Tha:ore

that the applicants deser!e to be released on anticipatory bail

because they ha!e le!elled serious allegations of malafides

against the -tate 9o!ernment/ The malafides must be

specifically alleged and re"uired to be pro!ed by theapplicants/ 6y merely hurling allegations of malafides% the

accused who is otherwise prima facie in!ol!ed in a crime is not

automatically entitled to anticipatory bail/ The etraordinary

power conferred upon the #ourts of =ustice under -ection 38

of the #ode of #riminal Procedure needs to be eercised !ery

guardedly and with a little care and circumspection/

Ba!ing gone through the materials on record% $ ha!e

noticed something !ery shoc:ing% and at the same time%

etremely sad/ There are serious allegations against the

applicants of misuse and misappropriation of huge amount

recei!ed by them through !arious donors/ The money which

should ha!e gone to the poor and the needy appears to ha!e

been prima facie misused for their personal pleasure and

comfort/ *lthough in the course of lengthy arguments it was

!ehemently submitted that the applicants are ready and

willing to cooperate with the in!estigation% yet $ ha!e noticed

that there is no cooperation worth the name/ $t is only after the

arguments were concluded that the applicants thought fit to

part with their income ta returns and !ouchers/

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The applicants did appear before the $n!estigating )fficer

once or twice and they were put number of "uestions for the

purpose of effecti!e in!estigation/ +r/=ethmalani% in the course

of hearing of these applications% made a!ailable for my perusal

the case7diary% wherein number of "uestions were put to the

applicants and the stoc: reply which $ find is necessary to be

"uoted ,

“As the /uestion relates to accounts% the reply of (hich isgiven in our affidavit. f there is no reply% and if you (illgive me in (riting% (e (ill give you reply for the same.0

To !ery few specific "uestions as regards purchase of air

tic:ets% holiday resorts bills% fees paid in dollars so far as the

education of children is concerned% credit card payments%

epensi!e shoes% clothes% beauty parlour bills% etc/% the stoc:

reply was% <Please gi!e me in writing% we will gi!e you reply for

the same>/

To few other "uestions% the only reply was% <*t present $

do not remember it/ -ir% if you will gi!e me in writing% $ will

pro!ide information of the same later on>/

To a specific "uestion as regards the personal epenses

incurred using the credit cards from the ban: accounts of the

#=P and the -abrang Trust% the reply was% <$ state that we ha!e

submitted the detailed reply regarding use of #redit #ard in

Page 0os4/ ( to 13 and Page 0os4/1 to '&% in

<*nneure7* #olly4 of *ffida!it 5ated 18H(H2(1 to our

+iscellaneous #riminal *pplication 0o/H2(1 filed before

the Bonourable Bigh #ourt of 9ujarat/ We ha!e also informed

in *udit Report of -hri 5/+/-hathe and Baribha:ti that we ha!e

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not incurred any personal epenses from Trust 6an: *ccount

s4/ This information is as:ed for only to harass and defame us/

ou ha!e not produced any documentary proof regarding your

allegation in the matter/>

To a specific "uestion regarding !ouchers% the reply was%

<if we are as:ed in writing to submit !ouchers of particular

time and epenses% thereafter% we will pro!ide you the same/

*s per the legal ad!ice% we ha!e obtained% it is neither

necessary nor desirable to submit the same for the present

in!estigation/>

To a specific "uestion regarding the income ta returns%

the reply was% <ou ha!e demanded copies of $/T/Returns for

the years from 2((7(' to 2(12713% but we are not bound to

produce the same before you4/>

$f e!erything is in the affida!it filed before this #ourt% and

if e!erything is to be loo:ed into by the $n!estigating )fficer

and understand from the affida!it% then that hardly can be a

ground for grant of anticipatory bail/

The abo!e is suggesti!e of the fact that there is no

cooperation at all/ *t any cost% the applicants want to e!adethe interrogation and are not ready and willing to disclose the

true facts/ $f such are the answers gi!en by the applicants to

the "uestions put by the $n!estigating )fficer at a stage when

they are under the umbrella of an oral interim protection% $

wonder what would be the position when they appear before

the $n!estigating )fficer armed with a full7fledged anticipatory

bail order/

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$t is at that stage and in such circumstances that the

custodial interrogation becomes a !ery important factor/

#ustodial interrogation is "ualitati!ely more elicitation

oriented than "uestioning a suspect who is well ensconced

with a fa!orable order under -ection 38 of the #ode/ $n a case

li:e this effecti!e interrogation of suspected person is of

tremendous ad!antage in disinterring many useful

informations and also materials which would ha!e been

concealed/ -uccess in such interrogation would elude if the

suspected person :nows that he is well protected and

insulated by a pre7arrest bail during the time he interrogated/

Mery often interrogation in such a condition would reduce to a

mere ritual/ The argument that the custodial interrogation is

fraught with the danger of the person being subjected to third7

degree methods need not be countenanced% for% such an

argument can be ad!anced by all accused in all criminal cases/

The court has to presume that responsible Police )fficers

would conduct themsel!es in a responsible manner and that

those entrusted with the tas: of disinterring offences would not

conduct themsel!es as offenders/ see -tate Rep/ by the #/6/$/

!/ *nil -harma% 1&&4 -## 18/

The case on hand% in my opinion% is one of custodial

interrogation in public interest ta:ing into consideration the

fact that money meant for the poor and those being largely

affected by riots is alleged to ha!e been embe;;led/ 5ay7in

and day7out we are witnessing with regret and sorrow that our

political eecuti!es and bureaucracy are being in!ol!ed in

corruption cases/ 0ow% e!en the 09)s who claim to wor: for

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the upliftment of the poor and the downtrodden of the society

ha!e started to in!ol!e themsel!es in such acts/ The

materialistic race is going on in e!ery section of the society

and this disease of corruption has eaten the !ery roots of our

system/ $f the custodial interrogation of an accused is

necessary in public interest and that the gra!ity of the

allegation is such that the custody of the accused should be

handed o!er to the police for fair and impartial interrogation%

the pro!ision of -ection 38 of the #ode should not be in!o:ed

in fa!our of such an accused/

-o far as the aspect of custodial interrogation in public

interest is concerned% $ am supported by a decision of the

-upreme #ourt in the case of Ar/E/E/=erath !/ @nion Territory%

#handigarh and others% 1&&8 #ri/L/=/ 2'''% wherein the #ourt

obser!ed in paragraphs 3% and ' as under ,

3! Shri @.L. $ain% learned senior counsel for the petitionerrelying upon the decision of this Court in $oginder Lumarvs. State of D.. ; rs. #44B SCC. &7'% Shri )urba+shSingh Sibbia ; rs. vs. State of un*ab #8' &B SCC 676.2andini Satpathy vs. .=. ani ; Anr. #8 &B SCC 4&4%and !abu Singh ; rs. vs. State of D.. #8. #B SCC6% submitted that the matter (ill have to be e,aminedfrom the constitutional angle bearing in mind the scopeof Articles &'&B and &# of the Constitution. "e

contended that though an accused person could bearrested% it may not be appropriate to detain him incustody in every case and (hen there is presumption ofinnocence in his favour until the charge against him isestablished% it (ould not at ll be consistent (ith the philosophy of the Constitution that such a person shouldbe sub*ected to interrogation by application of psychological or ambient pressures much less physicaltorture. And he very vehemently stressed that this Courthas a duty to protect a citizen against such inroads of

these fundamental right. "e relied upon the decisions in EiB #4 4B SCC &7' iiB #8' &B SCC 676 iiiB #8 &B

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SCC 4&4 and ivB #8 #B SCC 6 to contend that in la(an accused person could be arrested and if arrested% isentitled to bail unless detention in needed in publicinterest.

4. Shri Arun $aitley and Sri )opal Subramaniam% learnedSenior Advocates for the respondents% brought to ournotice that there (ere several special features in thiscase (hich clearly indicate that retaining the petitioner incustody till the investigation is over is absolutelynecessary and is in public interest% (hich far out(eighsthe interest of the petitioner.

6. Ie do not (ish to enter into any detailed discussionon these legal aspects raised by the learned counsel forthe respondents as this Court in the several decisionreferred to by the learned counsel for the petitioner hase,plained the scope of the provisions of Articles &'&Band &# of the Constitution and Section 487 of the Code ofCriminal rocedure and their inter5relationship. Ie mayonly state in considering a petition for grant of bailnecessarily if public interest re/uires detention of citizenin custody for purposes of investigation could be

considered and re*ected as other(ise there could behurdles in the investigation even resulting in temperingof evidence. This very aspect has been borne in mind bythe "igh Court . n the facts and in the circumstances ofthe case% (e do not thin+ there is any god reason tointerfere (ith the order made by the "igh Court inrefusing bail at this state of the proceedings. The specialleave petition is% therefore% dismissed.0

$ should be conscious of the fact that $ am not dealing

with an application for grant of regular bail after arrest/ The

principal <bail and not jail> would be more germane while

considering the application for post arrest bail/

The consideration which should weigh with the #ourt

while dealing with a re"uest for anticipatory bail in these type

of cases need not be the same as for an application to release

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on bail after arrest/

$ may "uote with profit a decision of the -upreme #ourt

in the case of Po:ar Ram !/ -tate of Rajasthan and others%

1&8' -# &&% wherein in para ' the following obser!ations

were made ,

“@elevant considerations governing the court Ps decisionin granting anticipatory bail under Sec. 438 arematerially different from those (hen an application forbail by a person (ho is arrested in the course of

investigation as also by a person (ho is convicted andhis appeal is pending before the higher court and bail issought during the pendency of the appeal. Threesituations in (hich the /uestion of granting or refusing togrant bail (ould arise% materially and substantially differfrom each other and the relevant considerations on(hich the courts (ould e,ercise its discretion% one (ay orthe other% are substantially different from each other.This is necessary to be stated because the learned $udge.in the "igh Court unfortunately fell into an error in mi,ing

Dp all the considerations% as if all the three becomerelevant in the present situation.0

6y merely pleading malafides% the applicants cannot

escape from their liability/ $ should not shut my eyes to the

other aspects of the matter% more particularly% the serious

allegations of misappropriation to the tune of lacs of rupees by

merely accepting the submission of malafides/ -alafides is

something which definitely should be considered% but if there is

other materials on record to prima facie indicate the complicity

and in!ol!ement of the accused% then only on the ground of

malafides anticipatory bail should not be granted/ )n account

of malafides% some times% the #ourt may find some

eaggeration% but that does not mean that the entire case put

forward by the prosecution is false or baseless/

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$t also appears from the materials on record that on

account of some pressure or influence that might ha!e been

eerted by the applicants% the *uditors who are stationed at

+umbai ha!e also not cooperated with the in!estigation/

*s obser!ed earlier% the facts of this case are "uite

shoc:ing and disturbing/ Bow can one see: materialistic

pleasure and happiness at the epense of the poor and needy

persons/ Bow can one e!en use fi!e paise which is meant for

the poor and the needy/ The facts of this case reflect the sorry

state of affairs of the 09)s/ People from all corners of the

world are ready to help them/ There are people who may not

be able to directly help and% therefore% they use the 09)s to

help the poor and the needy/ The donations are made with lot

of trust and hope that ultimately the money would reach to the

poor and the needy/ Bowe!er% here is a case where% in the

name of the poor% needy and unfortunate riot affected !ictims%

lacs of rupees was recei!ed and embe;;led/

* person who considers the happiness and the pain of

others as those of his own% is% in my opinion% the real social

wor:er/

Whilst gi!ing freedom to the ci!il society to function with

fleibility is positi!e% too much freedom can lead to abuses by

certain groups or indi!iduals calling themsel!es an D09)D% thus

gi!ing ci!il society a bad name/ -ituations li:e these ha!e a

negati!e impact on the many honest 09)s and create a

situation of low trust in the 09)s/ This% in turn% leads to a

situation where funding is not easily obtained and where the

public is less ready to contribute to the sector/ @ltimately% it is

only the poor and the needy who are the sufferers/ $t is%

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therefore% !ery important to ha!e strict laws regulating

accountability and monitoring of the 09)s so as to maintain a

high trust le!el and good functioning/

Proper registration% genuine board composition%

compliance with procedures% and well laid7out policies relating

to acti!ities and resource mobilisation are the basic attributes

of the well7go!erned organisations/ 6roadening and deepening

the regulatory process% as well as enhancing the capacity of

the department to carry it out% would be the best go!ernment

response to this contro!ersy/

* lot was argued regarding the reputation of the two

applicants/ +y attention has been drawn to the !arious awards

recei!ed by the two Trusts/ $t was also sought to be argued

that the trustees are well7renowned persons of great repute/

Well% by only loo:ing towards the awards and the medals thehard reality should not be ignored/ -o far as the well7renowned

persons being the trustees are concerned% $ may only say that

the two Trusts appear to be a one7woman and one7man show/

The other trustees% $ doubt% whether ha!e any idea as regards

the affairs of the Trusts/ They may ha!e lended their names

unmindful that they may also lend up some day in difficulty/

*fter bestowing my anious consideration% including the

perusal of the case7diary referred to abo!e% $ ha!e reached to

the conclusion that no case is made out for eercise of the

discretionary power under -ection 38 of the #ode of #riminal

Procedure/

.or the foregoing reasons% the #riminal +isc/ *pplication

0o/ of 2(1 fails and is hereby rejected/

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$t goes without saying that any obser!ations touching the

merits of the case are purely for the purpose of deciding the

"uestion of grant of anticipatory bail and shall not beconstrued as an epression of the final opinion in the main

matter/

-o far as the other two applications are concerned% i/e/

#riminal +isc/ *pplication 0os/& of 2(1 and 8( of 2(1%

it is submitted !ery fairly by +r/=ethmalani that no custodial

interrogation is re"uired of the applicants/ Be submitted that%therefore% the -tate has no objection if the anticipatory bail is

granted to the applicants of the other two applications/

$n !iew of such stance of the -tate% the two applications

being #riminal +isc/ *pplication 0os/& of 2(1 and 8( of

2(1 are hereby allowed% by directing that in the e!ent of

arrest of the applicants of the #riminal +isc/ *pplication0os/& of 2(1 and 8( of 2(1 in connection with the .$R

registered with the 5/#/6/ #rime Police -tation% *hmedabad%

the applicants shall be released on bail on their furnishing a

personal bond of Rs/1(%(((H7 Rupees ten thousand only4 each

with one surety of the li:e amount on the following conditions

that they shall,

a4 cooperate with the in!estigation and ma:ethemsel!es a!ailable for interrogation whene!erre"uiredC

b4 remain present at the concerned Police -tation on1&th .ebruary 2(1' between 11/(( a/m/ and 2/(( p/m/C

c4 not directly or indirectly ma:e any inducement%threat or promise to any person ac"uainted with the

facts of the case so as to dissuade himHthem fromdisclosing such facts to the court or to any police

of 63





officerC

d4 not obstruct or hamper the police in!estigation andnot to play mischief with the e!idence collected or yetto be collected by the policeC

e4 at the time of eecution of bond% furnish theaddress to the $n!estigating )fficer and the #ourtconcerned and shall not change their residence till thefinal disposal of the case till further ordersC

f4 not lea!e $ndia without the permission of the #ourt%and if ha!ing passport% shall deposit the same beforethe trial #ourt within a wee:C and

g4 it would be open to the $n!estigating )fficer to filean application for remand if he considers it just andproper and the learned +agistrate would decide thesame on meritsC

5espite this order% it would be open for the $n!estigating

*gency to apply to the competent +agistrate for police

remand of the applicants/ The applicants shall remain presentbefore the learned +agistrate on the first date of hearing of

such application and on all subse"uent occasions as may be

directed by the learned +agistrate/ This would be sufficient to

treat the accused in the judicial custody for the purpose of

entertaining application of the prosecution for police remand/

This is% howe!er% without prejudice to the rights of the accused

to see: stay against an order of remand if% ultimately% granted%

and the powers of the learned +agistrate to consider such a

re"uest in accordance with law/

$t is clarified that the applicants% e!en if% remanded to the

police custody% upon completion of such period of police

remand% shall be set free immediately% subject to the other

conditions of this anticipatory bail order/

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*t the trial% the trial #ourt shall not be influenced by the

prima facie obser!ations made by this #ourt while enlarging

the applicants on bail/ Rule is made absolute to the aforesaid

etent/ 5irect ser!ice is permitted/

(J.B.PARDIWALA, J.)

*fter the order is pronounced% +r/Tha:ore% the learned

senior ad!ocate appearing on behalf of the applicants of the

#riminal +isc/ *pplication 0o/ of 2(1% prays for etension

of the oral interim protection granted to the applicants/

$n !iew of what has been stated abo!e% the prayer is

rejected/

(J.B.PARDIWALA, J.)MOIN

gujarat hc - teesta - false statements made in anticipatory bail - r_cr.ma_4677_2014_j_12

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