Landmark Judgment on Anticipatory bail
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 811 OF 2013
1. Dinesh Hilal Mahajan,
1. The State of Maharashtra,
CORAM : ABHAY M. THIPSAY, J.
Dated: October 18, 2013.
Citation;2014 ALLMR(cri) 543
1. By consent, Rule is made returnable forthwith
2. By consent, heard finally.
The petitioners, who are accused in CR No.43/2013 registered at Deopur Police Station, Dhule were granted anticipatory bail by the Court of Sessions, by an order dated 9.4.2013. The case against the petitioners is in respect of the offences punishable under Sections 498A, 406, 323, 504, 506 of I.P.C. r.w. 34 of I.P.C. as also the offences punishable under the Dowry Prohibition Act. The operative part of the order granting anticipatory bail reads, as under:
Application is allowed.
Deopur Police station is directed to release the applicants in the event of their arrest in C.R. NO.43/2013 on furnishing P.R. of Rs.15,000/ each with one surety in like sum. On 30.4.2013, the Investigating Agency, through the 3.Applicants are directed to attend I.O. of Deopur police station on 14/4/2013 between 11 a.m. to 2 p.m. and whenever they are called and cooperate in the investigation."v Public Prosecutor, made an application for cancellation of bail granted to the petitioners, on the ground that they had committed breach of the terms and conditions, on which the
anticipatory bail was granted. It was contended that the petitioners had failed to attend Deopur Police Station on 14.4.2013, as directed. It was also contended that, on 13.4.2013, the first informant had filed a report at Deopur Police Station that the petitioners had been giving threats to her and that the petitioners had pressurized her to withdraw the case.
4.The learned Additional Sessions Judge, after hearing the parties, cancelled the bail order holding that the petitioners had committed breach of the condition imposed
at the time of their release on bail; namely, of attending the police station on 14.4.2013 and the petitioners had also allegedly, given threats to the first informant, for
5.withdrawing the F.I.R.Being aggrieved by this order canceling anticipatory bail, the petitioners have approached this Court by filing the present writ petition.
6.I have heard Mr. Ghanekar, learned Counsel for the petitioners and Mr. Kadam, learned Addl. Public Prosecutor for the State. I have also heard Mr. C.R. Deshpande,
learned Counsel, who was granted permission to make submissions on behalf of thefirst informant, opposing the writ petition.
7.Mr. Deshpande, learned Counsel raised a preliminary objection as to the maintainability of the writ petition. According to him, the proper remedy for the petitioners
would be of seeking bail afresh. He submitted that the order cancelling bail, as passed by the Additional Sessions Judge, is purely interlocutory and consequently, no revision
would lie from such an order. According to him, it is settled legal position that, where an application for revision cannot lie from an order, writ petition would also not lie from such an order. I am unable to accept this contention of the learned
8.Counsel. The writ jurisdiction is too wide and it can cover even interlocutory orders. Therefore, where a revision would be barred because the order impugned is an interlocutory one, a writ petition would not be barred.
9.As regards the contention that that the petitioners must seek bail afresh, it may be observed that the petitioners are, actually, not taken in custody. The petitioners cannot move an application for bail without surrendering themselves before the Court. Thus, the petitioners have no effective or efficacious remedy for challenging the order of cancellation of bail and as such, in my opinion, the writ petition is very much maintainable and
10.in fact, should be entertained and decided on merits. At this stage, Mr. Deshpande, learned Counsel submits that since the question would be of seeking anticipatory bail, the petitioners need not surrender before he Court and that, therefore, they can apply afresh for anticipatory bail. It is not possible to accept this contention inasmuch as, the Court which has cancelled the anticipatory bail, on the ground that the petitioners have failed to comply with the conditions of bail, would not be willing to grant anticipatory bail to them afresh. Had that been the case, the Court would not have cancelled the anticipatory bail, at all, and at the most, would have imposed further stringent conditions. In my opinion, the petitioners have no effective and efficacious remedy.Coming to the facts of the case, it is clear that, that 11.the petitioners did not attend the police station on 14.4.2013, is not an admitted position. It is in dispute. According to the petitioners, they did attend the policestation and that, actually, the Investigating Officer was not present there. The petitioners did produce a certificate
from the Station House Officer showing that they had attended the police station. It is nobody's case that the said certificate is forged, or that it has not been issued by the
Station House Officer, who was on duty, at the material time. The only contention is that the certificate has been subsequently obtained which, in my opinion, does not
indicate that the facts stated therein must necessarily be untrue. Further, the Investigating Agency's case is not that the Investigating Officer was present at the police station when the petitioners were supposed to attend the same.
fact, the petitioners have claimed that they had given a telephone call from their cellphone to the cellphone of the Investigating Officer and that, if the tower location of the respective cellphones, at the material time, would be ascertained, the fact that the petitioners were present at the police station; but, the Investigating Officer was not present, would easily be ascertained. The Investigating Agency has not made any attempt to refute this contention or to carry out investigation to show the untenability of the claim made
12.by the petitioners. Apart from this, absence of the petitioners on one date is not the crucial aspect of the matter. There is no law which says that on a single failure to attend the police station, bail granted to a person would automatically be cancelled. If there is a failure to comply with a condition, the Court is required to seek explanation from the accused persons and then judge whether the failure was willful and
deliberate, and further, whether for that lapse, the extreme step of cancellation of bail should be taken or not? Here, the Court has taken it for granted that once the condition imposed by the Court is breached, cancellation of bail would automatically follow.
13.Mr. Deshpande, learned Counsel has drawn my attention to a decision of the Supreme Court of India in case of State of Punjab v. Raninder Singh and Anr [AIR 2008
igSC 609]. All that this judgment lays down is that, it would be permissible for a Court to cancel the bail granted to an accused, if the accused commits breach of the condition to remain present before the Investigating Officer for interrogation. Nobody disputes this proposition and as aforesaid, it would be within the discretion of the Court to
cancel the bail in the event of such accused failing to comply with the condition of remaining present for interrogation. In this case, the fact that, the petitioners had
not complied with the condition, itself is not satisfactorily established. Moreover, whether for that reason, the bail was required to be cancelled, was also not considered by the learned Additional Sessions Judge, who appears to have given up to the stiff resistance to grant of bail put forth by the Investigating Agency; obviously, at the instance of the first informant.
14.It is interesting to note that the order granting bail, required the petitioners to remain present whenever they would be called by the Investigating Officer. Assuming that the petitioners did not remain present before the Deopur Police Station on 14.4.2013, a sincere and bonafide Investigating Agency, would have again asked them to remain present on the next date, or soon after 14.4.2013. Admittedly, this was not done.
On 30.4.2013, an application for cancellation of bail was made. It was decided on 29.8.2013. During the intervening period also, no attempt was made to call the petitioners at the police station for interrogation. Apart from this, when the petition came
up before this Court on 21st September, 2013 and was adjourned to 8.10.2013, this Court specifically made it clear that the petitioners would be required to attend the Police
Station during the intervening period, as and when called by the Investigating Officer, on giving either a notice in writing, or by sending S.M.S. The petitioners were not called in
spite of this observation and direction given by this Court. Again, on 8th October, 2013, the similar direction was given to the petitioners by this Court; but, admittedly, the petitioners were not called at any time for interrogation even thereafter. When the matter appeared on Board of this Court on 11th October, 2013, again this direction was
repeated; but, again, not even a S.M.S. was sent to the petitioners, requiring them to attend the Police Station.
15.It is, therefore, clear that the presence of the petitioners, is not really felt necessary by the Investigating Agency; but, what is aimed is that they should be somehow kept in custody. There is no other explanation, otherwise, for not calling the petitioners to attend on any date, assuming that they had failed to attend on 14.4.2013.
16.The application for cancellation of bail does not appear to be bonafide. It appears to be basically due to a desire of punishing the petitioners for the alleged offences, without a trial. The order passed by the Additional Sessions Judge, cancelling the bail order, is contrary to the well settled principles of Law. The same has been passed without trying to ascertain, even prima facie, the correctness of the facts alleged by the Investigating Agency. No efforts were made by the Investigating Agency to investigate into the complaint of the noncognizable offence lodged by the first informant, by taking an appropriate order from the Magistrate. Thus, there was no attempt either on the part
of the Investigating Agency, or on the part of the Court, to verifyat least, prima facie,the truth of the allegations levelled against the petitioners. The impugned order, being patently illegal and perverse, needs to be interfered with, by exercising the Constitutional jurisdiction of this Court.
17.The petition is allowed. The impugned order is set aside. Rule is made absolute in the aforesaid terms. Needless to say that the petitioners shall attend the police station and make themselves available for iginterrogation and investigation, as and when required by the Investigating Officer and, shall comply with all other express and implied conditions of bail.
(ABHAY M. THIPSAY, J.)
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