The present application has been filed by the applicant-original complainant for recalling of the order passed in Criminal Misc. Application No.11422/2010 dated 01.10.2010 granting anticipatory bail to the respondents nos.2 to 8-original accused on the grounds set out in detailed in this application.
Learned Senior Counsel, Mr.N.D. Nanavati appearing with learned counsel, Mr.Mousam Yagnik for the applicant-original complainant submitted that the respondent nos.2 to 8-original accused have been granted anticipatory bail as per the order passed in Criminal Misc. Application No.11422/2010 dated 01.10.2010. However, he submitted that the false statements have been made and the Court has been misled, on the basis of which, the anticipatory bail came to be granted by the aforesaid order. He emphasized and submitted that it has been falsely stated about the age, for which, he referred to the affidavit (page no.29) and submitted that the said affidavit was filed before the Revenue Authority in respect of the persons, who were not in existence and in order to claim the benefit of higher unit under the ULC Act, such false declaration has been made. He further submitted that it was also falsely stated that some of the applicants were minor though in fact they were not. He referred to the order passed by this Court in Criminal Misc. Application No.11422/2010 and submitted that the observations have been made referring to this aspect and the Court has made a note that the applicants were minor, forms were filled in by the father or the elderly persons of the family. He submitted that on this basis, the anticipatory bail was granted and it was the relevant circumstances for the purpose of grant of anticipatory bail, which has been found to be false. Learned counsel, Mr.Nanavati has also submitted that had the facts were properly placed before the Court, the Court might not have entertained the application for anticipatory bail. He emphasized and submitted that not only this but after the grant of anticipatory bail, pursuant to the order passed in Criminal Misc. Application No.11422/2010 as per one of the conditions, the applicants were required to make themselves available on 07.10.2010, however, realizing that perhaps some application may be moved, they propounded reporting before the I.O. and on that basis, the Investigating Officer had also implemented the order of the anticipatory bail and, thereafter, the application for regular bail is also moved before the Sessions Court. Learned counsel, Mr.Nanavati submitted this this reflects the motive. He referred to the papers in detail, particularly produced on record with the affidavit at page no.29 as well as the documents with regard to school leaving certificate at page nos.33, 34, 36, 37 and also other papers and submitted that the applicant had not studied in the school, for which, school leaving certificate is produced and in fact, information was called for from Laxmiben Dahyabhai High School, which is placed on record on page nos.50 & 84. He submitted that the respondents-original accused have not studied in the school of Nagar Prathmik Shikshan Samit, Surat but in the Laxmiben Dahyabhai High School, which is evident from the documents including the details given at page no.50 and other school leaving certificate produced along with this application. He, therefore, submitted that it only suggests the motive and the conduct on the part of the respondents-original accused and, therefore, the said order obtained by such misrepresentation or fraud should be recalled. Learned counsel, Mr.Nanavati, therefore, strenuously submitted that it amounts to over reaching the process of the Court and, therefore, the order granting anticipatory bail may be recalled as it has been passed considering the incorrect statements, which have been considered by this Court.
Learned counsel, Mr.A.D. Shah appearing for the respondents-original applicants (original accused) submitted that the order passed in Criminal Misc. Application No.11422/2010 dated 01.10.2010 by this Court has been implemented as they have surrendered and they have been arrested and, thereafter, the application for regular bail has been moved before the Sessions Court as required under the law. He, therefore, submitted that the order of anticipatory bail has ceased to have exist as it has been given its effect and implemented and, therefore, there is no question of recalling of the order. Learned counsel, Mr.A.D. Shah has also submitted that once the order is passed granting anticipatory bail and it has been implemented, the Court has no jurisdiction to recall the order even under Section 482 of the Criminal Procedure Code and the application could be filed for cancellation of bail. However, he submitted that before it could be cancelled, the order has been given effect and, therefore, the applicant-original complainant can contest on merits the regular bail application before the Sessions Court, which is pending for hearing as per the order passed by this Court earlier in this application. Learned counsel, Mr.A.D. Shah has also submitted that there is no fraud and the declaration with regard to ULC Act came to be made in the year 1989 and the offence for the said irregularities or so-called false declaration has been registered pursuant to the complaint filed by the complainant in the year 2010. Learned counsel, Mr.A.D. Shah, therefore, submitted that the false declaration made before the authorities under the ULC Act for the purpose of claiming higher units is one aspect, for which, the complaint is sought to be made in the year 2010. Therefore, considering this, the order of anticipatory bail was passed in Criminal Misc. Application No.11422/2010, which has been given effect to. Therefore, learned counsel, Mr.Shah submitted that it is not the only fact that they were minor, which has been considered and on that basis, the anticipatory bail has been granted. However, considering the over all circumstances and the facts, the order was passed in Criminal Misc. Application No.11422/2010 by this Court. He further submitted that even if few respondents or the original accused were not minor but they were young and naturally in such cases, elderly persons of the family would be deciding where the signatures are required to be given as decided by the karta of the family and, therefore, this submissions imputing charges for the fraud or the irregularities are made only with a view to cause harassment and cancel the bail or to see that the bail is not granted to the respondents-original accused. He referred to the papers and submitted that the applicants before the authority has stated that there are three elderly persons of the family, who have expired and the applicants-respondents herein being members of the family were required to sign the forms as suggested by them. He has also referred to other papers including the order produced at page no.43 passed by the authority under the ULC Act. Learned counsel, Mr.A.D. Shah submitted that therefore when the order granting anticipatory bail is implemented and given effect to, it may not be recalled as there is no justification. Learned counsel, Mr.Shah submitted that the complainant has still right to contest the regular bail application on merits, which is pending before the Court. He, therefore, submitted that there is no custodial interrogation required and in any case, if the anticipatory bail could be granted, bail could also be granted and the Court has considered the fact and, therefore, the order may not be recalled and the present application may not be entertained.
In rejoinder, learned counsel, Mr.Nanavati submitted that the fact that the order obtained by misrepresentation and forged cannot be said to be valid and, therefore, what consequence has taken place that it is implemented and they have surrendered, cannot be said to be effective or proper. Therefore, once the Court finds some substance should not hesitate to recall the order and the Court has ample power under Section 482 of the Criminal Procedure Code and there cannot be any restraint powers of the Court to do the substantial justice. He submitted that ultimate purpose of justice should not be permitted to be frustrated and there is also provisions under Section 439(2) of the Criminal Procedure Code. He, therefore, submitted that the present application may be allowed.
Against the aforesaid submissions, learned counsel, Mr.A.D. Shah submitted that there is no need now of recalling of the order and in fact, he has also referred to the provisions of the Criminal Procedure Code and submitted that there is no such provisions to recall the order and he has also referred to the provisions of Sections 362, 482 and other provisions of the Criminal Procedure Code. He has also referred to and relied upon the judgment reported in AIR 2001 SC 2145 and submitted that the present application may not be entertained.
In view of the rival submissions, it is required to be considered whether the present application can be entertained or not.
As the Court is not required to consider in detail all these aspects, prima-facie it appears that the false declaration has been made before the Authority under the ULC Act for the purpose of getting more units under the ULC Act. This was in the year 1989 and in respect of such false declaration or irregularities, the present complaint came to be filed in the year 2010. Therefore, considering the nature of offence and facts couple with other fact, which has been reflected in Para No.2 while passing order in Criminal Misc. Application No.11422/2010 dated 01.10.2010, the observations have been made including that the applicants were minor at the relevant time. Therefore, though the fact about the respondents-original applicants (original accused) in Criminal Misc. Application No.11422/2010 being minor was definitely relevant, which was considered. It was not the only aspect which can be said to have a bearing while deciding Criminal Misc. Application No.11422/2010 for granting anticipatory bail and the nature of offence, time gap i.e. the incident relates to the year 1989, for which, the complaint is filed in the year 2010 that too with reference to the false declaration before the ULC Authority with a view to claim more unit under the ULC Act was considered. Further, the role that the applicants had signed the documents as per the say of the elderly person of the family would also be considered and that was also relevant fact while deciding this application assuming that the respondents herein-original applicants (original accused) may not be minor. Facts remain that in such affairs, elderly people in the family will decide and they would sign the forms, which cannot be overlooked. Therefore, there is no quarrel on the submission made by the learned counsel, Mr.Nanavati that the false declaration has been made and false statement with regard to age has been made, which was considered as one of the relevant aspect while deciding Criminal Misc. Application No.11422/2010 granting anticipatory bail but it cannot be said to be the only aspect, which has been considered. Therefore, the present application for recalling of the order cannot be entertained, particularly when the order has been given effect to as stated at bar. Further, while granting the aforesaid anticipatory bail pursuant to the order passed in Criminal Misc. Application No.11422/2010 dated 01.10.2010, the condition has also been there leaving it open for the I.O. to file an application for remand, if custodial interrogation is necessary. Therefore, that aspect can also be taken care of. Further the complainant can always contest the application for regular bail pending before the Sessions Court and it can be decided on merits.
A useful reference can be made to the observations made in a judgment reported in AIR 2007 SC 1450 in case of D.K. Ganesh Babu V/s P.T. Manokaran & Ors., wherein the Court had also observed that when the order granting bail was already given effect to, which was not cancelled and, therefore, the regular bail application could be decided on merits after considering the relevant facts.
Though this aspect has been decided as discussed above, ti is expressly made clear that there is no bar on jurisdiction of the Court for the purpose of recalling of the order as inherent jurisdiction under Section 482 of the Criminal Procedure Code would always permit the Court to recall the order in the interest of justice if circumstances so demand. Therefore, the ultimate object of justice has to be considered, which would be a guiding factor for taking appropriate measure including recalling the order if the circumstances demand, particularly, in case of allegations of fraud. However, without any further elaboration in the facts of the present case, the present application cannot be entertained.
Accordingly, the present application filed by the applicant-original complainant for recalling of the order passed in Criminal Misc. Application No.11422/2010 dated 01.10.2010 granting anticipatory bail to the respondents-original accused is hereby rejected. Rule is discharged.
This order will not be treated as having observed anything and at the same time, the application for regular bail pending before the Sessions Court shall be decided in accordance with law on merits. The Investigating Officer will have every option to consider appropriate measure as may be advised as per the order dated 01.10.2010 granting anticipatory bail to the accused.
Stay granted vide order dated 06.10.2010 for pursuing the Criminal Misc. Application No.2280/2010 pending before the Sessions Court, Surat is hereby vacated. The Sessions Court is directed to proceeded with the said application on merits without influenced by this order.
(RAJESH H.SHUKLA, J.) /patil Top