1. This application has been preferred under Section 439 read with Section 482 of the Criminal Procedure Code, inter alia seeking to set aside the order dated 16th May, 2012 passed by the learned Additional Session Judge, Deesa in Criminal Misc. Application No. 642 of 2011 and also for release of the applicant on bail.
2. It would be desirable to brief the facts of the instant case to appreciate controversy between the parties.
3. The respondent no. 2 is the original complainant of C.R. No. I.-204/2009 registered with Deesa Rural Police Station on 10th December, 2012 for the offences punishable under Sections 193, 196, 209, 465, 468, 471 and 114 of the Indian Penal Code.
4. The case of the prosecution is that the complainant is having land of joint ownership bearing survey nos. 158, 186 pk.5, 152 pk.1, 152 pk.2 and 140 admeasuring 57-58 vighas situated at Village-Dama. The agreement to sale was executed on 5th June, 2007 with the applicant fixing the rate of Rs.4,31,000/- per vigha and the entire sale consideration was to be paid on or before 5th to 15th June, 2008. The possession was to be handed over on receipt of full consideration.
5. It is alleged that though full consideration was not paid to the complainant, the applicant-
accused and others tried to take the possession of the lands but they failed to do so and thereafter, the applicant asked the complainant to execute the sale deed for some parcels of lands considering the amount paid to the
mentioning Rs.30,000/- per vigha instead of original price of Rs.4,30,000/- per vigha and also forged the signatures and on the basis of which, Suit came to be filed against them.
6. The complaint, in this regard, has been filed being C.R. No. I-204/2009. The applicant, therefore, approached this court by way of filing quashing petition which was not entertained.
7. For anticipatory bail, when he approached the Sessions Court in connection with this offence, the same was also not entertained and he came to be arrested.
8. It is the case of the applicant that the offences alleged against him since were exclusively triable by the Magistrate Court, he approached the learned Magistrate by preferring an application under Section 437 of the Criminal Procedure Code on 4th July, 2011 and the learned Additional Chief Judicial Magistrate, Deesa by order dated 5th July, 2011 released the applicant on regular bail.
9. The complainant, being aggrieved by the same, preferred Criminal Misc. Application No. 642 of 2011 before the Sessions Court, Banaskantha under Section 439(2) of the Criminal Procedure Code for cancellation of bail. The learned Additional Sessions Judge, Deesa by order dated 16th May, 2012 was pleased to allow the said application and canceled the bail granted by the learned Magistrate, Deesa.
10. Being aggrieved and dissatisfied with the impugned order dated 16th May, 2012, this application has been preferred, urging various grounds for challenge.
11. Learned senior advocate Mr. B. B. Naik with learned advocate Mr. N. P. Chaudhary appearing for the applicant urges that, against the order granting bail by the learned Magistrate, Criminal Revision Application is maintainable and on that ground alone, this court needs to exercise the discretion in favour of the applicant. It is further urged that while releasing the applicant on bail, the learned Magistrate has given cogent and convincing reasons and has taken into consideration each and every aspect of the matter. Therefore, the learned Sessions Judge ought not to have interfered with the order. On the ground of dismissal of quashing petition as also anticipatory bail preferred before the Sessions Court, the learned Sessions Judge entertained the application of the complainant. It is further urged that the charge sheet has also been filed and the case is based on the documentary evidence for which custodial interrogation of the applicant is not desirable. Since there being nothing to indicate any tampering with the witnesses by the present applicant, the bail granted by the learned Magistrate ought to have continued.
12. It is urged further that the applicant is an agriculturist and running his livelihood by doing said activities. If he is not enlarged on bail, his family would face starvation.
13. Learned senior advocate Mr. Naik has also urged that the complaint has been filed at a belated stage and on that ground alone, his request should be entertained. Moreover, the applicant has uncontrollable diabetes. Even the charge sheet has also been filed on 21st July, 2012. The case under section 467 of IPC was not made out earlier and therefore, as offences were triable by the Ld. Magistrate. He sought to rely upon the following decisions to substantiate this version:
a) 2012 (1) GLH 601 in the matter of Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara & Anr.
b) 2005 CRI. L. J. 1378 rendered in the matter of Raj Kumar Versus State of U.P. & Ors.
c) 2005 CRI. L. J. 1379 in the matter of Amar Nath Versus State of UP.
d) 2011 CRI L.J. 515 in the matter of Ambarish Rangshahi Patnigere & Ors. Vs.
State of Maharashtra
e) 2011 CRI. L. J. 526 in the matter of Mehndi Virani Vs. State of Maharashtra & Ors.
f) GLR 992(2) page 1291 in the case of Makwana Sambhubhai Chethabhai Vs. State of Gujarat.
g) 2008 (1) SC 474 in the matter of Hamid Vs. Rashid alias Rasheed & Ors.
h) 2012 (1) SC 40 in the matter of Sanjay Chandra Vs. Central Bureau of Investigation
i) 2012 SC 65 in the matter of Sharad Kumar and others Vs. Central Bureau of Investigation
14. Learned advocate Mr. Virat Popat appearing for the complainant has relied upon the affidavit-in- reply filed by the complainant. It is urged that the serious offence of forgery is alleged in the complaint itself and the accused have forged the agreement to sale which was confirmed by the report of Forensic Science Laboratory. Not only this, even the Civil Court has not believed the stand of the applicant and after a full fledged trial, civil suit filed by the applicant on the strength of forged document is dismissed. It is further urged that the investigation was transferred to Local Crime Branch Police Station, Palanpur on the representation made by the complainant. He also urged that this court in Special Criminal Application No. 1818 of 2012 had to direct the investigating agency to file charge sheet within a stipulated time period. It is further urged that there was a prayer made in Criminal Misc. Application No. 1770 of 2011 to add Section 467 of the Indian Penal Code. When action taken report was sought for, Investigating Officer submitted a charge sheet wherein two accused who are sons of the present applicant no.
1 have been exonerated and shown as witnesses. Another order was also passed by this Court in Criminal Misc. Application No.1770 of 2011, declaring action of the Investigating Agency bad for not submitting the report qua other two accused.
15. Learned advocate urged that accused is very influential and in the present case, when the alleged forgery is confirmed by the Forensic Science Laboratory and when the report to add Section 467 of Indian Penal Code now is directed to be kept along with FIR, the order of the Additional Chief Judicial Magistrate Court is rightly quashed by the Sessions Court.
16. It is further urged that the Sessions Judge has rightly said that the bail could not have been granted by the learned JMFC since Section 467 of Indian Penal Code prima facie made out from the material available and the learned JMFC was also not justified in granting bail on certain considerations which are not germane for exercise of power under Section 437 of the Cr. PC. He further urged that surprisingly the consideration which has weighed with the Judicial Magistrate is that the sons of the accused and accused himself are paying income tax of crores of rupees. Applicant has not gone to the custody even for a single day according to the learned advocate despite the need of custodial interrogation. He further urged that the learned Magistrate, while granting bail, had exercised powers wrongly and bail order is manifestly wrong and erroneous as accused was not in custody when application for bail was heard and even otherwise, the learned Session Judge has kept it open for the accused to file a fresh application since offence under Section 467 of the Indian Penal Code is made out. Learned advocate Mr. Virat Popat has relied upon the following judgments:
a) 1983 GLH 1013 in the matter of Vishnuprasad Dahyabhai Brahmbhatt Vs. State and others.
b) 2007 (0) GLHEL-SC 39123 in the matter of Hamida Versus Rashid @ Rasheed
17. Before dealing with the questions raised by both the sides based on facts, it would be appropriate to reproduce the law on the subject. The Bombay High Court in the case of Ambarish Rangshahi Patnigere & Ors. reported in 2011 CRL. L.J. 515 considered the powers of Magistrate to grant bail under Section 437 in respect of the offences punishable with sentence of death or life imprisonment. It is held that the Magistrate can consider and grant bail in case of offence punishable under Sections 326, 409 and 467 of the Indian Penal Code.
18. In this decision, the court accepted the well settled position of law that the grant of bail being interlocutory order though is not subject to revisional jurisdiction under Section 397 of Cr. PC, some superior courts by virtue of powers under Section 439(2) of Cr. PC can cancel the bail in appropriate cases if the superior courts find that the bail was granted acting upon irrelevant material and there was non application of mind or if there is failure to take note of statutory bar for grant of bail, or if there is manifest impropriety.
19. With regard to jurisdiction of grant of bail in the offence carrying punishment which may be life imprisonment, the court held that if the offence is punishable with sentence of death or life imprisonment, it is triable by Magistrate. It cannot be said that the Magistrate does not have jurisdiction to consider the bail application. He has relied upon the decision of the Bombay High Court reported in AIR 1927 Nagpur 53 in the case of Tularam Vs. Emperor
20. It would be relevant to reproduce at this stage the case reported in 2008 (1) SC 474 in the matter of Hamid Vs. Rashid alias Rasheed & Ors., wherein the petition was preferred under Section 482 and the question arose of its maintainability as the bail was granted to the accused for the alleged offences under Sections 324, 352 and 506 of Indian Penal Code by the Chief Judicial Magistrate. However, the case was converted into more serious offence as victim succumbed to injuries and Section 304 of Indian Penal Code was added. The accused did not apply for bail afresh after the offence under Section 304 was added but instead filed petition under Section 482 of CR. PC. and the Supreme Court held that the accused deliberately did not do so and filed a petition under Section 482 of Cr. PC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It would be relevant to produce herein paras-10, 11, 12 and 13 of the said decision as under:
“10. In the case in hand, the accused respondents could apply for bail afresh after the offence had been converted into u/s. 304 of the Indian Penal Code. They deliberately did not do so and filed a petition u/s. 482 of the Code of Criminal Procedure in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the accused respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition u/s. 482 of the Code of Criminal Procedure and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence u/s. 304 of the Indian Penal Code. The effect of the order passed by the High Court is that accused after getting bail in an offence u/s. 324, 352 and 506 of the Indian Penal Code on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted in to one u/s. 304 of the Indian Penal Code without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail u/s. 439 of the Code of Criminal Procedure, though available to the accused respondents, having not been availed of, the exercise of power by the High Court u/s. 482 of the Code of Criminal Procedure is clearly illegal and the impugned order passed by it has to be set aside.
11. Learned counsel for the appellant has submitted that charge u/s. 302 of the Indian Penal Code has been framed against the accused respondents by the trial court and some subsequent orders were passed by the High Court by which the accused were ordered to remain on bail for the offence u/s. 302 read with Section 34 of the Indian Pena Code on furnishing fresh sureties and bail bounds only on the ground that they were on bail in the offence u/s. 304 of the Indian Penal Code. These orders also deserve to be set aside on the same ground.
12. In the result, the appeal is allowed. The impugned order dated 1.7.2005 passed by the High Court and all other subsequent orders whereby the accused respondents were directed to remain on bail for the offence u/s. 302 read with Section 34 of the Indian Penal Code on furnishing fresh sureties and bail bonds are set aside. The accused respondents shall be taken into custody forthwith. It is, however, made clear that it will be open to the accused respondents to apply for the offence for which they are charged before the appropriate Court and in accordance with law.
13. Before parting with the case, we fell constrained to observe that, in spite of repeated pronouncements of this court that inherent power u/s.482 of the Code of Criminal Procedure should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under u/s. 482 of the Code of Criminal Procedure, the ultimate result whereof was that order of bail granted in favour of the accused for an offence under Ss. 324, 352 and 506 of the Indian Penal Code enured to their benefit even after the offence had been converted into one u/s. 304 of the Indian Penal Code and also subsequently when charge had been framed against them under Section 302 read with Section 34 of the Indian Penal Code. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail u/s. 304 or 302 of the Indian Penal Code, yet they got the privilege of bail under the aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions u/s. 482 of the Code of Criminal Procedure at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witness by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice.”
21. This court in the case of S.C. Mackwana Vs. State of Gujarat(Supra) held as under:
“3. It was submitted by the learned Counsel appearing for the applicant that this second application under Sec. 439(1) of the Criminal Procedure Code would directly lie before the High Court because the High Court also has a special power under that provision to release such person on bail. There can be no dispute about the fact that any person accused of an offence and in custody may be directed to be released on bail by the High Court or a Court of Sessions. Therefore, a person accused of an offence may directly apply to the High Court for bail and the High Court in its discretion can entertain such an application, though, ordinarily, an application ought to be made first to the Sessions Court which is a Court subordinate to the High Court. Once, however, an application is made to the Sessions Court and is considered on merits culminating in an order made by the Sessions Court, the power, contemplated to be exercised under Sec. 439(1), is exercised by that Court. When the Sessions Court rejects an application for bail made under Sec. 439(1) on merits, an order refusing to grant bail would be a judicial order. The Criminal Procedure Code makes elaborate provisions for appeals and revisions for challenging judicial orders. In all matters where appeals or revisions lie, subject to the conditions prescribed for the exercise of such powers, the High Court can pass appropriate orders exercising similar to those of the subordinate Courts while setting aside their orders. Judicial discipline demands that a judicial order made by the subordinate Sessions Court having powers concurrent to those of the High Court is invoked under Sec. 439(1) of the Code. The scheme of the Code clearly indicates that the judicial orders made by the subordinate courts hold the field until they are set aide by the higher judicial forum. The requirement to challenge the order of the subordinate court in no way detracts from the power conferred on the High Court under Sec. 439(1) of the Code. Therefore, for effective exercise of the powers of the High Court under Section 439(1), the validity of the order of the Sessions Court rejecting bail has to be examined. That order passed in exercise of the power under Sec. 439(1) would, as stated above, govern the field until set aside and substituted by an order made by the High Court under Sec. 439(1) of the Code.”
22. This court also in the case of Vishnuprasad Dahyabhai Brahambhatt Vs. State and others reported in 1983 GLH 1013 held as under:
“in view of Section-437(1) of the Criminal Procedure Code, the position to be considered is if any person is arrested by the police involving him in an offence of murder and when he is produced before the Magistrate, the Magistrate would see whether there are reasonable grounds to believe that the accused brought before him has been guilty of an offence punishable with death or imprisonment for life or not, and then shall consider whether he should release such a person on bail or not. Therefore, if the police would have brought an accused person before the Magistrate and the Magistrate had come to the conclusion that he had reasonable grounds to believe that the accused person had been guilty of an offence punishable with death or imprisonment for life, he could not release him on bail under Section 437(1) of the Code (Para-5).
The present case in which the accused persons are police officers, is still a stronger case because the Magistrate himself has inquired into the matter under Section 202 of the Criminal Procedure Code and has come to the conclusion that there was a prima facie case, meaning thereby, there appear reasonable grounds for believing that the accused persons have been guilty of an offence punishable with death or imprisonment for life. If that is so, it was not open for the Magistrate to release accused persons (opponent nos. 2 to 6) on bail.”
In case of Thakor Kanjibhai Shakarabhai and others Vs. Thakor Amabaram Kanjibhai and others reported in 1985(1)Crimes P.443, the Single Judge of Gujarat High Court held in the case where Section 326 of IPC was interpreted that:
“If a police officer arrests person on a reasonable suspicion of commission of offence punishable with death or imprisonment for life and forwards him to a Magistrate, the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that the accused has not been guilty of such an offence.”
23. This court, in the case of Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara (Supra), did not deem it fit to cancel the bail on the ground that the order of bail was passed two years back and during that period of two years, there was no material to indicate that the accused tried to tamper with the evidence or committed any other act affecting the fairness of the trial.
Yet in another decision in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in 2012(1) Supreme Court cases 40, the Apex Court held that “gravity cannot be decisive ground to deny bail and competing factors to be balanced by court while exercising bail particularly known as “2G Spectrum Scam Case” after referring to various judgment of the Apex Court and the law in regard to the grant or cancellation of bail is culled out thus:
39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer, the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purpose of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh V. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of bail in a non bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witness. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statements of witness run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have no remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that the accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State Exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trail or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge sheet.
44. Apex Court, in State of Kerala V. Raneef has held thus: (SCC p.789, Para 15) “15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so may years of his life spent in custody ? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of Course this is no the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case, the respondent has already spent 66 days in custody (as stated in Para 2 of his counter affidavit) and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Mantette in Charles Dicken’s novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille.”
45. In Bihar Fodder Scam (Laloo Prasad case) this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pretrial prisoners would not serve any purpose.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offence alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot loose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”
24. In light of the above decisions. It can be deduced that while considering bail application, prime consideration of the court must be to see the availability of accused at the time of trial and possibility of tampering the evidence on record. Sentiments of community cannot be the factor to be regarded, however, community’s interest may be a relevant criteria. Burden on Exchequer of undertrial is also considered by the Apex Court as one of the vital criterias. It also further emerges from these decisions that on inclusion of serious offence/s adding severity to the crime, without any cross-examining the case of accused on merit, grant of bail to him or his continuity on bail straightway is not appreciated by the Apex Court.
If one comes back to the facts of the present case, it is to be noted that the learned Judicial Magistrate, First Class granted bail to the applicant whereas the learned Session Judge cancelled the same under his powers of Section 439(2) of the Code of Criminal Procedure. It can be further noted that the request of the applicant to get the complaint quashed by way of filing petition under Section 482 of the Code of Criminal Procedure also has been turned down and his request for anticipatory bail at initial stage after quashing petition was dismissed, was also not entertained by the Sessions Court.
25. Learned Sessions Judge enjoys identical and parallel powers as held by this Court under Section 439 of IPC and this application at present is made inter alia praying to set aside such order of Sessions Court as also for grant of release of the applicant.
26. At the outset, the petitioner-applicant was given an opportunity by this court to make a choice to approach the trial Court in wake of addition of Section 467 of the Code of Criminal Procedure which was missing and when the application for bail was entertained by the Additional Chief Judicial Magistrate. However, it was submitted that the applicant cannot be relegated to the court concerned for this purpose. He chose to pursue here for setting aside the order of the learned Sessions Judge. It is objected to fervently however by the otherside that he has no jurisdiction to entertain the application when Section 467 clearly gets culled out from the record.
27. Three aspects emerge for this court to be considered in the present application:
a) Whether the order of Sessions Court requires interference on facts and law both?
b) Whether the Magistrate had power to grant bail in case of addition of offence punishable for life imprisonment?
c) Whether the application in the present form would entitle the applicant to be released on regular bail?
28. All the three aspects require combined discussion. It appears from the record that on 10th April, 2011, the accused was arrested and next day he was produced before the concerned JMFC who was holding the charge of that Court. He was released on interim bail till 13th April, 2011. Applicant sought extension of such order on 13th April, 2011 and the same was extended upto 19th April, 2011. On 20th April, 2011, when the matter came up before the regular court for hearing, it did not find this approach proper and therefore, application for extension of interim bail was rejected.
29. The main bail application was disposed of by the court as accused did not remain present and warrant was issued which could not be served upon the accused as he was not traceable.
30. The Revision Application was filed before the Session Court by the accused on 20th June, 2011 which was disposed of directing the accused to make himself available and file an application for bail. On 4th July, 2011, the accused approached before the learned JMFC and filed an application for bail and without his going into custody & without any court-examining his case on merit, he was granted bail on 5th July, 2011, the very next day on rather strange consideration that the accused and his sons are paying income tax of crores of rupees and they also do lots of charitable work by giving donation etc. and that they are not likely to run away. The Sessions Judge, under Section 439(2) when was approached against such grant, it is held that as inclusion of Section 467 prima facie is culled out from the record available, he was not justified in granting bail.
31. It appears that, as mentioned herein above, the quashing petitions as well as anticipatory bail application preferred by the applicant have been dismissed. It has also culled out from the report of the Forensic Science Laboratory that the banakhat was forged.
32. It can be noted that the Banakhat being a valuable security and as per Section 30, since it is a document whereby legal right is created, with the allegation of applicant having forged the banakhat for the purpose of preferring the Civil Suit, the ingredient under Section 467 prima facie appears to be attracted.
33. In such a view of the matter, when the Sessions Court found prima facie that the offence under Section 467 was made out and also held that it was the duty of the learned Magistrate to apply his mind and consider as to what offence was made out, such order does not suffers from any vice & illegality or caprice nor would the same require any interference, except for a limited purpose of clarifying the same as is done hereinafter, no indulgence is warranted.
This finding is further fortified by the fact that the subsequently Investigating Agency has placed the report before the concerned court and offence under Section 467 of the Indian Penal Code has been added.
34. If the order of the Session Court is examined, it is an exhaustive order and there does not appear to be any reason for this court to interfere, except as mentioned hereinabove. It found an arbitrary exercise of powers by Ld.JMFC and manifest impropriety in passing the bail order by wrong and improper exercise of jurisdiction. The Sessions Court also noted the fact that the complainant had repeatedly stated that it was a case under Section 467 of the Indian Penal Code and Section 437 makes it apparently clear that Magistrate is required to see whether the reasonable ground exists that the accused has been guilty of offences punishable with death or life imprisonment and if so, he would not have jurisdiction to grant bail.
35. Strange considerations are regarded by the court concerned (Ld. JMFC) and having been impressed by the submissions of the applicant’s side of payment of crores of rupees of income tax and his donation of land to the Rabari community this grant of bail is made and is rightly held to be based on the materials & considerations which are alien & extraneous to the considerations permissible to be taken into account.
36. Again, when graver & far serious offence is made out under Section 467 of IPC, entailing punishment of imprisonment of life as held by the Apex Court in case of Hamid Vs. Rashid @ Rasheed (Supra), the exercise of discretion shall need to be after such inclusion which is absent in the instant case. Thus, as mentioned herein above, as Section-467 of Indian Penal Code has already been added and therefore also, there will be a need for the applicant to get an order afresh by applying once again for the bail. It is not correct to say that the learned Judicial Magistrate (First Class) would have no jurisdiction to entertain the application for bail once offence under Section 467 of IPC is added explicitly or when there is materials sufficient on record for the said purpose to so believe.
37. Both the judgments of this Court rendered in cases of Vishnuprasad Dahyabhai Brahambhatt & Thakore Kanjibhai Shakarabhai (Supra) do not lay down the ratio of excluding jurisdiction of this Court of Judicial Magistrate (First Class) in serious offences. He is however expected to apply his mind to the contents/materials on record and decide u/s.437 of Cr.PC whether to allow or reject such application of bail, particularly when offences involve entails punishment for imprisonment for life or with death. Thus, on having jurisdiction, he is expected to exercise discretion as mentioned in the statute and when there appears reasonable grounds for believing that the person seeking bail has been guilty of such offence punishable with death or imprisonment for life, he shall not be released on bail.
38. Provisions of Section 437 contemplates use of discretion and that can happen only if he has jurisdiction, as it would be virtually & effectually impossible for the court to use or not to use its discretion, if jurisdiction itself is not available to the JMFC Court. Neither from the language of provision nor otherwise it can be said that he lacks jurisdiction. Once reasonable grounds exist in connection with the applicant-accused, he shall not grant bail. In the instant case, despite sufficiency of materials attracting Section 467 of IPC, learned Judge chose to grant the bail and therefore, when the Sessions Court intervened only clarification in the order impugned required is in respect of jurisdiction of JMFC. It is also to be noted that trial of such offence is to proceed in the Court of JMFC. Thus, on examining merit & also in wake of inclusion of Section 437 of IPC explicitly, petitioner is expected to approach the trial court afresh & however without interfering with the order of Sessions Court by this court.
39. It has been submitted to this court by the learned counsel for the petitioner that once the order of Sessions Court is set aside by this Court, the applicant on due protection can be relegated to the Court of Sessions or to the Court of Judicial Magistrate for the said purpose. There being no requirement of any interference as discussed hereinabove to the order of the Sessions Court and as the applicant is required to approach the Trial Court for bail afresh as mentioned, this petition is dismissed, with caution that none of the observations made in this petition shall come in the way of either side when the petitioner approaches the trial court for fresh consideration on merit.
Rule is discharged with no order as to costs.
(MS SONIA GOKANI, J.)
40. At this stage, learned senior advocate Mr Naik makes a request to suspend operation of this order.
41. Learned Additional Public Prosecutor Mr. Kodedkar strongly objects to this grant on the ground that the prosecution case shall have to be read as whole and as the applicant has already been given an opportunity to approach the Court concerned for getting bail on addition of Section 467 IPC, the request need not be acceded to.
42. Learned advocate Mr. Popat also joins the learned Additional Public Prosecutor in his request and also further urges that the applicant does not require such protection, as he has not surrendered to the custody after the order of Sessions Court.
43. On having considered the submissions of both the sides and keeping in mind the fact that this Court though has upheld the order of the Sessions Court by virtue of the order of Sessions Court, the applicant whose bail had been cancelled was permitted to be on bail till he approached this Court and as he continued to enjoy this liberty till the date. This Court is of the opinion that on subsequently, added section, when he is permitted to approach the trial Court for a period of two weeks this liberty shall continue.
(MS SONIA GOKANI, J.) Chandrashekhar*