1 1 APPLN.5317.12 4200.12 n 4207.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
APPELLATE SIDE JURISDICTION
CRIMINAL APPLICATION NO. 5317 OF 2012
The State of Maharashtra,
(Through LCB, Latur). ... APPLICANT
VERSUS
Sayyad Abdulhak Sayyad Khaja,
Age:- 21 years, Occ:- Education
R/o. Nideban Ves,
R/o. Udgir, Tq. Udgir, Dist. Latur. ... RESPONDENT
...
Mrs.S.G.Chincholkar, APP for The Applicant.
Mr. R.B Narvade Patil, Advocate for the Respondent.
...
WITH
CRIMINAL APPLICATION NO. 4200 OF 2012
The State of Maharashtra,
Through,
P.I. Gandhi Chowk,
Police Station, Latur. ... APPLICANT
VERSUS
1. Ramesh s/o Malikarjun Swami,
Age : 28 years, Occu. Labour,
R/o. Papnash Mandeer,
Dharmashala, Bidar [ Karnataka State ]
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2. Santosh S/o. Gundappa Kalshetti,
Age : 31 years, Occu. Labour,
3. Jahangir Babumiya Bhalke,
Age : 27 years, Occu. Labour,
Both R/o. Yenegur, Tq. Umerga,
District : Osmanabad. ... RESPONDENTS
...
Mrs.S.G.Chincholkar, APP for the Applicant.
Mr. D.S.Mali, Advocate for Respondent Nos.2 and 3.
ig ...
AND
CRIMINAL APPLICATION NO. 4207 OF 2012
The State of Maharashtra,
Through,
P.I. Gandhi Chowk,
Police Station, Latur. ... APPLICANT
VERSUS
Ismile s/o Ibrahim Khan,
Age : 35 years, Occu. Labour,
R/o Hatte Nagar, Latur. ... RESPONDENT
...
Mrs.S.G.Chincholkar, APP for the Applicant.
Mr. Sachin S. Panale, Advocate for Respondent.
...
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3 1 APPLN.5317.12 4200.12 n 4207.12
CORAM : T.V. NALAWADE, J.
DATE : 16th December, 2013.
ORAL ORDER:
1 All the three applications are filed under Section 439(2) of
the Code of Criminal Procedure for cancellation of bail granted by the learned Additional Sessions Judge of the Court of Sessions, Latur. The first proceeding is filed against Sayyad Abdulhak Sayyad Khaja, who had filed Application No.193 of 2012 in Sessions Court. The second proceeding is filed as against Accused Ramesh Malikarjun Swami, Santosh Gundappa Kalshetti and Jahangir Babumiya Bhalke, who had filed Application No.233 of 2012 in Sessions Court and the last proceeding is filed against Accused Ismile Ibrahim Khan, who had filed Application No.223 of 2012.
2 Both the sides are heard. This Court has perused the record.
3 The crime is registered on the basis of report given by one
Police Naik, Sanjay Wasant Kale. He was attached to Anti Terrorist
Squad of the Special Branch, Latur. On 25th April, 2012, this squad
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received secrete information that one Abdullah, Respondent from proceeding No.5317 of 2012 was to come at Vivekanand Chowk, Latur in a car and he was carrying counterfeit currency notes. Sub-Divisional Police Officer Smt. Dipali Ghadge took action. In dispursed condition, they waited at the spot for the arrival of this accused.
4 As per the description received by the Police, car bearing No.MH 24/V 7086 came to the spot at about 07:30 pm. The Respondent from first proceeding and his close relative Shaikh Arfad (juvenile offender) were present in the car. Police took action and both these persons were held. When the personal search of the Respondent from the first proceeding was taken in the presence of Panch witnesses, 10 counterfeit currency notes of Rs.1,000/- denomination each were recovered from the pocket of pant of this Respondent. From the possession of the juvenile offender, 5 similar counterfeit currency notes were recovered. In search of the car, from front portion, 14 similar counterfeit currency notes were recovered and more similar counterfeit currency notes were recovered from the seat cover of back seat. Cash amount of Rs.40,000/- was also recovered and this cash consisted of 21 ::: Downloaded on - 23/12/2013 20:35:35 ::: 5 1 APPLN.5317.12 4200.12 n 4207.12 currency notes of Rs.1,000/- denomination each and 38 currency notes of Rs.500/- denomination each. The counterfeit currency notes and the aforesaid cash amount came to be seized. They were found in possession of mobile handsets and they were also taken over.
Panchanama of the seizure came to be prepared and on the same day, the report came to be given against the Respondent from first proceeding and his relative. The car was bearing sticker of political party, which was ruling Maharashtra at the relevant time and it was showing that car was belonging to the Deputy President of District, Latur of that party.
5 Crime was registered for the offence punishable under Section 489(B) and 34 of the Indian Penal Code. Assistant Police Inspector made investigation of the case and charge-sheet is filed against these two persons and other persons from who, similar counterfeit currency notes came to be recovered during the investigation. Some of the accused are the Respondents from the remaining two proceedings.
6 Accused Abdullah disclosed during the interrogation that currency notes were brought by him from one Munir of Bihar State. He also disclosed that Arfad was in possession of the currency notes, which ::: Downloaded on - 23/12/2013 20:35:35 ::: 6 1 APPLN.5317.12 4200.12 n 4207.12 were handed over to Arfad by him. The statements are recorded to the effect that though the car is standing in the name of the relative of accused Abdullah, the car was in his use and the mother was the Vice President of the District of a political party, at the relevant time.
7 During the course of investigation, Abdullah gave statement under Section 27 of the Evidence Act and that led to the discovery of one pistol worth Rs.65,000/- and three live cartriges. It revealed that such weapon was kept as Abdullah was involved in the business of circulation of counterfeit currency notes. This recovery was made on 28th Arpil, 2012 and then the crime for possession of the arm under the Arms Act was also added. This offence is punishable under under Section 25(1)(A) of the Arms Act. More counterfeit currency notes were recovered.
8 From the information supplied by Abdullah and on the basis of other information, the Police traced other accused, Respondents from other case. Ismile (Respondent from proceeding No.4207 of 2012) came to be arrested on 9th May, 2012. Respondents Ramesh, Santosh and Jahangir came to be arrested on 20th May, 2012 and they are from proceeding No.4200 of 2012. Munir came to be arrested on 14th July, ::: Downloaded on - 23/12/2013 20:35:35 ::: 7 1 APPLN.5317.12 4200.12 n 4207.12 2012 and one more accused Imitiyaz came to be arrested on 1st July, 2012. They were all found in the illegal business of circulation of counterfeit currency notes.
9 During the investigation, it transpired that the accused were collecting counterfeit currency notes from Munir of Bihar State and for purchasing the currency notes, the Respondents were depositing money in two accounts opened in State Banks in the names of persons like Nisar and Munir. One account in the name of one more person from Bihar was also detected and in that account also, the Respondents were depositing money. Relevant Bank slips came to be collected from the Bank during the investigation and the information is collected to show that the amounts were deposited by the Respondents. On each occasion, the amount of around Rs.25,000/- was deposited and there were more than 30 such occasions. Attention of this Court was drawn by the learned APP to the xerox copies of the slips , which are present in the papers of investigation.
It transpired during the investigation that accused Abdullah had already circulated counterfeit currency notes of around Rs.4 Lakh. Accused Ismile had circulated counterfeit currency notes of around Rs.5 Lakh.
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10 During the investigation, accused Ismile gave statements under Section 27 of the Evidence Act and he produced three counterfeit currency notes of Rs.1,000/- denomination each from his house on 12th May, 2012. Similarly accused Santosh gave statements under Section 27 of the Evidence Act and he produced two counterfeit currency notes of similar denomination from his house on 25th May, 2012. In similar manner Jahangir produced two counterfeit currency notes and Ramesh produced the counterfeit currency note of similar denomination.
11 There are statements of witnesses showing that in the past, one case was filed against Munir for circulation of counterfeit currency notes and this person was contacted by the Respondents - accused and they also decided to get involved in that racket. There are statements of some persons like a person working at petrol pump showing that on one occasion, Abdullah had tried to use counterfeit currency note of Rs.1,000/-
and that had happened three months prior to his arrest. When the witness realized that it was a fake currency note, Abdullah appeared ::: Downloaded on - 23/12/2013 20:35:35 ::: 9 1 APPLN.5317.12 4200.12 n 4207.12 frightened and then he gave other currency note to the witness. There are statements of other witness like Shivkumar to the effect that he had seen Ramesh, Santosh involved in such activities and they had given 20 such currency notes.
12 There are statements of witnesses showing that these Respondents were meeting Munir and they were collecting the counterfeit currency notes at fixed destination after depositing of the amount in the aforesaid accounts.
13 The Investigating Agency has collected opinion of expert, Government Press, Nashik and it is to the effect that the aforesaid currency notes are forged.
14 The record shows that already a case was filed against Munir at Crime No.88 of 2007 in Udgir Police Station, District Latur for the offence punishable under Section 489 (A)(B) and (C) and also Section 420 and 120(B) of the Indian Penal Code. The record shows that the against Abdullah, crime at Crime No.13 of 2011 for the offence punishable under Sections 307 and 149 of the Indian Penal Code, Udgir Police Station and one more offence at Crime No.63 of 2011 was registered for ::: Downloaded on - 23/12/2013 20:35:35 ::: 10 1 APPLN.5317.12 4200.12 n 4207.12 the offence punishable under Sections 294 and 324 etc. of the Indian Penal Code. As against Ismail, Crime No.165 of 2008 was registered for the offence punishable under Section 302 of the Indian Penal Code in Umargaon Police Station and as against Ramesh, Crime No.113 of 2008 was registered in Osmanabad Police Station for the offence punishable under Section 20-B of NDPS Act. As against Santosh, Crime No.11 of 2009 was registered in Umagraon Police Station, Osmanabad for the offence punishable under Section 395 of the Indian Penal Code and as against Jahangir, similar crime was registered and he was also involved in Crime No.11 of 2009, registered in Umargaon Police Station. Accused Ismile was in same jail when accused Munir was kept in the jail in aforesaid case. All these circumstances are consisted with the case of the State that they had formed racket for circulation of fake currency notes.
15 It appears that the Sessions Court has virtually accepted the defence taken by accused Abdullah that due to political rivalry of two groups of political parties of his mother, he is falsely implicated. There is not only record of aforesaid nature, but there is record like bank accounts ::: Downloaded on - 23/12/2013 20:35:35 ::: 11 1 APPLN.5317.12 4200.12 n 4207.12 of some persons from Bihar opened in Latur district and other place and in those accounts, the Respondents were depositing amount for purchasing fake currency notes. There are also statements to show that the Respondents were actually using the fake currency notes and those statements are already referred. As per the record, fake currency notes of more than Rs.10 Lakhs were already circulated by these persons on the date of arrest of Abdullah.
16 The order made by the learned Additional Sessions Judge in favour of Abdullah shows that the Sessions Court has not properly considered the record of seizure etc. and the learned Judge has virtually scrutinized the material, which can be done only during trial. The circumstance that more material came to be recovered on the basis of statements given under Section 27 of the Evidence Act by Abdullah, is virtually ignored by the Sessions Court. The circumstance that only after arrest of Abdullah, the Police got clue of the remaining persons came to be arrested and more fake currency notes came to be recovered, is not at all considered by the Sessions Court. The order was made in June, 2012 by the Sessions Court when the aforesaid material was available for ::: Downloaded on - 23/12/2013 20:35:36 ::: 12 1 APPLN.5317.12 4200.12 n 4207.12 perusal.
17 The Court deciding bail application is not expected to scrutinize the material to the extent as done by he Sessions Court. The Court is also not expected to consider the defence of the accused like false implication due to political rivalry when there is record of aforesaid nature. The Court is not expected to make observations of nature that the material is suspicious and cannot be believed. Further, the aforesaid record like involvement of these persons in other criminal cases, is not at all considered by the Sessions Court and no reasons are given for the same. The record and circumstance show that liberty granted to all, including Munir was misused by them and they indulged in aforesaid activities. The Court considering bail application, is expected to consider such circumstance. Such offence affects economy of nation. The nature and the gravity of the offence are not considered by the Sessions Court.
This Court has no hesitation to observe that the Sessions Court has committed gross error in holding that the offence punishable under Section 489 (B) cannot be made out from the aforesaid record. It is clear that such observations came from the learned Additional Sessions Judge ::: Downloaded on - 23/12/2013 20:35:36 ::: 13 1 APPLN.5317.12 4200.12 n 4207.12 as the relevant material was not at all considered by the learned Additional Sessions Judge. The use and circulation of fake currency notes has increased and it can be said that the Courts are also responsible for the same as bail is granted to the persons involved in circulation of fake currency notes.
18 For Applicant, reliance was placed on some reported cases.
It was submitted that no breach of condition was committed by the Respondents and so bail cannot be can cancelled. The five reported cases are as under:
i. [(2010) 6 SCC 753];
Devendar Kumar and another Vs. State of
Haryana and others
ii. [2004) 13 Supreme Court Cases 617];
Ramcharan Vs. State of M.P.
iii. [1995 (1) SCC 349];
Dolat Ram Vs. State of Haryana.
iv. [1984 AIR (SC) 372];
Bhagirathsingh S/o. Mahipat Singh Judeja
Vs. State of Gujarat.
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v. [2009 (3) Bom. C.R. (Cri.) 662];
Rameshwar Ayodhya Saw Vs. State of
Maharashtra.
19 There is no dispute over the preposition that whenever there
is breach of condition, the bail can be cancelled. However, that is not the only circumstance when bail can be cancelled. In the case reported as Puran Vs. Rambilas and Anr, reported as AIR 2001 SC 2023, the following observations are made by the Apex Court:
"While cancelling bail under Section 439 (2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not at all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions ::: Downloaded on - 23/12/2013 20:35:36 ::: 15 1 APPLN.5317.12 4200.12 n 4207.12 Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society."
20 Thus, the Court has power under Section 439(2) of the Code of Criminal Procedure to cancel the order of bail when the Court granting bail has committed gross error in not considering relevant material and also on the point of law.
21 In view of the aforesaid position of law and the facts and circumstances of the case, this Court holds that the orders made by the learned Additional Sessions Judge in aforesaid three proceedings need to ::: Downloaded on - 23/12/2013 20:35:36 ::: 16 1 APPLN.5317.12 4200.12 n 4207.12 be set aside. It appears that already the order made in favour of one Ramesh is cancelled by the Sessions Court on the ground that he was not turning up to face trial and he is taken in custody. He has filed application for bail again to this Court bearing Criminal Application No. 6034 of 2013. In view of the observations made by this Court, the application bearing No.6034 of 2013 could have been disposed of immediately, but the learned counsel for the Applicant submits that he wants to argue extensively in that application. So, that application is kept pending. In any case, the orders made by the learned Additional Sessions Judge cannot sustain in law.
22 In the result, all the applications are allowed. The orders made by the learned Additional Sessions Judge in aforesaid three criminal applications are hereby set aside. The relief of bail granted in favour of the Respondents stand vacated. Time of three weeks is granted for surrender during which, they may challenge the order of this Court.
[ T.V. NALAWADE, J. ] ndm ::: Downloaded on - 23/12/2013 20:35:36 :::