Bombay High Court
The State Of Maharashtra vs Sayyad Abdulhak Sayyad Khaja on 16 December, 2013
Bench: T.V. Nalawade
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 1 APPLN.5317.12 4200.12 n 4207.12
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
4 1 APPLN.5317.12 4200.12 n 4207.12
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
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
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,
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.
8 1 APPLN.5317.12 4200.12 n 4207.12
Samples of handwriting of these persons are collected for comparison
with the handwriting on the slips.
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
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
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
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
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
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.
14 1 APPLN.5317.12 4200.12 n 4207.12
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
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
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
