Dinesh Hilal Mahajan vs The State Of Maharashtra
2013 Latest Caselaw 46 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                             
                                                     
                     BENCH AT AURANGABAD.

            CRIMINAL WRIT PETITION NO. 811 OF 2013




                                            
     1. Dinesh Hilal Mahajan,
     age 30 years, occu. service,
     r/o 702, Opp. Pimpal Gurav,




                             
     Bus Stop, Navbi Sangvi, Pune,
     taluka and dist. Pune. 
               
     2. Ushabai w/o Hilal Mahajan,
     age 60 years, occu. Household,
              
     r/o 74, Ramkrishna Nagar,
     Nakane Road, Dhule Taluka 
     and District Dhule. 
      


     3. Nilesh s/o Hilal Mahajan,
     age 26 years, occu. Education,
   



     r/o 74, Ramkrishna Nagar,
     Nakane Road, Dhule Taluka 
     and District Dhule.                      ... PETITIONERS. 





          VERSUS

     1. The State of Maharashtra,
     (through Police Station,





     Deopur Dhule).                           ... RESPONDENT.

                                   ...
          Advocate for Petitioners : Mr.Ghanekar Nilesh S.
               APP for Respondent : Mr.V.P. Kadam,
          Mr.C.R. Deshpande, Adv. (For assistance of APP). 
                                   ...
                                        




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                                      CORAM : ABHAY M. THIPSAY, J.

Dated: October 18, 2013.

ORAL JUDGMENT:

1. Rule. By consent, Rule is made returnable forthwith.

By consent, heard finally.

2. 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 498-A, 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:

" ORDER

Application is allowed.

Deopur Police station is directed to release the

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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.

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 co-operate in the investigation."

3. On 30.4.2013, the Investigating Agency, through the

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

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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

withdrawing the F.I.R.

5.

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 the first informant, opposing the

writ petition.

7. Mr. Deshpande, learned Counsel raised a preliminary

objection as to the maintainability of the writ petition.

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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.

8. I am unable to accept this contention of the learned

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

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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

in fact, should be entertained and decided on merits.

10.

At this stage, Mr. Deshpande, learned Counsel

submits that since the question would be of seeking

anticipatory bail, the petitioners need not surrender before

the 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.

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11. Coming to the facts of the case, it is clear that, that

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 police

station 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. In

fact, the petitioners have claimed that they had given a

telephone call from their cell-phone to the cell-phone of the

Investigating Officer and that, if the tower location of the

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respective cell-phones, 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

by the petitioners.

12. 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

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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

SC 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

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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

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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

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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 non-cognizable 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

verify-at 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.

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Rule is made absolute in the aforesaid terms.

Needless to say that the petitioners shall attend the

police station and make themselves available for

interrogation 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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