Nana @ Narsing Vishwasrao Nayak ... vs The State Of Maharashtra
2021 Latest Caselaw 9534 Bom

                                                                        904.WP.221.21.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                      CRIMINAL WRIT PETITION NO.221 OF 2021

1.       Nana @ Narsing Vishwarasrao Nayak,
         Age : 40 years, Occ. Business,
         R/o Tapdiya Estate, Hingoli.
2.       Rajkumar @ Raju S/o Vilas Nagre,
         Age : 39 years, Occ, Agril.,
         R/o as above
3.       Kailas S/o Subhash Manbolkar,                 (Resp. Nos. 3,5 and 6 are
         Age : 28 years, Occ: Agril.,                   dismissed by order
         R/o. Gadipura, Hingoli                         dated 19.04.2021)
4.       Balaji S/o. Narayan Sangle,
         Age : 31 years, Occ: Agril.,
         R/o Polamaroti, Hingoli.
5.       Bhagwat S/o Babarao Bangar,
         Age : 22 years, Occ. Agril.,
         R/o. Mangalwara, Hingoli.
6.       Laxman S/o Vilas Nagre,
         Age : 34 years, Occ: Agril.,
         R/o. Khed, Tq. & Dist. Hingoli                    ... PETITIONERS
                                                            (Orig. Accused)

         VERSUS

The State of Maharashtra,
through the Police Inspector,
Hingoli Town Police Station,
Tq. & Dist. Hingoli.                                       ... RESPONDENT
                                                           (Orig. Applicant)

                                      WITH

                      CRIMINAL WRIT PETITION NO.222 OF 2021

1.       Nana @ Narsing Vishwarasrao Nayak,
         Age : 40 years, Occ. Business,
         R/o Tapdiya Estate, Hingoli.
2.       Rajkumar @ Raju S/o Vilas Nagre,
         Age : 39 years, Occ, Agril.,
         R/o as above
3.       Kailas S/o Subhash Manbolkar,             (Resp. Nos. 3,5 and 6 are
         Age : 28 years, Occ: Agril.,              dismissed by order
         R/o. Gadipura, Hingoli                    dated 19.04.2021)

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                                                                           904.WP.221.21.odt




4.       Balaji S/o. Narayan Sangle,
         Age : 31 years, Occ: Agril.,
         R/o Polamaroti, Hingoli.
5.       Bhagwat S/o Babarao Bangar,
         Age : 22 years, Occ. Agril.,
         R/o. Mangalwara, Hingoli.
6.       Laxman S/o Vilas Nagre,
         Age : 34 years, Occ: Agril.,
         R/o. Khed, Tq. & Dist. Hingoli

                                                             ... PETITIONERS
                                                              (Orig. Accused)
         VERSUS

The State of Maharashtra,
through the Police Inspector,
Hingoli Town Police Station,
Tq. & Dist. Hingoli.                                         ... RESPONDENT
                                                             (Orig. Applicant)
                                      ...
Advocate for Petitioners : Mr. Rajendrra S. Deshmukkh, Senior advocate i/b.
                            Mr. Vikhe Pratap B.
                  PP for Respondents/State: Mr. D.R. Kale
                 Advocate for Assist to PP : Mr. S. S. Rathi
                                     ...

                                    CORAM   :   MANGESH S. PATIL, J.


                                    DATE    :   20.07.2021

JUDGMENT :

Heard. Rule. The Rule is made returnable forthwith. With the

consent of both the sides, the matter is heard finally at the stage of

admission.

2. The petitioners are impugning the order whereby the regular

bail granted to them under the provision of Section 439 (2) of the Code of

Criminal Procedure has been cancelled, post a request put up by the

904.WP.221.21.odt

prosecution, to add, in addition to the earlier sections under the Indian

Penal Code, the offences punishable under Sections 3 and 4 of the

Maharashtra Control of Organized Crime Act, 1999 (hereinafter 'the MCOC

Act') after a sanction under Section 21 of the MCOC Act was received.

3. The learned Senior advocate Mr. Deshmukkh would submit that

the petitioners were granted a regular bail and in the absence of any

supervening circumstance or a breach of terms and conditions subject to

which the bail was granted, it could not have been cancelled. He would

submit that merely because the provision of the MCOC Act were invoked at

a later point of time that would not constitute a supervening circumstance.

Liberty ought not have been curtailed in the manner in which it had been

done. There are circumstances to indicate that the petitioner is being falsely

involved under a serious charge. There is material to prima facie

demonstrate that the sanctioning authority was perhaps hand-in-gloves with

the original informant. A tainted sanction is not a sanction in the eye of law.

4. The learned Senior advocate would further point out that

reliance placed by the learned Judge in the decision of Sarang Arvind

Goswamy Vs. State of Maharashtra ; 2005 (3) Mh.L.J. 774 and Pradip Ram

Vs. The State of Jharkhand ; 2019 (17) SCC 326, is misplaced. Both the

decisions can be distinguished on facts. As can be seen, the accused therein,

though were granted bail were already in custody in some other crime

which is not a fact situation in the matter in hand. The learned Senior

advocate would further point out that in the case of Narendra @ Naresh

904.WP.221.21.odt

Kavdidas Chavan Vs The State of Maharashtra and Anr., ; Criminal WP

No.165/2017, this Court in the similar set of facts refused to cancel the bail

and the view taken in that be subscribed even in the matter in hand.

5. The learned Prosecutor and the learned advocate Mr. Rathi for

the original informant strongly oppose the Writ Petitions and submit that

invoking a serious charge at later point of time is indeed a supervening

circumstance, the cognizance of which ought to be taken for cancelling the

bail. They submit that not only in the case of Sarang A. Goswamy (supra)

but in couple of other subsequent decisions, Vijendra Molchand Kuril Vs.

State of Maharashtra ; Criminal Application (APL) No.7/2016 and Karan

Ranjit Paropate Vs. State of Maharashtra and Ors., ; Criminal Writ Petition

No.1029/2017, this Court has taken same stand, referring to the decision in

the case of Sarang A. Goswamy. Therefore, there is no illegality in the

impugned order which merely follows the decision in the case of Sarang A.

Goswamy.

6. The learned Prosecutor and the learned advocate Mr. Rathi

would also point out that the decision in the case of Narendra @ Naresh

Kavidas Chavan (supra) which is later in point of time does not refer to the

earlier decision of this Court in the case of Sarang A. Goswamy and the

learned Judge while passing the impugned order has rightly refused to rely

upon the former decision.

7. The learned Prosecutor and the learned advocate Mr. Rathi

would lastly submit that the decision of the Supreme Court in the case of

904.WP.221.21.odt

Pradip Ram (supra) now sets the controversy at rest. They would point out

that in fact, in such a fact situation where some aggravated offences are

invoked at later point of time after grant of bail, a relief of cancellation of

bail under Section 439 (2) of the Code of Criminal Procedure is not required

and only a permission to arrest the accused who has been granted bail is

contemplated. The learned advocate would pertinently point out the fact

that earlier decision in the case of Hamida Vs. Rashid ; (2008) 1 SCC 474,

has been referred to wherein it has been specifically observed that after

addition of serious non-cognizable offences, the accused who has been

granted bail is required to surrender and again apply for bail under the

newly added offences. They would therefore submit that though there could

be some error in articulating the prayer in the application whereby bail was

sought to be cancelled, the procedure being hand maid of justice, the

impugned order can be read to mean that what was asked before the

learned Judge and what was actually granted was merely a permission to

arrest the petitioners.

8. I have carefully considered the rival submissions and the

decision cited at the bar. The material facts are not in dispute. The

petitioners were arrested when the offences under the Indian Penal Code,

Arms Act and the Maharashtra Police Act were invoked. They were granted

regular bail. It is thereafter that a sanction was solicited and obtained under

Section 21 of the MCOC Act and it is thereafter that the application was filed

seeking cancellation of bail, upon which the impugned order was passed.

904.WP.221.21.odt

9. So far as extending an opportunity of being heard before

passing of the impugned order, though it is apparent that the learned

advocate who was supposed to argue the matter on behalf of the petitioners

could not be extended sufficient opportunity of being heard, the impugned

order elaborately discusses the events preceding to passing of the impugned

order. The learned Judge has laboured to point out as to how several

opportunities were extended to petitioner's advocate to make submissions

not only physically but even through video conferencing facility but the

opportunity was not availed of.

10. Pertinently, simultaneously with the application for cancellation

of bail, even the application filed by the petitioners (Exhibit-15) was agreed

to be decided. As can be seen from the impugned order, it was with the

common understanding that the argument of both the sides were heard on

both these applications with a further understanding that if the application

(Exhibit-15) by which the petitioners had prayed for making a reference to

this Court under Section 395 of the Code of Criminal Procedure was prayed

for would be decided first in point of time and if it was to be allowed

decision on the application for cancellation of bail would be deferred. It

clearly implies that if the application (Exhibit - 15) was to be rejected, this

application for cancellation of bail was to be readily decided. It is with this

understanding that the parties had allowed the learned Judge to proceed

and therefore the petitioners cannot be allowed to make any capital on the

ground that they were not extended an opportunity of being heard.

904.WP.221.21.odt

11. Now coming to the merits of the impugned order, the issue in

my considered view is no longer res integra. The decision in the case of

Pradip Ram (supra) clearly settles the controversy. Suffice for the purpose

to reproduce the points for determination formulated by the Supreme Court

and its decision thereon.

"7. From the submissions of the learned Counsel for the parties and the pleadings on the record, following are the issues, which arise for consideration in these appeals :

(i) Whether in a case where an Accused has been bailed out in a criminal case, in which case, subsequently new offences are added, is it necessary that bail earlier granted should be cancelled for taking the Accused in custody ?

29. In view of the foregoing discussions, we arrive at following conclusions in respect of a circumstance where after grant of bail to an Accused, further cognizable and non-cognizable offences are added :

(i) The Accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In event of refusal of bail, the Accused can certainly be arrested.

(ii) The investigating agency can seek order from the court Under Section 437 (5) or 439 (2) of Code of Criminal Procedure for arrest of the Accused and his custody.

(iii) The Court, in exercise of power Under Section 437 (5) or 439 (2) of Code of Criminal Procedure, can direct for taking into custody the Accused who has already been granted bail after cancellation of his bail. The Court in exercise of power Under Section 437 (5) as well as Section 439(2) can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non- cognizable offences which may not be necessary always with order of cancelling of earlier bail.

904.WP.221.21.odt

(iv) In a case where an Accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the Accused, but for arresting the Accused on such addition of offence or offences it need to obtain an order to arrest the Accused from the Court which had granted the bail.

30. The issue No.1 is answered accordingly."

12. As can be noticed, it has now been emphatically concluded that

after an accused is released on bail and some serious offences are invoked at

a later point of time, there is no question of seeking any cancellation of bail

and the investigating agency would only be required to apply for permission

from the Court which granted the bail to arrest the accused.

13. It is important to note that in the case of Sarang A. Goswamy,

Vijendra M. Kuril and Karan R. Paropate (supra), this Court has proceeded

to look upon this as supervening circumstance entitling the Court granting

the bail to cancel it. Even the learned Judge while passing the impugned

order has proceeded on the same line relying upon the decision of Sarang A.

Goswamy. But as can be appreciated, in view of the decision in the case of

Pradip Ram (supra), cancellation of bail in such a fact situation is not

required.

14. True it is that the application on which the impugned order was

passed, perhaps in ignorance of the decision in the case of Pradip Ram

(supra) proceeded with and decided the request of cancelling the bail and

even the learned Judge has accepted the prayer. However, in my considered

904.WP.221.21.odt

view, instead of proceeding on the technicalities, when the law does not

require cancellation of bail and merely requires a permission to arrest the

accused, the wording of the prayer in this application can be interpreted to

mean that what is contemplated in law was in fact sought by the

prosecution.

15. Needless to state that the petitioners are not being put to any

prejudice merely because the request by the prosecution can now be

interpreted within the four corners of the law in the light of the observation

in the case of Pradip Ram (supra).

16. Considering the above state of affairs, I find no illegality in the

impugned order. At the most it can be clarified that it be read as not

amounting to cancellation of bail but granting permission to the

Investigating Officer to arrest the petitioners.

17. The Writ Petitions are dismissed. The Rule is discharged.

(MANGESH S. PATIL, J.)

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