Felix Raymond Gracias vs Bhikamchand Bhavarlal Sisodiya ...
2021 Latest Caselaw 9682 Bom

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                             CRIMINAL APPELLATE JURISDICTION

                                           CRIMINAL APPLICATION NO. 655 OF 2014

                        Floyd Francis Mariano Gracias                           ... Applicant

                                    Versus

                        1. Bhikamchand Bhavarlal Sisodiya
                        2. State of Maharashtra                                 ... Respondents

                                                      .....
                        Mr. Mubin Solkar i/by Ms. Tahera A. R. Qureshi, Advocate for the
                        Applicant.
                        Mr. S. V. Marwadi i/by Mr. S. S. Redekar Advocate for Respondent-
                        No.1.
                        Mr. R. M. Pethe, APP for the Respondent No.2 - State.
                                                              .....

                                                       CORAM        :     PRAKASH D. NAIK, J.

                                                       DATE         :     26th JULY, 2021.

                        PER COURT:

1. The applicant is seeking cancellation of bail granted to

respondent No.1 vide order dated 17 th October, 2014 passed by the

learned Additional Chief Metropolitan Magistrate, 66th Court at

Andheri, Mumbai.

2. This application was preferred by the original

complainant, who had lodged the First Information Report (for

short 'FIR') dated 12th March, 2012 vide C.R. No.100 of 2012 with Digitally signed by

Pawai Police Station, Mumbai for offences under Sections 420, 465, SAJAKALI SAJAKALI LIYAKAT LIYAKAT JAMADAR Date:

JAMADAR    2021.08.30
           15:44:15
           +0530

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466, 467, 468 & 471 r/w Section 34 of Indian Penal Code (for

short "IPC"). During the pendency of this application, the original

applicant/complainant had expired and hence interim application

No.1073 of 2021 was preferred seeking leave to amend the original

application to implead the applicant in interim application as

applicant in place of his deceased father. The interim application

was allowed by order dated 23rd March, 2021 and the present

applicant, who is the son of original complainant was permitted to

implead himself as the applicant.

3. The prosecution case in short is as follows :

a) Property bearing C.T.S. No. 308, Survey No.18, Hissa

No.1 at old Military Road, Marol, Andheri, (East), Mumbai is the

ancestral property of the complainant. The name of the family

members viz. Lucy Gracias, Philomena Gracias, Charles Gracias,

Cecilia Gracias, Felix Gracias, Beatrise Gracias, Federick Gracias

were reflected on 7/12 extract and property card.

b) With consent of all the parties, the development

agreement was executed with Nishar Porbandarwala and Akbarali

Porbandarwala. General Power of Attorney was executed on 19 th

February, 1985. Lucy Gracias has expired on 10th November, 1991

and Philomena Gracias had expired on 20 th February, 2000. Cecilia

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Gracias is resident of Spain since 1972. She had given Power of

Attorney relating to the said property to Beatrise Gracias.

c) Sale Deed dated 27th February, 1978 was prepared by

Mohammad Siraj which reflects the signatures of the family

members of complainant. The signatures are false. It is a fabricated

sale deed.

d) Power of Attorney was prepared in the name of

Patiram Yadav on 24th March, 1988. It is not signed by any family

members of the complainant. They do not know Patiram Yadav.

e) On 20th October, 2011 deed of confirmation was

prepared in the name of Patiram Yadav. The said deed of

confirmation was purportedly signed by the witnesses, who are not

known to the family members of complainant.

f) In the past Mohammad Siraj had prepared documents

relating to the said property and the offences were registered

against him in 2003 with Pawai Police Station vide C.R. No. 224 of

2003 under Sections 420, 465, 466, 468, 471 r/w Section 34 of

IPC. He was arrested in the said case and the said proceedings are

pending in the Court.

            g)     Sisodiya Bhikamchand Bhavarlal, Shankar Jagnnath



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Mishra, Bajrang Wadarge and Michael Colaco had prepared deed of

conveyance dated 8th March, 2011 in respect to the aforesaid

property. The said deed of conveyance is not signed by any family

members of the complainant and it is fabricated. The witnesses

who have signed the said documents are not known to the any of

the family members of the complainant. Although, Lucy Gracias

and Philomena Gracias had expired on 10 th November, 1999 and

20th February, 2000, Sisodiya Bhikamchand Bhavarlal Shankar

Mishra, Bajrang Vadarge and Michael Colaco had prepared deed of

conveyance dated 8th March, 2011. The signatures of Lucy and

Philomena are appearing on the said deed which are forged.

Documents submitted for preparing deed of conveyance such as

pan card, photographs and signatures are false.

h) Indemnity bond was prepared on 18th August, 2011

before the Notary and the advocate, who are not known to the

complainant and his family members. They have not appeared

before the Notary. Sisodiya Bhikamchand Bhavarlal had published

notice in the newspapers which was not to the knowledge of the

complainant and others. Hence, they did not respond to the said

notice.

            i)     Jawed Ali Mohammad Siraj has submitted documents



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claiming right in the said property. The complainant obtained the

photo copies of the documents submitted by the accused from the

office of Talathi and on verification it was found that they are false.

Thus, all the five persons had prepared false documents in relation

to the property of complainant and his family and cheated them.

4. The respondent No.1 had initially preferred an

application for anticipatory bail before the Sessions Court and

thereafter before this Court. Those applications were rejected. The

respondent No.1 was arrested in C.R. No. 263 of 2013 on 29 th

August, 2013. He was arrested in the present case on 6 th

September, 2013.

5. The respondent No.1 preferred an application for bail

before the Court of Sessions which was rejected by order dated 11 th

March, 2014. The respondent No.1 thereafter, preferred an

application for bail before this Court. By order dated 15 th

September, 2014, the said application was allowed to be withdrawn

with liberty to move application before Court of Metropolitan

Magistrate seeking relief to grant of bail. Thereafter, the respondent

No.1 preferred an application for bail before the Court of learned

Metropolitan Magistrate. Vide order dated 17 th October, 2014, the

learned Metropolitan Magistrate - 66th Court, Andheri, Mumbai,

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allowed the application for bail by directing that the accused is

released on executing P.R. bond in the sum of Rs.1,00,000/- and in

the like amount of one or more solvent surety, on condition that,

accused shall furnish detail address proof. The accused shall not

leave the jurisdiction of Court or Thane District, where he is

residing, without prior permission of Court. Accused shall submit

passport with Pawai Police Station till further orders and

Investigating officer to inform the Court accordingly. The accused

shall give his address, if any change in it. Accused shall not give

any inducement threats to prosecution witnesses during trial.

6. The applicant has challenged the aforesaid order

granting bail to respondent No.1 on several grounds which can

summarized as under :-

i) The learned Magistrate has committed an error to

grant bail to respondent No.1.

ii) The order dated 24th July, 2013 passed by this Court in

the application for anticipatory bail, refers to the conduct of

respondent No.1 wherein this Court directed the investigating

officer to investigate into the matter further to contradict the

version of respondent No.1. Subsequently, the respondent

No.1 was arrested. He preferred an application for bail before

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the Sessions Court which was rejected by order dated 11 th

March, 2014. The respondent No.1 then preferred application

for bail before this Court which was withdrawn. The

application for bail was preferred before the Court of learned

Magistrate by making misleading statements. The order of

learned Magistrate indicate that the submission was advanced

by respondent No.1 that High Court was pleased to allow

withdrawal of application for bail on the ground of completion

of investigation and filing of charge-sheet against accused.

The learned Magistrate failed to consider that, the Sessions

Court Court had rejected the application for bail on merits and

the High Court did not grant bail to respondent No.1.

iii) There were criminal antecedents against respondent

No.1 and he was not entitled for bail. He was involved in

similar cases in the past. He was not entitled for bail on the

ground of parity.

iv) The offence is of serious nature. Respondent No.1 was

involved in fabricating documents. He has played prime role.

The Court failed to take note of the gravity of the offence.

There was sufficient material showing involvement of

respondent No.1 in the offence. False documents were

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prepared by respondent No.1 and other accused. Although,

some of the family members of the complainant had expired

and one of them was abroad since many years, they were

shown to have executed documents after their death. They

had purportedly executed the fabricated documents. Some

persons have acted as witnesses. They were not known to any

of the family members of the complainant.

v) Learned counsel for the applicant had relied upon the

compilation of documents and the statements recorded during

the course of investigation. It is submitted that statements of

witnesses shows the complicity of respondent No. 1.

vi) The respondent No.1 was absconding. Although FIR

was registered on 12th March, 2012, he was arrested on

6th September, 2013. The applicant/complainant had opposed

the application for bail before this Court by filing reply. It is

apparent that the Court has not granted bail to the respondent

No.1. The respondent No.1 is habitual criminal. Various

offences were registered against him at different police

stations. The prosecution had filed report before trial Court for

further investigation on 16th September, 2014 in accordance

with Section Section 173(8) of Cr.P.C.

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          vii)     The order of bail was erroneous. The Court has

ignored the merits of the case. Relevant material against

respondent No.1 was overlooked. The law laid down by Apex

Court in several decisions makes it clear that such order can

be set aside by cancelling bail.

viii) In support of the submissions of learned counsel for

the applicant relied upon the following decisions.

a) Kanwar Singh Meena Vs. State of Rajasthan and Another, (2012) All MR (Cri.) 4074 (SC)

b) Gulabrao Baburao Deokar V/s. State of Maharashtra & Ors. (2013) 16 SCC 190.

c) Ash Mohammad V/s. Shiv Raj Singh Alias Lalla Babu and Anr. (2012), 9 SCC 466.

d) Narendra K. Amin V/s. State of Gujrat & Anr. (2008) 13 SCC 584.

7. Learned counsel for respondent No.1 submitted that

the application for cancellation of bail is not maintainable before

this Court. The respondent No.1 was granted bail by the Court of

learned Magistrate. The application for cancellation of bail ought to

have been preferred before the Sessions Court and not this Court.

The respondent No.1 has filed reply with preliminary objection

regarding maintainability of this application before this Court. All

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the accused, who had signed the forged documents are on bail. The

role of respondent No.1 is similar to the other accused, who are

granted bail. Trial has not commenced. The respondent No.1 has

not misused the facility of bail. The impugned order was passed on

17th October, 2014. Since then, the order of bail is in operation. The

respondent No.1 was in custody for a period of 13 months. The

counsel of the applicant relied upon all the statements of the co-

accused which are not admissible in evidence. Investigation is

completed and the charge-sheet is filed. No case for re-arresting the

respondent No.1 and sending him to custody is made out. The

order passed by this Court granting liberty to respondent No.1 to

prefer application for bail before learned Magistrate is misread by

the applicant. The impugned order is within the parameters of law.

The learned Magistrate had heard the prosecution while granting

bail. The Court had assigned reasons for grant of bail which does

not call for interference. The respondent No.1 has filed reply

opposing this application. The case of prosecution is that Javed Ali

Siraj Azmi had prepared first conveyance in 2003 with accused

No.7 Patiram Yadav. This Court has granted bail to Javed Ali. It is

alleged that by virtue of conveyance, the respondent No.1 and

co-accused Bajrang Vadarge, Shankar Mishra and Michael Colaco

are co-owners of the property. The role attributed to all accused is

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similar. Michael Colaco was granted anticipatory bail and other

accused were granted regular bail by Court of Magistrate.

Co-accused Dinesh Sharma was granted bail. The applicant has

filed Civil Suit seeking declaration that Agreement and Conveyance

Deed is null and void. While the application for bail was withdrawn

before this Court complainant was represented by Advocate. He

had knowledge that respondent No.1 was permitted to move

application before Court of learned Magistrate. Report dated 16 th

September, 2014 does not show that further investigation under

Section 173(8) of Cr.P.C. was directed. The report indicate that,

finger prints of Gracias family and hard disk in the form of CD are

sent to expert and the report was awaited. Enquiry is to be made

regarding disputed documents. No such effort was made in the

entire charge-sheet. The respondent No.1 has been falsely

implicated in other cases. He was in custody in the present case for

substantial period. He relied upon the decisions of Apex Court in

the case of Mayakala Dharmarajam & Ors. ETC. V/s. State of

Telangana and Anr. dated 7th January, 2020.

8. Learned counsel for applicant submitted that,

preliminary objection about maintainability was dealt with. This

Court did not direct that application is not maintainable. It is

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pertinent to note that this application is pending in this Court since

2014. It has not been relegated to Sessions Court. Assuming that

the complainant could have preferred such application before

Sessions Court, at this stage this application need not be sent to

Sessions Court.

9. Having heard both the sides and perusal of the

documents on records including the FIR it can be discerned that the

offence relates to the property belonging to the complainant and

his family members. The gravamen of the charge against the

accused is that the ancestral property of the complainant and

others were tried to be grabbed by the accused by fabricating

documents. Learned APP has submitted that charge-sheet is filed

against accused. Case is pending before concerned Court.

10. It is pertinent to note that the respondent No.1 had

preferred application for bail before this Court. The said application

was allowed to be withdrawn vide order dated 15 th September,

2014. The respondent however sought liberty to move before

Metropolitan Magistrate seeking relief to grant bail. The order

mentions that the liberty as prayed for is granted in the interest of

justice. The learned Magistrate was requested to hear the

application and decide the same on its own merits. From the tenor

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of the said order it is apparent that the applicant was permitted to

prefer application for bail before the Magistrate and the Court was

requested to hear the applicant and decide the same on merits.

Thereafter, the applicant preferred an application for bail before the

learned Magistrate. On 16th October, 2014, the learned Magistrate

directed to file say. Learned APP noted his say in writing on the

application itself on 16th October, 2014. It was stated that offence is

serious in nature. Charge-sheet has been filed by Investigating

Officer. On perusal of the statements of witnesses prima facie case

is made out against accused. The previous application was already

rejected. If accused is released on bail there are chances that he

would repeat similar type of offence and abscond. The order dated

17th October, 2014 passed by the Metropolitan Magistrate - 66 th

Court, at Andheri, Mumbai granting bail to respondent No.1 refers

to the fact that several grounds were urged to release the accused

on bail. The grounds are reproduced in the order. The application

was opposed by learned APP. The submission of learned APP also

recorded in the said order. The learned Magistrate observed that it

is a matter of record that Pawai Police have filed Supplementary

Charge-sheet against the accused on 3rd December, 2013. The trial

has not been initiated. Charges levelled against the accused under

Sections 465, 467, 468, 471 r/w Section 34 of IPC which are triable

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by the Court of Magistrate. The accused is behind bar since last 13

months without trial. The respondent No.1 was released on bail on

executing P.R. bond in the sum of Rs.1,00,000/- and one or more

solvent sureties in the like amount. He was directed to furnish

detail address proof. He was restrained from leaving jurisdiction of

the Court or Thane District without prior permission of the Court.

He was directed to submit his passport with Pawai Police Station till

further order and to give his address, if any change in it. He was

restrained from giving any inducement threats to prosecution

witnesses during the trial. The respondent No.1 is on bail since 17 th

October, 2014. It is not alleged that there was breach of conditions

of bail. Even on merits no case is made out to cancel bail granted to

respondent No.1.

11. Thus, the learned Magistrate had applied mind to the

factual aspects and also considered the fact that for 13 months, the

respondent/accused was in custody. It is also pertinent to note that

the co-accused Rakesh Sakharam Bhamble was granted bail by the

learned Magistrate vide order dated 15th June, 2012. Accused

Shankar Mishra, Dinesh Sharma and Bajrang Vadarge were granted

bail by the Court of Metropolitan Magistrate, Andheri, Mumbai by

order dated 21st May, 2012. Accused Javedali Mohmed Siraj Azmi

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was granted bail by the High Court vide order dated 10th October,

2012. Accused Michael Dominic Colaco was granted anticipatory

bail by order dated 10th May, 2012.

12. Learned Advocate for the applicant has relied upon the

precedents in support of prayer for cancellation of bail. In the case

of Kanwar Singh Meena Vs. State of Rajasthan and Another

(Supra), the Apex Court had cancelled bail on the ground that the

Court below had ignored the relevant material. It was also

observed that cancellation of bail is serious matter. Bail once

granted can be cancelled only in the circumstances and for the

reasons which have been clearly stated by this Court in catena of

Judgment. Reference was made to the previous decisions of the

Apex Court in the case of Gurucharan Singh and Others etc. V/s.

State (Delhi Administration), 1978 1 SCC 118, Puran V/s. Rambilas

and another, (2001) 6 SCC 338, Dolat Ram V/s. State of Haryana

(1995) 1 SCC 349. In the case of Gulabrao Baburao Deokar V/s.

State of Maharashtra & Ors. (Supra) it was observed that the High

Court does have the power under Section 439(2) to set aside

unjustified, illegal or perverse order granting bail which is an

independent ground for cancellation as against ground of accused

misconducting himself. The Court also made reference to Section

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439(1) and observed that the notice of bail application to Public

Prosecutor implies proper and full opportunity to Public Prosecutor

to point out as to why bail should not be granted. The bail granted

to the accused in the said case was sought to be cancelled on the

ground that the order of the lower Court was perverse and the

material on record indicated that the accused had attempted to

pressurize witnesses and Investigating Officer. In the case of Ash

Mohammad V/s. Shiv Raj Singh Alias Lalla Babu and Anr. (Supra)

it was observed that the Court has to consider nature of crime,

totality of circumstance and criminal antecedents of accused. The

Court granting bail the only considered the period of custody. It

was further observed that the sacrosanctity of liberty is paramount.

However concept of liberty is not in realm of absolutism but

restricted one. Socital interest has to be kept in mind. In the case of

Narendra K. Amin V/s. State of Gujrat & Anr. (Supra) it was

observed the parameters for grant of and cancellation of bail are

different. The Court dealing with cancellation application is

required to find whether irrelevant material of substantial nature

was taken into account or relevant material omitted from

consideration, while granting bail. The Court should avoid

re-appreciation of evidence. In the decision relied upon by the

learned counsel for the respondent -1 in the case of Mayakala

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Dharmarajam & Ors. ETC. V/s. State of Telangana and Anr. (Supra)

the Apex Court had observed that the scope of power to be

exercised in the matter of cancellation of bail requires that it is

necessary to examine whether the order granting bail is perverse

and suffers from infirmities which which has resulted in the

miscarriage of justice. No doubt the Court while granting bail in the

said case did not discuss the material on record in detail but there

is indication from the orders by which bail was granted that the

entire material was perused before grant of bail. It is not the case

that irrelevant considerations have been taken into account by the

Sessions Court while granting bail. The bail order cannot be termed

as perverse as the Court was conscious of the fact that the

investigation was completed and there was no likelihood of the

accused tampering with the evidence. The Court observed that the

High Court was not right in cancelling the bail granted to the

accused. The order of the Sessions Court granting bail cannot be

termed as perverse.

13. Considering the legal principles, factual aspects and

the material on record it cannot be termed that the order of the

learned Magistrate was perverse or illegal. There is no reason to set

aside the said order. Hence, the application deserves to be rejected.

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14.                Hence, I pass the following order :-




                                     ORDER

Criminal Application No.655 of 2014 is rejected and stands disposed of accordingly.

                                                  (PRAKASH D. NAIK, J.)




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