Ramharak Prasad Kanojia vs The State Of Maharashtra And Anr
2022 Latest Caselaw 8158 Bom

Megha                                                 1_appln_388_2017.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

               CRIMINAL APPLICATION NO.388 OF 2017

Ramharak Prasad Kanojia                            ...Applicant
                 Versus
The State of Maharashtra and Anr.                ...Respondents
                                    ....
Mrs. Anjali Awasthi for the Applicant.
Mr. P.H. Gaikwad, APP for Respondent-State.


                            CORAM : SMT. ANUJA PRABHUDESSAI, J.

JUDGMENT PRONOUNCED ON :22/08/2022.

JUDGMENT:-

1. The Applicant herein has challenged the order dated

25/01/2017 passed by the learned Additional Sessions Judge, Greater

Bombay. By the impugned order, learned Additional Sessions Judge,

allowed the Misc. Application No.279 of 2016 filed by the prosecution and

cancelled the anticipatory bail granted to the Applicant vide order dated

15/09/2015 in Anticipatory Bail Application No.530 of 2015.

2. Heard Ms Anjali Awasthi, learned counsel for the Applicant

and Mr. P.H. Gaikwad, learned APP for Respondents-State. I have perused

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the records and considered the submissions advanced by learned counsel

for the respective parties.

3. One Mr. Sanjay Shetty, Secretary of Parkbay Co-op. Hsg. Soc.

Ltd., lodged the FIR alleging that said Society is the owner and in

possession of the property admeasuring 3812.73 sq. mts. under survey

No.295, Hissa No.9, property admeasuring 250 sq. mts. under survey

No.295, Hissa No.10(part) situated at Kole Kalyan, Taluka-Andheri,

Mumbai. The complainant alleged that the Applicant herein was claiming

to be the owner of the land admeasuring 411 sq. mts. under survey

No.295 Hissa No.10.

4. The Complainant further alleged that one Smt. Najmunissa

Abdul Gafar Chorghay was claiming right to the property under Survey

No.295 Hissa Nos.10 and 12, CTS No.4949 and survey No.296, Hissa

No.1(part) admeasuring 1086.97 sq.mts. by way of adverse possession.

The complainant alleged that though said Najmunissa does not have any

document of title in her favour, she has executed an agreement for sale

and deed of conveyance dated 08/07/1996 and 10/12/1996 respectively

in favour of the Applicant. On the basis of the said documents, the

Applicant is claiming title to the property admeasuring 1086.97 sq. mts

Megha 1_appln_388_2017.doc

under survey No.295 Hissa Nos.10 and 12 and survey No.296 Hissa No.1.

5. The Complainant has stated that the Applicant had filed a civil

suit No.4271 of 2011 against the Assistant Municipal Corporation of BMC

and Parkbay Society and Civil Suit No.6063 of 2003 against BMC,

MHADA and the Parkbay society in City Civil Court, Mumbai, claiming

ownership of the said property. He has stated that both these suits have

been dismissed. The complainant has alleged that the Applicant is

claiming right to the property on the basis of forged documents.

6. Pursuant to the complaint lodged by Sanjay Shetty, Crime No.

87 of 2014 was registered against the Applicant for offences punishable

under Sections 420, 467, 468 and 120-B of the IPC. Apprehending his

arrest in the said crime the Applicant filed an application under Section

438 of the Cr.P.C. being Anticipatory Bail Application No.530 of 2015. By

order dated 11/03/2015, learned Judge had granted interim protection to

the Applicant with condition that he shall not tamper with the prosecution

evidence, shall remain present before the investigating officer on every

Monday and Friday between 3 to 5 p.m., that he shall not involve in any

other criminal activity and that he will not leave India without prior

permission of the Court.

Megha 1_appln_388_2017.doc

7. By order dated 15/09/2015, learned Additional Sessions

Judge allowed the application for anticipatory bail by confirming the

interim protection granted to the Applicant by order dated 11/03/2015

with further directions to report to the police as and when required.

8. The Respondent-State filed an Application for cancellation of

bail alleging that in breach of order dated 11/03/2015 and 15/09/2015,

the Applicant had entered into an agreement with a builder in respect of

the same property. The Respondent therefore sought cancellation of bail

alleging violation of conditions of the bail order. By the impugned order,

learned Judge cancelled the bail on the ground that entering into an

agreement with a builder amounts to tampering of prosecution evidence

and breach of bail condition.

9. The question for consideration is whether in the facts and

circumstances of the case, learned Judge was justified in cncelling the bail

granted in favour of the Applicant.

10. It is well settled that consideration of an application for grant

of bail stands on a different footing than one for cancellation of bail. In

Dolat Ram and ors. v/s. State of Haryana, 1995 SCC (1) 349, the Hon'ble

Megha 1_appln_388_2017.doc

Supreme Court has held that very cogent and overwhelming

circumstances are necessary for an order directing the cancellation of bail

already granted. The bail once granted cannot be cancelled in a

mechanical manner, without considering whether the accused has

misused the liberty of bail and whether any supervening circumstances

have rendered it no longer conducive to a fair trial to allow the accused to

retain his freedom by enjoying the concession of bail during the trial.

11. In Myakala Dharmarajam and ors. v/s. The State of Telangana

and anr. (2020) 2 SCC 743, the Hon'ble Supreme Court has reiterated

that bail can be cancelled where (i) the accused misuses his liberty by

indulging in similar criminal activity, (ii) interferes with the course of

investigation, (iii) attempts to tamper with evidence or witnesses, (iv)

threatens witnesses or indulges in similar activities which would hamper

smooth investigation, (v) there is likelihood of his fleeing to another

country, (vi) attempts to make himself scarce by going underground or

becoming unavailable to the investigating agency, (vii) attempts to place

himself beyond the reach of his surety, etc. The Hon'ble Supreme Court

has emphasized that the above grounds are illustrative and not exhaustive

and has further cautioned that rejection of bail stands on one footing but

cancellation of bail is a harsh order because it interferes with the liberty of

Megha 1_appln_388_2017.doc

the individual and hence, it must not be lightly resorted to.

12. In Vipan Kumar Dhir v/s. State of Punjab and Anr. (2021) SCC

Online SC 854, the Hon'ble Supreme Court while reiterating the principles

in Dolat Ram (supra) and X v/s. State of Telangana and anr. (1995) 1

SCC 349 has held that in addition, bail can also be revoked where the

Court has considered irrelevant factors or has ignored relevant material

available on record which renders the order granting bail legally

untenable. The gravity of the offence, conduct of the accused and societal

impact of an undue indulgence by Court when the investigation is at the

threshold, are also amongst a few situations where a superior court can

interfere in an order of bail to prevent the miscarriage of justice and to

bolster the administration of criminal justice system.

13. In the instant case, the allegations in the FIR are that the

property under Survey No.295/10 and 12 is owned by the Parkbay Co-

operative Housing Society and that the Applicant is claiming title to the

said property on the basis of forged and fabricated documents. While

granting pre-arrest bail to the Applicant, learned Judge had observed that

Najmunissa had purchased property under Survey No.295/10 (part) by

registered sale deed dated 24/05/1973. She had entered into an

Megha 1_appln_388_2017.doc

agreement for sale dated 08/07/1996 in favour of the Applicant. She also

executed a power of attorney in favour of the Applicant on 08/07/1996,

on the basis of which the property was transferred in favour of the

Applicant by sale deed dated 10/12/1996. Learned Judge observed that

genuineness of these documents is in question. Nevertheless, learned

Judge granted pre-arrest bail considering the fact that all the relevant

documents were in custody of the investigating agency and also

considering the fact that the Applicant was 75 years of age. One of the

bail conditions imposed in the bail order was not to indulge in any

criminal activity.

14. Subsequent to the said order, the Applicant entered into an

agreement with a builder in respect of the said property. This according

to the learned Judge amounts to tampering with prosecution evidence

and indulging in criminal activity, which is in violation of the bail

condition. It is not in dispute that subsequent to the order of grant of

bail, no crime has been registered against the Applicant for committing

any crime. Suffice it to say that entering into an agreement is per se not

an offence and cannot be construed as criminal activity. It is also

pertinent to note that execution of an agreement is not an act which

alters, falsifies or destroys the prosecution evidence or hampers

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investigation. There was thus no cogent and satisfactory material to

indicate that the Applicant had in fact violated the condition of the bail.

There is nothing on record to show that the Applicant has misused the

liberty. There were no supervening circumstances to cancel the bail. As

noted above, cancellation of bail order has harsh consequences as it

interferes with liberty of an individual and must not be lightly resorted to.

Hence, it was incumbent upon the learned Judge to exercise its discretion

judiciously and cautiously in strict compliance of the principles laid down

by the Hon'ble Supreme Court in regard to the cancellation of bail.

Instead, learned Judge has cancelled the bail and curtailed liberty of the

Applicant in a very casual and mechanical manner, without there being

any justifiable circumstances much less overwhelming circumstances. The

impugned order suffers from material infirmity, is illegal and perverse.

15. Under the circumstances and in view of discussion supra, the

Application is allowed. The impugned order is set-aside. The bail order

dated 15/09/2015 stands restored.

                                      (SMT. ANUJA PRABHUDESSAI, J.)




         Digitally
         signed by
MEGHA    MEGHA S
         PARAB
S        Date:
PARAB    2022.08.22
         19:25:13
         +0530