Bombay High Court
Anil Shivchandra Pandey vs State Of Maharashtra on 11 November, 2022
Bench: Amit Borkar
908-crwp3904-2022.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.3904 OF 2022
Anil Shivchandra Pandey ... Petitioner
V/s.
The State of Maharashtra ... Respondent
Mr. A.H.H. Ponda, Senior Advocate with Mr. Karma
Vivan for the petitioner.
Mr. R.M. Patne, APP for the respondent/State.
Digitally
CORAM : AMIT BORKAR, J.
signed by
ATUL
ATUL GANESH
DATED : NOVEMBER 11, 2022
GANESH KULKARNI
KULKARNI Date:
2022.11.14
10:31:28
+0530
P.C.:
1. The challenge in this petition is to the order dated 18 th
October 2022 passed by the learned Sessions Judge in
Miscellaneous Application No.97 of 2022 in Anticipatory Bail
Application No.1610 of 2021. The petitioner is an accused in a
crime bearing C.R. No.349 of 2021 registered with the Sahar
Police Station, Andheri, Mumbai for offence under sections 409,
420, 477(A) read with 120B of the Indian Penal Code.
2. The petitioner initially applied for bail under section 437 of
the IPC. The learned Sessions Judge by order dated 31 st December
2021 allowed the said application granting pre-arrest protection to
the petitioner. While allowing the application, the learned Sessions
Judge imposed following conditions on the petitioner:
908-crwp3904-2022.doc
"a) He shall not tamper with prosecution witnesses in any
way.
b) He shall produce his respective Identity Card, address
proof and furnish his mobile number with bail papers.
c) He shall attend concerned Police Station from
01.01.2022 till 20.01.2022 on every Tuesday and Thursday
between 11.00 a.m. - 1.00 p.m. and shall co-operate in the
investigation and thereafter if the investigating officer calls
for till the end of February, 2022 or till filing of the charge-
sheet whichever is earlier.
d) He shall maintain the diary of attendance.
e) He shall attend the trial regularly.
f) He shall not commit similar offence during on bail
period."
3. On 19th March 2022, the investigating officer moved the
learned Sessions Judge for cancellation of anticipatory bail on the
ground that the petitioner failed to cooperate with the
investigation by refusing to submit the documents. The petitioner
filed reply before the learned Sessions Judge and submitted details
of the documents by him. In paragraph 6 of the reply, the
petitioner stated thus:
"6. With reference to Para No. 2 of say of I.O. dated
30.09.2022, it is submitted that he has admitted that the
accused has provided only GST Certificate of both
Companies but the accused has not provided GSTR 9 &
GSTR 9(c), during investigation documents from GST
Department was taken i.e. GSTR 3(A) and 2(B) which shows
that the Super Logistics which shows his involvement. The
Accused has already replied by notice dated 13.01.2021 sent
by I.O. on page no. 67 of my reply that it is available on
government portal which can be easily obtained, apart from
that the accused is submitting it today. Hereto annexed and
marked as Exhibit - "A" are copies of GSTR 9 & GSTR
9(c)."
908-crwp3904-2022.doc
4. The learned Sessions Judge by the impugned order dated
18th October 2022 canceled the anticipatory bail, mainly on the
ground that the petitioner has not provided GSTR 9 and GSTR
9(c). The petitioner has, therefore, filed present writ petition
challenging the order of cancellation of anticipatory bail.
5. Mr. Ponda, learned senior advocate on behalf of the
petitioner submitted that the petitioner has submitted all the
documents in his possession and has cooperated with the
investigation and, therefore, the findings recorded by the learned
Sessions Judge that the petitioner has failed to cooperate with the
investigation is not borne out of the record. He submitted that in
relation to the findings that GSTR 9 and GSTR 9(c) have not been
submitted, he invited my attention to paragraph 6 of the reply
which shows that the petitioner has submitted the documents
before the learned Sessions Judge. According to him, the said
documents were not in possession of the petitioner at the relevant
time and thereafter he submitted the same before the Court.
6. Mr. Patne, learned APP opposed the writ petition on the
ground that the petitioner has committed breach of conditions and
has not cooperated with the investigation. He invited my attention
to the notice issued by the investigating officer calling upon the
petitioner to submit the documents. According to him, the
petitioner has failed to cooperate with the investigating agency
and, therefore, the learned Sessions Judge is justified in canceling
the anticipatory bail granted earlier. He submitted that the
documents which are sought for are not incriminatory in nature
and, therefore, Article 20(3) of the Constitution of India is
908-crwp3904-2022.doc
inapplicable.
7. Mr. Ponda, learned senior advocate in addition to his
submissions placed reliance on the judgment of the Apex Court in
State of Gujarat v. Shyamlal Mohanlal Choksi reported in
AIR 1965 SC 1251 to urge that the Apex Court in the said
judgment has held that the accused person cannot be compelled to
disclose documents which are incriminatory and based on his
knowledge. According to him, section 94 interpreted in the said
judgment is pari materia with section 91 of the Criminal Procedure
Code and, therefore, the said judgment applies in full force. He
also invited my attention to the judgment of the learned Single
Judge of this Court in the case of Natubhai Joshi v. Narendra
Dhoot & Ors. reported in 1989 Cur. Cr. C. 25 to urge that non-
answering to certain questions by the accused during the course of
investigation cannot be construed as lack of cooperation by the
accused.
8. Having considered the submissions made on behalf of the
both sides, in my opinion, it is well settled law that the criteria for
grant of anticipatory bail and cancellation of bail are totally
different. Unless there are compelling circumstances and
exceptional reasons or new circumstances occurred after the grant
of order of bail, the liberty granted in favour of the accused cannot
be taken away. The sum and substance of the reasons in the
impugned order is to the effect that the petitioner has failed to
submit documents in the form of GSTR 9 and GSTR 9(c). The
explanation of the petitioner that on the relevant date, it was not
available and thereafter during the proceedings before the learned
908-crwp3904-2022.doc
Sessions Court, the petitioner has submitted the documents.
9. Having taken overall view of the matter, in my opinion, the
test laid down by the Apex Court for cancellation of the
anticipatory bail in the facts of the case cannot be said to be
fulfilled. In my opinion, the explanation that at the relevant time
the petitioner was not having the documents in his custody and
thereafter he has produced those documents before the learned
Sessions Court is sufficient compliance with the obligation caste on
the petitioner by the order of granting anticipatory bail.
10. On overall view of the matter, in my opinion, the order of
cancellation of anticipatory bail, tested on the touchstone of the
parameters laid down by the Apex Court, cannot be sustained.
Hence, following order:
The impugned order dated 18th October 2022 passed by the
learned Additional Sessions Judge in Miscellaneous Application
No. 97 of 2022 in Anticipatory Bail Application No.1610 of 2021 is
quashed and set aside.
It is made clear that the petitioner shall cooperate with the
investigation and in case of failure on the part of the petitioner to
cooperate with the investigation, the investigating officer is at
liberty to apply for cancellation of anticipatory bail granted earlier.
11. The writ petition stands disposed of in above terms. No
costs.
(AMIT BORKAR, J.)
