Bombay High Court

Intekhab Hasan Sayed And Anr vs State Of Maharashtra on 31 October, 2022

Bench: Madhav J. Jamdar

03- aba(st)-18598-2022.doc

Arjun

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION (ST) NO.18598 OF 2022

Mr. Intekhab Hasan Syed & Anr. ...Applicants

V/s.
The State of Maharashtra ...Respondent
(At the instance of Mira Road
Police Station)

Mr. Ghanshyam Upadhyay, for the Applicants.
Mr. P. H. Gaikwad, APP, for the State.
Mr. Ramkrishna Bodke, API, Mira Road Police
Station present.

CORAM: MADHAV J. JAMDAR, J.

DATE: 31st OCTOBER, 2022
(VACATION COURT)

P.C.:

1. Heard Mr. Ghanshyam Upadhyay, learned counsel

appearing for the Applicants and Mr. P. H. Gaikwad,

learned APP for the State.

2. This Anticipatory Bail Application has been filed

on 27th October, 2022.

3. Reliefs sought in the said Application are set out

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hereinbelow:-

"a. that this Hon'ble Court may be pleased to
examine the legality, validity and proprietary
of the impugned order dated 29/01/2021
passed by the Session Court, Thane in
Criminal Misc Application No. 552/2019 and
may be further pleased to quash and set aside
the same and may be further pleased to
restore the Anticipatory bail granted to the
Applicants by the Sessions Court, Thane vide
its order dated 29/06/2018 passed in
Anticipatory Bail Application No. 581/2018;
b. that this Hon'ble court may be pleased to
quash and set aside the order of NBW dated
01/10/2022, issued by the court of Ld. 4th
Joint Civil Judge and JMFC Court, Thane in C.
C. No. 2705/2019;
c. that pending the hearing and final
disposal of the application, this Hon'ble Court
may be pleased to stay the execution,
implementation, effect of impugned order
dated 29/01/2021 passed by the Session
court, Thane in Cri. M. A. NO. 552/2019 being
exhibit D annexed to the petition and so also
the order of NWB issued by the Ld. 4 th Joint
Civil Judge and JMFC Court, Thane in C. C. No.
2705/2019 dated 01/10/2022;
d. That interim and ad-interim relief in

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terms of prayer clause a to b above be
granted;
e. Any other or further and/or direction be
given as to the nature or circumstances;"

4. The learned District Judge-2 & Additional

Sessions Judge, Thane, by order dated 29th January,

2021 passed below Exh. 1 in Criminal M.A. No.

552/2019 cancelled bail order granted in favour of the

accused. The said order is challenged by filing present

Application on 27th October, 2022. Thus, the said order

is challenged after about 1 year and 9 months.

5. FIR shows that complainant/informant has

purchased two flats bearing flat nos. 401 and 402 from

the Applicants who are builders and made substantial

payment out of agreed consideration. The FIR was

lodged as the Applicants have sold the same flats to

some other flat purchasers.

6. In the light of above factual position, it is

important to note order dated 29th June, 2018 passed

by learned District Judge-2 & Additional Sessions

Judge, Thane by which Anticipatory Bail Application

was allowed. It is significant to note paragraph 3 and

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operative portion of said order which reads as under:-

"3] Today advocate of the complainant's
advocate Mr. Gaurish Kadam with applicant's
advocate Mr. Pande have appeared before the
court and Mr. Gaurish Kadam has requested
the court to consider the relief in view of the
fact that parties have settled the matter
amicably but as the flat in dispute is in
possession of someone else that will take time
to evict him and in the meantime his client
also will be able to arrange for outstanding
amount. Hence, having consider said
submissions no purpose would be served by
either keeping the matter pending on the file
of this court or rejecting the relief particularly
when matter is likely to be settled amicably
out of the court. Hence, in view of the
aforesaid facts and as the custodial
interrogation of the applicants are not
necessary there is no hurdle in granting the
relief. Therefore, the order.
ORDER

                  1]       Application is allowed.
                  2]       Interim   order      dated    19.03.2018             is

confirmed so far as Clause no. 1 is concerned. Only modification is that applicant shall attend concern police station once in a month preferably on 1st day of each English Calendar

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month between 10.00 a.m. to 12.00 noon and parties are reached to the settlement as assured by them within the period of a month from the date of disposal of this application. 3] Application is accordingly allowed."

(Emphasis added)

7. In spite of giving assurance to the Court that

subsequent purchasers, who are in possession of the

concerned flats, would be evicted and possession of

aforesaid flats would be handed over to the complainant

within a period of one month, the Applicants failed to

comply with the same. As Applicants failed to do comply

the same for considerable period, the original

complainant filed Criminal M.A. No. 552/2019 for

cancellation of bail under Section 439 (2) of Cr.P.C.

8. It is significant to note that, the learned Sessions

Judge granted sufficient opportunity to the Applicants

to comply with the aforesaid and, thereafter, ultimately

passed impugned order on 29th January, 2021. While

passing the order dated 29th January, 2021 learned

District Judge-2 & Additional Sessions Judge, Thane

has observed that from the conduct of the present

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Applicants, it is apparent that since the beginning they

were not ready and willing to settle the matter but only

for the purposes of obtaining relief of bail have assured

the Court as above. Thus, it is clear that, not only the

Applicants have played fraud on the complainant but

misrepresented the learned Sessions Judge in order to

secure anticipatory bail order. Therefore, the bail order

was cancelled by order dated 29th January, 2021 and in

spite of that the Applicants have neither challenged the

said order in this Court for considerable period of 1

year 9 months nor made any attempt to comply with

the earlier order.

9. It appears that, the Applicants were absconding

and, therefore, the N.B.W. was issued by order dated

15th October, 2022. It is very significant to note that, the

Applicants have approached this Court and challenged

impugned order dated 29th January, 2021 only after

issuance of N.B.W.

10. It is also significant to note that although the bail

order was cancelled by order dated 29th January, 2021

on the application moved by the original complainant,

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original complainant is not made party to the present

Anticipatory Bail Application.

11. When a query was put to Mr. Upadhyay, learned

counsel appearing for the Applicants that whether the

Applicants are atleast now in a position to hand over

possession of the aforesaid flats, he expressed inability

of the Applicants to do so as the subsequent flat

purchasers are in possession. He however stated that,

the Applicants will require at least 15 days to get

vacant possession.

12. The Supreme Court in the judgment reported in

(2018) 16 SCC 511 in the matter between 'X' Vs. State

of Telangana and Another in paragraph 14 and 15 has

considered the distinction between the rejection of bail

and cancellation of bail. The said paragraphs reads as

under:-

"14. In a consistent line of precedent this Court has emphasised the distinction between the rejection of bail in a non-bailable case at the initial stage and the cancellation of bail after it has been granted. In adverting to the distinction, a Bench of two learned Judges of this Court in Dolat Ram v. State of Haryana

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observed that: (SCC pp. 350-51, para 4)

"4. Rejection of bail in a non-

bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow

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

15. These principles have been reiterated by another two-Judge Bench decision in CBI v. Subramani Gopalakrishnan and more recently in Dataram Singh v. State of U.P.: (Subramani case, SCC pp. 303-04, para 23)

"23. It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is

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another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering 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."

(Emphasis added)

13. In the present case, the Applicants who are

builders have pocketed substantial consideration from

the complainant by sale of said flats and thereafter sold

the same flats to new purchasers. The Applicants

obtained anticipatory bail by order dated 29th June,

2018 by misrepresenting to the Court that possession of

said flats would be handed over within one month and

till date failed to comply with the same. Advocate

Upadhyay's contention that balance consideration has

not been paid by the complainant and therefore, the

Applicants are not in a position to hand over possession

of said flats is totally baseless and misleading as even

according to him presently the said flats are in

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possession of subsequent flat purchasers. Thus, prima

facie above-mentioned criterias set out by the Supreme

Court regarding cancellation of bail are applicable in

the present case.