Mohd. Jawed S/O Abdul Wahab vs The State Of Maharashtra Through Pso ...
2024 Latest Caselaw 24902 Bom

Bombay High Court

Mohd. Jawed S/O Abdul Wahab vs The State Of Maharashtra Through Pso ... on 28 August, 2024

2024:BHC-NAG:9599

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                                                                                    1

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                        NAGPUR BENCH, NAGPUR.
                             CRIMINAL APPLICATION (BA) NO.597/2024
                                   Mohd.Jawed s/o Abdul Wahab
                                               ..vs..
                        State of Maharashtra, through Police Station Officer,
                            Buldhana City, Taluka and District Buldhana

                                                                               WITH

                                CRIMINAL APPLICATION (APPP) NO.1204/2024
                                    Jyotsna d/o Ashok Nare (Intervenor)
                                                   ..vs..
                                   Mohd.Jawed s/o Abdul Wahab and anr
        ...................................................................................................................................................................................................
        Office Notes, Office Memoranda of Coram,
        appearances, Court orders or directions                                           Court's or Judge's Order
        and Registrar's orders
        ...................................................................................................................................................................................................

                             Shri S.V.Sirpurkar, Counsel for the Applicant.
                             Ms.Jyotsna Nagre, Intervenor In-person.
                             Shri U.R.Phasate, Additional Public Prosecutor for the State.

                             CORAM : URMILA JOSHI-PHALKE, J.

CLOSED ON : 22/08/2024 PRONOUNCED ON : 28/08/2024

1. The Intervenor is permitted to intervene into the

matter.

1. By Criminal Application No.597/2024, being

moved under Section 439 of the Code of Criminal Procedure,

the applicant seeks regular bail in connection with Crime

No.682/2018 registered with the non-applicant/police station

for offences punishable under Sections 170, 171, 420, 467,

468, and 471 read with 34 of the Indian Penal Code.

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2. The applicant came to be arrested on 18.7.2018

and since then he is in jail.

3. Earlier, the applicant had filed an application

bearing Criminal Bail Application No.665/2023 which was

disposed of as withdrawn with liberty to the applicant to

approach this court if trial is not disposed of in two months.

4. The crime is registered on the basis of report

lodged by police official Shri D.B.More as he received a

complaint of one Suman Shaligram Rajput alleging that the

applicant in collaboration with other co-accused persons

purchased an agricultural property belonging to her by

preparing forged documents and stamps with an intent to

cheat her. On the basis of the said complaint, the police

registered the crime against the applicant and other co-

accused persons.

5. After completing investigation into the crime in

question, chargesheet against the applicant and other co-

accused persons was filed. During pendency of the case,

accused No.4 applied for tender of pardon and she was

accepted as approver. Learned Judge of the trial court

recorded entire evidence led by the prosecution and

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statements of accused persons were recorded. After going

through the entire evidence led by the prosecution and

accused persons, learned Magistrate came to a conclusion

that an offence is made out under Section 469 of the Indian

Penal Code which is punishable with life imprisonment and

minimum punishment provided is for a term of ten years. It

is further observed by learned Magistrate that in view of

Section 323 of the Code of Criminal Procedure, he is

empowered only to impose punishment for a term of seven

years and, therefore, committed the case to the court of

sessions by forming an opinion over punishment.

6. Heard learned counsel Shri S.V.Sirpurkar for the

applicant, learned counsel Ms.Jyotsna Nagre for Intervenor,

and learned Additional Public Prosecutor Shri U.R.Phasate for

the State.

7. Learned counsel for the applicant submitted that

from the date of arrest, the applicant is behind the bars.

Punishment provided for offences under Sections 420, 468,

and 471 of the Indian Penal Code is upto seven years. The

applicant has undergone maximum punishment as an under-

trial prisoner. Now, learned Magistrate committed the case

to the Court of Sessions which would require time for

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disposal and the applicant cannot be kept behind the bars

for an indefinite period of time. As such, learned counsel

prays that the application be allowed and the applicant be

released on bail.

8. In support of his contentions, learned counsel for

the applicant placed reliance on following decisions:

1. Jalaluddin Khan vs. Union of India, reported in 2024 SCC OnLine SC 1945, and

2. Criminal Appeal arising out of SLP (Criminal) No.8781/2024 (Manish Sisodia vs. Directorate of Enforcement) decided by the Honourable Apex Court on 9.8.2024.

9. Per contra, learned Additional Public Prosecutor

for the State vehemently opposed the application and

submitted that similar nature of offences so also series of

offences are registered against the applicant in different

crime numbers. If he is released on bail, the entire trial

would be held up. Moreover, the trial is at fag end. Learned

Magistrate considered scope under Section 323 of the Code

of Criminal Procedure and powers under the said Section can

be evoked at any stage of proceeding. Thus, it is settled

provisions of law that the said powers may be evoked even

after deposition or examination-in-chief of witnesses. The

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key requirement for evocation of powers under Section 323

of the Code is that learned Magistrate concerned must feel

that a case is one which ought to be tried by the Court of

Sessions.

10. Accused No.4, who is approver, also filed an

application for intervention and objected the application on

ground that various criminal cases of similar nature are

pending against the applicant. If the applicant is released on

bail, there is possibility that he would tamper with

prosecution evidence. The trial is at fag end and the

Sessions Court only has to consider material before it, hear

parties on evidence, and impose punishment or decide the

matter. Thus, considering involvement of the applicant in

more severe offences, learned Magistrate committed the

case to the Court of Session. As such, it is prayed that the

application be rejected.

11. Before entering into merits of the application,

issue involved in the present application is, whether the

application of the Intervenor can be entertained when she is

neither victim nor informant as far as registration of crime is

concerned. On the contrary, she was one of co-accused to

whom tender of pardon was granted.

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12. Admittedly, Public Prosecutor occupies position to

deal with application for grant of bail in our criminal justice

system. The crimes are treated as wrong against society as

a whole and his role in administration of justice is special as

he is not just representative of aggrieved person but he is

representative of the State at large. Though he is appointed

by the Government, he is not a servant of the Government

or investigating agency. He is an officer of the Court and his

primary duty is to assist the Court in arriving at the truth by

putting-forth all relevant material on behalf of the

prosecution.

13. The use of term "assist" in proviso to Section

24(8) is crucial and implies that the victim's counsel is only

intended to have a secondary role to assist the Public

Prosecutor. This is supported by the fact in view of Section

301 of the Code of Criminal Procedure, which reads as

under:-

301. Appearance by Public Prosecutors: (1) The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which that case is under inquiry, trial or appeal.

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(2) If in any such case any private person instructs a pleader to prosecute any person in any Court, the Public Prosecutor or Assistant Public Prosecutor in charge of the case shall conduct the prosecution, and the pleader so instructed shall act therein under the directions of the Public Prosecutor or Assistant Public Prosecutor, and may, with the permission of the Court, submit written arguments after the evidence is closed in the case.

14. Thus, in view of Section 301(2) of the Code, the

private person if instructs a pleader to prosecute any person,

he can assist the prosecutor by engaging a counsel, of

course, with the permission of the Court. Thus, scope of

Section 301(2) of the Code is specified by Sub-Section (2) of

the said Section. Of course, it is at the discretion of the Court

whether the said person is to be allowed or not to allow.

Admittedly, the definition of a private person is not defined

anywhere in the Act and, therefore, locus of the person

requires to be seen.

15. "Locus Standi" signifies a right of appearance in a

Court of justice or right to be heard or place of standing.

Such a Locus Standi confers on a person only if he has an

interest in the matter. The Victim/Private person in that

sense does have an interest in the matter since it is he/she

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are the ultimate sufferer of such crime. However, under

Section 301(2) of the Code, the legislature has consciously

regulated it in the manner that the pleader so instructed by

a private person, shall act in any such case under the

directions of the Public Prosecutor only and not as an

absolute legal right of independent appearance before the

Court. The aforesaid provision is therefore, in a clear

distinction from the specific provision under Section 372 of

the Code conferring upon the victim a distinct legal right to

prefer an appeal which was not earlier available to him/her.

The conscious distinction made by the legislature in the

wording of the two provisions is apparent and with a definite

legislative intent and purpose.

If by taking a view that victim/private party or

informant has legal right to appear in a proceeding initiated

at the instance of the accused under the provision of Section

301(2) of the Code, it would mean that the victim/private

party is a necessary party in every such proceeding and as a

matter of right is entitled to receive notice which is never

the intention of legislature to confer specific legal right. Such

interpretation is not appropriate while interpreting the

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specific language used in the statute keeping into mind aim

and object.

16. In the case of J.K. International vs. State

(Govt. of NCT of Delhi) and others, reported in (2001)

3 SCC 462, the matter related to the petition for quashing

filed by the accused before the High Court where the prayer

for impleadment as a party was declined. The Hon'ble Apex

Court held that under the scheme envisaged in the Code of

Criminal Procedure, a person who is aggrieved by the

offence committed is not altogether wiped out from the

scenario of the trial merely because the investigation was

taken over by the police and the charge-sheet was laid by

them. Considering this provision of Section 301(2) of the

Code, it was held that even in the Sessions Court where

public prosecutor is only authority empowered to conduct

the prosecution, as per Section 225 of the Cr.P.C., a private

person who is aggrieved by the offence involved in the case

is not altogether debarred from participating in the trial.

The Honourable Apex Court further held that

under Section 301(2) of the Code under Chapter-XXIV

"General Provision to inquiry and trial" a limited role is

permitted to be played by a private person if he is aggrieved

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and his presence is not wiped out from the proceeding in the

criminal trial merely because the case was chargesheeted by

the Police. The Honourable Apex Court also referred the

judgment in the case of Bhagwant Singh vs.

Commissioner of Police, reported in (1985)2 SCC 537.

17. Upon considering the law laid down by the

Honourable Apex Court in various decisions, the role and

rights of the victims are recognised. On the basis of various

decisions, it can be said that the victim or a private person

has the locus to appear in a proceeding initiated at the

instance of the accused, in any case before any Court where

it is an affected party, however, subject to the discretion

conferred upon the Court, to be exercised in the manner as

may be required in the facts and circumstances of a

particular case. 'Locus Standi' as defined in the Blacks Law

Dictionary as 'the right to bring an action or to be heard in a

given Forum'.

18. As per the Law Lexicon by Ramnatha Aiyyer,

'Locus Standi" signifies a right of appearance in a Court of

justice or right to be heard or place of standing. Such a locus

standi confers on a person only if he has an interest in the

matter. The victim/private person in that sense does have an

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interest in the matter, since he/she are the ultimate sufferer

of such crime.

19. In the light of above observation by the

Honourable Apex Court and in the light of legal provisions, in

the present application, it nowhere appears to my mind that

the applicant or Intervenor is direct sufferer due to action or

inaction on the part of the applicant who is the accused of

the crime. As the Intervenor has no Locus Standi, which is

apparent from the application, the application is devoid of

merits and deserves to be rejected.

20. Coming to facts of the present case, it reveals

that the applicant along with other co-accused persons is

facing trial for offences under Sections 170, 171, 420, 467,

468, and 471 read with 34 of the Indian Penal Code. There is

a specific charge against the applicant under Section 170

and 171 of the Indian Penal Code. Learned Magistrate

recorded the entire evidence led by the prosecution and

statements of accused were recorded. After considering the

evidence of the prosecution and cross examination by the

accused persons, learned Magistrate formed an opinion that

more severe offences are committed by the applicant and

the said offences are punishable under Section 467 of the

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Indian Penal Code which is punishable with imprisonment for

life or with imprisonment of either description for a term

which may extend to ten years and shall also be liable to

fine. Being court of the Chief Judicial Magistrate, is not

empowered to impose higher punishment i.e. more than

seven years, in view of provisions under Sections 323 and

325 of the Code, he committed the case to the Court of

Session on the quantum of punishment. It is observed by

learned Magistrate that Section 323 of the Code is general in

nature. Whereas, Section 325 of the Code provides for

specific category of cases. Sub-section (1) of Section 325

itself gives an indication that the relevant factor for

consideration is, whether the punishment which ought to be

received by the accused in the case before him should be

more severe than the punishment which he is competent to

inflict. Referring the decision in the case of Narendra

Amratlal Dalai vs. The State Of Gujarat, reported in

(1978) GLR 165, the Gujarat High Court in the case of

Shailesh vs. State, Special Criminal Application

No.1228/2007 decided on 8.10.2008 committed the case

to the Court of Sessions. The Gujarat High Court, in

paragraph No.7 of the decision in the case of Shailesh

supra observed that, "supposed, before a Chief Judicial

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Magistrate or Metropolitan Magistrate, the case involves an

offence of a gross nature and the sentence which he ought

to award must exceed seven years, what is the Chief Judicial

Magistrate or the Metropolitan Magistrate to do? Sub section

(3) of Section 325 in such a case enables the Chief Judicial

Magistrate to pass such order in the case as he thinks fit and

is according to law and commit the case under Section

325(1) to the Court of Sessions under Section 323 of the

Code of Criminal Procedure. The word Magistrate, occurring

in Section 323 in this connection should be held to include a

Chief Judicial Magistrate, or a Metropolitan Magistrate as

well. It must be made clear, however, that this

interpretation does not affect the power of a Magistrate or a

Metropolitan Magistrate to commit under Section 323 of the

Code of Criminal Procedure to the Court of Sessions wherein

a question other than the quantum of punishment which

ought to be received by the accused is involved."

21. By considering above provisions, as the offence

against the accused is made out under Section 467 of the

Indian Penal Code for which maximum punishment of life

imprisonment is provided, learned Magistrate committed the

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case to the Court of Sessions to hear on the quantum of

punishment.

22. Thus, by following procedure, learned Magistrate

committed the case to the Court of Sessions.

23. As regards submissions of learned counsel for the

applicant that the applicant is behind the bars since the date

of his arrest and the trial is not concluded, in decisions

Jalaluddin Khan vs. Union of India and Manish Sisodia

vs. Directorate of Enforcement, relied by him, the

Honourable Apex Court considered aspect of delay in trial

and released applicants therein on bail.

24. There is no dispute as far as legal provisions are

concerned that right to life and personal liberty is the most

sacrosanct fundamental right guaranteed under Articles 20,

21, and 22 of the Constitution of India. Any attempt to

encroach upon the fundamental right has been frowned

upon by the Honourable Apex Court in catena of decisions.

In the said decisions, the Honourable Apex Court referred

observations of its earlier decision in the case of Roy V.D.

vs. State of Kerala, reported in 2022 SCC OnLine and

observed that the life and liberty of an individual is so

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sacrosanct that it cannot be allowed to be interfered with

except under the authority of law. It is a principle which has

been recognised and applied in all civilized countries. In our

Constitution, Article 21 guarantees protection of life and

personal liberty not only to citizens of India but also to

aliens.

25. Thus, the Honourable Apex Court considered that

on account of a long period of incarceration and the trial

even not being commenced, the appellant has been

deprived of his right to speedy trial and released him on bail.

There is no dispute that bail is a rule and jail is an exception

and the applicant cannot be kept behind the bars by way of

punishment. At the same time, gravity of offences need to

be looked into.

26. Insofar as the applicant is concerned, in all 34

offences are registered against him and out of that 4

offences are similar in nature. As far as the case before the

court below is concerned, it is at the fag end. The applicant

had also challenged the order passed by learned Magistrate

by preferring an application bearing Criminal Application

(APL) No.911/2024 before this court and co-ordinate bench

of this court stayed order impugned dated 30.4.2024 and,

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therefore, the trial has not proceeded further. Thus,

considering the same, only aspect of imposing punishment

by hearing parties remained with the Sessions Court.

Considering series of offences registered against the

applicant of the similar nature and the trial is already

concluded, the applicant has not made out a case for grant

of bail.

27. In the light of the above, the application for bail

deserves to be rejected and the same is rejected.

Application for bail stands disposed of.

Application for intervention is allowed and

disposed of.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 28/08/2024 16:10:44