2013 ALL MR (Cri) 4163
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
P.D. KODE, J.
Bhagwat S/O. Narayanrao Saidane Vs. State Of Maharashtra & Anr.
Criminal Application (Apl) No.354 of 2013
26th September, 2013
Petitioner Counsel: Mr. A.S. MARDIKAR
Respondent Counsel: Mr. D.B. PATEL
Criminal P.C. (1973), Ss.439(2), 482 - Penal Code (1860), Ss.408, 409, 34 - Cancellation of bail - Breach of condition - Bail was granted to accused on condition of his attendance at police station on every sunday - Accused failed to comply with condition - Bail cancelled - Reason behind breach was that advocate of accused did not inform him about condition of bail - Though breach of condition had occurred, cancellation of bail was not warranted - Such default cannot be deliberate or intentional - No case compelling need of cancellation of bail was made out.
Bhagirathsinh Judeja Vs. State of Gujarat, 2011 ALL SCR (O.C.C.) 110=1984 Cri.L.J. 160 [Para 6,8]
State of Harayana and others Vs. Bhajan Lal and others, 2013 ALL SCR (O.C.C.) 1 =1992 Supp (1) SCC 335 [Para 7]
3. By the present application under Section 482 of the Code of Criminal Procedure, the applicant-one of the accused arrested in connection with Crime No.197/2012 of Pandharkavda Police Station for offence under Sections 408, 409 read with Section 34 of Indian Penal Code, has prayed for exercising inherent powers of this Court for quashing and setting aside the order dated 21.03.2012 cancelling the bail granted to him vide order dated 11.11.2012 and order dated 01.06.2013 passed by the Court of Sessions, Kelapur upholding the said cancellation by rejection of an application in revision preferred by the said applicant to the Court of Session challenging said order of cancellation passed by trial Court.
4. The crime in question was registered upon the first information lodged by one Aniruddha Adhav on the allegation of the applicant along with the other accused having misappropriated an amount of about Rs.20 lacs entrusted to him in his capacity as Project Officer. Considering the nature of controversy involved, it will be wholly unnecessary to state in detail about the matters in said first information report and the crime, except that in short it is the allegation in the complaint that work under Thakkar Bappa Adivasi Sudhar Scheme of executing construction work of Nalli and the road, for an amount of Rs.20 lacs or thereabout was allotted to one Mahatma Fule Gramin Bahujan Vikas Sanstha. During the course of investigation, the applicant was arrested on 11.11.2012 and was produced before the Court of Judicial Magistrate First Class. Significantly enough no police custody remand was then sought of the applicant for the purposes of investigation. Resultantly by order passed on Sunday i.e. on 11.11.2012 , the applicant was ordered to be released on bail with conditions amongst other, a condition no.3 to attend the Police Station Pandharkavda on every Sunday.
5. The prosecution on 21.02.2013 moved an application with the contention of the applicant having failed to comply with condition of the attendance imposed and prayed for cancellation of the bail. The applicant resisted the said application by filing reply amongst other contending that his Advocate having failed to inform him about the condition of the attendance imposed, he did not attend Pandharkavda Police station. Secondly it was contended that prior to making an application for cancellation on 19.02.2013, ASI Ghuge of Pandharkavda Police Station called the applicant at the Crime Branch by informing him that he has failed to attend. It is the case of the applicant that he promptly attended the said Crime Branch on 23rd and 24th February,2013 and cooperated for investigation and his statement was recorded. It is also his contention that application for cancellation fails to make out any case of any compelling necessity of keeping the applicant in custody as the said application amongst other also discloses that the other co-accused was arrested during the course of the investigation and his statement was recorded and on receiving a clue, the Police had been to the Bank and verified the amount of Rs.20 lacs allegedly misappropriated was withdrawn from the Bank by the said co-accused and not by the applicant.
6. Mr. Mardikar, learned counsel for the applicant contended that the matter stated in reply undoubtfully clarifies that there was no intentional act on part of applicant in not complying the condition imposed by the Court, but the default had occurred due to the reason of the applicant being not informed about the said condition. The learned counsel contended that moment the applicant learnt about such a condition being levied by the Court, he not only attended the Crime Branch but thereafter even during the pendency of the application for cancellation of bail, he attended Police Station as ordered. The learned counsel contended that the applicant is in service and is working as a Special Land Acquisition Officer at Jalgaon and as such though not impossible but it is impracticable for him to give an attendance for indefinite period. It is submitted that the same would adversely affect the work required to be carried by him as Special Land Acquisition Officer. The learned counsel states that the trial Court as well as the revisional Court completely missed the aspect of the breach of condition having occurred being not intentional. It is submitted that both the Courts also missed the consideration for cancellation of bail and consideration for grant of bail being altogether different and for former some compelling cause warranting the cancellation being necessary. Mr. Mardikar laying his finger upon the decision of the Apex Court in a case of Bhagirathsinh Judeja .vs. State of Gujarat reported in 1984 Cri.L.J. 160 : [2011 ALL SCR (O.C.C.) 110] and particularly the following experts from paragraph nos. 5 and 6 :
"5. ............If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence.
6. .........The High Court completely overlooked the fact that it was not for it to decide whether the bail should be granted but the application before it was for cancellation of the bail. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. .......... The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence."
submitted that on the line of the said guidelines considering case of applicant, the order of cancellation ordered in the instant case cannot be upheld.
7. Mr. D.B. Patel, learned APP countered the aforesaid submissions by submitting that it is beyond doubt that the condition of attendance was imposed while releasing the applicant on bail. It is submitted that the Advocate being agent of the party, his failure to inform the applicant, cannot be said to be a good ground for the applicant to plead ignorance about such a condition being imposed. It is submitted that in these circumstances the applicant is liable for the consequences ensuing of his act of non-attending the Police station and as such no fault can be found with the orders passed either by the trial Court or by the Revisional Court. Mr. Patel submitted that the offence in question is of serious nature. It is urged that the offence being registered way back in the month of November, 2012 and the investigating officer being unable to submit the charge sheet, itself reflects that he is not able to complete the effective investigation due to non-cooperation on the part of the applicant. It is thus submitted that hardly any case is made out for exercising of inherent powers as explained by the Apex Court in the decision in a case of State of Harayana and others .vs. Bhajan Lal and others reported in 1992 Supp (1) Supreme Court Cases 335 : [2013 ALL SCR (O.C.C.) 1] regarding circumstances in which exercise of such power is warranted.
8. After giving the anxious consideration to the submissions advanced by rival parties, and after taking into consideration the law regarding cancellation of bail and particularly the guidelines given by the Apex Court in the case of Bhagirathsinh Judeja, [2011 ALL SCR (O.C.C.) 110] (supra), it appears that though prima facie it is beyond any dispute that the breach of conditions while granting a bail had occurred, still considering all the circumstances brought to the notice, it cannot be said that the same warranted cancellation of bail granted to the applicant. Such a conclusion is apparent as the fact of the Advocate for applicant having not informed about the condition imposed, has remained uncontroverted on the side of the prosecution. It is indeed true that the learned APP was very much right in submitting that the said Advocate being agent of the applicant, for his mistake the applicant cannot claim the ignorance of the condition imposed while releasing him on bail. However, having due regard to the said fact, the same also indicates that in such circumstances the default as occurred cannot be said to be either deliberate or the intentional one. Such inference is fortified after taking into consideration further conduct of applicant in attending Crime Branch after receipt of phone call and thereafter Police Station during pendency of application for cancellation, as pointed.
9. Insofar as the submission advanced by the learned APP of investigation having remained incomplete, it is difficult to accept that the applicant can be said to be solely responsible for the same. The same is apparent from the fact pointed out by the learned counsel for the applicant that the prosecution even not sought the police custody remand of the applicant at his first production before the Court of Magistrate or on the date on which the bail was granted. The learned APP tried to justify the said event by submitting that such an event had occurred because of improper action on the part of the earlier investigating officer. Though learned APP has not placed any material before the Court for justifying his submission that for the said reason the investigation was transferred from the said investigating officer to another, still the fact of investigation being transferred to the another officer is apparent from the record. However, still non-explanation on part of prosecution for not approaching Court immediately for breach of condition and approaching after about 2-3 months also runs against submission of presence of applicant was earnestly necessary for completion of investigation.
10. Since the investigation is yet not completed, it appears improper to make any detail dilation about the matters which had remained to be investigated, as such a direction may be prejudicial to such investigation which is yet to be completed. However, after carefully considering the case diary and the matters as revealed from the application for cancellation, the submission canvassed by the learned counsel for the applicant that for completion of the remaining investigation, the detention of the applicant in custody is not necessary, cannot be said to be far from true.
11. In the aforesaid premises and apparently considering the circumstances in which the default has occurred, the same within itself not indicating that it was an intentional one, it is difficult to accept that the case of a compelling need of cancellation of bail was made out. However, having due regard to the fact that the investigation is yet not completed, the application deserves to be allowed by giving some appropriate direction.
12. Resultantly the order dated 21.03.2012 passed by the learned Judicial Magistrate, First Class, Kelapur cancelling bail granted and the order dated 01.06.2012 passed by the learned Additional Sessions Judge, Kelapur upholding the said rejection, are hereby quashed and set aside. However, the applicant is directed to attend the investigating officer as directed in the original order of bail. Liberty to the applicant to apply to the trial Court for relaxation of the said condition after a period of two months.