Criminal Application No.50 of 2014

19th March, 2014.

Petitioner Counsel: Mr. RIZWAN MERCHANT, HRISHIKESH AMEMBAL, SWAPNIL L. WAGH, Mr. SANDEEP BALI, FAIZ MERCHANT, SULTAN, RIZWAN MERCHANT
Respondent Counsel: Mr. AMIT DESAI, SHAM MEHTA, SHILPAN GAONKAR, GOPAL SHENOY, SURAJ IYER, Mr. SUBHASH JHA, Ms. RUSHITA JAIN, Ms. S.V. SONAWANE

Cases Cited:
Sanjay Chandra Vs. CBI, 2011 ALL SCR 2930=(2012) 1 SCC 40 [Para 9]
Ranjit Singh Vs. State of M.P. & Ors., 2013 (4) RCR (Criminal) 600 : 2013(12) SCALE 190 [Para 9]
Kanwar Singh Meena Vs. State of Rajasthan & Anr., 2012 ALL MR (Cri) 4074 (S.C.)=(2012) 12 SCC 180 [Para 13]

JUDGMENT

JUDGMENT :- Heard learned senior counsel for the applicant/original complainant, also heard learned senior counsel for respondent no.1, also heard learned counsel for respondent no.2 and also heard learned A.P.P. for the State-respondent nos. 3 and 4.

2. This is an application for cancellation of bail granted to respondent nos. 1 and 2 by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai ( hereinafter referred to as "the ACMM") dated 1st February, 2014. The said impugned order was passed on two separate bail applications bearing nos. 12 and 13 of 2014 preferred by present respondent nos. 1 and 2.

3. At the threshold, it must be mentioned that initially respondent nos. 1 and 2 preferred bail application no. 2109 of 2013 before this Court for their release on bail. Said application was heard at length and by a reasoned order this Court dismissed the said application vide order dated 20th December, 2013. When that order was passed, subsequently an application for 'speaking to the minutes' was preferred before this Court asking for certain clarification regarding the observations made by this Court. Said application for speaking to the minutes was disposed of vide order dated 8th January, 2014. That time, it was submitted on behalf of respondent nos. 1 and 2 that certain observations were made in the order rejecting the bail application and as such trial Court / Sessions Court may not be influenced by the said observations when the matter will be put to trial or in repeated bail application. It is further submitted that an addition is required to be made in the final order mentioning that the said observations are only for the purpose of deciding bail application no.2109 of 2013. This Court in paragraph nos. 4 and 5 concluded the said application for speaking to the minutes. The said observations in paragraph nos. 4 and 5 read thus:-

"4. Needless to mention that the every order on bail application is definitely confined to the matter which is dealt with in a particular Bail Application and never the contents thereof can be taken shelter of at the time of final hearing of the matter on merits before the trial Court or before the Sessions Court.

5. As such, in view of the above legal position, there is no necessity to add anything more in the order already passed and as such present application for speaking to the minutes is disposed of."

4. After getting the order of this Court on speaking to the minutes, on the above terms, the matter was taken before the learned Addl. Chief MM by filing bail application nos. 12 and 13 of 2014, as mentioned above. Apparently, what was mainly canvassed before the learned Addl. Chief MM was that, this Court rejected the bail application only on the count that the investigation was continuing and as such after filing of the charge-sheet separate bail applications were preferred before the learned Addl. Chief MM. Said Additional Chief Metropolitan Magistrate, allowed both the bail applications by giving reasoning only in paragraph nos. 3, 4 and 5 and then passed the final order granting bail in the sum of Rs.50,000/- with surety in the like amount. Contents of said three paragraphs were assailed on behalf of present applicant/original complainant and it is argued that the learned Addl. Chief MM had not taken into consideration the relevant material available against the respondent nos. 1 and 2 in turn wrongly construed order of this Court as the order passed mainly sensing the investigation was going on. Also much is argued by learned counsel for respondent no. 1 and the learned counsel for respondent no.2 on the contents of said only three paragraph nos. 3, 4 and 5 and which are only the paragraphs so far as reasoning is given by the learned Addl. Chief MM while granting bail. These paragraphs are produced hereunder, in order to have a ready reference and to appreciate the arguments of rival parties and in order to test whether the said order is of such a nature as required to be altered under the inherent powers of this Court as per section 482 of the Code of Criminal Procedure (for short "the Cr.P.C") and under section 439 (2) of the Code regarding cancellation of bail. Said paragraphs read thus :-

"3. The accused have been in custody since beginning and their earlier bail applications came to be rejected mainly since the investigation was going on. Now the charge sheet has been filed.

4. The prosecution made much ado about the forgery made in the commencement certificate issued by the Corporation and also claimed that accused have committed other forgeries too, investigation into which is going on. To ascertain the status of such investigation the case diary was called for. The Investigating Officer produced it today. Its perusal reveals that the investigation as it was when the bail application of accused was rejected lastly by the Hon'ble High Court is still at the very stage. Since the case diary is a confidential document and particularly when the accused is not entitled to any access to it, it is not desirable to reproduce its contents or even mention them in the order. As such, a restraint is being observed. Suffice it to say that the case diary does not substantiate the purposes of investigation as have been mentioned in the say of Investigating Officer nor such purposes at all appear to be sound enough to warrant further detention of the accused. Even there is nothing to support the contention of the prosecution that this case involves other issues than mere forgery and cheating. Therefore, it shall certainly be unjust for the accused to be kept in custody under the garb of an on going investigation, without there being any actual or substantial progress, as the case diary reveals. Therefore, the ground of incomplete investigation raised to oppose the bail applications appears absolutely implausible. The investigating agency have got ample time for investigation. Material investigation is also over.

5. In view of the principles laid down in the case of Sanjay Chandra by the Hon'ble Apex Court for grant of bail it is to be noted that the investigation even as proposed can still be carried out without the accused being detained nor is there any other ground to justify the contention of the accused any further. There is nothing to doubt that the accused would not be available during trial. Similarly, the apprehension of the prosecution that the accused may tamper with the evidence and witnesses can be taken care of by imposing necessary conditions. However, the circumstances do not necessitate further detention of the accused. Hence the order:"

5. Now coming back to the order of this Court rejecting the bail to the present respondent nos. 1 and 2, this Court has specifically detailed the allegations against respondent nos. 1 and 2. Again, in order to appreciate the factual position, certain observations in the said order rejecting the bail application by this Court can be mentioned; The said bail application no.2109 of 2013 was filed by present respondent nos. 1 and 2 in the matter of offences punishable under sections 465, 467, 468, 471, 474 and 420 read with section 34 of Indian Penal Code ("IPC" for short). The first information report (FIR) was lodged by the intervener Rubina Zahir Ansari on 18th October, 2013 with Bandra Police Station. The offence was registered vide CR No. 547 of 2013. Initially, allegations against respondent nos. 1 and 2 / accused persons were that they cheated the complainant woman and created fabricated documents and it happened since December, 2009 till lodging of the complaint. Initial complaint was against respondent nos. 1 and 2 and other known and unknown persons. Without going much in detail as to how the intervener was cheated and how the documents were fabricated, suffice it to say that there was a memorandum of understanding (MoU) entered into between intervener and respondent nos. 1 and 2 for sale of flat on 5th floor in the building known as CONCRETE CONSTRUCTIONS (HERITAGE) and out of total consideration fixed at Rs.78 lac, amount of Rs.50 lac was given to the builders i.e. accused persons. Though she was assured flat on 5th floor, there was permission to construct the building only up to 3rd floor and in fact there was no sanction by municipal corporation of Greater Mumbai. This fact was suppressed by respondent nos. 1 and 2 and instead of that it was represented that they had authority to construct up to 7th floor. When the bail application was preferred by respondent nos. 1 and 2 before this Court, it was the submission that it is a case of simple cheating and not obeying the MoU entered into between the parties and as such a civil transaction. That time various facets of the case were brought to the notice of this Court and they were discussed in detail in the order of this court rejecting the bail application. That time this Court had discussed regarding the apparent forgery of the commencement certificate and such forged copy was annexed to the MoU entered into between the accused and the present intervener. Even such copy of the commencement certificate having alterations and making it to believe that the sanction is up to 7th floor was annexed to various other agreements entered into with different purchasers of the flats in the same building. That time this Court has discussed regarding at least five documents prepared and forged for the same property constructed by respondent nos. 1 and 2. Even it was brought to the notice of this Court that there was an attempt to pressurize the witnesses and also attempt to take the favourable affidavits from them. Specific affidavit executed by one Mohammad Zaki was brought to the notice of the court. It was sworn on 25th October, 2013 and notarized before the Notary in which Mohammad Zaki mentioned that he has not been deceived by the builders. The said contents of the affidavit were reproduced by this Court at the end of paragraph no.11 of the order of rejecting the bail and the comments were made that considering the averments in the agreement between the accused builders and said Mohammad Zaki and considering the copy of fabricated commencement certificate annexed to the said agreement, this Court came to the conclusion that it was attempt to create a false evidence and tampering the witnesses. In that order of the court in paragraph no.16, it was specifically mentioned reproducing the arguments advanced on behalf of the intervener that it was not a simple case of cheating the intervener but it was a case of purposeful design to construct a building up to 7th floor without there being any sanction from the local authorities and design to earn huge profits at the costs of lives of the flat purchasers. Various authorities were discussed by this court during passing of the order rejecting the bail application and ultimately in last paragraph this court had summarized the case as against present respondent nos. 1 and 2. Observations made by this court in last paragraph no.17 are reproduced hereunder again for the sake of ready reference and in order to see whether the learned Addl. Chief MM had taken the note of these observations in proper perspective and or whether the said court had misdirected itself and held that as the charge-sheet is filed, there is no necessity for continued detention of the accused persons. Said observations of this Court in para 17 read thus :

"17. Considering the ratios propounded by the above authorities, it must be said that the present matter is required to be viewed in different perspective than that is argued on behalf of the applicants. In other words, it must be mentioned that the present matter cannot be viewed as a simple breach of contract and cheating an individual and as such entitling the applicants to the bail on their willingness to deposit an amount of Rs.50 lakhs with the Court or with the intervenor / complainant. This is a matter in which the conduct of the applicants is spelt out from various documents entered into by them, as detailed above, and as explained by the learned Counsel for the intervenor and in that event mainly considering that the present matter is still under investigation, it is not in the fitness of the situation to release the present applicants on bail. Hence, the present application is dismissed and accordingly disposed of. Intervention application also stands disposed of."

6. In the light of the above findings of this Court, it was incumbent upon the learned Addl. Chief MM to view the repeated bail application. However, said court had cursorily gone through the material and also apparently the huge charge-sheet of more than thousand documents and came to the conclusion that as the investigation was over there was no need for further custody of the accused persons. On that aspect, it must be said that said court had erred in, firstly holding that this Court has rejected the bail application only on the ground of continued investigation and secondly on the ground that the investigation was already over as the charge-sheet was filed. So far as first point is concerned, the observations of this Court in paragraph no.17 of the order rejecting the bail are self-explanatory, inasmuch as the present matter was not to be viewed as a simple breach of contract and cheating an individual but the conduct of respondent nos. 1 and 2 depict their behaviour and their attempt to interfere with the administration of justice by way of tampering with the prosecution witnesses. On this aspect, during the arguments learned counsel for the intervener/ present applicant stated that definitely there were further statements of other witnesses recorded on 15th January, 17th January and 29th January, 2014 and in fact this position was brought to the notice of the learned Addl. Chief MM but he simply ignored to appraise the same in proper perspective and a bald statement is made that the investigation is over. In fact, the charge-sheet filed before the trial court at the end did mention regarding permission sought for further investigation under the provisions of section 173 (8) of Cr.P.C. On this aspect, needless to mention that it is the prerogative of the investigating agency to take recourse to section 173 (8) of Cr.P.C. and to file additional charge-sheet after additional investigation. Only what is required is the intimation to the Court with which the initial charge-sheet is filed. In the present matter, though initially charge-sheet was filed such reservation for further investigation was made by the investigating agency. However, this fact has been lost sight of by the learned Addl. Chief MM and he came to the conclusion that the investigation is over. Moreover, he also lost sight of the factual position though brought before him by the intervener that even the accused persons are in custody there are attempts to tamper with the witnesses through the ladies members of the family of the accused persons.

7. During the arguments, the learned counsel for the applicant intervener submitted that admittedly further investigation is still continuing and statements of two witnesses have been recorded before granting of bail by the learned Addl. Chief MM and two statements have been recorded after grant of bail. Apparently, this is the indicator that the investigation is still going on and in fact in the present matter investigation is being done by CID Crime Branch Unit No.9. It is also brought to the notice of this Court, during the arguments, that at the time of arguments on the bail application before the learned Addl. Chief MM even the case diary was called and on perusal of the case diary, it was observed by the learned Addl. Chief MM that the investigation was same as it was when the bail application was rejected by the High Court. Further the court went on to see that as the case diary is a confidential document and as the accused were not entitled to its access it was not desirable to reproduce its contents or even mention in the order. In fact, that time the further investigation was going on and the statements of the witnesses were being recorded. It must be said that the learned Addl. Chief MM adopted very casual approach towards further investigation and even cursorily dismissed the submissions made before him even on behalf of the I.O. by simply mentioning that the case diary does not substantiate the purpose of investigation as have been mentioned in the say of the IO, nor such purpose at all appears to be sound enough to warrant the further detention of the accused. During the arguments in the present matter it is submitted on behalf of the State that investigation is going on under section 173 (8) of Cr.P.C. and in fact there was investigation on the aspect as to benami transaction and also money laundering.

8. Counter to the above arguments, the learned counsel for respondent nos. 1 and 2 mainly submitted that in the present matter it is doubtful whether offence punishable under section 467 of IPC i.e. fabrication of any document or offence of forgery can be spelt out. On this aspect, it is submitted whether forgery of a photo copy can be termed as a "forgery" in the strict sense of the meaning. By pointing out this, it is submitted that as the allegations against respondent nos. 1 and 2 are that they used the photocopy of the commencement certificate and said photocopy having alteration in the endorsement of the Municipal Corporation. Allegations are that initial commencement certificate was only up to 3rd floor. However, it has been changed to show that it has been given up to 7th floor. By pointing out this, it is submitted that there was no fabrication of the original commencement certificate and only xerox copy has been used. By pointing out this, it is suggested at the most offence punishable under section 420 of IPC can be spelt out but no offence under section 467 of IPC, secondly, it is argued on behalf of the respondent no. 2 that as per the provisions of section 437 (6) of Cr.P. C. if, in any case triable by a Magistrate, the trial of a person accused of a non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be recorded in writing, the magistrate otherwise directs. These are the wordings of section 437 (6) of Cr.P.C. However, while arguing this point, the learned counsel has over looked the factual position in as much as the present matter though triable by the magistrate was not fixed for taking evidence. In other words, stage of taking evidence in the matter definitely has not arisen mainly on two counts; firstly, that investigation is still going on and secondly that the charge was not framed though the preliminary charge-sheet has been filed. As such this submission has no merits. So far as earlier submission as to no forgery if there is alteration in the copy of the document, the learned counsel for the applicant pointed out that definitely it was tried to establish by filing the altered copy of the commencement certificate along with the agreements for sale, that the builder i.e. the respondents have permission to construct the building up to 7th floor. By filing such fabricated copy of the commencement certificate, it was tried to believe that the respondents were entitled to construct up to 7th floor and as such this act is none else than a fabrication of the document though it was not the original document but the copy of the same, further argued.

9. Learned Senior counsel for respondent No.1 also vehemently argued and mainly argued on the general principles as to under which circumstances the bail can be cancelled by the Court of Sessions or by the High Court under the provisions of Section 439 (2) of Cr.P.C. On this aspect, it is submitted that perversity in passing the order of granting bail or consideration of the extraneous material or not considering the material particulars are the few criterias required to be looked into while dealing with the application for cancellation of bail. It is further argued that admittedly charge-sheet is filed and the present respondents are in custody for more than 130 days. It is also submitted that after filing of the charge-sheet, the entire earlier collected material is required to be freshly assessed. Apparently, it is a changed circumstance on filing of the charge-sheet. It is also brought to the notice of this Court that the State had not challenged said order of grant of bail. Much reliance is placed on the authority of Sanjay Chandra Vs. CBI reported in (2012) 1 SCC 40 : [2011 ALL SCR 2930]. It is also argued that even in prima facie cases bail can be granted. In support of this argument, the following authority is cited before the Court;

Ranjit Singh Vs. State of M.P. and others 2013 (4) RCR (Criminal) 600, 2013(12) SCALE 190

There cannot be any dispute that under certain circumstances even in prima facie cases bail can be granted but still considering the ratio propounded in the above authority, it must be said that certain other factual position is required to be construed, inasmuch as still continuation of the investigation and the other parameters regarding grant or otherwise of the bail.

10. Lastly, it is argued on behalf of respondent no.1 that the present application for cancellation of bail is not at all maintainable under the provisions of Section 439 (2) of Cr.P.C inasmuch as the respondent nos. 1 and 2 are still in custody and as such they are not at all released on bail. Prerequisite conditions are necessary in order to attract the provisions of section 439 (2) of Cr.P.C. which reads thus :

439. Special powers of High Court or Court of Session regarding bail.

(1) -

(a) -

(b) -

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

By pointing out this legal provision, it is submitted on behalf of the respondents that recourse to section 439 (2) of Cr.P.C. cannot be taken by the applicant and as the present application is filed only for taking action against the respondents under section 439 (2) of Cr.P.C the said application is not at all maintainable. Counter to this argument, it is submitted on behalf of the applicant that even recourse to section 482 of Cr.P.C. can be taken by the High Court. Section 482 of Cr.P.C. reads thus :

"482. Saving of inherent power of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

11. In the opinion of this Court, though there is no specific mention in the present application that present application is preferred also u/s 482 of Cr.P.C. it must be construed that what is desired by the applicant is the cancellation of bail order granted in favour of the respondent nos. 1 and 2. In other words, when such a desire is made and prayed for direction for cancellation of bail, mere technicality cannot disentitle a person if otherwise he is entitled for the relief as claimed. In that event, recourse to section 482 of Cr.P.C. can be taken by the Court in order to give the meaningful effect to the prayers in the application. Merely for the reason that though the bail was granted by the Additional Chief Metropolitan Magistrate to respondent Nos. 1 and 2, the said bail order has been stayed and in fact the respondents are not released from the custody, the prayer of present applicant/original complainant cannot be discarded for the simple reason that the respondents are still in custody. Again, in other words, what is objected by the original complainant is the order passed by the Additional Chief Metropolitan Magistrate granting bail to respondent nos. 1 and 2. Under this factual position by taking recourse to section 482 though it is not specifically pleaded by the complainant, this Court can very well look into the aspect as to legality or otherwise of the order of grant of bail mainly considering that admittedly investigation is still continuing though the preliminary charge-sheet is filed.

12. Again on this aspect as to continuing investigation attention of this Court is drawn towards request made by the Senior PI of Crime Branch Unit No.1 to the Director of Enforcement (Prevention of Money Laundering Act). Even this aspect was also brought to the notice of the learned Additional Chief MM. By this application, a request was made by the State to Enforcement Directorate to investigate whether there are any economic transactions involved concerning prevention of money laundering inasmuch as whether the money has been received by HAWALA transactions. On this aspect, the Investigating agency has recorded statement of one Adil Alna. He had paid an amount of Rs. 32,50,000/- to one Sunil Rathod and according to the statement of said Sunil Rathod he had given that amount to the present respondent nos. 1 and 2. According to said Adil Alna, he raised that amount by selling immovable property, but did not produce any document to that effect and as such this transaction smack of HAWALA according to the investigating agency. When this was brought to the notice of the learned Addl.Chief MM, this aspect has been ignored by the said Court while dealing with the application for bail of respondent nos. 1 and 2, further argued.

13. On behalf of the complainant, the following authority was cited before the Court.

Kanwar Singh Meena Vs. State of Rajasthan and Another reported in (2012) 12 Supreme Court Cases 180 : [2012 ALL MR (Cri) 4074 (S.C.)].

The principle enunciated in the said authority reads thus :

"While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society."

14. It is also brought to the notice of this Court on behalf of the complainant that there is unauthorized use of the basement in the building constructed by the respondents for commercial purposes and for which the MRTP notices were also issued against the wives of the respondents. It is also submitted that there is muslim community centre at the basement of the said building. It is further submitted that the Jamiat Ahle Hadith (JA) (Assembly of followers the way of the prophet) is a religio-political party in Pakistan. It is part of the Islamic fundamentalist Muttahida Majlis-e-Amal. It is further argued that it is a terrorist movement indulged in terrorist activities.

15. During the arguments, learned counsel for the intervener and also the learned A.P.P stated that all the above mentioned factual position was brought to the notice of the learned Addl.Chief Metropolitan Magistrate during the arguments on the application for bail preferred by respondent nos. 1 and 2. However, curiously enough said arguments were not taken into consideration and in a very casual manner, the reasoning was given in only three paragraphs and the applications for bail were granted, further argued.

16. Considering rival submissions and also considering that admittedly the further investigation is still going on and still considering the ramifications of the actions on the part of respondent nos. 1 and 2 in dealing with the building, it must be said that the Addl. Chief Metropolitan Magistrate failed to appreciate all the said material in proper perspective and had misdirected himself to come to the conclusion that the investigation is over and charge-sheet is filed. In the opinion of this Court, the impugned order is suffering from not taking into account the relevant material which is discussed hereinabove in detail while referring to the arguments advanced on behalf of the intervener and the State.

17. Under the above circumstances, it must be said that there is a room to interfere with the impugned order and the same is required to be cancelled and set aside and mainly at the cost of repetition that the case as against respondent nos. 1 and 2 is not only for simplicitor cheating an individual i.e. the complainant-intervener. In that view of the matter, the present application is allowed with the following order.

ORDER.

Criminal Application No. 50 of 2014 is allowed in terms of prayer clause (b). The impugned order dated 1st February, 2014 passed by the Additional Chief Metropolitan Magistrate, 37th Court Mumbai in Bail Application Nos. 12 and 13 of 2014 is hereby set aside. Present application is accordingly disposed of.

Ordered accordingly.