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2013 DIGILAW 1961 (BOM)

Sanjay v. State of Maharashtra

2013-09-24

ABHAY M.THIPSAY

body2013
ORDER 1. Heard Mr. N.S. Ghanekar, the learned counsel for the applicant. Heard Mr. G.R. Ingole, the learned A.P.P. for the State. 2. As per the direction given by this Court on 20th September, 2013, Mr. D.K. Chaure – Police Inspector, Gandhi Chowk Police Station, Latur the Investigating Officer, is present in-person before the Court, today. 3. The applicant is an accused in C.R. No. 147/2007 registered with Gandhi Chowk Police Station, Latur, in respect of offences punishable under Section 420 of the Indian Penal Code (IPC), Section 403 of IPC, Section 406 of IPC, Section 409 of IPC, Section 467 of IPC, Section 468 of IPC, Section 471 of IPC, Section 477A of IPC, Section 417 of IPC and Section 418 of IPC. The substance of the allegations against the applicant is that he was a working partner of `Sunidhi Securities’. That, the applicant made several fraudulent changes in the records of the said firm and even in record of the bank account held in the name of the said firm. The applicant is also alleged to have got prepared a false bank statement. He is also alleged to have transferred the shares in the name of the partnership firm in his own name by making false and fabricated entries etc.. 4. The applicant did not make himself available to the police for investigation and interrogation after the registration of the offence. According to the Investigation Agency, the applicant was absconding since 25.05.2007. The investigation that was carried out revealed that the applicant had committed criminal breach of trust in respect of an amount more than Rs. 1 Crore. The alleged offences were committed by the applicant in the financial years 2005-2006, 2006-2007 and 2007-2008. 5. Though the applicant was not available to the Investigation Agency, he made an application for anticipatory bail in the Sessions Court at Latur. On 01.10.2007, the Sessions Court, on the request made by the Public Prosecutor, directed the applicant to remain present at the time of hearing of the said application. The applicant, however, did not remain present before the Sessions Court, dragged on the matter and ultimately, the Court of Sessions dismissed the anticipatory bail application. The applicant challenged the order of the Sessions Court by filing a Writ Petition but, on 30.06.2008, withdraw the Writ Petition stating that chargesheet had been filed in the matter. 6. The applicant, however, did not remain present before the Sessions Court, dragged on the matter and ultimately, the Court of Sessions dismissed the anticipatory bail application. The applicant challenged the order of the Sessions Court by filing a Writ Petition but, on 30.06.2008, withdraw the Writ Petition stating that chargesheet had been filed in the matter. 6. It appears that after the filing of chargesheet, the applicant surrendered himself before the trial Court i.e. the learned Magistrate and prayed for bail. The learned Magistrate, by an order dated 08.12.2009 granted bail to the applicant. On 21.12.2009, the Investigating Officer made an application before the learned Magistrate praying that the bail granted to the applicant be cancelled, and that he be remanded into police custody. A number of contentions were taken in the said application, the substance of which is that the detention of the applicant and his custodial interrogation was necessary. 7. The learned Magistrate, by his order dated 09.02.2010, cancelled the bail granted to the applicant. The Magistrate also directed the applicant to remain present at the police station within 10 days from the date of the said order. 8. Against the said order, the applicant approached the Court of Sessions by making an application for revision. The learned Sessions Judge holding, inter alia, that the revision was not maintainable, dismissed the same. 9. It is under these circumstances that the applicant has approached this Court by invoking its inherent powers. 10. Mr. N.S. Ghanekar, the learned counsel for the applicant submitted that the impugned order is bad-in-law. According to him, at this distance of time, the police are not entitled to seek the applicant’s remand in police custody. He also submitted that since the substance of the claim of the Investigating Agency was that the bail had been wrongly granted, the Investigating Agency ought to have approached the Court of Sessions for cancellation of bail granted to the applicant by the Magistrate, and it was not open for them to seek cancellation of bail from the Magistrate himself. It is submitted that under the provisions of Section 437(5) of the Code, the learned Magistrate was not supposed to and expected to review his own to grant of bail, and the decision to cancel bail in such cases, should be based on certain supervening circumstances. 11. I have carefully considered the matter. It is submitted that under the provisions of Section 437(5) of the Code, the learned Magistrate was not supposed to and expected to review his own to grant of bail, and the decision to cancel bail in such cases, should be based on certain supervening circumstances. 11. I have carefully considered the matter. There is substance in the contention raised by the learned counsel for the applicant to the effect that the Investigating Agency ought to have approached the Court of Sessions itself, on the ground that bail was erroneously granted by the learned Magistrate. However, it cannot be said that the Magistrate was precluded from considering the matter afresh while exercising the powers under Section 437 (5) of the Code. It is because the orders granting or refusing bail do not attain finality; and if further and fresh materials – or even new grounds – are put-forth before the same Court, the matter can be considered afresh by the same Court. The facts of this case leading to grant of bail are rather peculiar. It appears that the applicant who was not available to the Investigating Agency for quite some time, suddenly surrendered himself before the trial Court without giving notice to the Investigating Officer. The bail came to be granted only on the basis that ‘the chargesheet has been filed’, which would signify completion of the investigation. Actually, the investigation had not been completed because a major part of the investigation viz: the recovery of the misappropriated amount had not been done. In fact, it was rather unnecessary on the part of the Investigating Agency to have filed the chargesheet in the Court by referring to the provisions of Section 299 of the Code. The matter could have very well kept by them as pending investigation. 12. Any way, I have considered the matter on merits, independently. It is apparent, that the applicant is absconding and has been adopting various tactics to avoid facing the Investigating Agency. He had also suppressed the fact of his previously seeking anticipatory bail from the Sessions Court and rejection of his application, while surrendering before the Magistrate and seeking bail from him. Bail came to be granted by the Magistrate without appreciating the facts of the case and in the absence of the Investigating Officer. He had also suppressed the fact of his previously seeking anticipatory bail from the Sessions Court and rejection of his application, while surrendering before the Magistrate and seeking bail from him. Bail came to be granted by the Magistrate without appreciating the facts of the case and in the absence of the Investigating Officer. There is, therefore, nothing wrong, if the learned Magistrate corrected the error, that had occurred in releasing the applicant on bail and cancelled the same. 13. Similarly, no fault can be found with the order passed by the Sessions Court dismissing the revision filed by the applicant challenging the order of cancellation of bail. 14. There exists a strong prima facie case against the applicant. It also appears that his custodial detention and interrogation in the matter is necessary for proper and effective investigation. 15. Since the order cancelling bail granted to the applicant is proper and legal, the same does not need any interference. 16. The application is rejected.