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2014 DIGILAW 2409 (BOM)

Yashwant v. State of Maharashtra

2014-12-05

A.M.THIPSAY

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ORDER A.M. Thipsay, J. 1. Rule. By consent, Rule made returnable forthwith. 2. By consent, heard finally. 3. The petitioners are the accused in C.R. No. 20 of 2014 registered at Vengurla Police Station. The case was initially registered in respect of offences punishable u/s. 354 IPC,323 IPC, 341 IPC, 504 IPC, 506 IPC r/w section 149 of the IPC and section 143 of the IPC. The case was registered on 5th April 2014. It appears that though the names of the petitioners were mentioned as the accused in the FIR, none of them was arrested till 9th April 2014, on which date the petitioners surrendered themselves before the Judicial Magistrate First Class at Vengurla. Along with the application for surrender, the petitioners also made a prayer for bail, contending that all the offences allegedly committed by them, were bailable. When on 9th April 2014, the petitioners had surrendered themselves before the Magistrate, the police had filed a report in which, while mentioning the offences allegedly committed by the petitioners, reference was made to section 354A IPC, instead section 354 IPC in respect of which, initially the case had been registered. Apparently, the police had later changed the penal section from 354 IPC to 354A of the IPC. The Magistrate accepted the surrender of the petitioners, and released them on bail, observing that all the offences allegedly committed by them, were bailable. The First Informant was aggrieved by the order granting bail to the petitioner, but instead of seeking cancellation of bail, she moved the Court of Sessions by filing an application for revision. This Revision Application was allowed by the learned Sessions Judge. The learned Sessions Judge set aside the order passed by the learned Magistrate, and remanded the application for bail to the Magistrate for reconsideration. It is being aggrieved by this order dated 10th June 2014 passed by the learned Sessions Judge, Sindhudurg, that the petitioners have approached this Court, invoking its constitutional jurisdiction. 4. I have heard the learned counsel for the parties at length. I have also heard the learned Additional Public Prosecutor. 5. Indeed, a number of issues, including whether the Revision Application could have been entertained by the learned Sessions Judge, at all, looking to the nature of the order passed by the Magistrate, would arise in the present petition. 4. I have heard the learned counsel for the parties at length. I have also heard the learned Additional Public Prosecutor. 5. Indeed, a number of issues, including whether the Revision Application could have been entertained by the learned Sessions Judge, at all, looking to the nature of the order passed by the Magistrate, would arise in the present petition. However, in the view that I am taking, it is not necessary to go deeper into such aspects. 6. It is not in dispute, and cannot be doubted that initially when the FIR was registered, there was a mention of an offence punishable under section 354 IPC which is a non bailable offence. It also appears that when the accused surrendered before the Magistrate on 9th April 2014 and sought bail, the copy of the FIR had been altered, and the offence punishable under section 354 IPC, as was initially mentioned was changed to the offence punishable under section 354A IPC by adding ' A ' subsequently . These facts are apparent, and not doubted or disputed. The offence punishable under section 354A of the IPC is bailable. Thus, what transpires is that though the case was initially registered in respect of a non-bailable offence, when the accused made a prayer for bail, the police themselves projected the offence to be a bailable one. The bail came to be granted under these circumstances without considering any other aspects of the matter. The Magistrate had no occasion to know that the penal section had been changed, and to consider whether the change was proper, legal or justified. 7. Considering this, I am not inclined to interfere with the order passed by the Sessions Judge, inasmuch as the learned Sessions Judge has not directed that the accused should be taken in custody, and has merely directed that their application for bail should be reconsidered. 8. It, however, does appear that the criticism of the learned Magistrate's order, as done by the Sessions Judge, is not justified. The learned Sessions Judge blamed the Magistrate for 'non-application of mind' who also observed that the order passed by the Magistrate. The learned Judge opined that the facts disclosed in the FIR amounted to an offence punishable under section 354B of the IPC, which was non bailable. The learned Sessions Judge blamed the Magistrate for 'non-application of mind' who also observed that the order passed by the Magistrate. The learned Judge opined that the facts disclosed in the FIR amounted to an offence punishable under section 354B of the IPC, which was non bailable. In fact, that the offence would be one punishable under section 354B of the IPC, was nobody's case, and the dispute was whether it would be one punishable under section 354 IPC, or 354A of the IPC. The learned Sessions Judge added a new dimension thereto by observing as follows : "In the case at hand, after going through the FIR, it emerges that, at the time of occurrence, the respondent no. 2 pulled and pushed the complainant by holding her collar of the T-shirt, which resulted into unlocking the buttons of her T-shirt. Therefore, it is clear case of use of criminal force to the complainant with intention of disrobing or compelling her to be naked in any public place, punishable under Section 354-B of IPC." (Emphasis supplied) In coming to this conclusion, the learned Sessions does not appear to have kept in mind the ingredients of the offence punishable under section 354B of the IPC, and more particularly the mens rea that is required for constituting the said offence, and whether prima facie, such mens rea was disclosed from the averments made in the FIR. 9. The learned Sessions Judge further observed that the order passed by the Magistrate, was 'perverse'. It is not possible to accept this. The police themselves had mentioned only about an offence punishable under section 354A of the IPC, and it is impossible to hold, that on the face of the report submitted by the police, it should have been apparent to the Magistrate that the offence would be one punishable under section 354 of the IPC, or one punishable under section 354B of the IPC, as invented by the learned Sessions Judge himself. The Magistrate was not made aware that initially the case was registered in respect of an offence punishable under section 354 of the IPC. The mischief, if at all, has taken place has been taken place at the level of the police who appear to have added alphabet 'A' to the original FIR to make the offence 354A' instead of 354', and thereby making it 'bailable ' from ' non bailable '. The mischief, if at all, has taken place has been taken place at the level of the police who appear to have added alphabet 'A' to the original FIR to make the offence 354A' instead of 354', and thereby making it 'bailable ' from ' non bailable '. 10. Therefore, to term the order passed by the Magistrate as 'perverse', was not proper. 11. In any case, it cannot be doubted that the case had been registered under section 354of the IPC, and when the bail was sought for, police levelled the accusation only of an offence punishable under section 354A of the IPC. Therefore, if the Bail application made by the petitioners, is required to be re-considered by the Magistrate, that would be just and proper in the ultimate analysis. In this view of the matter, there is no case for interfering with the impugned order in exercise of the writ jurisdiction, which, it is well settled, is discretionary. 12. It however, needs to be clarified that while considering the bail application afresh on merits, the learned Magistrate shall give an opportunity of being heard to the petitioners. The learned Magistrate shall not be influenced by any observations made by the Sessions Judge, and more particularly, those with respect to the applicability of the provisions of section 354B of the IPC. Even the aspect whether the change of the offence from 354 IPC' to 354A IPC', is proper or legal, will have to be considered by the Magistrate, keeping in mind that no opinion has been expressed by this Court as to which would be the correct penal section with respect to the facts alleged. Further, even if the Magistrate comes to the conclusion that such change is not legal, or that the facts alleged disclose an offence punishable under section 354 IPC (and not 354A IPC), still, this conclusion would not automatically result in rejecting the prayer for bail, and the Magistrate would be required to consider the prayer for bail in accordance with law. The learned Magistrate shall consider the facts of the case and arrive at a decision with respect to the bail application in accordance with law. 13. The petitioners shall appear before the Magistrate on or before 18th December 2014. The petitioners shall not be subjected to any arrest till 18th December 2014, or till their bail application is decided by the Magistrate. 13. The petitioners shall appear before the Magistrate on or before 18th December 2014. The petitioners shall not be subjected to any arrest till 18th December 2014, or till their bail application is decided by the Magistrate. The learned Magistrate shall decide the bail application on the same day on which the petitioners would surrender themselves before him. 14. The Superintendent of Police, District Sindhudurg shall hold an inquiry, and ascertain as to under what circumstances, the FIR was altered, and whether any misconduct in that regard has taken place on the part of any of the police officers. The Superintendent of Police shall take appropriate action in the matter after holding a preliminary inquiry in that regard, and report compliance to this Court. 15. Writ Petition is disposed of in the aforesaid terms. 16. Rule is made absolute accordingly.