Once an accused was enlarged on bail for certain
offence and if during the investigation new section is
added for which minimum punishment is not life
imprisonment or death penalty then Magistrate will be
within its jurisdiction to ask the petitioner to furnish
fresh bonds for the newly added section. However, it
is clarified that if newly added section is punishable
minimum with life imprisonment or death penalty then
Magistrate shall not be within its jurisdiction to ask the
accused to furnish the fresh bail bonds for the newly
added section unless case is covered under the proviso
of Section 437 IPC is punishable with death or life
imprisonment, therefore, Magistrate shall be well
within its jurisdiction to ask the accused to furnish
fresh bonds for the newly added section. "
Cri. Application No. 3622 / 2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Uttamkumar s/o. Chandrakant Wagh,
versus
The State of Maharashtra,
CORAM : SHRIHARI P. DAVARE, J.
Date of pronouncing the
judgment : 26th September 2012.
By the present application preferred by the applicant nos.1
and 2, under Section 482 of the Code of Criminal Procedure, 1973, the
applicants have prayed that the judgment and order dated 4-8-2012, passed
by the learned Ad hoc Additional Sessions Judge-1, Latur, in Criminal
Revision No. 58/2012, thereby dismissing the revision, and the order dated
25-7-2012, passed by the learned Judicial Magistrate (F.C.), Court No.5,
Latur, C.R. No. 3015/2012, registered at M.I.D.C. Police Station, Latur, in
respect of cancellation of bail of the applicants, be quashed and set aside.
4.
The factual matrix which gave rise to the present application
is as follows :
An offence was registered bearing No. 3015/2012 under the
provisions of Sections 4 and 5 of Bombay Prevention of Gambling Act,
1887, at MIDC Police Station, Latur, against one Jugalkishor
Badrinarayan Ladda, Balaji Dhondiram Patil and Madhav Vyankat Alat.
However, names of the present applicants were neither shown in the FIR
nor in PCR list dated 23-5-2012.
The PCR list discloses that the
Muddemal property was already seized by the Police personnel at the time
of raid conducted by them as per information dated 22-5-2012. However,
present applicants were not found at the place of said raid. The allegations
ig
in the FIR and the PCR list dated 23-5-2012 reflect that the gambling in
respect of IPL matches was going on at the place of raid. Copy of the FIR
and PCR list dated 23-5-2012 is annexed at Exhibit "A". The applicants
got knowledge from the newspaper contents that the accused in the FIR
were trying to implicate the applicants in false case. Hence, applicants suo
motu appeared before learned Judicial Magistrate (F.C.), Latur, and the
learned Judicial Magistrate (F.C.) granted bail to the applicants by order
dated 24-5-2012. Accordingly, communication 24-5-2012 was issued to
the respondents, not to arrest present applicants and copy thereof is
produced at Exhibit "B".
(b)
It appears that the respondent herein made an application before
learned Judicial Magistrate (F.C.), Latur, on 18-6-2012 seeking permission
to include Section 420 of Indian Penal Code in the FIR, and also sought
permission to re-arrest the applicants for the purpose of investigation.
Copy of the said application is produced at Exhibit "C". The applicants
appeared through Advocate and opposed the said application. Moreover,
the respondent also preferred an application on 21st July 2012, for
cancellation of bail granted to the applicants.
The applicants herein
opposed the said application also. However, learned Judicial Magistrate
(F.C.) Court No.5, Latur, passed an order on the said applications on
25-7-2012 and cancelled the bail granted to the applicants and other co-
accused in C.R. No. 3015/2012, registered at MIDC Police Station, Latur,
under Sections 4 and 5 of Bombay Prevention of Gambling Act, and
Investigation Officer was permitted to arrest the accused for detail
Being aggrieved and dissatisfied by the said order, the applicants
ig
(c)
investigation according to law.
herein had preferred Criminal Revision No. 58 of 2012 before Court of
Sessions at Latur. The respondent herein opposed the said revision. After
hearing rival submissions, learned Ad hoc Additional Sessions Judge-1,
Latur, dismissed the said revision by judgment and order dated 4-8-2012,
and thereby confirmed the impugned order therein passed by the learned
Judicial Magistrate (F.C.), Court No.5, Latur, on 25-7-2012.
Hence,
applicants have questioned the correctness and legality of both the said
orders in the present Criminal Application.
5.
Adv. Mr. V.D. Salunke appearing for the applicants canvassed
that there are no cogent and overwhelming circumstances to cancel the
bail which was granted to the applicants earlier only because of inclusion
of Section 420 of IPC in the FIR subsequently. It is also submitted that
there is no grievance of the respondent that the applicants misused the
liberty granted to them. It is further submitted that there is no question of
exercise of discretion while granting bail to the applicants earlier since the
offences alleged against them under Sections 4 and 5 of Bombay
Prevention of Gambling Act are bailable.
Moreover, it is further
contended by the learned Counsel for the applicants that even there is no
change in circumstance which require the accused to be in custody except
inclusion of Section 420 of IPC in the FIR although there is no change in
the contents of the FIR for the said inclusion. According to the learned
Counsel for the applicants, once bail is granted to the applicants, as
mentioned herein above, same cannot be cancelled abruptly only on the
count of inclusion of Section 420 of IPC in the FIR. Learned Counsel for
the applicants strenuously contended that ingredients of Section 420 of
ig
IPC are not attracted in the matter and both the impugned orders passed by
the learned Judicial Magistrate (F.C.), and the revision court, respectively,
are erroneous. Accordingly, he urged that present application be allowed
and the impugned orders be quashed and set aside.
To substantiate contentions of the applicants, learned Counsel
6.
for the applicants has relied upon following judicial pronouncements :
(i)
Judgment of learned Single Judge of this Court, in the case of Salim
Khan Saheb Khan & others Vs. The State of Maharashtra, reported at 2012
ALL MR (Cri) 822, wherein this Court has observed thus :
"
The considerations which are required to be
taken into account at the stage of consideration of a
bail application and those which are required to be
examined at the time of consideration of an application
for cancellation of bail, are drastically different. Once
bail is granted, there is need for very cogent and
overwhelming circumstances to upset the order of bail.
The grounds for cancellation of bail could possibly be
where there is an attempt to interfere with the due
course of administration of justice, or where there is an
abuse of the concession granted to the accused, or
where new material comes on record to necessitate the
cancellation of the Bail, or where bail was earlier
granted on the basis of suppression of facts and or
misrepresentation / misstatement. It is also clear that a
Court of concurrent jurisdiction ought not to interfere
with an order of bail already granted, inasmuch as
such interference would amount to the subsequent
court virtually functioning as a Court of appeal /
revision in respect of the earlier court, which is not
permissible. It is only in exceptional circumstances, as
indicated by the Supreme Court that a Court of
concurrent jurisdiction can interfere with an order of
bail already granted. Cancellation of bail necessarily
involves the review of a decision already made and
can be permitted only if by reason of supervening
circumstances it would be no longer conducive to a
fair trial to allow the accused to retain his freedom
during the trial. However, bail granted illegally or
improperly by a wrong, arbitrary exercise of judicial
discretion can be cancelled even if there is absence of
supervening circumstances. If there is no material to
prove that the accused abused his freedom, court may
not cancel the bail. "
(ii)
Judgment of Hon. Apex Court, in the case of Prahlad Singh Bhati Vs.
N.C.T., Delhi and another, reported at AIR 2001 SC 1444, wherein Hon.
Apex Court has observed thus :
"9. In the instant case while exercising the
jurisdiction, apparently under Section 437 of the Code,
the Metropolitan Magistrate appears to have
completely ignored the basic principles governing the
grant of bail. The Magistrate referred to certain facts
and the provisions of law which were not, in any way,
relevant for the purposes of deciding the application
for bail in a case where accused was charged with an
offence punishable with death or imprisonment for
life. The mere initial grant of anticipatory bail for
lesser offence, did not entitle the respondent to insist
for regular bail even if he was subsequently found to
be involved in the case of murder. Neither S. 437(5)
nor S. 439(1) of the Code was attracted. There was no
question of cancellation of bail earlier granted to the
accused for an offence punishable under Ss. 498-A,
306 and 406, I.P.C. The Magistrate committed an
irregularity by holding that "I do not agree with the
submission made by the learned Prosecutor inasmuch
as if we go by his submissions then the accused would
be liable for arrest every time the charge is altered or
enhanced at any stage, which is certainly not the spirit
of law." With the change of the nature of the offence,
the accused becomes disentitled to the liberty granted
to him in relation to a minor offence, if the offence is
altered for an aggravated crime. Instead of referring to
the grounds which entitled the respondent-accused the
grant of bail, the Magistrate adopted a wrong approach
to confer him the benefit of liberty on allegedly
finding that no grounds were made out for cancellation
of bail.
10. Despite the involvement of important questions
of law, the High Court failed in its obligation to
adjudicate the pleas of law raised before it and
dismissed the petition of the appellant by a one
sentence order. The orders of the Magistrate as also of
the High Court being contrary to law are liable to be
set aside.
11. While allowing this appeal and setting aside the
orders impugned we permit the respondent-accused to
apply for regular bail in the trial Court. If any such
application is filed, the same shall be disposed of on
its merits keeping in view the position of law and the
observations made herein above. We would reiterate
that in cases where the offence is punishable with
death or imprisonment for life which is triable
exclusively by a Court of Session, the Magistrate may,
in his wisdom, refrain to exercise the powers of
granting the bail and refer the accused to approach the
higher Courts unless he is fully satisfied that there is
no reasonable ground for believing that the accused
has been guilty of an offence punishable with death or
imprisonment for life. "
Judgment of learned Single Judge of Punjab & Haryana High Court,
in the case of Sonu alias Rinku alias Lambu Vs. State of Punjab, reported at
ig
2011 Cri.L.J. 2068, wherein Court has observed thus :
"
Once an accused was enlarged on bail for certain
offence and if during the investigation new section is
added for which minimum punishment is not life
imprisonment or death penalty then Magistrate will be
within its jurisdiction to ask the petitioner to furnish
fresh bonds for the newly added section. However, it
is clarified that if newly added section is punishable
minimum with life imprisonment or death penalty then
Magistrate shall not be within its jurisdiction to ask the
accused to furnish the fresh bail bonds for the newly
added section unless case is covered under the proviso
of Section 437 IPC is punishable with death or life
imprisonment, therefore, Magistrate shall be well
within its jurisdiction to ask the accused to furnish
fresh bonds for the newly added section. "
7.
Learned APP Mr. B.J. Sonwane for the respondent / State
countered the said arguments and opposed the present application
vehemently, and submitted that there is change in circumstances after
grant of bail to the applicants earlier, since serious offence under Section
420 of IPC was added in the FIR.
It is further submitted that due
opportunity was given to the applicants and the impugned order was
passed by the learned Judicial Magistrate (F.C.) after giving audience to
the applicants. According to the learned APP, added Section 420 of IPC is
non-bailable and cognizable, and he submitted that unless there is physical
custody of the applicants with the Police, further investigation cannot be
carried out in constructive manner. It is further submitted that during the
investigation it was transpired that the applicants have misused the mobile
of other persons for playing gambling and, therefore, considering the
nature and gravity of the offence, it was necessary to cancel the bail
granted to the applicants as custodial interrogation of the applicants was
imperative and, therefore, it is submitted that the learned Judicial
Magistrate (F.C.) has rightly passed impugned order dated 25-7-2012 and
the revisional court has rightly rejected the revision preferred against the
said order. It was also pointed out that the investigating agency applied to
the Superintendent of Police and sought permission to arrest the applicants
and, thereafter preferred the application for cancellation of bail of the
applicants which was rightly allowed by the learned Judicial Magistrate
(F.C.), and further submitted that the revision preferred against the said
order was rightly dismissed by the learned revisional court. Accordingly,
learned APP urged that the present application be dismissed.
8.
To substantiate the arguments, learned Additional Public
Prosecutor has placed reliance on the judicial pronouncement of learned
Single Judge of this Court, in the case of Satish Dhond Vs. State of Goa,
reported at 2006 ALL MR (Cri) 1412, wherein this Court has observed thus :
"17. Likewise, sub-section (2) of Section 439 which
gives power to the Court of Session and to the High
Court to cancel bail does not specify in what cases bail
once granted could be cancelled but here again several
pronouncements of the Supreme Court indicate that
bail once granted could be cancelled in three broad
situations. They are :-
(1) When the grant of bail is unjustified, arbitrary,
or otherwise vitiated by serious infirmity or wrong
exercise of discretion.
(2) Post bail conduct of the accused being not
conducive for further investigations and/or a fair trial.
9.
ig
(3) Change of circumstances which would require
the accused to be in custody. "
I have perused the present application, its annexures,
impugned orders passed by the learned Judicial Magistrate (F.C.), and the
revisional court, and heard the submissions advanced by the learned
Counsel for the parties anxiously, and perused the judicial pronouncements
cited by the learned Counsel for the parties, carefully.
10.
At the outset, the respondent has preferred two applications
before learned trial court i.e. first on 18th June 2012, with a request to re-
arrest the applicants since Section 420 of IPC was added in the CR, and
another application on 21st July 2012, for cancellation of bail granted to
the applicants earlier, for offences punishable under Sections 4 and 5 of
Bombay Prevention of Gambling Act. Accordingly, learned trial court
passed common impugned order on 25th July 2012 on both the said
applications and cancelled the bail granted to the applicants and other co-
accused in CR No. 3015/2012 registered at MIDC Police Station, Latur,
under Sections 4 and 5 of Bombay Prevention of Gambling Act, and also
permitted the Investigating Officer to arrest the accused for detail
investigation according to law. However, while passing the said order, it
appears to have been escaped from the mind of learned trial court, that
firstly Sections 4 and 5 of Bombay Prevention of Gambling Act are
bailable and secondly, very cogent and overwhelming circumstances are
necessary for an order directing cancellation of the bail already granted.
Generally speaking, grounds for cancellation of bail are, interference or
attempt to interfere with the due course of administration of justice or
ig
evasion or attempt to evade the due course of justice or abuse of the
concession granted to the accused in any manner, as well as, satisfaction of
the court, on the basis of material placed on the record of the possibility of
the accused absconding and change in the circumstances entailing the
accused to be in custody, are yet other reasons justifying the cancellation
However, bail once granted should not be cancelled in a
of bail.
mechanical manner without considering whether any supervening
circumstances have rendered it no longer conducive to a fair trial to allow
the accused to retain his freedom by enjoying the concession of bail during
the trial.
11.
In fact, Section 437(5) of the Code of Criminal Procedure
gives power to the court which has released a person on bail under Sub-
Section (1) or Sub-Section (2), if it considers it necessary to do so, direct
that such person be arrested and committed to custody. Sub-Section 2 of
Section 439 of the Code of Criminal Procedure, which gives power to the
Court of Sessions and to the High Court to cancel bail, do not specify in
what cases bail once granted would be cancelled, but here again several
pronouncements of the Supreme Court indicate that bail once granted
would be cancelled in three broad situations, as mentioned below :
(1) When the grant of bail is unjustified, arbitrary,
or otherwise vitiated by serious infirmity or wrong
exercise of discretion.
(2) Post bail conduct of the accused being not
conducive for further investigations and/or a fair trial.
ig
(3) Change of circumstances which would require
the accused to be in custody.
However, present case does not come in the compass of aforesaid first two
situations, but apparently, may come under the purview of third situation
since Section 420 of IPC was incorporated in the CR subsequently.
However, for carrying of the investigation in respect of offence
subsequently added in the CR i.e. under Section 420 of IPC, the course
adopted by the learned trial court, of cancellation of bail of the applicants
which was already granted for the offences punishable under Sections 4
and 5 of Bombay Prevention of Gambling Act, which are bailable, is
erroneous since no cogent and overwhelming circumstances were pointed
out for cancellation of the said bail which was already granted.
12.
Admittedly, added Section 420 of IPC, in the instant case,
attracts the punishment of imprisonment of either description for a term
which may extend to 7 years and shall also liable to fine and hence, the
maximum punishment prescribed under Section 420 of IPC is a
substantive sentence to the extent of 7 years, and the said offence is
cognizable and non-bailable and triable by the Magistrate of the First
Class.
Keeping in mind the said aspect and coming to the judicial
pronouncement of the Hon. Apex Court, in the case of Prahlad Singh Bhati
Vs. N.C.T., Delhi and another (supra), wherein Apex Court has not ruled that
if offence not punishable with minimum life imprisonment or death
penalty is added, then also accused has to seek fresh bail. Hence, in this
scenario, I am of the view that once an accused was enlarged on bail for
certain offence and during the investigation new section is added for
which minimum punishment is not life imprisonment or death penalty,
then Magistrate will be within his jurisdiction to ask the applicant to
furnish fresh bonds for newly added section. However, it is clarified that
if newly added section is punishable with minimum life imprisonment or
death penalty, then the Magistrate shall not be within his jurisdiction to ask
the accused to furnish fresh bail bonds for the newly added section unless
case is covered under the proviso of Section 437 of IPC. In the instant
case, the fact remains that the newly added section i.e. Section 420 of IPC
attracts maximum punishment to the extent of 7 years and it is not
punishable with death or life imprisonment and, therefore, the learned
Magistrate shall be well within his jurisdiction to ask the applicants to
furnish fresh bonds for the newly added section. In the said context, I find
support from the judgment of learned Single Judge of Allahabad High
Court in the case of Raj Kumar Vs. State of U.P., reported at 2005 Cri.L.J.
1378, wherein learned Single Judge of Allahabad High Court in para 4 has
observed as under :
"4.
Now, Section 437(1)(i) restrains the Court other
than High Court or Court of Session (i.e. the
Magistrate) from granting bail only in those cases
where a reasonable ground appears for believing that a
person is guilty of an offence punishable with death or
imprisonment for life. In this view of the matter, there
is no fetter on the Magistrate's right to grant bail in this
case and the decision of the Apex Court in Pralhad
Singh Bhati Vs. NCT, Delhi (AIR 2001 SC 1444 : 2001
Cri. LJ 1730) does not come in the way of this Court
permitting the revisionists to continue on the earlier
bail granted to them by the Magistrate. Accordingly,
this revision is allowed to this extent and the
revisionists are permitted to continue to remain on bail
also under Section 307 IPC, provided they furnish
fresh bail bonds with sureties to the satisfaction of the
Court concerned. "
I am also fortified for the said view by the judgment of
learned Single Judge of Punjab & Haryana High Court, in the case of Sonu
alias Rinku alias Lambu Vs. State of Punjab (supra), and the said learned
Single Judge has taken similar view to the view taken by the learned
Single Judge of Allahabad High Court, in the case of Raj Kumar Vs. State
of U.P. (supra), as mentioned herein above.
15.
In the circumstances, present Application deserves to be
allowed to that extent and the impugned judgment and order dated
25-7-2012, passed by the learned Judicial Magistrate (F.C.), Court No.5,
Latur, in C.R. No. 3015/12, and the consequent order dated 4-8-2012,
passed by the learned Ad hoc Additional Sessions Judge-1, Latur, in
Criminal Revision No. 58/2012, deserve to be quashed and set aside and
the applicants herein are required to be directed to furnish fresh bail bonds
and surety bonds to the satisfaction of the learned Magistrate in respect of
newly added Section 420 of IPC, and on furnishing such fresh bonds, they
shall be required to be directed to continue on the same bail, but
simultaneously they are required to be directed to give attendance before
in-charge of concerned Police Station as and when required to facilitate
further investigation in respect of add Section 420 of IPC.
16.
In the result, present Application is allowed and the impugned
order dated 25-7-2012, passed by the learned Judicial Magistrate (F.C.),
Court No.5, Latur, in CR No. 3015/2012, registered at MIDC Police
ig
Station, Latur, cancelling bail of the applicants, and the consequent
judgment and order dated 4-8-2012, passed by the learned Ad hoc
Additional Sessions Judge-1, Latur, in Criminal Revision No. 58/2012,
dismissing the revision preferred by the applicants, stand quashed and set
aside, and the applicants herein are directed to furnish fresh bail bonds and
surety bonds to the satisfaction of the learned Magistrate, for the newly
added Section i.e. Section 420 of IPC in the said CR, and on furnishing
such fresh bonds, they shall continue on the same bail.
However,
applicants are directed to give attendance before the concerned
investigator as and when required and to cooperate in the investigation for
the newly added section i.e. Section 420 of IPC for a period of eight weeks
from today, and the present petition is disposed of accordingly.
Rule is made absolute in the aforesaid terms.
(SHRIHARI P. DAVARE)
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