The learned counsel for respondents/accused made submissions of various kind. He submitted that section 439 (2) of Cr.P.C. cannot be used when relief of anticipatory bail is granted
by the Sessions Court. This submission is not at all acceptable. The word 'bail' used in this section includes the 'relief of anticipatory bail' also.
Bombay High Court
Dr. Yogesh S/O. Duryodhan Murkut vs The State Of Maharashtra And Ors on 13 August, 2013
Bench: T.V. Nalawade
1. The application is filed under section 439 (2) of Criminal Procedure Code for cancellation of relief granted by om
Sessions Court, Jalgaon in Criminal Application No. 1392/2012. Both the sides are heard. This Court has heard the learned APP B
also.
2. The crime at C.R. No. 146/12 is registered in Chalisgaon Police Station on the basis of report given by applicant for offences under sections 406, 409, 420, 467, 471 etc. of Indian :::
Penal Code. The applicant has completed B.A.M.S. course from the Medical College run by Kisan Dnyanodaya Mandal, Chalisgaon. ou
Respondents/accused were running the institution. They were working as Treasurer, Principal and also as Trustees. Allegations C
are made that the respondents/accused joined hands with Members of Committee appointed by C.C.I.M. and created false h
record regarding the appointment of staff, the compliance of the conditions necessary for giving permission to continue the ig
institution. It is contended that after inspection of the institution H
the permission granted to aforesaid college was cancelled on 1.9.2011. It is contended that by creating false record of appointment of professors, staff and also by creating false record y
in respect of students, Government was cheated and the ba
Government money was misappropriated by the accused. Some names are given, who were not actually working with the om
institution, but false record in respect of those persons was created.
B
3. The respondents had filed Criminal Writ Petition No. 386/2012 for quashing of the F.I.R. In the said proceeding, interim relief of following nature was given. "2. Perused the complaint on the basis of which Crime No. 146 of 2012 registered with ::: Downloaded on - 18/08/2013 10:17:18 ::: Cri. Appln. No. 618/13
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Chalisgaon Police Station, District Jalgaon. The police shall submit all papers of investigation ou
before this Court and till next date shall not take coercive action against the applicants." C
4. After dismissal of the aforesaid proceeding by the High Court, the respondents/accused filed application for h
anticipatory bail in Sessions Court on 29.12.2012. In the application, they contended that Hon'ble High Court had given ig
some interim protection to them and the protection was likely to H
be continued after restoration of the matter by the High Court. By order dated 3.1.2013 the learned Additional Sessions Judge, Jalgaon granted relief of anticipatory bail for limited period by y
passing order of following nature. ba
"O r d e r
Application is allowed.
om
In the event of arrest of applicant nos. 1 to 3 at the hands of Chalisgaon Police in C.R. No. 146 of 2012 registered u/s. 406, 409, 420, 465, 477-A, 504, 506 etc. of I.P. Code, they be B
released on P.B. and S.B. of Rs. 25,000/- each on following conditions :-
(a) they shall co-operate investigating agency and shall supply the documents as and when asked by the Investigating officer in writing.
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(b) They shall not tamper with the prosecution witnesses, in any manner. ou
This order shall remain in force till the decision of Criminal Application No. 1392 of 2012 filed by the applicants before the Hon'ble C
the High Court, bench at Aurangabad for restoration of Writ Petition No. 386/2012." h
5. This Court has carefully gone through the so called ig
reasons given for making aforesaid order by Sessions Court. The learned Additional Sessions Judge has considered the H
circumstance that High Court had given some protection in writ petition to the accused and matter was filed for restoration of the y
said Writ Petition by the accused. Thus, the discussion of the rival ba
contention is there and only because the High Court had given the interim relief in the Writ Petition in the past, the Sessions Court om
has given relief of the aforesaid nature to the respondents/accused.
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6. Even if it is presumed that some proceeding was filed for restoration of Writ Petition, it was not proper on the part of the Sessions Court to entertain the application for similar relief. This Court is avoiding to touch the point as to whether this Court could have granted the relief of the nature of anticipatory bail in Writ ::: Downloaded on - 18/08/2013 10:17:18 ::: Cri. Appln. No. 618/13
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Petition filed for quashing of F.I.R. Interim relief of such nature was granted by this Court by preventing the police from taking ou
coercive action against the accused. It can be said that instead of filing application for anticipatory bail, aforesaid step was taken by C
the accused. The learned Additional Sessions Judge did not give thought over the propriety of entertaining the proceeding, when h
for some time, such relief was granted by High Court and then the proceeding itself was dismissed. Anticipatory bail for such limited ig
period could not have been granted by Sessions Court and this H
position of law is also not considered by Sessions Court.
7. In view of nature of allegations and the offences for y
which the crime was registered, it can be said that there are ba
serious allegations against the accused persons. In the case reported as AIR 2008 SUPREME COURT 155 [State of om
Maharashtra and Anr. Vs. Mohd. Sajid Husain Mohd. S. Husain etc.] and (2005) 4 Supreme Court Cases 303 [Adri Dharan Das Vs. State of W.B.], the Apex Court has made it B
clear that while granting relief of anticipatory bail, the Court must record reasons. In section 438 of Cr.P.C. some factors are mentioned which need to be considered at the time of deciding the application filed under section 438 of Cr.P.C. This section shows that these factors are only illustrative and not exhaustive. ::: Downloaded on - 18/08/2013 10:17:18 ::: Cri. Appln. No. 618/13
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When there are serious allegations, the Court is required to consider the difficulties, which investigating agency may face, if ou
the relief of anticipatory bail is granted. C
8. In the case reported as AIR 2001 SUPREME COURT 2023 (1) [Pooran Vs. Rambilas and another], the Apex Court h
has discussed the power of High Court under section 439 (2) of Cr.P.C. The discussion made by the Apex Court shows that High ig
Court has power to cancel the bail granted by Sessions Court. H
Section 439 (2) of Cr.P.C. shows that this power is independent of the appellate and revisional power of High Court. In this case, the Apex Court has further observed that if the Criminal Court ignores y
relevant material and passes order of granting bail in serious ba
offences and if it has not given any reason for the same, such order would be against the principles of law. It is observed that in om
such a case, the High Court can cancel the order made by the Sessions Court in the interest of justice. In view of this position of law, this Court holds that the order made by Sessions Court B
cannot sustain in law.
9. The learned counsel for respondents/accused made submissions of various kind. He submitted that section 439 (2) of Cr.P.C. cannot be used when relief of anticipatory bail is granted ::: Downloaded on - 18/08/2013 10:17:18 ::: Cri. Appln. No. 618/13
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by the Sessions Court. This submission is not at all acceptable. The word 'bail' used in this section includes the 'relief of ou
anticipatory bail' also. Another submission was made that once bail is granted, it can be cancelled only by showing that there has C
been breach of conditions from the accused. This submission is also not acceptable. Law is settled that the bail can be cancelled h
when there is breach of conditions and also when there are aforesaid circumstances, of infirmity in the order made by the ig
Criminal Court which granted bail. H
10. The facts of the present case show that the accused could have taken proper steps after dismissal of the Writ Petition. y
Atleast, after obtaining the order of aforesaid nature from the ba
Sessions Court on 3.1.2013, they ought to have taken proper steps and they ought to have filed proceeding for getting relief of om
anticipatory bail or for restoration of the proceeding which was filed by them in the High Court. Such steps were not taken. This Court has no hesitation to observe that accused/respondents B
misused the process of law and due to the aforesaid circumstances, the investigation must have been hampered. In view of this discussion, this Court holds that the order cannot sustain in law.
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11. In the result, the application is allowed. The order made by the Additional Sessions Judge, Jalgaon in Criminal ou
Application No. 1392/12 is hereby set aside. The relief granted is cancelled.
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12. The request made by the learned counsel for the h
respondents/accused to suspend the present order for a period of one week is rejected, in view of the fact that the order was made ig
by the Sessions Court in January 2013, but appropriate steps were H
not taken and order was misused by the accused. [ T. V. NALAWADE, J. ]
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