"17. It may be noted here that the learned Counsel for intervener contended that the Magistrate did not have jurisdiction to grant bail because the offences under Sections 467 and 409 IPC, carry punishment which may be life imprisonment. According to the learned Counsel, if the offence is punishable with sentence of death or life imprisonment, the Magistrate cannot grant bail under Section 437(1) Cr. P.C. unless there are special grounds mentioned therein. He relied upon certain authorities in this respect including Prahlad Sigh Bhati vs. NCT, Delhi & Anr. JT 2001 (4) SCC 116. In that case, offence was under Section 302 which is punishable with death sentence or life imprisonment and is exclusively triable by Court of Sessions. The offence underSection 409 is punishable with imprisonment for life or imprisonment for 10 years and fine. Similarly, the office under Section 467 is also punishable with imprisonment for life or imprisonment for 10 years and fine. Even though the maximum sentence which may be awarded is life imprisonment, as per Part I of Schedule annexed to Cr.P.C., both these offences are triable by a Magistrate of First Class. It appears that there are several offences including under sec.326 in the Indian Penal Code wherein sentence, which may be awarded, is imprisonment for life or {12} Cri. Application No.3362/2009 imprisonment for lesser terms and such offences are triable by Magistrate of the First Class. If the Magistrate is empowered to try the case and pass judgment and order of conviction or acquittal, it is difficult to understand why he cannot pass order granting bail, which is interlocutory in nature, in such cases. In fact, the restriction under Sec. 437(1) Cr. P.C. is in respect of those offences which are punishable with alternative sentence of death or life imprisonment. If the offence is punishable with life imprisonment or any other lesser sentence and is triable by Magistrate, it cannot be said that Magistrate does not have jurisdiction to consider the bail application. In taking this view, I am supported by the old Judgment of Nagpur Judicial Commissioner's Court in Tularam & Ors. vs. Emperor 27 Cri.L.J. 1926 page 1063 and also by the Judgment of the Kerala High Court in Satyan Vs. State 1981 Cr.L.J. 1313. In Satyan, the Kerala High Court considered several earlier Judgments and observed thus in paras 7 and 8 :-
"7. According to the learned Magistrate Section 437(1) does not empower him to release a person on bail if there are reasonable grounds for believing that he has committed an offence punishable with death or an offence punishable with imprisonment for life. In other words the learned Magistrate has interpreted the expression "offence punishable with death or imprisonment for life" in Section 437(1) to include all offences where the punishment extends to imprisonment for life. This reasoning, no doubt, is seen adopted in an old Rangoon Case H.M. Boudville v.
Emperor, AIR 1925 Rang 129 : (1925) 26 Cri LJ 427 while interpreting the phrase "an offence punishable with death or transportation for life" in Section 497 Cr. P.C. 1898. But that case was dissented from in Mahammed Eusoof v. Emperor, AIR 1926 Rang 51: (1926) 27 Cri LJ 401). The Rangoon High Court held that the prohibition against granting bail is confined to cases where the sentence is either death or alternative transportation for life. In other words, what the Court held was that the phrase "death or transportation for life" in Section 497 of the old Code did not extend to offences punishable with transportation for life only, it will be interesting to note the following passage from the above judgment :
"It is difficult to see what principle, other than pure empiricism should distinguish offences punishable with transportation for life from offences punishable with long terms of imprisonment; why, for instance, the detenu accused of lurking house trespass with a view to commit theft, for which the punishment is fourteen years imprisonment, should be specially favoured as against the individual who has dishonestly received stolen property, knowing that it was obtained by dacoity, for which the punishment happens to be transportation for life? It cannot seriously be argued that the comparatively slight difference in decree of possible punishment will render it morally less likely that the person arrested will put in an appearance in the one case rather than the other. On the other hand the degree of difference is so great as between transportation for life and death as to be immeasurable. A prudent Legislature will, therefore, withdraw from the discretion of the Magistracy cases in which, if guilt is probable, even a man of the greatest fortitude may be wiling to pay a material price, however, exorbitant, for life."
The above decision has been followed by the Nagpur High Court in the case reported in Tularam v. Emperor, AIR 1927 Nag 53 : (1926) 27 Cr. LJ 1063).
"8. The reasoning applies with equal force in interpreting the phrase "offence punishable with death or imprisonment for life" So long as an offence under section 326 is triable by a Magistrate of the First Class there is no reason why it should be viewed differently in the matter of granting bail from an offence under Section 420 I.P.C. for which the punishment extends imprisonment for 7 years or any other non-bailable offence for which the punishment is a term of imprisonment."
It would be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment of acquittal or conviction for the offences punishable with sentence of life imprisonment or lesser term of imprisonment, for example in offences under S. 326, 409, 467, etc., cannot consider the application for bail in such offences. In fact, it appears that the restriction under Sec. 437(1) (a) is applicable only to those cases which are punishable with death sentence or life imprisonment as alternative sentence. It may be noted that in Prahlad Sigh Bhati (supra), in para 6, the Supreme Court held that even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. This may be applicable to many cases, wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is exclusively triable by court of Sessions for example offences punishable under Sections 306, 308, 314,315, 316,399, 400 and
Bombay High Court
The Balasaheb Satbhai Merchant ... vs The State Of Maharashtra on 21 September, 2011
Bench: A. V. Potdar
Cri. Application No.3362/2009
Citation;2012(2) BOM C R(CRI)841
1. By this application, the applicant has prayed to quash the orders dated 16.07.2008 and 23.10.2008 passed by JMFC, Kopargaon granting regular bail in favour of respondents No.3 to
12.
2. Rule. Rule made returnable forthwith. By consent of the learned counsel for the parties, heard finally at the stage of admission.
3. Admittedly, respondent No.3 was the Chairman and respondents No.4 to 10 and 12 were the Members of the Managing Committee of applicant Bank whereas respondent No.11 was the Manager of the said Bank. As certain irregularities and illegalities were noticed in the conduct of the banking business, the Reserve {4} Cri. Application No.3362/2009 Bank of India had cancelled the license of the applicant bank.
Thereafter, District Deputy Registrar, Cooperative Societies, had appointed Liquidator on the applicant bank to look after the affairs of the said bank. One Mr.N.K.Ingole (Government Auditor) had carried out the audit of the said bank for the period 1996 to 2002.
During the said audit, certain illegalities, allegedly committed by the respondent-accused, were noticed. It was alleged that misappropriation to the tune of Rs.33 crores was done by the respondent-accused. Accordingly, complaint came to be lodged in Kopargaon police station on 05.11.2007, pursuant to which an offence at Crime No.251/2007 was registered against total 26 persons including the present respondent-accused for an offence punishable u/s 405, 406, 409, 418 r/w 120 B of the Indian Penal Code.
4. It appears that following to the registration of the offence and after all the attempts of the accused to get anticipatory bail were futile, they were ultimately arrested and were initially remanded to police custody and subsequently to Magisterial custody. Thereafter the respondent-accused moved {5} Cri. Application No.3362/2009 regular bail application before JMFC, Kopargaon, who allowed the bail applications of respondents No.3 to 11 on 16.07.2008 and application of respondent No.12 came to be allowed and he came to be released on regular bail on 23.10.2008.
5. By the present application, the applicant has questioned the legality and correctness of the said orders granting bail in favour of the respondents-accused mainly on two grounds.
Firstly, that the learned JMFC, Kopargaon has no jurisdiction to entertain the bail applications and secondly the learned JMFC has erroneously observed in the impugned orders that the papers of investigation do not disclose prima facie commission of offence punishable u/s 409 of the Indian Penal Code. In substance, the impugned orders are assailed on the ground that the same are being passed without jurisdiction and the observations of the trial court, in the order granting bail, are unwarranted.
6. Before I embark upon the submissions advanced by the learned counsel for the respective parties, I think it appropriate to advert to certain undisputed facts which can be enumerated {6} Cri. Application No.3362/2009 thus -
a) During the pendency of the present criminal application, the investigation has been completed and charge sheet has been filed against the respondent-accused and others before JMFC, Kopargoan.
b) While the impugned orders were passed at that time also the investigation was practically over.
c) Admittedly, the entire prosecution case rests on documentary evidence and there is very limited scope for oral evidence.
d) All the offences, complained against the respondent-
accused, are triable by the Judicial Magistrate First Class and not by the Court of Sessions.
e) It is not the case of the applicant nor it is alleged that the respondents-accused have misused the liberty granted to {7} Cri. Application No.3362/2009 them.
f) The investigating agency has seized all the documents relating to the present offence during the course of investigation.
7. Learned counsel for the applicant placed reliance on the judgments "State of Maharashtra V/s Kaushar Yasin Qureshi" 1996 (2) Mh.L.J.485; "Sureshkumar Singh V/s State of U.P." 1996 Cri.L.J.1527; "Hanuman Vishwanath Nehare V/s State of Maharashtra" 2001 (3) Mh.L.J. 465; "Prahlad Singh Bhati V/s N.C.T. Delhi", 2001 (5) Bom.C.R. (SC) 727; "Md.Arif V/s State of Maharashtra" 2000 Bom.C.R. (Cri) 95; "State of Maharashtra V/s Kiran Sonawane" 1996 (3) Bom.C.R. 743 and Chand Mohammad V/s Mohammad Farooq" 1989 (1) Bom.C.R.
201. In my view, the above cited judgments need not be discussed for the simple reason that in all the above referred judgments, the accused were released on bail in the cases which are exclusively triable by the Court of Sessions. In law, the Magistrate is not empowered to entertain bail applications in such cases, unless the {8} Cri. Application No.3362/2009 case of the accused is covered under the proviso to section 437 (1) (I) (II) of the Criminal Procedure Code.
8. Further reliance is placed by learned counsel for the applicant on the judgment of this Court in the matter of "State of Maharashtra V/s Ketan Sheth" 2003 (1) Mh.L.J. 885. In the said judgment, the question before the learned Single Judge was that can the Magistrate exercise the powers u/s 167 of the Criminal Procedure Code when the charge sheet is not filed within the stipulated period, as contemplated in law and for that purpose, what is stipulated period to file charge sheet for the offence punishable u/s 409 of the Indian Penal Code. Hence, it would not be applicable to the present case. Reliance is also placed by the learned counsel for the applicant on the observations of this Court in "State of Maharashtra V/s Rajkumar Kunda Swami" 2002 (Supp-2) Bom.C.R.79. Learned Single Judge of this Court, in the said judgment, has observed that the bail was granted by the Magistrate in the offence punishable u/s 409, 420, 463, 464, 471 and 477 of the Indian Penal Code at the initial stage by rejecting {9} Cri. Application No.3362/2009 the prayer of the investigating agency to grant police custody remand in the crime registered of non bailable offence. However, in the instant case, the order of bail is passed when the investigation was practically over and the respondents-accused were transferred and remanded to Magisterial custody from police custody, which is the distinguishing factor form the judgment cited by the learned counsel for the applicant and the case in hand.
9. Ultimately, by placing reliance on the judgment of the Apex Court in "Himanshu Chandravadan Desai V/s State of Gujrat" AIR 2006 SC 179 learned counsel for the applicant urged that as the bail is granted by the learned Magistrate without jurisdiction, the same be cancelled and the application be allowed.
10. While opposing these submissions, learned counsel for respondent No.9 drew my attention towards the latest view taken by this Court in "Ambarish Rangshahi Patnigere V/s State of Maharashtra" 2011 Cri.L.J. 515 and "Ishan Vasant Deshmukh @ Pasad Vasant Kulkarni V/s State of Maharashtra" 2011 (2) {10} Cri. Application No.3362/2009 Mh.L.J.361 and urged that recently, this Court has taken a view that if the offence complained is triable by the Court of JMFC, then the JMFC can entertain the application for bail u/s 437 of the Criminal Procedure Code.
11. Learned counsel appearing for respondent No.12 urged that respondent No.12 being a lady, her case is squarely covered within the proviso to section 437 (1) (I) (II) of the Criminal Procedure Code and hence requested not to interfere in the impugned orders. .
12. Learned counsel for remaining respondents adopted the submissions of these counsels. Learned counsel for the respondents further urged that the present application be considered in the light of the undisputed facts, which I have referred supra.
13. At this stage, it may be useful to quote the observations of this Court in "Ambarish Rangshhi Patnigere V/s {11} Cri. Application No.3362/2009 State of Maharashtra" referred supra, which reads thus -
"17. It may be noted here that the learned Counsel for intervener contended that the Magistrate did not have jurisdiction to grant bail because the offences under Sections 467 and 409 IPC, carry punishment which may be life imprisonment. According to the learned Counsel, if the offence is punishable with sentence of death or life imprisonment, the Magistrate cannot grant bail under Section 437(1) Cr. P.C. unless there are special grounds mentioned therein. He relied upon certain authorities in this respect including Prahlad Sigh Bhati vs. NCT, Delhi & Anr. JT 2001 (4) SCC 116. In that case, offence was under Section 302 which is punishable with death sentence or life imprisonment and is exclusively triable by Court of Sessions. The offence underSection 409 is punishable with imprisonment for life or imprisonment for 10 years and fine. Similarly, the office under Section 467 is also punishable with imprisonment for life or imprisonment for 10 years and fine. Even though the maximum sentence which may be awarded is life imprisonment, as per Part I of Schedule annexed to Cr.P.C., both these offences are triable by a Magistrate of First Class. It appears that there are several offences including under sec.326 in the Indian Penal Code wherein sentence, which may be awarded, is imprisonment for life or {12} Cri. Application No.3362/2009 imprisonment for lesser terms and such offences are triable by Magistrate of the First Class. If the Magistrate is empowered to try the case and pass judgment and order of conviction or acquittal, it is difficult to understand why he cannot pass order granting bail, which is interlocutory in nature, in such cases. In fact, the restriction under Sec. 437(1) Cr. P.C. is in respect of those offences which are punishable with alternative sentence of death or life imprisonment. If the offence is punishable with life imprisonment or any other lesser sentence and is triable by Magistrate, it cannot be said that Magistrate does not have jurisdiction to consider the bail application. In taking this view, I am supported by the old Judgment of Nagpur Judicial Commissioner's Court in Tularam & Ors. vs. Emperor 27 Cri.L.J. 1926 page 1063 and also by the Judgment of the Kerala High Court in Satyan Vs. State 1981 Cr.L.J. 1313. In Satyan, the Kerala High Court considered several earlier Judgments and observed thus in paras 7 and 8 :-
"7. According to the learned Magistrate Section 437(1) does not empower him to release a person on bail if there are reasonable grounds for believing that he has committed an offence punishable with death or an offence punishable with imprisonment for life. In other words the learned Magistrate has interpreted the expression "offence punishable with death or imprisonment for life" in Section 437(1) to include all offences where the punishment extends to{13} Cri. Application No.3362/2009 imprisonment for life. This reasoning, no doubt, is seen adopted in an old Rangoon Case H.M. Boudville v.
Emperor, AIR 1925 Rang 129 : (1925) 26 Cri LJ 427 while interpreting the phrase "an offence punishable with death or transportation for life" in Section 497 Cr. P.C. 1898. But that case was dissented from in Mahammed Eusoof v. Emperor, AIR 1926 Rang 51: (1926) 27 Cri LJ 401). The Rangoon High Court held that the prohibition against granting bail is confined to cases where the sentence is either death or alternative transportation for life. In other words, what the Court held was that the phrase "death or transportation for life" in Section 497 of the old Code did not extend to offences punishable with transportation for life only, it will be interesting to note the following passage from the above judgment :
"It is difficult to see what principle, other than pure empiricism should distinguish offences punishable with transportation for life from offences punishable with long terms of imprisonment; why, for instance, the detenu accused of lurking house trespass with a view to commit theft, for which the punishment is fourteen years imprisonment, should be specially favoured as against the individual who has dishonestly received stolen property, knowing that it was obtained by dacoity, for which the punishment happens to be transportation for life? It cannot seriously be argued that the comparatively slight difference in decree of possible punishment will render it morally less likely that the person arrested will put in an appearance in the one case rather than the other. On the other hand the degree of difference is so great as between transportation for life and death as to be immeasurable. A prudent Legislature will, therefore, withdraw from the discretion of the Magistracy cases in which, if guilt is probable, even a man of the greatest fortitude may be wiling to pay a material price, however, exorbitant, for life."
{14} Cri. Application No.3362/2009 The above decision has been followed by the Nagpur High Court in the case reported in Tularam v. Emperor, AIR 1927 Nag 53 : (1926) 27 Cr. LJ 1063).
"8. The reasoning applies with equal force in interpreting the phrase "offence punishable with death or imprisonment for life" So long as an offence under section 326 is triable by a Magistrate of the First Class there is no reason why it should be viewed differently in the matter of granting bail from an offence under Section 420 I.P.C. for which the punishment extends imprisonment for 7 years or any other non-bailable offence for which the punishment is a term of imprisonment."
It would be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment of acquittal or conviction for the offences punishable with sentence of life imprisonment or lesser term of imprisonment, for example in offences under S. 326, 409, 467, etc., cannot consider the application for bail in such offences. In fact, it appears that the restriction under Sec. 437(1) (a) is applicable only to those cases which are punishable with death sentence or life imprisonment as alternative sentence. It may be noted that in Prahlad Sigh Bhati (supra), in para 6, the Supreme Court held that even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. This may be applicable to many cases, wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is exclusively triable by court of Sessions for example offences punishable {15} Cri. Application No.3362/2009 under Sections 306, 308, 314,315, 316,399, 400 and
450. Taking into consideration the legal position, I do not find any substance in the contention of Mr.Bhatt, learned Counsel for the intervener that merely because the offence is under Sec. 409 and 467 IPC, Magistrate did not have jurisdiction to hear and grant the bail."
14. It may also be useful to refer the observations of this Court in Ishan Vasant Deshmukh V/s State of Maharashtra"
referred supra, which read thus-
"The observations of the Supreme Court that generally speaking if the punishment prescribed is that of imprisonment for life or death penalty, and the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to section 437 of the Code. Thus, merely because an offence is punishable when imprisonment for life, it does not follow a Magistrate would have no jurisdiction to grant bail, unless offence is also exclusively triable by the Court of Sessions. This, implies that the Magistrate would be entitled to grant bail in cases triable by him even though punishment prescribed may extend to imprisonment for life. This Judgment in Prahlad Singh Bhati's case had not been cited before Judge, who decided State of Maharashtra Versus Rajkumar Kunda Swami. Had this Judgment been noticed by the Hon'ble Judge deciding that case, the observation that the Magistrate may not decide an application for bail if the offence is punishable with imprisonment for life would possibly would not have been made. In view of the observations of the Supreme Court in Prahlad Singh Bhati's case, it is clear that the view taken by J.H.Bhatia, J. in Ambarish Rangshahi Patnigere Vs. {16} Cri. Application No.3362/2009 State of Maharashtra, reported at 2010 ALL MR (Cri) 2775 is in tune with the Judgment of the Supreme Court and therefore, the Magistrate would have jurisdiction to grant bail."
15. As pointed out above, it is clear that the offence complained against the respondents-accused is triable by the Magistrate and not by the Court of Sessions. Therefore, in view of the observations of this Court in "Ambarish Rangshhi Patnigere V/s State of Maharashtra" (Supra) it is to be held that the Magistrate had the jurisdiction to entertain the bail applications.
16. Again, as pointed out above, the applicant has not come with a case nor it is alleged that the respondents-accused have misused the liberty granted in their favour either by tampering evidence or that they are likely to abscond. Therefore, the Observations in "Himanshu Chandravadan Desai V/s State of Gujrat" AIR 2006 SC 179, as relied by the learned counsel for the applicant, would not be applicable to the present application.
17. The present application is filed for cancellation of bail {17} Cri. Application No.3362/2009 granted in favour of the respondents-accused, therefore, it would be appropriate to advert to the observations of the Apex Court in "Hazari Lal Das V/s State of West Bengal" 2010 AIR (SC) 91.
The Apex Court, in the said judgment, has observed thus-
"9. In Dolat Ram And Ors V.s State of Haryana, (1995) 1 SCC 349 this Court held:
4. Rejection of bail in a non bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted."
{18} Cri. Application No.3362/2009
18. It is not disputed that respondents-accused are released on regular bail way back in 2008 and thereafter the charge sheet came to be filed. Moreover, no complaint of misuse of liberty by the respondents-accused is lodged. Nor there are any allegation that they may likely to abscond and would not face the trial. In the premise and considering the overall effect of the above discussed facts, I am of the considered view that no interference is required in the orders impugned in the present application.
19. In the result, the application fails and dismissed accordingly. Rule stands discharged.
[A.V.POTDAR, J.]
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