TMI Blog2010 (7) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... No.3 was the Office Superintendent/Ward Officer and then Assistant Municipal Commissioner, petitioner No.4 was working as Senior Accountant and the petitioner No.5 was the Deputy Accountant and then Assistant Account Officer. On 16.5.2009, Suresh Ramu Patil, Assistant Commissioner of Navi Mumbai Municipal Corporation filed a report with the Senior Inspector of Police, CBD Belapur Police Statioon, Belapur, Navi Mumbai. That report revealed that for the purpose of removal of encroachment and for transportation of he goods removed after encroachment, the Municipal Corporation required supply of labourers, instruments, machinery and vehicles. For this purpose, Municipal Corporation had called tenders. H.B. Bhise Co.. of which H.B.Bhise was the proprietor, had submitted tender which was accepted. On 12.5.2009, a meeting of all the concerned officials and the Assistant Commissioners was called by the Deputy Commissioner for the purpose of removal of encroachment and unauthorised construction, to stop new encroachment and for carrying out immediate works during the rainy season. During the meeting, some officers made a grievance that men and machinery and vehicles were not made availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietor of H.B.Bhise Co. 3. During investigation, it was revealed that excess payment to the tune of ₹ 1,38,03,008/- was made and several persons including staff members of the Municipal Corporation were involved in commission of the said offence and helped the said contractor H.B.Bhise. As per the remand report dated 9.9.2009 submitted by CBD Belapur Police Station before the J.M.F.C. Vashi, Navi Mumbai, besides H.B.Bhise, 7 other persons were already arrested and remanded to Judicial Custody. On 8.9.2009, at 16.30 hrs., 5 more persons, who are the petitioners before the Court, came to be arrested for the said offence. In the remand report, it was submitted that these accused persons were also involved in commission of offence, as some of them were in charge of the concerned areas, the Assistant Municipal Commissioner and some were accountants and the offences are committed by H.B.Bhise in collusion with and active assistance of these petitioners. However, as per the remand report immediately after the arrest each of these five persons, complained of different medical problems and were required to be taken to the Municipal Corporation Hospital at Vashi where they we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m. and completed at 4.30 p.m. He also noted that at 4.30 p.m., the Investigating Officer filed an application for grant of police custody remand on several grounds. However, by that time, the dictation of the order on bail application was completed and though the learned APP and I.O. were present during dictation, I.O. had not moved application for police custody remand nor he had stated that he was moving an application for police custody remand. On the remand report dated 11.9.2009,submitted at about 4.30 p.m., the learned Magistrate passed the brief order rejecting the application. The main ground for rejection of the request for police custody was that charge-sheet was already filed and in view of the authority of the Bombay High Cout in Mohammed Ahmed Yasin Mansuri vs. State of Maharashtra 1994 (1) Mh.L.J.688, once charge-sheet is filed and cognizance of the offence is taken, only custody which could be granted is Magisterial custody even in respect of the accused who is arrested during investigation after taking cognizance of the case. The said order does not reveal any other reason for refusal of the police custody. The said order rejecting the application for police cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows : 309. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. 11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equently arrested in course of further investigation. Their Lordships made it clear that the accused who would be arrested during further investigation after filing of the charge sheet and taking cognizance of the case would be governed by Section 167 Cr.P.C. so long as further investigation continues subject to limits and requirements of sec. 167. In view of this legal position, the order passed by the Magistrate refusing police custody on the sole ground was clearly wrong and could not be sustained. The manner in which the learned Magistrate dealt with the bail application by making different endorsements thereon minute to minute as noted earlier, it appears that the Magistrate was in great haste and hurry to grant the bail to the accused persons and he did not give sufficient and reasonable time to the prosecution to oppose that application and to bring the correct legal position before the Court. The learned Magistrate had almost completed dictation of the order on bail application by 4.30 p.m. and at about 4.35 p.m., he rejected the application moved by the Investigating Officer for police custody by passing a short order referring to the authority in Mohd. Yasin Mansuri. Had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deral Court and this Court. One of the tests generally accepted by the English Courts and the federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word `judgment' is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat an order rejecting the Department's application for remand of the accused to judicial custody is a final order and not an interlocutory order. The learned Judge of this Court in R. Shakuntala, finally came to conclusion that an order rejecting application for remand of the accused to judicial custody is a final order and not an interlocutory order. This will be applicable with equal force to the refusal of request for police custody also. As such, the order passed by the Magistrate rejecting request for police custody cannot be treated as interlocutory order because the police cannot repeat and make applications again and again for police custody after the application for police custody had been rejected once and particularly in view of the limitation under Sec. 167 Cr.P.C. that the police custody may be granted only during first 15 days after the arrest or detention and not thereafter. If such application for police custody is rejected, that order becomes final and the Investigating Officer is permanently deprived of seeking police custody of that accused for the purpose o further investigation, discovery, etc. even though the offence may be very serious. 10. Mr.Bha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 8. In our view, it appears that the High Court has committed basic error in not referring to the provisions of section 439(2) Cr.P.C. which specifically empower the High Court or the court of sessions to cancel such bail. Section 439(2) reads as under : 439. Special powers of High Court or court of session regarding bail: (2) A High Court or court of session may direct that any person who had been released on bail under this chapter be arrested and commit him to custody. 9. Proviso to section 167 itself clarifies that every person released on bail under section 167(2) shall be deemed to be so released under chapter XXXIII. Therefore, if a person is illegally or erroneously released on bail under section 167(2), his bail can be cancelled by passing appropriate order under section 439(2) Cr.P.C. This Court in Puran v. Rambilas and Another [JT 2001 (5) SC 226], has also clarified that the concept of setting aside unjustified, illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. 13. The same principle was reiterated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCALE 378] : (2006 AIR SCW 4753) and Rizwan Akbar Hussain Syyed v. Mehmood Hussain [2007 (10) SCC 368): (2007 AIR SCW 3654). 14. In view of the above authorities of the Supreme Court, it is now settled position of law that even though the grant of bail may be interlocutory order not subject to revisional jurisdiction under sec.397, still the superior Courts by virtue of the powers under Sec. 439(2) Cr. P.C. can cancel the bail in appropriate cases, if the superior Courts find that the bail was granted acting upon irrelevant material or there was non-application of mind or failure to take note of statutory bar or grant bail, or if there was manifest impropriety as for example failure to hear the public prosecutor or complainant. 15. In Subodhkumar Yadav (supra), facts and the circumstances under which the bail was granted by the Magistrate were almost similar to the present case. After having considered the facts of that case, the Supreme Court observed thus in para 11 :- 11.....The undue haste exhibited by the learned Magistrate as well as his decision to hear the bail application on the same day without hearing the learned counsel for the complainant, compelled the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinery and vehicles used and thus forgery was played and on the basis of forged documents, huge excess payments were made to the contractor. This was a loss to the public money because afterall the Municipal Corporation was to make payment from the taxes collected from the general public. In view of the manner in which these offences were committed, the investigating officer wanted police custody of these petitioners for proper investigation which could go to the root of the case. That opportunity was refused by the learned Magistrate and he hastily granted bail to them. 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable 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 judgement : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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. 18. Even though I find that the learned Magistrate had jurisdiction to consider the bail application and to grant bail,still taking into consideration seriousness and gravity of the matter, it was highly improper on the part of the learned Magistrate to show such haste in considering the application immediately and making endorsements on the bail application minute to minute and refusing reasonable opportunity to the investigating agency to oppose that application, I find that the order passed by the Magistrate granting bail was without application of mind to the facts of the case. By granting bail and refusing police custody of the accused, who were not in police custody even for a day, the learned Magistrate practically prohibited the investigating agency from making proper investigation to the case which, in fact, required in-depth investigation and which could ..... X X X X Extracts X X X X X X X X Extracts X X X X
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