TMI Blog2009 (6) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... d bail to the accused u/s 437(1) proviso only on the ground that admittedly the accused is under medical treatment. If such orders are allowed to be passed it would open flood gates for such applications to be made in serious non-bailable cases, only on the pretext of the accused being on medical treatment. In my view the Ld. Magistrate by granting bail to the accused only on the ground of him being under medical treatment at the hospital exhibits a totally casual approach in granting bail to an accused u/s 437(1) proviso which is a discretionary power required to be exercised in a judicial manner and on well settled judicial principles. Also in my view the Ld. Magistrate by not taking into account the relevant circumstances like the nature of sickness, the medical facilities/treatment available at the existing hospital, etc. and by granting bail only on the ground of the Respondent Accused taking medical treatment in hospital amounts to granting of bail u/s 437(1) proviso under irrelevant circumstances. The Ld. Magistrate has not only failed to call for a medical report from the Hospital but has not even prima facie satisfied himself as regard the nature of the sickness, which oug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rashmikant Shah (Respondent Accused) were Directors/Shareholders of Vijay Dwellers Pvt. Ltd., a Company that was setup to acquire and develop land and building in respect of property situated at Matunga, Mumbai. (ii) Sometime in March, 2008, the original complainant and Mr. Vrajlal Gala and Mr. Vinod Gala learnt that the Respondent Accused had fraudulently diluted their majority holding into minority. Consequently, proceedings were initiated before the Company Law Board by the Galas. In the course of the proceedings, it was discovered that the Respondent Accused had disposed off 18 flats and misappropriated the sale proceeds of the flats into a separate fresh account at Abhudaya Bank, Kalachowki Branch by forging Resolutions, instead of for the benefit of the Company. Furthermore, it was also discovered that out of these 18 flats, six flats could not have been disposed off in view of the fact that the Company had agreed to provide accommodation to six tenants in the constructed building itself, thereby depriving six tenants of their right of accommodation in the re-developed building. (iii) Thereupon, out of the six tenants, whose flats have been disposed off, four filed Suits befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under a panchanama allegedly drawn up. Furthermore, on 28th November, 2008, the Release Deeds were filed before the Ld. Magistrate in the complaint filed by Ajit kumar Jain. On 1st December, 2008, Ajit kumar Jain filed an Affidavit before this Court in the said Civil Suits annexing copies of these Release Deeds. (vii) Notice of Motion were listed before this Court on 2nd December, 2008, when it was categorically contended that these documents are false, fabricated, bogus and had not seen the light of day. (viii) This Court directed the production of the original documents. Immediately on the same day i.e. 2nd December, 2008, the Original complainant lodged the First Information Report (FIR) under Sections 420, 465, 467, 468 and 471 read with Section 341. I P.C. with Kasarvadavli Police Station, Thane alleging that these documents were false, forged, fabricated and bogus and also for offences for cheating by misappropriation of sale proceeds of the 18 flats aggregating to more than ₹ 80 crores. (ix) Upon filing of the FIR, the police obtained the original documents (Release Deeds) and forwarded the same for forensic examination to the State Forensic Laboratory at Pune. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Application No. 2129 of 2009. (xii) On the same day i.e. on 12th May, 2009, Respondent Accused attempted to flee the country. He was apprehended at the Mumbai International Airport on the night of 12th May, 2009. Upon being detained by the Immigration authorities, the Respondent Accused claimed to be sick and requested for medical treatment. The Investigating Officer (I.O.) upon reaching the Mumbai International Airport took the accused to the Civil Hospital, Thane but was thereafter referred to J.J. Hospital for various medical tests and investigation. (xiii) On 13th May, 2009 the Investigating Officer filed his report before the concerned Judicial Magistrate, First Class Court, Thane and sought police custody remand (PCR) of Respondent Accused. The Learned Magistrate ordered the Respondent Accused to be taken into police custody remand till 16th May, 2009 by observing as follows: .. offence is serious in nature wherein investigation is in progress. Hence, as such accused is taken into PCR till 16th May, 2009 and Investigating Officer is directed to place the police persons at the hospital in the above circumstances. (xiv) On 13th May, 2009 when the I.O. went to the J.J. Hospital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. when the accused would be discharged from the hospital. It was also submitted by the A.P.P. in writing that anticipatory bail of Respondent Accused was rejected in Sessions Court, Thane and also by High Court. It was submitted that under the circumstances and taking into consideration the gravity and seriousness of the offences, custodial interrogation of the Respondent Accused is essential and hence bail application of the Respondent Accused be rejected. Despite the Bail Application being strongly opposed by the Applicant and without waiting for the say of the I.O., the Ld. Magistrate on the same day i.e. 14-5-2009 granted bail to the Respondent Accused under Section 437(1) proviso of Code of Criminal Procedure. The entire order has been reproduced subsequently in Paragraph No. 34 of this order. (xvi) The said Order of the Ld. Magistrate was impugned by the Original Complainant before this Court Under Section 482 of the Code of Criminal Procedure 1973. By Order dated 23rd May, 2009 this Court was pleased to stay the impugned order dated 14th May, 2009 upto 10th June, 2009 as SLP was preferred by Respondent Accused before the Hon'ble Supreme Court impugning the order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd was released on bail. It was contended before the Hon'ble Supreme Court that since there were specific provisions in the Code for cancellation of bail, the inherent powers of the High Court Under Section 482 Code of Criminal Procedure could not be invoked by the Original Complainant for this purpose. By order dated 26-5-2009 the Hon'ble Supreme Court granted leave and quashed the order of this Court dated 23-5-2009. However, the Hon'ble Supreme Court also granted liberty to the Original Complainant to move appropriate application before this Court for cancellation of bail granted to the Respondent Accused. The Hon'ble Supreme Court also clarified that if such an application for cancellation of bail is moved the same shall be decided on its own merits uninfluenced by any observation made by the Hon'ble Supreme Court or the Court below. Thereafter, the Original Complainant as well as the State filed the present applications seeking cancellation of bail granted by the Ld. Magistrate on 14-5-2009. The stand now taken by the Respondent Accused in paragraph 3 of his Affidavit in Reply filed on 2nd June, 2009, is that both the Applications under discussion are not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate and the Original Complainant ought to have first moved the Ld. J.M.F.C. Under Section 437(5) Code of Criminal Procedure and ought to have exhausted the remedy before approaching this Court. The jurisdiction of the Ld. J.M.F.C. empowers him to direct the accused to be arrested and commit him to custody if he considers it necessary so to do. He submitted that this suggests that the power of the Ld. Magistrate Under Section 437(5) Code of Criminal Procedure is wider than the power Under Section 439(2) Code of Criminal Procedure. Through judicial dicta the power Under Section 439(2) Code of Criminal Procedure. is substantially circumscribed but the power Under Section 437(5) Code of Criminal Procedure. is based on necessity and if the prosecution is in a position to make out a case of necessity, the accused can again be arrested. The general principle of law that a party must first approach a Court of lowest grade, competent to try a cause equally applies to the present situation. 7. The above submissions advanced by the Learned Sr. Advocate appearing for the Respondent Accused have been vehemently countered by the Ld. Senior Advocate appearing on behalf of the Original Complainan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a judge in his own cause. Such an interpretation would result in calling upon a Magistrate to determine whether his own order is in accordance with law, a function which only a superior Court could have exercised whilst reviewing an order. It is submitted that the contention of the Applicants that the power under Section 437(5) Code of Criminal Procedure cannot be exercised by the same Judge who granted bail if the cancellation is being sought on the circumstances that were prevailing at the time when the bail was granted and the appropriate course of action is for the State to move the Superior Court against such an order which is supported by decision in the case of Gurcharan Singh v. The State (Delhi Admn.) (1978) 1 SCC 118: (AIR 1978 SC 179). 10. The Ld. Senior Advocate appearing for the Original Complainant submitted that therefore if the Applicants cannot invoke Section 437(5) Code of Criminal Procedure for the aforesaid reasons submitted by him and if the arguments advanced on behalf of Respondent Accused are accepted with respect to non-applicability of Section 439(2) Code of Criminal Procedure, the Applicants would be rendered without a remedy to challenge a patently er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Ld. Addl. Sessions Judge releasing him on bail can also be relatable to Article 227 of the Constitution giving the source of power to the High Court in that regard. Clause (1) of Article 227 of the Constitution provides that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. To my mind, no law made by Parliament or State Legislature can whittle down the powers conferred by Article 227 on the High Court. 12. I have considered the arguments advanced by the Learned Advocates for the Respondent Accused as well as the Applicants pertaining to the issue of maintainability. I have also perused the Written Submissions and considered them along with the case law submitted by the parties in this regard. I will first deal with the submissions advanced on behalf of the Respondent Accused, namely that applicants ought to have first invoked the provisions of Section 437(5) Code of Criminal Procedure and approached the Learned JMFC who granted bail. Section 437(5) Code of Criminal Procedure reads as follows: (5) Any Court which has released a person on bail under Sub-section (1), or Sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Procedure unless the accused has been enlarged on bail as Section 439(2) Code of Criminal Procedure requires that the accused shall be arrested and committed to custody. Therefore, until and unless the accused has availed bail, the question of arresting him and committing him to custody will not apply. In the instant case the accused was not released on bail and, therefore, Section 439(2) Code of Criminal Procedure cannot be invoked by the Applicants. If the argument advanced by the Respondent Accused is correct, as regards Section 439(2) Code of Criminal Procedure the same would also apply to Section 437(5) in view of the identical language used in both the Sections namely: arrest and commit him to custody. In that event Section 437(5) Code of Criminal Procedure also cannot be invoked by the Applicants. 14. In view of the above discussion, the submissions advanced on behalf of the Respondent Accused that the Applicants ought to have approached the Learned Magistrate under Section 437(5) Code of Criminal Procedure are untenable and cannot be accepted. 15. I now turn to the arguments advanced for and against the applicability of Sections 439(2), 482 Code of Criminal Procedure. and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail is challenged on the ground of it being illegal, unjustified or perverse. In my view the Hon'ble Supreme Court in Gurcharan Singh's case (AIR 1978 SC 179) (supra) as well as Puran v. Ram Bilas (AIR 2001 SC 2023) (supra) only explained the scope of the Courts as regards the grounds on which it can cancel the bail and has not dealt with the issue of applicability of Section 439(2) Code of Criminal Procedure in case where an order of bail has been granted but not availed of by the accused. 16. Since I have already held earlier that it is not possible for the Applicants to resort to Section 437(5) of the Code of Criminal Procedure and also since I am in agreement with the Learned Advocate for the Respondent Accused that Section 439(2) Code of Criminal Procedure cannot be invoked by the present applicants, it is clear that there are no other specific provisions under the Code for cancellation of bail available to the applicants. Under such circumstances the Respondent Accused cannot be heard to say that relief Under Section 482 Code of Criminal Procedure would not be available to the applicants in the present case as the statute (Code of Criminal Procedure) specifically prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Courts inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified. The Hon'ble Madras High Court has thereafter in paragraph 16 held 16. Here in this case, the Petitioner/Complainant has not only invoked the provision under Section 482 of the Code of Criminal Procedure, but also the provision under Section 439(2) of the Code of Criminal Procedure. Of course, Section 439(2) of the Code of Criminal Procedure provides remedy for cancellation of the bail granted by the Court concerned. As already held by this Court, Section 439(2) cannot be effectively invoked as the accused had not been actually released from custody in the aftermath of the order of bail obtained by him in his favour. Therefore, the Petitioner/Complainant cannot invoke Section 439(2) of the Code of Criminal Procedure. Under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, I am of the firm view that both under Sections 439 and 482 of the Code as also under Article 227 of the Constitution, this Court has the power to cancel bail granted by the Special Court as also to keep the said Court within the confines of its jurisdiction and to repeat, it is highlighted that none of the angular tests prescribed by the Act or the Code was satisfied by the Special Court in granting bail to the Respondents. On this ground alone, the order of bail need be cancelled. 21. The ambit of the power of the High Court under Article 227 of the Constitution has been reiterated by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., 1998 (5) Bom CR 432: 1998 Cri LJ 1: (AIR 1998 SC 128). The Hon'ble Supreme Court observed in paras 22 and 26 as under: 22. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for Anticipatory Bail of the Respondent Accused vide his Order dated 28-4-2009, an application for Anticipatory Bail was moved before this Court by the Respondent Accused. By an order dated 12th May, 2009 this Court refused to grant any interim reliefs in the Anticipatory Bail Application taken out by Respondent Accused. 26. It is submitted by the State that on that very night after interim bail was refused to the Respondent Accused by this Court on 12th May, 2009, at about 2130 hours the Respondent Accused was flying out of India to Dubai. He was detained by the Immigration Authorities. At that time his health condition was quite okay, but after detaining him he became sick. When the Investigating Authorities reached the Airport, the Respondent Accused had been put in an ambulance. The Doctor was present in the ambulance. The Investigating Authorities enquired about his health and were informed that his blood pressure was slightly high. The Investigating Authorities took charge of the Respondent Accused and proceeded to the Thane Civil Hospital. Within 15 minutes the Respondent Accused woke up and asked the Doctor where he was being taken. When he was informed that he was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate and once again threatened the I.O. Thereafter the I.O. made enquiries with the doctor treating the Respondent Accused as regards the period of hospitalization when he was informed that few tests were to be carried out because of which hospitalization for a few more days would be necessary. 30. Under the circumstances the I.O. on 14th May, 2009 moved an Application before the Ld. JFMC, Thane to convert PCR to MCR (Magisterial Custody Remand) keeping the option open for seeking further PCR in future. In the said Application dated 14th May, 2009, it was recorded that on the earlier day Police Custody was obtained till 16-5-2009, since the police were under the impression that the Respondent Accused shall be discharged from the J.J. Hospital within 1 or 2 days after which the Respondent Accused would be available for investigation. It was further recorded that on 13-5-2009 the I.O. had visited J.J. Hospital to make enquiries with the doctor when he was informed by the doctor that certain medical tests of the Respondent Accused were necessary. It was also recorded that the Respondent Accused is not co-operating with the enquiry. It was submitted that since the medical treatment is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation purpose. This Hon'ble Court has granted PCR upto 16-5-2009 on 13-5-2009 to the accused. Today I.O. has filed remand yadi seeking judicial custody of accused as the accused is under medical treatment (emphasis supplied) 34. The A.P.P. has also pointed out that the Anticipatory Bail Applications were rejected by the Sessions Court and High Court. The A.P.P. has also submitted that taking into consideration the gravity and seriousness of the offence, custodial interrogation of the accused is essential and hence the bail application of the accused be refused. The Ld. JFMC thereafter proceeded to pass the below mentioned order which is impugned before this Court vide the two Criminal Applications filed by the complainant and the State: Order below Bail Application in C.R. No. 1240/08 of Kasarvadavli Police Station. The accused Rashmikant Shah has been charged for the offence Under Sections 420, 465, 467, 468, 471, r/w. 34 of I.P.C. i. It is the case of prosecution that accused had prepared forged documents and on its basis had cheated the complainant and a few others. Accused was not produced on 13-5-2009 as he was seeking treatment at J.J. Hospital, Mumbai. ii. Ld. A.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for cancellation of bail. 4) Accused to surrender the passport to the concerned police station. 35. Having set out the facts which culminated in passing of the above impugned order, I now proceed to set out the rival contentions canvassed before me by the parties. The main ground of challenge before me in both these applications was grant of bail by the Ld. JMFC by invoking the proviso to Section 437(1) Code of Criminal Procedure. The Ld. Counsel for the Original Complainant cited a catena of below mentioned decisions before me in support of their contentions that the Ld. Magistrate ought not to have granted bail to the Respondent Accused under proviso to Section 437(1) Code of Criminal Procedure: (i) Pawan v. Ramprakash Pandey (2002) 9 SCC 166: (AIR 2002 SC 2224), para 10. (ii) V.N. Ghiya v. State of Rajasthan (2008) Cri LJ 3104 (Rajasthan) paras 13, 14, 15 and 16. (iii) Surinder Kairam v. State (2003) Cri LJ 1491 (Delhi) para 12. (iv) State of MP v. Gyan Singh and Anr. (1992) Cri LJ 192 (MP) para 8. (v) State v. Gadadhar Baral (1989) Cri LJ 627 (Orissa) paras 7 and 8. (vi) Sangappa v. State of Karnataka (1978) Cri LJ 1367 (Karnataka) paras 20 and 22. (vii) State v. Sardool Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistent and unjustified in light of the earlier orders passed by the same Ld. Magistrate on 13th and 14th instant. Therefore, under the above circumstances the said bail order can be categorized as perverse and unjustified. 38. He also submitted that considering the gravity of the offence, the conduct of the Respondent Accused towards the Court, the witnesses and the police officers, and further considering his antecedents i.e. allegedly falsely implicating one Mr. Chaturvedi in a serious offence by colluding with police officials and his propensity to flee the country, ought to have weighed with the Learned Magistrate before invoking the proviso to Section 437(1) Code of Criminal Procedure 39. The A.P.P. has adopted the arguments advanced by Ld. Senior Advocate for the original complainant. He has submitted that the Respondent Accused has been involved in offences which entail life imprisonment. The Respondent Accused has shown scant regard for law and the Hon'ble Courts of law. As recorded by the Ld. Sessions Judge whilst rejecting the application for grant of anticipatory bail, the Respondent Accused despite repeated directions given by the Court failed to remain presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is necessary. It is submitted that the State even in the grounds urged in their application have not raised any challenge to grant of bail on medical treatment. It is submitted that in the judgments pertaining to sickness cited before this Court, it is observed that the State has raised a challenge to grant of bail on that ground, which in the instant case has not been done. It is further submitted that even the Discharge Report of the Lilavati Hospital dated 23-5-2009 (post the impugned order) clearly indicates that the Respondent Accused required barriatic surgery and coronary angiography. It is submitted that perversity has to be in respect of the medical aspect of the matter and just because the applicants can suggest a better course or prudent action which the Magistrate ought to have adopted does not mean that the order of the Magistrate is perverse. The Ld. Advocate for the Respondent Accused concluded his arguments by drawing my attention that bail once granted can be cancelled on the ground that the accused has abused his liberty either by threatening the witnesses, or by tampering with investigation/witnesses. In other words the accused has breached any of the Bail condi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (supra). In the said judgment the Orissa High Court has held that any nature of sickness would not entitle an accused for release on bail. It should be of such nature that unless the accused is released he cannot get proper treatment for his ailment. It is observed that unless such an interpretation is given the legislative purpose behind a non-bailable offence shall be frustrated. It is also observed that in such cases, Court should make adequate enquiries before releasing the accused on bail. (3) Sangappa v. State of Karnataka (1978 Cri LJ 1367) (supra). In this case the Ld. Sessions Judge upon receipt of a bail application on the ground of illness i.e. diabetes since two years and chest pain since six months first called for a report from the District Surgeon Bidar who opined that the accused was having moderate to severe degree of diabetes and moderate degree of blood pressure. He also opined that the accused had mild ischaemic heart disease as revealed by the ECG. He was of the view that the accused be treated in a big institution like district hospital or medical college hospital and the disease may worsen if he is kept in jail without proper medical supervision and daily t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused is necessary he prayed for converting PCR into MCR, reserving his right for demanding PCR in future. The A.P.P. has stated that the Respondent Accused may be taken in judicial custody subject to right of demanding PCR by I.O. From the said application it appears that neither the I.O. nor the A.P.P. are aware of any particulars concerning the sickness of the Respondent Accused. There is nothing to show in the application that the I.O. or the APP have submitted that the Respondent Accused is critical or put forth information justifying such conclusion. All that they have stated is that the Respondent Accused is under medical treatment in J.J. Hospital and that few tests need to be carried out on him as per the information received by the I.O. from the doctors. No conclusion can be drawn as regards the gravity of the sickness from the mere statement of the I.O. in his Application dated 14-5-2009 wherein he simply states that medical treatment is necessary. It is also clear from the order of the Ld. Magistrate passed on the said Application that what the Ld. Magistrate has understood from the submissions made by the I.O. and the A.P.P. is that still few tests are to be done whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hospital in which he is at present and that he needs a better equipped or a speciality hospital. No such case inquiries are made or such a case made out in the present bail application. In the present case as set out earlier even the basic inquiry as to the nature of sickness is not made prior to grant of bail, more so when the Bail Application was also silent on this aspect. In the absence of any such material before the Ld. Magistrate, he ought not to have granted bail to the accused Under Section 437(1) proviso only on the ground that admittedly the accused is under medical treatment. If such orders are allowed to be passed it would open flood gates for such applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order was passed. 47. Before I part with the Order I must record that several submissions were advanced before me by the parties to the Applications touching the merit of the matter. However, since the limited question before me pertains to the correctness or otherwise of the impugned Order, I have thought it fit to keep such submissions out of the purview of the foregoing discussion. The observations made in this Order are for the limited purpose of deciding the Applications for cancellation of bail. It is clarified that notwithstanding this Order the Respondent Accused may apply for regular bail before the appropriate Court. If such Application is made the same shall be decided on its own merits. 48. Under the circumstances, I hold that the order passed by the Ld. J.M.F.C., Thane dated 14th May, 2009 granting Bail to the Respondent Accused is perverse, arbitrary, without application of mind and displays incorrect exercise of discretion. Hence I pass the following order: ORDER 1. The order of the Ld. J.M.F.C., Thane dated 14th May, 2009 granting bail to the Respondent Accused is hereby quashed and set aside. 2. The cash bail of ₹ 15,000/- furnished by the Respondent Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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