It has to be borne in mind that Judges do not do the
"weighment" of merits of respective case and contentions by using the device such as a balance used for weighing with
precision as done by use of a "scientific or a Jwellers' balance".
23] Human mind and human behaviour are the matters being
assessed by the Courts. The judgment and orders are not made or rendered by applying accuracy either geometric or
mathematical accuracy by use of gauging devices and scientific and or modern engineering gadgets. Palpability and palatibility are often subjective, though dominating factor
is always the objective element. For the complainant, his case is most important and graver ever.
25] In the point of view of the assessment done by this Court, assessment of material in totality was to be done, and it is properly done by the learned Additional Sessions Judge.
26] A grave error, not the clamour would justify any
interference.
Bombay High Court
Farooque Fateh Mohammad Sarkhel vs The State of Maharashtra on 16 September, 2013
Bench: A. H. Joshi
Citation;2013 ALLMR(CRI)3987
1] Rule is made returnable forthwith and is heard. Perused the record annexed to the application. ::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 2/9 89.appln274.13 2] Learned Sessions Court granted anticipatory bail to the applicants in Anticipatory Bail Application No.333 of 2013, rt
by order dated 09.05.2013.
By present application, said order of Anticipatory Bail ou
Application is sought to be cancelled. C
3] Facts in brief are:-
(a) Crime No.MECR 2/2013 is registered on 05.02.2013 in Amboli Police Station in Mumbai for offences under h
Sections 209, 465, 467, 468, 470, 471, 474, 420 ig
read with Section 34 of the Indian Penal Code. (b) Complaint is lodged by Mr. Farooque Fateh Mohammad H
Sarkhel.
(c) Present respondents are arrayed as accused. y
(d) It is alleged that the accused are claiming to be in possession of 1200 sq. ft. of plot area out of ba
city survey No.36-B, Mogragav, S. V. Road, Jogeshwari (E).
om
(e) Claim to said 1200 sq. ft. area of plot made by accused is based on a forged affidavit and rent receipts executed by a person by name Mr. Rashid B
Sultan Shaikh.
(f) Based on these forged documents, the accused are trying to seek protective orders from Civil Courts. (g) Accused are raising said claim though they have lost in one round in Rent proceedings initiated by them in Court of Small Causes at Mumbai. ::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 3/9 89.appln274.13 4] The accused apprehended arrest and therefore they filed rt
Anticipatory Bail Application No.333 of 2013. ou
5] The Anticipatory Bail Application was pressed with submissions as noted by Sessions Court in paragraph No.4 of C
the judgment granting the relief. Summary of the grounds is as agitated before Sessions Court and referred to in paragraph No.4 of its order is as below:- h
(i) The complainant does not dispute that the ig
applicants were inducted as tenant over part of the property in question.
H
(ii) The dispute is primarily civil in nature. There are suits pending involving the said subject matter.
y
(iii)Applicant No.1 had filed private ba
complaint against present complainant and six others alleging commission of offences punishable under Sections 452, 457, 435, 436, om
380, 504, 506(II) r/w 114, Indian Penal Code, and due to order passed under Section 156(3), Code of Criminal Procedure, MECR No.07/2012 came to be registered. Police B
have not conducted proper investigation in respect of MECR No.07/2012 was registered and the investigation is unduly delayed. (iv) The disputed documents viz: Affidavit and Rent Receipts are in the custody of police. Nothing is to be recovered from or at the instance of either of the applicants. ::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 4/9 89.appln274.13 (v) Custodial interrogation of the accused would not be necessary.
rt
6] The State had opposed the application urging that :- ou
(a) Custodial interrogation is necessary, since the offence was serious and documents were forged and were being used in Courts.
C
(b) It is necessary to find out as to whether an individual by name Rashid Sultan exists. h
7]
that:-
The ig
applicant had opposed the application on ground H
(i) Forgery was a serious offence. (ii) Use of forged documents in Court aggravates the offence.
y
(iii) Investigation and custodial interrogation is ba
necessary.
8] Learned Sessions Court has discussed various aspects and om
allowed the application.
9] By this application serious grievance is expressed B
against the order of grant of Anticipatory Bail Application. 10] It is urged by learned advocate for the applicant that serious and grave grounds ought to exist and that those do exist.
::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 5/9 89.appln274.13 11] Grounds for cancellation as orally urged, which are basically founded on the contents of application and on which rt
special emphasis is given by learned advocate Mr. A. H. H. Ponda reads thus:-
ou
"3(d). The Lower Court ought to have seen that the submissions made by the applicants as are recorded in para 4(iv) that the affidavit is in the custody C
of the police and nothing is to be recovered from the applicant and therefore custodial interrogation was not necessary was a palpably submission made by h
the applicants. It is humbly submitted that this submission
ig has not only been made but it is recorded in the order as can be discerned in para 4(iv) above. Not only this, this submission has H
heavily in the mind of the Learned Judge granting bail while he has clearly stated in paragraph 12 that the documents which are alleged to be forged are in the custody of the police therefore, y
custodial interrogation is not necessary. This is ba
a palpably incorrect approach by the Learned Additional Sessions Judge based upon false statements made by the applicant which are weighed with the Hon'ble Judge and resulted in the passing om
of the order. An irrelevant consideration therefore was weighed in the mind of the learned Judge and even a single irrelevant consideration is sufficient to set aside the Order passed by the B
trial Court because one does not know to what extent the irrelevant consideration weighed in the mind of the learned Judge was not in the Order. Therefore on this ground alone the order deserves to be set aside. Reliance is placed on the Hon'ble Supreme Court judgment in support of the above contention."
(quoted from page no.8 and 9 of memo of application for ::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 6/9 89.appln274.13 cancellation).
12] Other grounds which are urged before this Court, are rt
those as averred in the application and as are seen recorded ou
by Sessions Court in paragraph No.6 of its order. 13] The emphasis of learned advocate for the applicant is C
that:-
(a) Prestige of Court and justice should be maintained h
and an order which is based on totally erroneous (b)
ig
foundation should be set aside. Custodial interrogation is necessary and hence H
arrest is imperative.
14] This Court has perused the impugned order, other y
documents on record and has examined rival submissions. ba
15] It is not in dispute that the applicants were inducted as tenant of one Gala/Shop by Fateh Mohammad Sarkhel. Long om
drawn statement of the first information which is the basis of F.I.R. is seen at page 36 of paper book. It consists of an admission as regards said tenancy. B
16] It is thus seen that the applicants were not strangers to the property. The FIR lodged by the accused is prior in time.
17] It is seen from paragraph No.8 to 11 of the impugned ::: Downloaded on - 22/09/2013 23:20:36 ::: sbw 7/9 89.appln274.13 order that learned Additional Sessions Judge has taken resume of facts.
rt
18] Learned Additional Sessions Jugde referred in paragraph ou
No.8, that police have already seized two rent receipts which are allegedly forged documents. In paragraph No.12 of C
impugned order, learned Sessions Judge has observed that the "documents allegedly forged are in custody of police". It is seen that the applicant finds serious non application of mind h
on the part of learned Sessions Judge due to the observation ig
contained in paragraph No.12.
H
19] Applicant's attempt is to persuade this Court that what paragraph No.12 means is that it includes the words namely y
that "forged affidavit too is seized by investigating officer". The documents referred to in paragraph No.12 do ba
essentially refer to two rent receipts only. The findings and observations as contained in para No.8 and 12 need to be read om
jointly or together. Fallacious submission of the applicant that learned Sessions Judge has passed a palpably wrong order is a product of applicant's failure to read together, the B
contents of paragraph Nos.8 and 12. 20] In these premises, it is evident that applicant's submissions are over toned and are based on selective reading of impugned order particularly paragraph No.12 thereof in total disjuncture of earlier paragraph numbers 8 to 11. ::: Downloaded on - 22/09/2013 23:20:37 ::: sbw 8/9 89.appln274.13 21] It is seen that the FIR was recorded in February 2013. rt
The ABA was decided in May 2013. More than four months are over, and yet the investigating officer did not find it ou
necessary to move for cancellation of anticipatory bail. In this background the claim of the applicant that the arrest is C
necessary has to be viewed as applicant's desire than a need perceived by the investigating officer. h
22] It has to be borne in mind that Judges do not do the ig
"weiment" of merits of respective case and contentions by using the device such as a balance used for weighing with H
precision as done by use of a "scientific or a Jwellers' balance".
y
23] Human mind and human behaviour are the matters being ba
assessed by the Courts. The judgment and orders are not made or rendered by applying accuracy either geometric or om
mathematical accuracy by use of gauging devices and scientific and or modern engineering gadgets. Palpability and palatibility are often subjective, though dominating factor B
is always the objective element. 24] For the complainant, his case is most important and graver ever.
25] In the point of view of the assessment done by this ::: Downloaded on - 22/09/2013 23:20:37 ::: sbw 9/9 89.appln274.13 Court, assessment of material in totality was to be done, and it is properly done by the learned Additional Sessions Judge. rt
26] A grave error, not the clamour would justify any ou
interference.
C
27] The view taken by learned Additional Sessions Judge is a most possible and reasonable view. Hence, this Court is h
satisfied that application has no merit and it is dismissed. 28]
ig
Rule is discharged.
( A. H. JOSHI, J.)
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