Cancellation of bail by same court which granted the bail

 There   is 

substance in the contention raised by the learned counsel for the 
applicant to the effect that the Investigating Agency ought to have 
approached the Court of Sessions itself, on the ground that bail 
was   erroneously   granted   by   the   learned   Magistrate.   However,   it 
cannot   be   said   that   the   Magistrate   was   precluded   from 
considering the matter afresh while exercising the powers under 
Section 437 (5) of the Code. It is because the orders granting or 

refusing   bail   do   not   attain   finality;   and   if   further   and   fresh 
materials – or even new grounds – are putforth before the same 
Court, the matter can be considered afresh by the same Court. 
The facts of this case leading to grant of bail are rather peculiar. It 
appears   that   the   applicant   who   was   not   available   to   the 
Investigating   Agency   for   quite   some   time,   suddenly   surrendered 
himself   before   the   trial   Court   without   giving   notice   to   the 
Investigating Officer. The bail came to be granted only on the basis 
that   ‘the   charge­sheet   has   been   filed’,   which   would   signify 
completion of the investigation. Actually, the investigation had not  
been completed because a major part of the investigation viz:­ the  
recovery of the misappropriated amount had not been done. In fact, 
it was rather unnecessary on the part of the Investigating Agency 
to   have   filed   the   charge­sheet   in   the   Court   by   referring   to   the 
provisions of Section 299 of the Code. The matter could have very 
well kept by them as pending investigation.
CRIMINAL APPLICATION NO. 841 OF 2012 
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
Sanjay S/o Jagdishprasad Ladda

v
The State of Maharashtra 



CORAM : ABHAY M. THIPSAY, J.
Dated: September 24, 2013
Citation; 2013 ALL M R (CRI)3973


Heard   Mr.   N.S.   Ghanekar,   the   learned   counsel   for   the 
applicant. Heard Mr. G.R. Ingole, the learned A.P.P. for the State. 
2.
As   per   the   direction   given   by   this   Court   on   20th 
September,   2013,   Mr.   D.K.   Chaure   –   Police   Inspector,   Gandhi 
Chowk Police Station, Latur ­ the Investigating Officer, is present 

The   applicant   is   an   accused   in   C.R.   No.   147/2007 
3.
in­person before the Court, today. 
registered with Gandhi Chowk Police Station, Latur, in respect of 
offences punishable under Section 420 of the Indian Penal Code 
(IPC), Section 403 of IPC, Section 406 of IPC, Section 409 of IPC, 
Section 467 of IPC, Section 468 of IPC, Section 471 of IPC, Section 
477A   of   IPC,   Section   417   of   IPC   and   Section   418   of   IPC.   The 
substance of the allegations against the applicant is that he was a 

working partner of `Sunidhi Securities’. That, the applicant made 
several   fraudulent   changes   in   the   records   of   the   said   firm   and 
even in record of the bank account held in the name of the said 
firm.   The   applicant   is   also   alleged   to   have   got   prepared   a   false 
bank statement. He is also alleged to have transferred the shares 
in the name of the partnership firm in his own name by making 
false and fabricated entries etc.. 
4.
The   applicant   did   not   make   himself   available   to  the 
police for investigation and   interrogation after the registration of 
the offence. According to the Investigation Agency, the applicant 
was   absconding   since   25.05.2007.   The   investigation   that   was 
carried   out   revealed   that   the   applicant   had   committed   criminal 
breach of trust in respect of an amount more than Rs. 1 Crore. 
The   alleged   offences   were   committed   by   the   applicant   in   the 
financial years 2005­2006, 2006­2007 and 2007­2008. 


Though   the   applicant   was   not   available   to   the 
Investigation Agency, he made an application for anticipatory bail 
in   the   Sessions   Court   at   Latur.   On   01.10.2007,   the   Sessions 
Court, on the request made by the Public Prosecutor, directed the 
applicant   to   remain   present   at   the   time   of   hearing   of   the   said 
application. The applicant, however, did not remain present before 
the   Sessions   Court,   dragged   on   the   matter   and   ultimately,   the 
Court of Sessions dismissed the anticipatory bail application. 

The   applicant   challenged   the   order   of   the   Sessions 
Court by filing a Writ Petition but, on 30.06.2008, withdraw the 
matter. 
Writ   Petition   stating   that   charge­sheet   had   been   filed   in   the 
6.
It   appears   that   after   the   filing   of   charge­sheet,   the 
applicant   surrendered   himself   before   the   trial   Court   i.e.   the 
learned Magistrate and prayed for bail. The learned Magistrate, by 
an   order   dated   08.12.2009   granted   bail   to   the   applicant.   On 
21.12.2009,   the  Investigating   Officer   made   an  application   before 
the   learned   Magistrate   praying   that   the   bail   granted   to   the 
applicant   be   cancelled,   and   that   he   be   remanded   into   police 
custody.   A   number   of   contentions   were   taken   in   the   said 
application,   the   substance   of   which   is   that  the   detention   of   the  
applicant and his custodial interrogation was necessary. 
7.
The   learned   Magistrate,   by   his   order   dated 

09.02.2010,   cancelled   the   bail   granted   to   the   applicant.   The 
Magistrate   also   directed   the   applicant   to   remain   present   at   the 
8.
police station within 10 days from the date of the said order. 
Against the said order, the applicant approached the 
Court   of   Sessions   by   making   an   application   for   revision.   The 
learned Sessions Judge holding,  inter alia,  that the revision was 
It is under these circumstances that the applicant has 

9.
not maintainable, dismissed the same. 
10.
approached this Court by invoking its inherent powers. 
Mr.   N.S.   Ghanekar,   the   learned   counsel   for   the 
applicant   submitted   that   the   impugned   order   is   bad­in­law. 
According   to   him,   at   this   distance   of   time,   the   police   are   not 
entitled to seek the applicant’s remand in police custody. He also 
submitted   that   since   the   substance   of   the   claim   of   the 
Investigating Agency was that the bail had been wrongly granted, 
the Investigating Agency ought to have approached the Court of 
Sessions for cancellation of bail granted to the applicant by the 
Magistrate, and it was not open for them to seek cancellation of 
bail from the Magistrate himself. It is submitted that under the 
provisions of Section 437(5) of the Code, the learned Magistrate 
was not supposed to and expected to review his own to grant of 
bail,   and   the   decision   to   cancel   bail   in   such   cases,   should   be 
based on certain supervening circumstances. 

I   have   carefully   considered   the   matter.   There   is 

substance in the contention raised by the learned counsel for the 
applicant to the effect that the Investigating Agency ought to have 
approached the Court of Sessions itself, on the ground that bail 
was   erroneously   granted   by   the   learned   Magistrate.   However,   it 
cannot   be   said   that   the   Magistrate   was   precluded   from 
considering the matter afresh while exercising the powers under 
Section 437 (5) of the Code. It is because the orders granting or 

refusing   bail   do   not   attain   finality;   and   if   further   and   fresh 
materials – or even new grounds – are putforth before the same 
Court, the matter can be considered afresh by the same Court. 
The facts of this case leading to grant of bail are rather peculiar. It 
appears   that   the   applicant   who   was   not   available   to   the 
Investigating   Agency   for   quite   some   time,   suddenly   surrendered 
himself   before   the   trial   Court   without   giving   notice   to   the 
Investigating Officer. The bail came to be granted only on the basis 
that   ‘the   charge­sheet   has   been   filed’,   which   would   signify 
completion of the investigation. Actually, the investigation had not  
been completed because a major part of the investigation viz:­ the  
recovery of the misappropriated amount had not been done. In fact, 
it was rather unnecessary on the part of the Investigating Agency 
to   have   filed   the   charge­sheet   in   the   Court   by   referring   to   the 
provisions of Section 299 of the Code. The matter could have very 
well kept by them as pending investigation.

12.

Any   way,   I   have   considered   the   matter   on   merits, 
independently.   It   is   apparent,   that   the   applicant   is   absconding 
and   has   been   adopting   various   tactics   to   avoid   facing   the 
Investigating   Agency.   He   had   also   suppressed   the   fact   of   his 
previously seeking anticipatory bail from the Sessions Court and 
rejection   of   his   application,   while   surrendering   before   the 
Magistrate and seeking bail from him. Bail came to be granted by 
the Magistrate without appreciating the facts of the case and in 
the   absence   of   the   Investigating   Officer.   There   is,   therefore, 

nothing wrong, if the learned Magistrate corrected the error, that 
had occurred in releasing the applicant on bail and cancelled the 
Similarly, no fault can be found with the order passed 
13.
same. 
by   the   Sessions   Court   dismissing   the   revision   filed   by   the 
applicant challenging the order of cancellation of bail. 
14.
There   exists   a   strong  prima   facie  case   against   the 
applicant.   It   also   appears   that   his   custodial   detention   and 
interrogation in the matter is necessary  for  proper  and effective 
investigation. 
15.
Since   the   order   cancelling   bail   granted   to   the 
applicant   is   proper   and   legal,   the   same   does   not   need   any 
interference. 


The application is rejected. 
Sd/­

( ABHAY M. THIPSAY, J.)

Print Page