There is no law
which says that on a single failure to attend the police
station, bail granted to a person would automatically be
cancelled. If there is a failure to comply with a condition,
the Court is required to seek explanation from the accused
persons and then judge whether the failure was willful and
deliberate, and further, whether for that lapse, the extreme
step of cancellation of bail should be taken or not? Here, the
Court has taken it for granted that once the condition
imposed by the Court is breached, cancellation of bail would
automatically follow.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 811 OF 2013
Dinesh Hilal Mahajan, Vs The State of Maharashtra,
CORAM : ABHAY M. THIPSAY, J.
Dated: October 18, 2013.
Citation;2014 ALLMR(cri) 543
1.
2.
By consent, heard finally.
The petitioners, who are accused in CR No.43/2013
registered at Deopur Police Station, Dhule were granted
anticipatory bail by the Court of Sessions, by an order dated
9.4.2013. The case against the petitioners is in respect of
the offences punishable under Sections 498A, 406, 323,
504, 506 of I.P.C. r.w. 34 of I.P.C. as also the offences
punishable under the Dowry Prohibition Act. The operative
part of the order granting anticipatory bail reads, as under:
" ORDER
Application is allowed.
Deopur Police station is directed to release the
applicants in the event of their arrest in C.R. NO.
43/2013 on furnishing P.R. of Rs.15,000/ each with
one surety in like sum.
On 30.4.2013, the Investigating Agency, through the
3.
Applicants are directed to attend I.O. of Deopur
police station on 14/4/2013 between 11 a.m. to 2
p.m. and whenever they are called and cooperate in
the investigation."
Public Prosecutor, made an application for cancellation of
bail granted to the petitioners, on the ground that they had
committed breach of the terms and conditions, on which the
anticipatory bail was granted. It was contended that the
petitioners had failed to attend Deopur Police Station on
14.4.2013, as directed. It was also contended that, on
13.4.2013, the first informant had filed a report at Deopur
Police Station that the petitioners had been giving threats to
her and that the petitioners had pressurized her to
withdraw the case.
4.
The learned Additional Sessions Judge, after hearing
the parties, cancelled the bail order holding that the
petitioners had committed breach of the condition imposed
at the time of their release on bail; namely, of attending the
police station on 14.4.2013 and the petitioners had also
allegedly, given threats to the first informant, for
5.
withdrawing the F.I.R.
Being aggrieved by this order canceling anticipatory
bail, the petitioners have approached this Court by filing the
present writ petition.
6.
I have heard Mr. Ghanekar, learned Counsel for the
petitioners and Mr. Kadam, learned Addl. Public Prosecutor
for the State. I have also heard Mr. C.R. Deshpande,
learned Counsel, who was granted permission to make
submissions on behalf of the first informant, opposing the
writ petition.
7.
Mr. Deshpande, learned Counsel raised a preliminary
objection as to the maintainability of the writ petition.
According to him, the proper remedy for the petitioners
would be of seeking bail afresh. He submitted that the
order cancelling bail, as passed by the Additional Sessions
Judge, is purely interlocutory and consequently, no revision
would lie from such an order. According to him, it is
settled legal position that, where an application for revision
cannot lie from an order, writ petition would also not lie
from such an order.
I am unable to accept this contention of the learned
8.
Counsel. The writ jurisdiction is too wide and it can cover
even interlocutory orders. Therefore, where a revision would
be barred because the order impugned is an interlocutory
one, a writ petition would not be barred.
9.
As regards the contention that that the petitioners
must seek bail afresh, it may be observed that the
petitioners are, actually, not taken in custody. The
petitioners cannot move an application for bail without
surrendering themselves before the Court. Thus, the
petitioners have no effective or efficacious remedy for
challenging the order of cancellation of bail and as such, in
my opinion, the writ petition is very much maintainable and
10.
in fact, should be entertained and decided on merits.
At this stage, Mr. Deshpande, learned Counsel
submits that since the question would be of seeking
anticipatory bail, the petitioners need not surrender before
the Court and that, therefore, they can apply afresh for
anticipatory bail. It is not possible to accept this contention
inasmuch as, the Court which has cancelled the
anticipatory bail, on the ground that the petitioners have
failed to comply with the conditions of bail, would not be
willing to grant anticipatory bail to them afresh. Had that
been the case, the Court would not have cancelled the
anticipatory bail, at all, and at the most, would have
imposed further stringent conditions. In my opinion, the
petitioners have no effective and efficacious remedy.
Coming to the facts of the case, it is clear that, that
11.
the petitioners did not attend the police station on
14.4.2013, is not an admitted position. It is in dispute.
According to the petitioners, they did attend the police
station and that, actually, the Investigating Officer was not
present there. The petitioners did produce a certificate
from the Station House Officer showing that they had
attended the police station. It is nobody's case that the said
certificate is forged, or that it has not been issued by the
Station House Officer, who was on duty, at the material
time. The only contention is that the certificate has been
subsequently obtained which, in my opinion, does not
indicate that the facts stated therein must necessarily be
untrue. Further, the Investigating Agency's case is not that
the Investigating Officer was present at the police station
when the petitioners were supposed to attend the same. In
fact, the petitioners have claimed that they had given a
telephone call from their cellphone to the cellphone of the
Investigating Officer and that, if the tower location of the
respective cellphones, at the material time, would be
ascertained, the fact that the petitioners were present at the
police station; but, the Investigating Officer was not present,
would easily be ascertained. The Investigating Agency has
not made any attempt to refute this contention or to carry
out investigation to show the untenability of the claim made
12.
by the petitioners.
Apart from this, absence of the petitioners on one date
is not the crucial aspect of the matter. There is no law
which says that on a single failure to attend the police
station, bail granted to a person would automatically be
cancelled. If there is a failure to comply with a condition,
the Court is required to seek explanation from the accused
persons and then judge whether the failure was willful and
deliberate, and further, whether for that lapse, the extreme
step of cancellation of bail should be taken or not? Here, the
Court has taken it for granted that once the condition
imposed by the Court is breached, cancellation of bail would
automatically follow.
13.
Mr. Deshpande, learned Counsel has drawn my
attention to a decision of the Supreme Court of India in case
of State of Punjab v. Raninder Singh and Anr [AIR 2008
ig
SC 609]. All that this judgment lays down is that, it would
be permissible for a Court to cancel the bail granted to an
accused, if the accused commits breach of the condition to
remain present before the Investigating Officer for
interrogation. Nobody disputes this proposition and as
aforesaid, it would be within the discretion of the Court to
cancel the bail in the event of such accused failing to
comply with the condition of remaining present for
interrogation. In this case, the fact that, the petitioners had
not complied with the condition, itself is not satisfactorily
established. Moreover, whether for that reason, the bail was
required to be cancelled, was also not considered by the
learned Additional Sessions Judge, who appears to have
given up to the stiff resistance to grant of bail put forth by
the Investigating Agency; obviously, at the instance of the
first informant.
14.
It is interesting to note that the order granting bail,
required the petitioners to remain present whenever they
would be called by the Investigating Officer. Assuming that
the petitioners did not remain present before the Deopur
Police Station on 14.4.2013, a sincere and bonafide
Investigating Agency, would have again asked them to
remain present on the next date, or soon after 14.4.2013.
Admittedly, this was not done.
On 30.4.2013, an
application for cancellation of bail was made. It was decided
on 29.8.2013. During the intervening period also, no
attempt was made to call the petitioners at the police station
for interrogation. Apart from this, when the petition came
up before this Court on 21st September, 2013 and was
adjourned to 8.10.2013, this Court specifically made it clear
that the petitioners would be required to attend the Police
Station during the intervening period, as and when called by
the Investigating Officer, on giving either a notice in writing,
or by sending S.M.S. The petitioners were not called in
spite of this observation and direction given by this Court.
Again, on 8th October, 2013, the similar direction was given
to the petitioners by this Court; but, admittedly, the
petitioners were not called at any time for interrogation even
thereafter. When the matter appeared on Board of this
Court on 11th October, 2013, again this direction was
repeated; but, again, not even a S.M.S. was sent to the
petitioners, requiring them to attend the Police Station.
15.
It is, therefore, clear that the presence of the
petitioners, is not really felt necessary by the Investigating
Agency; but, what is aimed is that they should be somehow
kept in custody. There is no other explanation, otherwise,
for not calling the petitioners to attend on any date,
assuming that they had failed to attend on 14.4.2013.
16.
The application for cancellation of bail does not
appear to be bonafide. It appears to be basically due to a
desire of punishing the petitioners for the alleged offences,
without a trial. The order passed by the Additional Sessions
Judge, cancelling the bail order, is contrary to the well
settled principles of Law. The same has been passed
without trying to ascertain, even prima facie, the correctness
of the facts alleged by the Investigating Agency. No efforts
were made by the Investigating Agency to investigate into
the complaint of the noncognizable offence lodged by the
first informant, by taking an appropriate order from the
Magistrate. Thus, there was no attempt either on the part
of the Investigating Agency, or on the part of the Court, to
verifyat least, prima facie,the truth of the allegations
levelled against the petitioners. The impugned order, being
patently illegal and perverse, needs to be interfered with, by
exercising the Constitutional jurisdiction of this Court.
17.
The petition is allowed. The impugned order is set
aside.
Rule is made absolute in the aforesaid terms.
Needless to say that the petitioners shall attend the
police station and make themselves available for
ig
interrogation and investigation, as and when required by the
Investigating Officer and, shall comply with all other express
and implied conditions of bail.
(ABHAY M. THIPSAY, J.)
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