Akhil Anand Arya vs K.V. Satyamurthy and another

H.H. Kantharia, J.—This is a revision application for cancellation of bail order passed in favour of respondent No. 1, K. V. Satyamurthy, by the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, in a case involving offences punishable under sections 143, 144, 146, 147, 148, 149 and 307 of the Indian Penal Code.

The short facts as they are relevant for the disposal of this application are as under: -

On 25th November, 1986, at about 8.50 a.m., the Duty Officer of Bandra Police Station received an information from Control Room about some incident that had taken place at Plot No. 564, T.P.S., 3rd S. V. Road, Bandra. On this information, Sub-Inspector Ingole was deputed to the spot. He learnt that a person named Anand Arya who was assaulted was removed to Cooper Hospital in injured condition. Sub-Inspector Ingole as also Inspector Ghag of Bandra Police Station reached the Cooper Hospital and a complaint of Akhjl Arya, son of the said Anand Arya, was recorded. An offence of rioting and attempt to commit murder was registered and further investigation was carried out in which it was revealed that there was a dispute over property at Plot No. 564, Bandra (West) between Anand Arya on one hand and respondent No. 1 Satyamurthy on the other on account of which Satyamurthy and his hirelings numbering about 15 murderously assaulted Anand Arya. Satyamurthy who was accused of a serious offence of attempt to commit murder could not be traced either at his residence or at his office for the whole day but he himself surrendered to Bandra Police Station at about 7.30 p.m. Thereafter two Advocates representing him appeared at the Bandra Police Station at about 8.30 p.m. and gave a notice to the Police that they would be moving the night Magistrate for bail. Inspector Ghag made his remarks on the said bail application raising strong objections. The Advocates representing Satyamurthy went to the house of the Magistrate, designated as night magistrate, after telephoning him, and the record shows that Satyamurthy was released on bail at about 11.30 p.m. This bail order was valid upto 11.00 a.m. the next day.

On 26th November 1986 Inspector Ghag of Bandra Police Station filed a remand application in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, and prayed that Satyamurthy be remanded to police custody till 10th December 1986 by cancelling his bail but his application was rejected and the accused was released on same bail with a condition that he should attend the Police Station whenever required only between 11.00 a.m. and 5.00 p.m.

Being aggrieved by the bail orders passed in favour of Satyamurthy by the learned night Magistrate and by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra, Akhil Arya (son of injured Anand Arya) filed this Criminal Revision Application praying that the bail order passed in favour of Satyamurthy be cancelled and he be taken in police custody for further investigation. After this application was filed, the State of Maharashtra also joined the issue and made similar prayers as and by way of filing two affidavits of Inspector R. V. Ghag. The State is represented in this Court by the learned Additional Public Prosecutor.

First of all, Mr. Shirshekar, learned Advocate appearing on behalf of the petitioner, urged that neither the night Magistrate, who is also an Additional Chief Metropolitan Magistrate, nor the Additional Chief Metropolitan Magistrate presiding over the 9th Court, Bandra, had the jurisdiction and/or the powers to release a person accused of an offence punishable with death or imprisonment for life and that in the instant case the accused was charged of an offence punishable u/s 307 of the Indian Penal Code which is an offence punishable with imprisonment for life. In the submissions of Mr. Shirshekar and also Mr. Vyas, therefore, the impugned orders passed by both the Magistrates releasing the accused on bail was without jurisdiction and on that count alone the bail orders passed in favour of the accused be cancelled.

Now, section 437 of the Criminal Procedure Code provides that when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court other than the High Court or Court of Session, such person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Therefore, a Magistrate has no powers to release a person accused of an offence punishable with death or imprisonment for life if there are reasonable grounds to believe that he has been guilty of such an offence. So long as the instant case is concerned, the police had objected to the bail being granted by the night Magistrate pointing out that the injured was aged about 51 and was severely assaulted by Satyamurthy (Respondent No. 1) and others. The police also pointed out that the assault had taken place on account of a dispute between Anand Arya and K. V. Satyamurthy over property i.e. plot No. 564 and civil cases were pending in Court. Police further pointed out that since last about a month the matter had taken a serious turn and criminal complaints have been lodged at Bandra Police Station by and on behalf of both the parties. In their submissions, Respondent No. 1 and his agents numbering about 12 to 15 were armed with swords, iron bars and lathis and assaulted Anand Arya resulting into fracture of the skull and multiple fractures of right hand and right leg and that he was admitted in emergency ward in Cooper Hospital. The police also submitted before the learned night Magistrate that the injured''s son, complainant Akhill Arya, had managed to escape to save his life. The bail application was also objected on the grounds that other accused persons were to be arrested and the weapons of assault were still to be recovered and the injured''s health condition was being watched as he was lying in the hospital in serious condition in the emergency ward.

And despite such strong objections, the learned night Magistrate on very very flimsy grounds released Satyamurthy on bail in sum of Rs. 5,000/- with one surety in the like amount. It is pertinent to note here that in his order the learned Magistrate himself pointed out that there was motive for the accused to assault the injured because there were disputes between the parties on account of which the relations between them had become strained. He also noted that there were cases and counter cases pending in the courts between the parties. And the learned Magistrate was very much conscious of the fact that the injured was lying in the hospital with multiple fractures and fracture of the skull and in his opinion the injuries were quite serious but in the same breath he observed that the condition of the injured was not critical. Then he dealt with another aspect of the matter that Satyamurthy who is a journalist is a man of status and, therefore, was not likely to abscond or tamper with evidence and would be available to the police for further investigation. I have nothing to say about the status of the accused about which the learned Magistrate appears to have been very much impressed but the fact remains that he was alleged to have committed an offence punishable with imprisonment for life and all facts and circumstances considered it is crystal clear that there are reasonable grounds to believe that he is guilty of such an offence and, therefore, the learned Magistrate could not have released him on bail. I am also of the opinion that the order passed by the learned Magistrate was absolutely perverse, apart from being illegal, in the facts of the case. Such an order cannot be sustained in law. It was reasonable for the Magistrate to think that police should have sufficient time to investigate the alleged offence. He should not have been in a hurry to release the accused on bail. The learned Magistrate should have realized that bail orders passed in such ugly haste are bound to hamper investigation thereby resulting into miscarriage of justice.

The matter does not rest there. The police filed a remand application on the next day at 11.00 a.m. in the Court of the Additional Chief Metropolitan Magistrate, 9th Court, Bandra, and asked for the remand of the accused till 10-12-1986 and it was again pointed out to this Magistrate that the injured was lying in the hospital in serious condition and that the police would require some time to investigate the case and, therefore, the bail granted by the night Magistrate be cancelled and the accused be remanded to police custody. But surprisingly enough this Magistrate also did not apply his mind to the tale-telling facts and circumstances of the case and rejected the prayer of the police although he was of the opinion that this was a serious case triable by the Court of Session. It appears that this Magistrate was very much impressed by the submission made on behalf of the accused that he was a man of status being a journalist and the President of All India Press Letter Writers Association and was not likely to abscond as he has a fixed place of residence in Bombay and would not tamper with the evidence. What tempted this Magistrate to release the accused on bail is once again the same idea that the condition of the injured was not critical. What a faulty, fantastic and fallacious argument for any Magistrate to grant bail to an accused person in flagrant violations of the provisions of section 437 of the Criminal Procedure Code! And what is shocking is the fact that this Magistrate relied upon some cyclostyled paragraphs of a judgment recorded by this Court in Criminal Applications Nos. 1191 of 1978,1474 of 1978 and 241 of 1979 filed under the Maharashtra Vexatious Litigation (Prevention) Act, 1971, against injured Anand Arya and jumped to conclusion that the injured could not move any Court of law without the previous permission of the High Court. The learned Magistrate did not know the final order of the High Court obviously because the full text of the judgment was not before him and even then he acted upon that judgment. This shows the total non-application of mind on the part of the learned Magistrate. It appears that the learned Advocate General, under the provisions of section 2 of the Maharashtra Vexatious Litigation (Prevention) Act of 1971, had applied to this Court for directions that Anand Prakash Arya should not institute any criminal proceedings in any Court in Greater Bombay without, the leave of this Court and also for a direction that the proceedings instituted by him in Courts in Greater Bombay be not continued further. The judgment in that case was recorded on 2th and 16th April 1979 by a Division Bench of this Court comprising Chandurkar and Sawant, JJ. The said judgment ran into 12 paragraphs but what was shown to the learned Magistrate was upto some portion of para 9 and, therefore, the learned Magistrate did not know as to what actual relief was granted by this Court in those applications. To satisfy myself I called for the original judgment recorded by Sawant, J. and it is very much true that the prayers sought for by the learned Advocate General were granted by this Court except that Criminal Case No. 11/S of 1978 and Criminal Case No. 171/S of 1978 could be continued by Anand Prakash Arya. In other words, the relief sought for by the learned Advocate General was not fully granted but the fact remains that Anand Arya was prohibited from taking any criminal proceedings in Greater Bombay without the leave of this Court. The point that 1 am making is that the learned Magistrate without knowing the full text of the judgment relied and acted upon it which shows the cavalier manner in which he conducted himself in disposing of the remand application filed by the police. His impugned order, therefore, smacks of arbitrariness, capriciousness and perversity. The learned Magistrate was also totally wrong in observing :

"the complainant has been barred by the High Court of Bombay under the False and Vexatious Lodging of Cases Act and this complaint should not have been registered by the police officer of Bandra Police Station without the consent of the High Court."

It is pertinent to note here that the complainant in this case was not Anand Arya but his son Akhil Arya. But assuming for the sake of argument that the real complainant was Anand Arya even then this Court had not prohibited him from filing a police complaint even if he was murderously assaulted. All this goes to show that the impugned order passed by the learned Magistrate presiding over 9th Court, Bandra, was arbitrary, capricious and perverse, made with total non-application of mind. Mr. Neemuchwala, learned Advocate appearing on behalf of respondent No. 1, relied upon a judgment of the Supreme Court in the case of Bhagirathsinh Judeja Vs. State of Gujarat, and submitted that considerations for cancelling bail would be altogether different from those refusing to grant bail. I am quite conscious of the substance in the argument of Mr. Neemuchwala and I am also aware that grant of refusal of bail is the discretion vested in a court. But such discretion has to be exercised judicially and not the manner in which exercised by the two Magistrates in our case. Ordinarily, I would not have interfered with an order granting bail to an accused person in exercise of revisional powers u/s 397 of the Criminal Procedure Code. But when the order is so arbitrary, capricious and perverse that I feel it is the bounden duty of the High Court to reverse such an order in its revisional jurisdiction u/s 397, or under powers vested in it u/s 439(2) or under inherent powers of the High Court u/s 482 of the Criminal Procedure Code.

Lastly, I may point out that I am supplied with a big bio-data of the accused and a bare perusal of this bio-data shows that Satyamurthy is a person with influential connections. He is described as a man of multifarious activities. In my view, therefore, he is likely to tamper with evidence and hamper investigation, if allowed to remain on bail so soon after the offence is alleged to have been committed by him.

In this view of the matter, the bail order passed in favour of Satyamurthy has got to be cancelled. In the result, I allow this application, set aside the bail order passed by the learned Additional Chief Metropolitan Magistrate, 9th Court, Bandra, in favour of Respondent No. 1 and order that Respondent No. 1 shall be immediately re-arrested and taken in custody forthwith for such reasonable time as would be

required by the police to carry out further investigation: Rule is accordingly made absolute.

Before parting with the judgment, it pains me to note certain disquieting and disturbing features with regard to the behaviour and conduct of the night Magistrate (S-A. Merchant). He seems to be in the habit of passing bail orders even in serious matters almost at mid-night. In the instant case he passed the bail order at about 11.30 p.m. I have come across another case of bride-burning on account of dowry-demands in which case also he had passed bail order at about 11.30 p.m. within couple of hours of the arrest of the accused persons. I, for one, am not able to understand as to under what provisions of law or authority this particular Magistrate passes bail orders almost at mid-night. I am told at the Bar that there is an administrative circular issued by the learned Chief Metropolitan Magistrate that in certain cases Advocates appearing on behalf of accused persons who are arrested late in the evening could move certain Magistrates designated as night Magistrates for bail but only upto 10.00 p.m. In other words, in order to facilitate the learned members of the Bar to prefer bail applications on behalf of their clients, if arrested late in the evening, the learned Chief Metropolitan Magistrate has directed or requested some of his colleagues to entertain bail applications upto 10.00 p.m. So far, so good. But one fails to understand as to why and how and under what circumstances this particular night Magistrate passes bail orders almost at mid-night. The learned Magistrate should know and realize that by his hasty action of passing such "near mid-night" bail orders, and especially in serious cases, he is likely to shake the confidence of the members of the public in judiciary. In that case, remedy would be worse than malady. I hope and trust that, if administrative exigencies permit him, the learned Chief Metropolitan Magistrate shall forthwith change the assignment of this particular Magistrate and may request some other Magistrate to function as a night Magistrate.

The office is directed to send a copy of this judgment to the learned Chief Metropolitan Magistrate immediately.