Mahendra Manilal Shah and etc. vs Rashmikant Mansukhlal Shah and Another

S.J. Kathawalla, J.—Both these applications are filed for cancellation of bail granted by the Ld. J.M.F.C., Thane in C.R. No. I/240 of 2008, vide his Order dated 14th May, 2009 (the impugned order). Criminal Application No. 2447/09 is filed by the State Under Sections 439(2) and 482 Code of Criminal Procedure. Criminal Application No. 2446/ 09 is filed by the Original Complainant Mahendra Manilal Shah u/s 439(2) Code of Criminal Procedure & Article 227 of the Constitution of India.

Some relevant facts leading to the above Criminal Applications as set out by the Applicants and also what transpired till the said Criminal Applications were taken up for hearing are as under:

(i) The Original Complainant Mahendra Manilal Shah and Mr. 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 before this Court being Suit Nos. 2934/ 08, 2935/08, 2936/08 and 2937/08 challenging the sale by Respondent Accused. These Suits came to be filed around September 2008. Notice of Motion for interim and ad-interim reliefs were taken, being Notice of Motion Nos. 3533/08, 3534/08, 3535/08 and 3536/08. In the Affidavits in Reply to the Notices of Motion filed by Respondent Accused on 6th October, 2008 and 24th October, 2008, the Respondent Accused took up the contention that he was entitled to dispose off the flats in view of the Release Deeds being executed by the Releasors namely, the Plaintiffs therein in favour of the Releasees namely, the Company. The Release Deeds purportedly sought to release in favour of Vijay Dwellers Pvt. Ltd., the rights of the tenants for alternate accommodation in the redeveloped property. The Plaintiffs therein denied the execution of any such Deeds by their Affidavit in Rejoinder dated 13th October, 2008 and 11th December, 2008.

(iv) Thereafter, Ajit kumar Jain, the Defendant No. 14 in the said Suits, filed a Criminal Complaint on 10th November, 2008 against the Plaintiffs therein and the Respondent Accused and Ors. alleging offences under MOFA and Section 420 of the Indian Penal Code. This complaint was filed before the Court of 8th JMFC, Thane.

(v) On 27th November 2008, the Ld. Magistrate took cognizance of the offences and issued process against all the accused persons. On the same day, Ajit kumar Jain moved an Application for a general search u/s 93 of the Code of Criminal Procedure for the search and production of the Release Deeds. He identified two locations to be searched namely, the office of the Architect of Vijay Group who was never concerned with the project of Vijay Dwellers Pvt. Ltd. and also the corporate office premises of Vijay Dwellers Pvt. Ltd. The office of Vijay Dwellers situated at Ghodbunder Road does not come under the jurisdiction of the JMFC Court. However, in order to come under the jurisdiction of the 8th JMFC Court, the address of the Architect of Vijay Group was also mentioned in the complaint. No search was ever conducted at the office of the Architect.

(vi) On the same day, i.e. on 27th November 2008, a purported search was carried out in the premises of Vijay Dwellers Pvt. Ltd., at Ghodbunder Road, Thane and purportedly two Release Deeds were discovered in its latrine and recovered and seized 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 Rs. 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 view of the directions of the Ld. Magistrate for urgent return of the documents, on 11th December, 2008, the Forensic Laboratory expressed an opinion that the signatures on the two Release Deeds were not the signatures of the Releasor or the Releasee (the Releasor being Mr. Vrajlal Gala).

(x) Respondent accused and Ajit Sohanlal Jain thereafter preferred applications for anticipatory bail before the Sessions Court, Thane. After extensive hearing of the said bail applications, the Learned Sessions Judge rejected both the anticipatory bail applications vide a common Order dated 28th April, 2009. While rejecting the anticipatory bail applications of the Respondent Accused and Ajit Sohanlal Shah the learned Sessions Judge, has inter alia, in paragraph 22 of his order observed/recorded as under:

Last but not the least in this matter, the applicants were specifically directed to remain present on the date of final hearing and the record shows that on certain dates, they preferred to remain absent. Be that as it may, on 27th April, 2008, they were expected to be present before the Court, but failed to remain present. The Learned Counsel for the parties were directed to see that the applicants remain present. They did make attempt, according to them, they conveyed specific message to them to be here today and though according to the learned Counsel they made a submission that they are appearing before the Court, they did not turn up.

(xi) Thereafter Respondent Accused preferred an anticipatory bail application before this Court being Criminal Application No. 2266 of 2009. The same was taken up by this Court on 12th May, 2009. After considering the submissions and taking a note of the involvement of a huge amount, of more than Rs. 81 crores as the alleged defrauded amount and also considering that there are allegations as to the fabrication of certain documents used in the civil litigation pending before this Court and after perusal of police investigation papers, which were shown to the Court, as to the high handed activities of Respondent Accused concerning the threats given to the prosecution witnesses in the matter of the F.I.R. lodged by the Original Complainant, no interim relief was granted and the bail application was required to be taken up before the regular Court after reopening of the Court along with the application of the co-accused being Criminal 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 and tried to make enquiry with the Respondent Accused, he did not co-operate and threatened the I.O. On enquiring with the doctor the I.O. was informed that the Respondent Accused will have to remain in hospital for few more tests. The I.O. realizing that under the circumstances he could not have proceeded with the investigation made a further application on 14th May, 2009 seeking Magisterial Custody Remand (MCR) of the Respondent Accused by reserving his right to seek PCR in future. The Learned Magistrate upon considering the above Application, passed the following order:

Perused the application and say of A.P.P. Admittedly, the accused was granted P.C.R. till 16-5-2009 but due to his ill health he was shifted to the J.J. Hospital of Mumbai. As per the I.O. report and say of P.P. still few tests are to be done which are necessary. Hence as such, I am inclined to take the accused in MCR keeping the option open for seeking PCR of accused as contemplated in law. Hence as such I proceed to pass the following Order:

ORDER

Accused to be taken into MCR till 28-5-2009. Option is open for seeking further P.C.R.

(xv) On the same day, the Respondent Accused through his Counsel moved the same Magistrate u/s 437 of the Code and applied for bail. The bail application was inter alia preferred on the ground of ill health of the applicant. The Learned Magistrate immediately took up the bail application for hearing and called for say of the I.O. and A.P.P. The A.P.P. immediately gave his written submissions opposing the bail application wherein the A.P.P. has submitted that the I.O. has been contacted on mobile and he has gone to J.J. Hospital, Mumbai. It was further submitted that the accused has committed offence under Sections 420, 465, 467, 468, 471 r/w 34 I.P.C. The offences are serious in nature and non-bailable. The investigation is in progress. More than Rs. 80 crores are misappropriated by the Respondent Accused and the offence/s is punishable for imprisonment for life. It was further submitted that the Respondent Accused is taking medical treatment in J.J. Hospital because of which the I.O. could not interrogate the Respondent Accused. The Ld. Magistrate had granted PCR on 13-5-2009 upto 16-5-2009 to the Respondent Accused. I.O. had on 14th May, 2009 sought judicial custody of the Respondent Accused by reserving his right to PCR at the proper time i.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 u/s 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 u/s 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 23-5-2009 by this Court on the ground that this Court has no jurisdiction u/s 482 of the Code of Criminal Procedure 1973 to stay the bail order passed by the Learned Magistrate when the Code has a specific provision for the same. By Order dated 26th May, 2009 the Hon''ble Supreme Court granted leave and quashed the order of this Court dated 23rd May, 2009. Liberty was granted to the Original Complainant to move appropriate application before this Court for cancellation of the bail granted. Thereafter, Original Complainant as well as State filed the present applications seeking cancellation of bail granted by the Learned Magistrate on 14th May, 2009. By an Order of this Court dated 27th May, 2009, the impugned bail order was stayed up to 1st June, 2009. On 1st June, 2009 the above two applications were adjourned to 3rd June, 2009 under the circumstances set out in the detailed order of this Court dated 1st June, 2009. On 2nd June, 2009 Respondent Accused has filed his affidavit in reply to the above applications. Accordingly the parties commenced arguments in the matter on 3rd June, 2009.

Before dealing with the issues raised before me on behalf of the Respondent Accused pertaining to the maintainability of the present Criminal Applications, in my view it is very essential to bring out the changed stand of the Respondent Accused whilst opposing the earlier Criminal Application No. 2358/09 filed by the Original Complainant before this Court and the Criminal Applications presently under consideration.

The earlier Criminal Application No. 2358/09 was filed by the Original Complainant impugning the Order of the Ld. J.M.F.C., Thane Under Section. 482 Code of Criminal Procedure. As can be seen from the Order passed by this Court on 23/5/2009 Ld. Advocate for the Respondent Accused had urged before this Court that, &&& the aggrieved party has a remedy provided either u/s 437(5) or 439(2) Code of Criminal Procedure and this Court should not invoke its inherent power u/s 482 Code of Criminal Procedure. Since this Court by its Order dated 23-5-2009 inter alia stayed the operation of the impugned order, an SLP was preferred by the Respondent Accused before the Hon''ble Supreme Court impugning the Order dated 23-5-2009. In Clause (xiii) of para 3 of the SLP it is contended that, the Petitioner also immediately paid the cash security and 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 u/s 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 maintainable u/s 439 of the Code since the Respondent Accused is not released on bail.

I now proceed to deal with the rival contentions raised by the Applicants and the Respondent Accused on the issue of the maintainability of the Criminal Applications. The present application filed by the Original Complainant is u/s 439(2) Code of Criminal Procedure and Article 227 of the Constitution of India. The Application filed by the State is u/s 439(2) and 482 Code of Criminal Procedure. It is contended by the Ld. Senior Advocate for the Respondent Accused that the Application of the Original Complainant is not maintainable u/s 482 Code of Criminal Procedure as is evident from the Order of the Hon''ble Supreme Court dated 26-5-2009 whereby the Original Complainant was compelled to withdraw the Criminal Application No. 2358/ 09. He further submitted that the Application is not maintainable u/s 439 Code of Criminal Procedure since in the present case the Respondent Accused is not released on bail. He submits that he draws support for the above contention, from the decision of the Ld. single Judge of this Court in B.S. Rawat, Asstt. Collector of Customs, Bombay Vs. Leidomann Heinrich and another, . In the said case the Ld. Judge has held that Section 439(2) Code of Criminal Procedure comes into operation only if the Accused has availed of bail granted to him. The Ld. Judge has held that there is no question of invoking Section 439(2) Code of Criminal 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. He submits that the Original Complainant in order to circumvent the decision in the case of B.S. Ravat v. Leidomann Heinrich (supra) has taken recourse to Article 227 of the Constitution of India. He submits that statutory remedy u/s 439 Code of Criminal Procedure cannot be combined with a Constitutional remedy under Article 227 of the Constitution. It is submitted that two different remedies in one single application in the eyes of law are two different applications and the Applicant must elect only one of them. It is submitted that Article 227 of the Constitution cannot be invoked as there is another efficacious remedy available under the Code.

The Ld. Advocate for the Respondent Accused has submitted that the State and the Original Complainant ought to have first moved the Ld. J.M.F.C. u/s 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 u/s 437(5) Code of Criminal Procedure is wider than the power u/s 439(2) Code of Criminal Procedure. Through judicial dicta the power u/s 439(2) Code of Criminal Procedure. is substantially circumscribed but the power u/s 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.

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 Complainant, as well as by the State. At the outset it is submitted on behalf of the Original Complainant, that his Application is maintainable u/s 439(2) Code of Criminal Procedure and Article 227 of the Constitution of India. By way of abundant caution it was also submitted that, an Application u/s 482 Code of Criminal Procedure is also maintainable to quash and set aside an order granting or refusing bail. In support of this contention the Ld. Senior Advocate has relied on the decisions of the Hon''ble Supreme Court of India in Puran Vs. Rambilas and Another etc. etc., and also the decisions of this Court reported in State of Maharashtra v. Tukaram Shiva Patil (1977) Cri LJ 394; M.D. Kale v. Mohd. Afzal Mohd. Yar Khan (1999) 5 BCR 214 and UT Worldwide India Pvt. Ltd. v. State of Maharashtra (2007) 2 All MR 300.

The Ld. Senior Advocate appearing for the Original Complainant has placed reliance on paragraph 11 of the decision in the said Puran Vs. Rambilas and Another etc. etc., which reads thus:

Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.

Thus it is submitted that in view of the interpretation of the Hon''ble Supreme Court, the scope of the cancellation of bail as contemplated u/s 439(2) Code of Criminal Procedure will not only cover a situation where an accused has been actually released from custody and has thereafter misconducted himself, as also, when the very order itself is illegal, unjustified or perverse. Therefore, the question of actual release as was considered by this Court in B.S. Rawat, Asstt. Collector of Customs, Bombay Vs. Leidomann Heinrich and another, is no longer relevant for the purpose of invoking Section 439(2) Code of Criminal Procedure.

The Learned Sr. Advocate for the Original Complainant next submitted that Section 437(5) Code of Criminal Procedure cannot be interpreted to be a power in the nature of review on the self same facts and circumstances. To do so, would not only be contrary to the settled law that the Magistrate has no power to review his order, but it would confer upon a Magistrate the power to sit in judgment as a revisional/superior Court against his own order and 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 u/s 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 and Others Vs. State (Delhi Administration), .

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 erroneous order as in the instant case. Thus he went on to submit that the only remedy in such situation available to the Applicants would be to invoke this Courts inherent powers u/s 482 Code of Criminal Procedure and/or Article 227 of the Constitution of India.

The Learned Senior Advocate appearing for the Original Complainant has in response to the contention advanced on behalf of the Respondent Accused that in a Petition for cancellation of bail u/s 439(2) Code of Criminal Procedure, Article 227 of the Constitution of India cannot be invoked, has relied on a decision of this Court in M.D. Kale, Intelligence Office, N.C.B., Bombay v. Mohd. Afzal Mohd, Yarkhan and Anr. 1999 (5) Bom CR 214 wherein this Court was dealing with cancellation of bail granted to the accused. The said application for cancellation of bail was made under Sections 439(2) r/w 482 Code of Criminal Procedure and Article 227 of the Constitution of India. In this case the Counsel appearing for the accused had contended that bail once granted can be cancelled in exceptional cases only. He had further contended that the remedy for cancellation of bail is not by way of revision but u/s 439(2) Code of Criminal Procedure To refute these contentions the Advocate on behalf of the NCB had contended that notwithstanding the bar u/s 397(2) Code of Criminal Procedure, the High Court can interfere u/s 482 Code of Criminal Procedure as also under Article 227 of the Constitution of India which gives power of superintendence to the High Court over the Courts. After hearing the rival contentions, the Court was pleased to observe that if the argument of the Advocate for accused are accepted, the High Court would be powerless to cancel bail, unless the case falls within the scope of Section 439(2) Code of Criminal Procedure This to my mind would be rewriting Article 227 of the Constitution of India which preserves the power of the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This Court has also extensively reproduced the judgment of the Ld. single Judge D.P. Wadhwa J. in Court on its own Motion Vs. Vishnu Pandit and another, wherein the Ld. Judge has inter alia held, the power which I have exercised in issuing notices to the Respondents while at the same time staying operation of the Orders 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.

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-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (emphasis supplied) By the present Applications the Applicants have sought cancellation and reversal of the Bail Order dated 14-5-2009 granted by the JMFC Court, Thane inter alia on grounds that the order is perverse, illegal, without application of judicious mind and contrary to the principles of law. It cannot be disputed, more so in view of the decision in Puran Vs. Rambilas and Another etc. etc., that the Applicants can seek cancellation of bail granted on such grounds. It also cannot be disputed that the Learned Magistrate cannot be approached to decide an Application seeking cancellation of the bail granted by the same Magistrate on the grounds that his Order is illegal, perverse, without application of judicious mind and contrary to the principles of law. That is to say, that the Magistrate himself cannot be made to sit in judgment over his own order on such grounds. In my view therefore, the only ground on which the Court granting bail can be approached u/s 437(5) Code of Criminal Procedure would be change in circumstances than those prevalent at the time of grant of bail, which obviously includes breach of bail conditions by the accused after being released on bail. I am also fortified in my view by the decision in Gurcharan Singh (AIR 1978 SC 179) (supra), wherein it is held that: If however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court u/s 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session visa-vis the High Court.

(emphasis supplied)

The Learned Senior Advocate for the Respondent Accused has argued that there is no question of invoking Section 439(2) Code of Criminal 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.

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 u/s 437(5) Code of Criminal Procedure are untenable and cannot be accepted.

I now turn to the arguments advanced for and against the applicability of Sections 439(2), 482 Code of Criminal Procedure. and Article 227 of the Constitution of India. Section 439(2) Code of Criminal Procedure. reads as follows:

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

As set out earlier the Learned Sr. Advocate appearing for the Respondent Accused in support of his contention that the present applications are not maintainable u/s 439(2) Code of Criminal Procedure. since the Respondent Accused has not availed of bail has heavily relied on the decision of this Court in the case of B.S. Rawat, Asstt. Collector of Customs, Bombay Vs. Leidomann Heinrich and another, wherein it is held that the language used in Sub-section (2) of Section 439 Code of Criminal Procedure. is very clear and explicit. When it uses the expression any person who has been released on bail, it would mean that the accused is not only granted bail but has availed of the same and is released from his jail custody. It is only then that the Court can direct a person to be arrested and committed to custody as provided in Section 439(2) Code of Criminal Procedure In fact no question of his re-arrest or re-committal to custody can arise unless the accused is actually released on bail granted to him. In my view this contention advanced on behalf of the Respondent Accused is correct and I am in agreement with the aforesaid judgment of Dhabe J. on this aspect. I am also in agreement with the submission advanced on behalf of the Applicants that in view of the observations made in Puran Vs. Rambilas and Another etc. etc., the scope of cancellation of bail as contemplated u/s 439(2) Code of Criminal Procedure. will not only cover a situation where the accused has breached the bail conditions but will also extend to setting aside a bail order vitiated by any serious infirmity for which it is right and proper for the High Court, in the interest of justice, to interfere. However, I do not agree with the submission advanced on behalf of the Applicants that in view of the aforesaid interpretation of the Hon''ble Supreme Court, the scope of cancellation of bail as envisaged u/s 439(2) Code of Criminal Procedure. will not only cover a situation where an accused has actually been released from custody but would also apply to an order where the accused remains in custody or has not availed of the bail, in case where the order granting bail 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 Vs. Rambilas and Another etc. etc., 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.

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 u/s 482 Code of Criminal Procedure would not be available to the applicants in the present case as the statute (Code of Criminal Procedure) specifically provides other efficacious remedies for this purpose. Of the Respondent Accused own showing and vehement argument, with which I am in agreement, Section 439(2) Code of Criminal Procedure cannot be made applicable in the present case. Thus the question arises that is this Court helpless and in the interest of justice cannot invoke any other provision under the Code to correct an error or to set aside an order not supported in law? I am of the opinion that the law can never be so helpless or powerless so as not to be able to examine the present applications u/s 482 Code of Criminal Procedure as invoked by the State along with Section 439(2) Code of Criminal Procedure The Original Complainant has also invoked Article 227 of the Constitution of India along with Section 439(2) Code of Criminal Procedure.

At this stage it would be very material to refer to the decision of the Hon''ble Madras High Court in the case of the Central Bureau of Investigation v. Louis Jalu alias Muthu-krishna Varadharajulu Reported in (2006 Cri LJ 387) wherein it is held that it is a well settled proposition of law that the order granting or refusing bail to an accused is an interlocutory order. As against this, with regard to an Order u/s 439 Code of Criminal Procedure both the High Court as well as the Court of Session may order rearrest of the accused and commit him to custody after he has been released on bail by the Trial Court. The Court further observed that, in as much as the order of bail granted by the Trial Court was stayed by this Court and on account of which the accused in this case was not released on bail, as rightly pointed out by the Learned Senior Counsel for the accused, the Petitioner herein cannot invoke the provision u/s 439(2) of the Code of Criminal Procedure, seeking for re-arrest of the accused and committing him to custody. But as the order passed u/s 439 of the Code of Criminal Procedure is an interlocutory order and not a final one, the Petitioner herein has every right to approach this Court u/s 482 of the Code of Criminal Procedure.

(emphasis supplied)

This view of the Madras High Court gathers strength from the decision of the Hon''ble Supreme Court in Puran Vs. Rambilas and Another etc. etc., wherein the Hon''ble Supreme. Court has held as follows:

Even if it is an interlocutory order, the High Courts inherent jurisdiction u/s 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 u/s 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

Here in this case, the Petitioner/Complainant has not only invoked the provision u/s 482 of the Code of Criminal Procedure, but also the provision u/s 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 such circumstances, this Court will have to invoke its inherent jurisdiction u/s 482 of the Code of Criminal Procedure to set right the wrong, if any committed by the trial Judge in granting the bail. Further, the quoting of a wrong provision of law will not deprive the valuable right of the Petitioner/Complainant to challenge the order impugned.

(emphasis supplied)

In a decision of the Division Bench of this Court in the case of State of Maharashtra v. Tukaram Shiva Patil and Ors. 1975 ILM 3220: (1977 Cri LJ 394), this Court whilst rejecting the contention of the Learned Advocate for the Respondent/Opponent that because there was no revision application filed by the State against the previous two orders of the Sessions Judge it was not open to the State to apply for cancellation of the bail or to apply in revision against the refusal to cancel, held the High Court and even the Sessions Court has powers to cancel the bail granted earlier pending the trial or investigation u/s 439(2). The High Court can further cancel it in exercise of its inherent jurisdiction u/s 482, apart from the powers under Article 227 of the Constitution.

To the same effect are the observations of the Punjab & Haryana High Court in the case of State of Punjab Vs. Balraj Singh and Another, which reads as under:

Now the question arises having noted the aforesaid error, is this Court helpless and not to employ Section 439(2) of the Code. Besides the afore referred to provision, is there any other provision under which this Court can correct the error? Undoubtedly, this Court has the power of correction, if not under anything else, under Article 227 of the Constitution. The mandate of the Constitution is every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The zone concerned being within the territorial jurisdiction of this Court where the special Judge is exercising jurisdiction, his orders are certainly amenable to the jurisdiction of Article 226 of the Constitution. Even u/s 482 of the Code, this Court has the power to pass orders to prevent abuse of the process of the Court or in the interest of justice. Thus, I am of the considered view that this Court has ample powers to pass appropriate orders under the aforesaid two provisions.

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.

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 Another Vs. Special Judicial Magistrate and Others, . The Hon''ble Supreme Court observed in paras 22 and 26 as under:

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 High Court under Articles 226 and 227 of the Constitution and Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers.

Nomenclature under which petition is filed is not quite relevant and that does not debar the Court from exercising its jurisdiction which otherwise it possesses unless there is a special procedure prescribed which procedure is mandatory. If in a case like the present one the Court finds that the Appellants could not invoke its jurisdiction under Article 226, the Court can certainly treat the petition one under Article 227 or Section 482 of the Code. It may not, however, be lost sight of that provisions exists in the code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted for correcting some grave errors that might be committed by the subordinate Courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.

In an application before a single Judge of this Court in the case of M.D. Kale (supra) u/s 439(2) r/w Section 482 Code of Criminal Procedure and Article 227 of the Constitution of India this Court after considering the aforesaid decisions of the Hon''ble Supreme Court of India in Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, , Division Bench of this Court in State of Maharashtra v. Tukaram Shiv Patil (1997 Cri LJ 394) (supra), Punjab & Haryana High Court in State of Punjab Vs. Balraj Singh and Another, quashed and set aside the order releasing the accused on bail and directed him to be taken in custody by issuing a non-bailable warrant.

I am therefore of the firm view that since Sections 437(5) and 439(2) Code of Criminal Procedure cannot be invoked by the Applicants for reasons set out hereinabove, and since there is no other efficacious remedy available to the applicants under the Code, this Court can decide the applications by invoking its inherent jurisdiction u/s 482 Code of Criminal Procedure, and/or under Article 227 of the Constitution of India.

I now proceed to examine the legality and correctness of the impugned order passed by the Learned JMFC Court, Thane dated 14th May, 2009.

As set out hereinabove after the Ld. Sessions Judge rejected the Application 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.

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 being taken to Thane Hospital, he immediately removed the monitor to which he was connected and started abusing the I.O. and other police personnel and threatened them with dire consequences and demanded to be taken to Lilavati or Wockhart Hospital. Thereafter first he was treated at Thane Hospital and subsequently he was shifted to J.J. Hospital. Later, with regard to his behaviour in the ambulance a non-cognizable offence came to be registered vide N.C. No. 394/2009 u/s 504, 506 of the I.P.C.

On the next day i.e. 13th May, 2009, since the Respondent Accused was admitted to Hospital, without producing him before the Ld. JMFC, Thane a Remand Application was moved. In the said Remand Application amongst others the following was pointed out:

a. There are five non-cognizable complaints registered against the Accused at Matunga Police Station in respect of threats given to the witness in regard to the present complaint.

b. There is one cognizable offence bearing C.R. No. I/109/09 for offences under Sections 336, 427, 506(2) and 34 of I.P.C.

c. The accused and 15 police officers are facing an inquiry in respect of registering a false case at Juhu Police Station being C.R. No. 42 of 2007 for the offence u/s 307 of I.P.C. against Chaturvedi Builders.

d. When the accused was apprehended on the night of 12th and 13th May, 2009 and was being taken to Government Hospital, Thane, the accused threatened the Investigating Officer and the staff stating that he has so much wealth, on the strength of which he will get the I.O. transferred to Gadhchiroli or send him to village or finish him.

On the above Remand Application the Ld. JMFC, Thane passed the following order:

Accused is not produced before me I.O. present case diary produced. Heard Learned A.P.P. and counsel for accused and also counsel for complainant. It is submitted that the accused is referred by Civil Hospital Thane to J.J. Hospital, Mumbai for treatment hence he could not be physically be produced in the Court offence is of serious in nature wherein investigation is in progress hence as such accused is taken into PCR till 16-5-9 and the I.O. is directed to place police person at the hospital in the above circumstances.

(emphasis supplied)

It is submitted by the State that on 13-5-2009 the I.O. tried to make enquiries with Respondent Accused at J.J. Hospital but he did not co-operate 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.

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 necessary, the right to police custody be reserved and in the meantime judicial custody be granted. On the said Remand Application the Ld. Magistrate called for the say of A.P.P. and the A.P.P. inter alia submitted as follows:

R/submitted, from the remand report it appears that the accused is under medical treatment in J.J. Hospital Mumbai. Accused may kindly be taken in judicial custody subject to the light of demanding PCR by I.O. within first 15 days as contemplated u/s 167 of Code of Criminal Procedure. This say filed on 14-5-09.

(emphasis supplied)

On the above application the Ld. Magistrate passed the following order:

Perused the Application and say of A.P.P. Admittedly the accused was granted P.C.R. till 16-5-2009 but due to his ill-health he was shifted to the J.J. Hospital. As per the I.O. Report and say of P.P. still few tests are to be done which are necessary. Hence as such I am inclined to take accused in MCR keeping the option open for seeking PCR of accused as contemplated in law hence as such I proceed to pass the following order

Accused be taken into MCR till 28/5/ Option is open for seeking further PCR.

(emphasis supplied)

It is submitted before me by the State that immediately thereafter the Respondent Accused preferred a Bail Application before the same Ld. JFMC on several grounds including the ground of ill-health of the Applicant, namely,

(c) That the Applicant is critical and he is admitted in the J.J. Hospital and this fact is being confirmed by the Police authorities.

It is submitted on behalf of the State that after the Bail Application was tendered the Ld. JFMC asked for the say of the I.O. as well the A.P.P. The A.P.P. along with his say made the following endorsement on the Bail Application itself.

Submitted say of I.O. may kindly be called upon and prosecution may kindly permitted file its say.

(emphasis supplied)

In the say of A.P.P. it is inter alia recorded that the A.P.P. strongly opposed the bail application. The A.P.P. further recorded that he has tried to contact the I.O. on mobile and he has gone to J.J. Hospital Mumbai. It was pointed out that the offences committed by the accused are serious in nature i.e. Under Sections 465, 467, 468, 471 r/w 34. The A.P.P. has categorically stated that accused is taking medical treatment in J.J. Hospital. That is why I.O. could not interrogate with accused for investigation 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)

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.P. and the watching Advocate hotly contended and had relied on a number of judgments. Accordingly, he was remanded to Police Custody till 16-5-2009. Thereafter, today the I.O. has filed another application stating that they are seeking M.C.R. as the accused is needed to take medical treatment and he is not supporting the prosecution.

iii. Say of A.P.P. was called. He too has supported the I.O. and seeked for judicial custody. Further, as per order passed, the accused was today taken into M.C.R. and option kept open for seeking further PCR as contemplated by law.

iv. Today the accused has filed the bail application contending that the accused was arrested from the Airport and he was in a bad state of health. He has admitted in the J.J. Hospital. Further, he has filed the application contending that nothing has to be seized at the instance of the accused. He is a permanent residence and he is ready and willing to co-operate with the investigation and hence, he be released on bail.

v. Say of I.O. and A.P.P. was called. I.O. has failed to file his say. A.P.P. has strongly objected contending that offence is of serious nature with imprisonment for life. Further, he has submitted that custodial interrogation is necessary hence, the application be rejected.

vi. Heard Ld. Counsel for all. Admittedly PCR was granted till 16-5-2009 but prosecution themselves have seeked MCR for best reasons known to them. Admittedly, the accused is under medical treatment as per report of I.O. and also that of J.J. Hospital. Though Section 467 of IPC contemplates the punishment for life but as per Section 437 of Code of Criminal Procedure. proviso, a person referred to in Clause (i) can be released on bail, if he is sick or inform (sic) hence, as such I am inclined to allow the application on the following terms and conditions.

1) Accused Rashmikant Mansukhlal Shah be released on P.R. and S.B. of Rs. 15,000/-with liberty to deposit cash surety.

2) Upon getting discharge from J.J. Hospital he is to daily attend the concerned Police Station between 6.00 p.m. to 8 p.m. for 14 days and to submit the attendance report to the Court. If, his attendance is further required he too attend as and when called by the concerned I.O.

3) He is not to threaten the prosecution witness and tamper with the evidence. If at all it is found that he does so prosecution is at liberty to move Application for cancellation of bail.

4) Accused to surrender the passport to the concerned police station.

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 @ Tamatar Vs. Ram Prakash Pandey and Another, .

(ii) V.N. Ghiya Vs. State of Rajasthan, .

(iii) Surinder Kairam and Tarun Kairam Vs. State, .

(iv) State of M.P. Vs. Gyan Singh and Another, .

(v) State Vs. Gadadhar Baral, .

(vi) Sangappa Vs. State of Karnataka, .

(vii) State Vs. Sardool Singh and Another, .

35A. The Ld. Counsel for the complainant submitted that the above mentioned judicial decisions have now crystalised the law for grant of bail on medical grounds as under:

Every sickness does not justify grant of bail under the proviso to Section 437(1) Code of Criminal Procedure

Prior to grant of bail under this proviso, the Court is required to assess whether the sickness is of such a nature that it cannot be treated whilst keeping the accused in custody.

The Court should call for a medical report on the question of sickness.

That there is no principal of law that an accused in custody is entitled to a doctor or medical treatment of his choice as a matter of right.

That in the absence of any material that such an accused cannot adequately be treated in custody, the proviso should not be invoked in respect of offences for which the Magistrate has no jurisdiction u/s 437(1) Code of Criminal Procedure.

The Ld. Counsel for the Complainant further contended before me that the Respondent Accused was only undergoing medical observation and not suffering from any life threatening disease nor has he been advised any major surgery and neither is it contended on behalf of the Respondent Accused that there is any dispute that J.J. Hospital is ill-equipped to provide the requisite treatment needed by the Respondent Accused.

He further vehemently contended that the Ld. Magistrate erred in not calling for any medical report to ascertain the particulars about the sickness/treatment/ailment of the Respondent Accused. In this connection he further argued that the Respondent Accused had raised 12 grounds for grant of bail and that sickness was a mere incidental or casual ground taken up by him. That the Ld. Magistrate erred in not calling for the say of the I.O. prior to grant of bail. He also drew my attention to the order of the Ld. Magistrate on remand application dated 13th May, 2009 wherein the Ld. Magistrate had justified PCR by observing that the offence was serious and required custodial interrogation of the accused. He also drew my attention to the order dated 14th May, 2009 passed by the Learned Magistrate converting PCR to MCR, minutes before the impugned order was passed and thus concluded his submissions that the impugned order is passed by the Ld. Magistrate in undue haste and that it is 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.

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

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 present before the Court. Even when the interim bail earlier granted by the Ld. Sessions Court to the Respondent Accused was rejected on 13th March, 2009 and was restored on 2nd April, 2009, the Respondent Accused had left India for Dubai on 15th March, 2009 and had returned only on 4th April, 2009. It is submitted that it appears to be the modus operandi of the Respondent Accused that whenever the I.O. tried to arrest the Respondent Accused for interrogation he has fled away. The same modus operandi was put to use on 12th May, 2009 when this Court rejected the Application for interim Anticipatory Bail preferred by the Respondent Accused. It is submitted that the period during which the Respondent Accused was granted interim bail by the Ld. Sessions Judge in the Anticipatory Bail Application, the Respondent Accused has threatened the original complainant and the witnesses. It is submitted that the Respondent Accused has administrated serious threats even to the police officials. It is submitted that though most of the aforesaid facts were pointed out to the Learned Magistrate on 14-5-2009 at the time of opposing the bail, the Learned Magistrate without waiting for the I.O. and without calling for any medical reports, on a bare word in the application that the Respondent Accused is critical accepted this fact and proceeded to enlarge the Respondent Accused on bail by the impugned order. He therefore, submitted that the impugned order of the Ld. Magistrate is perverse, contrary to law, passed in undue haste and needs to be set aside.

The Learned Advocate appearing for the Respondent Accused has submitted that the Ld. Magistrate whilst granting bail under the first proviso to Section 437(i) Code of Criminal Procedure is not required to look into any other ground except the ground that the accused is sick. It is submitted that the Ld. Magistrate is only required to ask for the say of the A.P.P. as required under the 4th proviso to Section 437(1) Code of Criminal Procedure which he did and is not required to ask for the say of the I.O. It is submitted that the Ld. Magistrate was not required to call for any medical reports since in the reply to the bail application the A.P.P. had not challenged the sickness of the Respondent Accused and in fact in the application dated 14th May, 2009 the I.O. has recorded that medical treatment of the accused who is in the hospital 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 conditions and thus his bail needs to be cancelled.

I have considered the submissions advanced by the Learned Advocates for the parties before me and have also considered the case law on the subject. u/s 437(1) (i) Code of Criminal Procedure the Magistrate is not empowered to grant bail in respect of serious offences. Similarly, the Magistrate is not empowered to grant bail in respect of habitual offenders as defined u/s 437(1)(ii) Code of Criminal Procedure However, on humanitarian grounds and keeping in mind the principles enshrined in Article 21 of the Constitution of India, namely, protection of life and liberty of an individual the Legislature has carved out an exception to the rule whereunder a Magistrate is empowered to grant bail irrespective of the bar u/s 437(1)(i) and (ii) Code of Criminal Procedure in cases where the accused is a woman, is sick, infirm or is a child under the age of 16 years. This power reposed in the Magistrate, under the proviso is discretionary in nature, as is indicated by use of the word may. Consequently, such a power has to be exercised in a judicial manner and in accordance with well settled judicial principles. The same is to be exercised in a sparing and cautious manner, under necessary circumstances and after satisfying the judicial conscience as to its proper use. The aspect of sickness when used as a ground to release the accused under the proviso to Section 437(1) Code of Criminal Procedure, has been examined by the Hon''ble Supreme Court and various High Courts as can be seen from the following decisions:

(1) Pawan @ Tamatar Vs. Ram Prakash Pandey and Another, . In this case the Hon''ble Supreme Court has set aside the order of the Allahabad High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Hon''ble Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not stated that he still needs medical treatment or that he has not received proper medical treatment from the jail authorities.

(2) State Vs. Gadadhar Baral, . 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 Vs. State of Karnataka, . 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 treatment.

Rejecting the application for bail the Hon''ble High Court observed that the opinion of the doctor is that the Petitioner should be treated in a big institution like district hospital or medical college hospital. His report does not reveal that the District Hospital at Bidar does not have the facilities or expertise to treat the Petitioner for his ailment. Thus it cannot be said that there are no proper facilities in the District Hospital at Bidar for treating the illness of the Petitioner. It is further observed that it is not the case of the accused that the Jail Authorities in whose custody he is at present have neglected to provide necessary medical aid to him. On the other hand they have taken prompt action in getting the Petitioner admitted to the District Hospital at Bidar for treatment. The Ld. Judge therefore also held that it is not every sickness or infirmity that entitles a person to be enlarged on bail. The necessary factors that need to be taken into consideration before granting bail on ground of illness are nature and seriousness of sickness, the suitability or otherwise of remand to jail custody and availability of necessary medical treatment/reasonable amenities.

(4) State of M.P. Vs. Gyan Singh and Another, . In this case the High Court of Madhya Pradesh whilst cancelling the grant of bail under the proviso to Section 437(1) Code of Criminal Procedure observed that hypertension and depression are not diseases which could not be cured at hospitals maintained by the State Government.

In the present case, considering the seriousness of the offences allegedly committed by the Respondent Accused, his conduct whilst he was on interim bail granted by the Sessions Court, his conduct after this Court refused grant of interim anticipatory bail and his antecedence; the Ld. Magistrate, in his Remand Order dated 13-5-2009, after recording that the offence is serious in nature wherein investigation is in progress, took the Respondent Accused in PCR till 16-5-2009 and directed the I.O. to place police personnel at the hospital. Immediately on the next day the I.O. moved an application before the Ld. Magistrate stating therein that he had been informed by the Doctor that certain necessary medical tests/examination of the Respondent Accused are to be carried out. He thus submitted that since medical treatment of the Respondent Accused 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 which are necessary. It is pertinent to note that in the Bail Application moved on behalf of the Respondent Accused, no mention is made about the nature of the illness from which the Respondent Accused suffered. Even the Ld. Magistrate has failed to ascertain this basic fact before proceeding to grant bail. The Ld. Magistrate who had just passed an order granting the application converting PCR into MCR, because as per the I.O. report and say of P.P. still few tests have to be done, surprisingly, states in his order granting bail to the Respondent Accused that, prosecution themselves seek MCR for reasons best known to them.

Though the Ld. Magistrate had called for the report of I.O. as well as the A.P.P. by making an endorsement on the Bail Application itself and though the A.P.P. in his say has categorically stated that the I.O. cannot be contacted on mobile as he has gone to the J.J. Hospital Mumbai, the Ld. Magistrate did not give time of even a single day to the I.O. to attend to the matter and submit his say on the bail application. Instead the Ld. Magistrate proceeded to grant bail by recording that admittedly the Accused is under medical treatment as per report of I.O. and also of J.J. Hospital. It is pertinent to note that admittedly no report was submitted by the I.O. to the Bail Application. If what the Ld. Magistrate meant was the Application of the I.O. dated 14-5-2009 converting PCR into MCR, it was certainly not a report dealing with the issue of grant/refusal of bail on medical grounds. The Ld. Magistrate has also referred to the report of J.J. Hospital, in paragraph 7 of his impugned order. Admittedly there was no such report from J.J. Hospital, and the Ld. Magistrate also did not call for any medical reports of the Respondent Accused from the J.J. Hospital before deciding the Bail Application. I have therefore, no hesitation to come to the conclusion that there existed no report of the J.J. Hospital before the Ld. Magistrate at the time of passing of the impugned order. In any event the Ld. Magistrate has granted bail to the Respondent Accused only on the admission that the accused is under medical treatment.

As observed in the various judgments cited above, mere admission of an accused to a hospital for medical treatment does not entitle an accused to obtain bail under the proviso to Section 437(1) Code of Criminal Procedure In fact as observed 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 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.

I do not agree with the submissions of the Ld. Advocate appearing for the Respondent Accused that the I.O. or the P.P. having admitted the sickness of the Respondent Accused the Magistrate was not required to call for any further reports but grant the bail as prayed for. Except for the fact that the Respondent Accused is taking medical treatment in J.J. Hospital and according to the doctors certain tests have to be carried on the Respondent Accused, the I.O. or the A.P.P. have not admitted anything qua the sickness of the Respondent Accused. In any event, they not being equipped with requisite medical knowledge, their admission or denial as regard the sickness of the Respondent Accused should bare very limited relevance in deciding the Bail Application on that ground. In my view a substantial burden is on the Court to satisfy itself qua the sickness of the accused by taking competent assistance available in the field before exercising its powers u/s 437(1) proviso Code of Criminal Procedure.

In the present case 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 ought to have been done by him at the threshold. The submissions now made as regard the contents of the discharge report of Lilavati Hospital is admittedly subsequent to the passing of the impugned order and, therefore, is of no assistance to the Respondent Accused as the said discharge report was not even in existence when the impugned order was passed.

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.

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

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.

The cash bail of Rs. 15,000/- furnished by the Respondent Accused be refunded to him.

Criminal Application Nos: 2446 and 2447 of 2009 are allowed in the above terms. Application for stay of the order made by Mr. Karan Shah (nephew of the Respondent -accused) on behalf of the Respondent accused is rejected.

Application allowed.