{1} Cri. Application No.3362/2009
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.3362 OF 2009
The Balasaheb Satbhai Merchant Coop Bank Ltd., APPLICANT
Kopargaon, Tq-Kopargon,
Dist-Ahmednagar,
Throught its Board Member of Liquidator,
Sham s/o Vyankatesh Kshirsagar,
Age-56 years, Occ-Business
R/o Kapad Bazar, Kopargoan,
Tq-Kopargaon, Dist-Ahmednagar
VERSUS
1. The State of Maharashtra RESPONDENTS
2. The District Superintendent of Police,
Ahmednagar
3. Sanjay Vasantrao Satbhai
Age-47 years, Occ-Business
R/o Kapad Bazar, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
4. Ashokchand Shobhachand Kothari
Age-55 years, Occ-Business
R/o Indira Path, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
5. Rameshwar Jagannath Mundada
Age-54 years, Occ-Business
R/o Gandhi Chowk, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
6. Nandkumar Ramchandra Vispute
Age-48 years, Occ-Business
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{2} Cri. Application No.3362/2009
R/o Sonar Galli, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
7. Kishor Swarupchand Gangwal,
Age-50 years, Occ-Business
R/o 13 Bunglow, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
8. Ramanlal Madanlal Kale
Age-62 years, Occ-Business
R/o Indira Path, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
9. Sanjay Narayandas Thole
Age-44 years, Occ-Business
R/o Near Sanjay Medical, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
10. Rajendra Manikchand Phulpagar
Age-50 years, Occ-Business
R/o Gokulnagari, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
11. Dilip Chunnilal Gundecha
Age-62 years, Occ-Retired Managar
R/o Fadarwadi, Kopargaon,
Tq-Kopargaon, Dist-Ahmednagar.
12 Mina Rajendra Bhalerao
Age-Major, Occ-Household
Kopargaon, Tq-Kopargaon,
Dist-Ahmednagar.
.......
Mr.N.R.Bhavar, Advocate for the applicant
Mr.S.G.Nandedkar, APP for respondent State
Mr.C.A.Jadhav h/f V.D.Hon, Advocate for respondents No.3 and 7
Mr.V.D.Sapkal, Advocate for respondent No.12
Mr.P.R.Adkine, advocate for respondent No.11
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{3} Cri. Application No.3362/2009
Mrs.Rashmi Kulkarni h/f Mr.Sanket Kulkarni, for R-9
.......
[CORAM : A.V.POTDAR, J.]
RESERVED ON
: 09.09.2011
PRONOUNCED ON : 21.09.2011
JUDGMENT:
1. By this application, the applicant has prayed to quash
the orders dated 16.07.2008 and 23.10.2008 passed by JMFC,
Kopargaon granting regular bail in favour of respondents No.3 to
12.
2. Rule. Rule made returnable forthwith. By consent of
the learned counsel for the parties, heard finally at the stage of
admission.
3. Admittedly, respondent No.3 was the Chairman and
respondents No.4 to 10 and 12 were the Members of the Managing
Committee of applicant Bank whereas respondent No.11 was the
Manager of the said Bank. As certain irregularities and illegalities
were noticed in the conduct of the banking business, the Reserve
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{4} Cri. Application No.3362/2009
Bank of India had cancelled the license of the applicant bank.
Thereafter, District Deputy Registrar, Cooperative Societies, had
appointed Liquidator on the applicant bank to look after the affairs
of the said bank. One Mr.N.K.Ingole (Government Auditor) had
carried out the audit of the said bank for the period 1996 to 2002.
During the said audit, certain illegalities, allegedly committed by
the respondent-accused, were noticed. It was alleged that
misappropriation to the tune of Rs.33 crores was done by the
respondent-accused. Accordingly, complaint came to be lodged in
Kopargaon police station on 05.11.2007, pursuant to which an
offence at Crime No.251/2007 was registered against total 26
persons including the present respondent-accused for an offence
punishable u/s 405, 406, 409, 418 r/w 120 B of the Indian Penal
Code.
4. It appears that following to the registration of the
offence and after all the attempts of the accused to get
anticipatory bail were futile, they were ultimately arrested and
were initially remanded to police custody and subsequently to
Magisterial custody. Thereafter the respondent-accused moved
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{5} Cri. Application No.3362/2009
regular bail application before JMFC, Kopargaon, who allowed the
bail applications of respondents No.3 to 11 on 16.07.2008 and
application of respondent No.12 came to be allowed and he came to
be released on regular bail on 23.10.2008.
5. By the present application, the applicant has
questioned the legality and correctness of the said orders granting
bail in favour of the respondents-accused mainly on two grounds.
Firstly, that the learned JMFC, Kopargaon has no jurisdiction to
entertain the bail applications and secondly the learned JMFC has
erroneously observed in the impugned orders that the papers of
investigation do not disclose prima facie commission of offence
punishable u/s 409 of the Indian Penal Code. In substance, the
impugned orders are assailed on the ground that the same are
being passed without jurisdiction and the observations of the trial
court, in the order granting bail, are unwarranted.
6. Before I embark upon the submissions advanced by
the learned counsel for the respective parties, I think it appropriate
to advert to certain undisputed facts which can be enumerated
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{6} Cri. Application No.3362/2009
thus –
a) During the pendency of the present criminal
application, the investigation has been completed and charge sheet
has been filed against the respondent-accused and others before
JMFC, Kopargoan.
b)
While the impugned orders were passed at that time
also the investigation was practically over.
c) Admittedly, the entire prosecution case rests on
documentary evidence and there is very limited scope for oral
evidence.
d) All the offences, complained against the respondent-
accused, are triable by the Judicial Magistrate First Class and not
by the Court of Sessions.
e) It is not the case of the applicant nor it is alleged that
the respondents-accused have misused the liberty granted to
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{7} Cri. Application No.3362/2009
them.
f) The investigating agency has seized all the documents
relating to the present offence during the course of investigation.
7. Learned counsel for the applicant placed reliance on
the judgments “State of Maharashtra V/s Kaushar Yasin
Qureshi” 1996 (2) Mh.L.J.485; “Sureshkumar Singh V/s State
of U.P.” 1996 Cri.L.J.1527; “Hanuman Vishwanath Nehare V/s
State of Maharashtra” 2001 (3) Mh.L.J. 465; “Prahlad Singh
Bhati V/s N.C.T. Delhi”, 2001 (5) Bom.C.R. (SC) 727; “Md.Arif
V/s State of Maharashtra” 2000 Bom.C.R. (Cri) 95; “State of
Maharashtra V/s Kiran Sonawane” 1996 (3) Bom.C.R. 743 and
Chand Mohammad V/s Mohammad Farooq” 1989 (1) Bom.C.R.
201. In my view, the above cited judgments need not be discussed
for the simple reason that in all the above referred judgments, the
accused were released on bail in the cases which are exclusively
triable by the Court of Sessions. In law, the Magistrate is not
empowered to entertain bail applications in such cases, unless the
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{8} Cri. Application No.3362/2009
case of the accused is covered under the proviso to section 437 (1)
(I) (II) of the Criminal Procedure Code.
8. Further reliance is placed by learned counsel for the
applicant on the judgment of this Court in the matter of “State of
Maharashtra V/s Ketan Sheth” 2003 (1) Mh.L.J. 885. In the
said judgment, the question before the learned Single Judge was
that can the Magistrate exercise the powers u/s 167 of the
Criminal Procedure Code when the charge sheet is not filed within
the stipulated period, as contemplated in law and for that purpose,
what is stipulated period to file charge sheet for the offence
punishable u/s 409 of the Indian Penal Code. Hence, it would not
be applicable to the present case. Reliance is also placed by the
learned counsel for the applicant on the observations of this Court
in “State of Maharashtra V/s Rajkumar Kunda Swami” 2002
(Supp-2) Bom.C.R.79. Learned Single Judge of this Court, in the
said judgment, has observed that the bail was granted by the
Magistrate in the offence punishable u/s 409, 420, 463, 464, 471
and 477 of the Indian Penal Code at the initial stage by rejecting
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{9} Cri. Application No.3362/2009
the prayer of the investigating agency to grant police custody
remand in the crime registered of non bailable offence. However, in
the instant case, the order of bail is passed when the investigation
was practically over and the respondents-accused were transferred
and remanded to Magisterial custody from police custody, which is
the distinguishing factor form the judgment cited by the learned
counsel for the applicant and the case in hand.
9. Ultimately, by placing reliance on the judgment of the
Apex Court in “Himanshu Chandravadan Desai V/s State of
Gujrat” AIR 2006 SC 179 learned counsel for the applicant urged
that as the bail is granted by the learned Magistrate without
jurisdiction, the same be cancelled and the application be allowed.
10. While opposing these submissions, learned counsel for
respondent No.9 drew my attention towards the latest view taken
by this Court in “Ambarish Rangshahi Patnigere V/s State of
Maharashtra” 2011 Cri.L.J. 515 and “Ishan Vasant Deshmukh
@ Pasad Vasant Kulkarni V/s State of Maharashtra” 2011 (2)
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{10} Cri. Application No.3362/2009
Mh.L.J.361 and urged that recently, this Court has taken a view
that if the offence complained is triable by the Court of JMFC, then
the JMFC can entertain the application for bail u/s 437 of the
Criminal Procedure Code.
11. Learned counsel appearing for respondent No.12 urged
that respondent No.12 being a lady, her case is squarely covered
within the proviso to section 437 (1) (I) (II) of the Criminal
Procedure Code and hence requested not to interfere in the
impugned orders. .
12. Learned counsel for remaining respondents adopted
the submissions of these counsels. Learned counsel for the
respondents further urged that the present application be
considered in the light of the undisputed facts, which I have
referred supra.
13. At this stage, it may be useful to quote the
observations of this Court in “Ambarish Rangshhi Patnigere V/s
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{11} Cri. Application No.3362/2009
State of Maharashtra” referred supra, which reads thus –
“17. It may be noted here that the learned Counsel for
intervener contended that the Magistrate did not have
jurisdiction to grant bail because the offences under
Sections 467 and 409 IPC, carry punishment which
may be life imprisonment. According to the learned
Counsel, if the offence is punishable with sentence of
death or life imprisonment, the Magistrate cannot grant
bail under Section 437(1) Cr. P.C. unless there are
special grounds mentioned therein. He relied upon
certain authorities in this respect including Prahlad Sigh
Bhati vs. NCT, Delhi & Anr. JT 2001 (4) SCC 116. In
that case, offence was under Section 302 which is
punishable with death sentence or life imprisonment
and is exclusively triable by Court of Sessions. The
offence under Section 409 is punishable with
imprisonment for life or imprisonment for 10 years and
fine. Similarly, the office under Section 467 is also
punishable with imprisonment for life or imprisonment
for 10 years and fine. Even though the maximum
sentence which may be awarded is life imprisonment,
as per Part I of Schedule annexed to Cr.P.C., both these
offences are triable by a Magistrate of First Class. It
appears that there are several offences including under
sec.326 in the Indian Penal Code wherein sentence,
which may be awarded, is imprisonment for life or
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{12} Cri. Application No.3362/2009imprisonment for lesser terms and such offences are
triable by Magistrate of the First Class. If the Magistrate
is empowered to try the case and pass judgment and
order of conviction or acquittal, it is difficult to
understand why he cannot pass order granting bail,
which is interlocutory in nature, in such cases. In fact,
the restriction under Sec. 437(1) Cr. P.C. is in respect of
those offences which are punishable with alternative
sentence of death or life imprisonment. If the offence is
punishable with life imprisonment or any other lesser
sentence and is triable by Magistrate, it cannot be said
that Magistrate does not have jurisdiction to consider
the bail application. In taking this view, I am supported
by the old Judgment of Nagpur Judicial Commissioner’s
Court in Tularam & Ors. vs. Emperor 27 Cri.L.J. 1926
page 1063 and also by the Judgment of the Kerala High
Court in Satyan Vs. State 1981 Cr.L.J. 1313. In Satyan,
the Kerala High Court considered several earlier
Judgments and observed thus in paras 7 and 8 :-
“7. According to the learned Magistrate Section 437(1)
does not empower him to release a person on bail if
there are reasonable grounds for believing that he has
committed an offence punishable with death or an
offence punishable with imprisonment for life. In other
words the learned Magistrate has interpreted the
expression “offence punishable with death or
imprisonment for life” in Section 437(1) to include all
offences where the punishment extends to
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{13} Cri. Application No.3362/2009
imprisonment for life. This reasoning, no doubt, is seen
adopted in an old Rangoon Case H.M. Boudville v.
Emperor, AIR 1925 Rang 129 : (1925) 26 Cri LJ 427
while interpreting the phrase “an offence punishable
with death or transportation for life” in Section 497 Cr.
P.C. 1898. But that case was dissented from in
Mahammed Eusoof v. Emperor, AIR 1926 Rang 51:
(1926) 27 Cri LJ 401). The Rangoon High Court held that
the prohibition against granting bail is confined to cases
where the sentence is either death or alternative
transportation for life. In other words, what the Court
held was that the phrase “death or transportation for
life” in Section 497 of the old Code did not extend to
offences punishable with transportation for life only, it
will be interesting to note the following passage from the
above judgment :
“It is difficult to see what principle, other than
pure empiricism should distinguish offences punishable
with transportation for life from offences punishable
with long terms of imprisonment; why, for instance, the
detenu accused of lurking house trespass with a view to
commit theft, for which the punishment is fourteen
years imprisonment, should be specially favoured as
against the individual who has dishonestly received
stolen property, knowing that it was obtained by
dacoity, for which the punishment happens to be
transportation for life? It cannot seriously be argued
that the comparatively slight difference in decree of
possible punishment will render it morally less likely
that the person arrested will put in an appearance in
the one case rather than the other. On the other hand
the degree of difference is so great as between
transportation for life and death as to be immeasurable.
A prudent Legislature will, therefore, withdraw from the
discretion of the Magistracy cases in which, if guilt is
probable, even a man of the greatest fortitude may be
wiling to pay a material price, however, exorbitant, for
life.”
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{14} Cri. Application No.3362/2009
The above decision has been followed by the Nagpur
High Court in the case reported in Tularam v. Emperor,
AIR 1927 Nag 53 : (1926) 27 Cr. LJ 1063).
“8. The reasoning applies with equal force in
interpreting the phrase “offence punishable with death
or imprisonment for life” So long as an offence under
section 326 is triable by a Magistrate of the First Class
there is no reason why it should be viewed differently in
the matter of granting bail from an offence under
Section 420 I.P.C. for which the punishment extends
imprisonment for 7 years or any other non-bailable
offence for which the punishment is a term of
imprisonment.”
It would be illogical and incomprehensible to say
that the magistrate who can hold the trial and pass
judgment of acquittal or conviction for the offences
punishable with sentence of life imprisonment or lesser
term of imprisonment, for example in offences under S.
326, 409, 467, etc., cannot consider the application for
bail in such offences. In fact, it appears that the
restriction under Sec. 437(1) (a) is applicable only to
those cases which are punishable with death sentence
or life imprisonment as alternative sentence. It may be
noted that in Prahlad Sigh Bhati (supra), in para 6, the
Supreme Court held that even though there is no legal
bar for a Magistrate to consider an application for grant
of bail to a person who is arrested for an offence
exclusively triable by a Court of session, yet it would be
proper and appropriate that in such a case the
Magistrate directs the accused person to approach the
Court of Session for the purposes of getting the relief of
bail. This may be applicable to many cases, wherein the
sentence, which may be awarded, is not even life
imprisonment, but the offence is exclusively triable by
court of Sessions for example offences punishable
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{15} Cri. Application No.3362/2009
under Sections 306, 308, 314,315, 316,399, 400 and
450. Taking into consideration the legal position, I do
not find any substance in the contention of Mr.Bhatt,
learned Counsel for the intervener that merely because
the offence is under Sec. 409 and 467 IPC, Magistrate
did not have jurisdiction to hear and grant the bail.”
14. It may also be useful to refer the observations of this
Court in Ishan Vasant Deshmukh V/s State of Maharashtra”
referred supra, which read thus-
“The observations of the Supreme Court that generally
speaking if the punishment prescribed is that of
imprisonment for life or death penalty, and theoffence is exclusively triable by the Court of Sessions,
the Magistrate has no jurisdiction to grant bail,
unless the matter is covered by the provisos
attached to section 437 of the Code. Thus, merelybecause an offence is punishable when imprisonment
for life, it does not follow a Magistrate would have nojurisdiction to grant bail, unless offence is also
exclusively triable by the Court of Sessions.
This, implies that the Magistrate would be
entitled to grant bail in cases triable by him even thoughpunishment prescribed may extend to imprisonment for
life. This Judgment in Prahlad Singh Bhati’s case had
not been cited before Judge, who decided State
of Maharashtra Versus Rajkumar Kunda Swami.
Had this Judgment been noticed by the Hon’ble Judgedeciding that case, the observation that the Magistrate
may not decide an application for bail if the
offence is punishable with imprisonment for life would
possibly would not have been made. In view of the
observations of the Supreme Court in Prahlad Singh
Bhati’s case, it is clear that the view taken by
J.H.Bhatia, J. in Ambarish Rangshahi Patnigere Vs.::: Downloaded on – 09/06/2013 17:45:43 :::
{16} Cri. Application No.3362/2009State of Maharashtra, reported at 2010 ALL MR
(Cri) 2775 is in tune with the Judgment of the SupremeCourt and therefore, the Magistrate would have
jurisdiction to grant bail.”
15. As pointed out above, it is clear that the offence
complained against the respondents-accused is triable by the
Magistrate and not by the Court of Sessions. Therefore, in view of
the observations of this Court in “Ambarish Rangshhi Patnigere
V/s State of Maharashtra” (Supra) it is to be held that the
Magistrate had the jurisdiction to entertain the bail applications.
16. Again, as pointed out above, the applicant has not
come with a case nor it is alleged that the respondents-accused
have misused the liberty granted in their favour either by
tampering evidence or that they are likely to abscond. Therefore,
the Observations in “Himanshu Chandravadan Desai V/s State
of Gujrat” AIR 2006 SC 179, as relied by the learned counsel for
the applicant, would not be applicable to the present application.
17. The present application is filed for cancellation of bail
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{17} Cri. Application No.3362/2009
granted in favour of the respondents-accused, therefore, it would
be appropriate to advert to the observations of the Apex Court in
“Hazari Lal Das V/s State of West Bengal” 2010 AIR (SC) 91.
The Apex Court, in the said judgment, has observed thus-
“9. In Dolat Ram And Ors V.s State of Haryana, (1995) 1
SCC 349 this Court held:
4. Rejection of bail in a non bailable case at the initial
stage and the cancellation of bail so granted, have to be
considered and dealt with on different basis. Very
cogent and overwhelming circumstances are necessaryfor an order directing the cancellation of the bail,
already granted. Generally speaking, the grounds for
cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to interfere withthe due course of administration of justice or evasion or
attempt to evade the course of justice or abuse of theconcession granted to the accused in any manner. The
satisfaction of the court, on the basis of material placed
on the record of the possibility of the accusedabsconding is yet another reason justifying the
cancellation of bail. However, bail once granted should
not be cancelled in a mechanical manner without
considering whether any supervening circumstances
have rendered it no longer conducive to a fair trial toallow the accused to retain his freedom by enjoying the
concession of bail during the trial. These principles, it
appears, were lost sight of by the High Court when it
decided to cancel the bail, already granted. The High
Court it appears to us overlooked the distinction of the
factors relevant for rejecting bail in a non-bailable case
in the first instance and the cancellation of bail already
granted.”
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{18} Cri. Application No.3362/2009
18. It is not disputed that respondents-accused are
released on regular bail way back in 2008 and thereafter the
charge sheet came to be filed. Moreover, no complaint of misuse of
liberty by the respondents-accused is lodged. Nor there are any
allegation that they may likely to abscond and would not face the
trial. In the premise and considering the overall effect of the above
discussed facts, I am of the considered view that no interference is
required in the orders impugned in the present application.
19. In the result, the application fails and dismissed
accordingly. Rule stands discharged.
[A.V.POTDAR, J.]
drp/B11/criapln3362-09
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