ORDER
1. This petition has been presented by the original complainant in C.R. No. 364 of 1990 registered by the Andheri Police Station and is directed against an order dated 29-8-1990 of anticipatory bail granted to respondents Nos. 1 and 2 herein, by the Additional Sessions Judge. The petition was filed before this Court on 7-11-1990 and for a variety of reasons has not been disposed of until the present point of time.
2. Shri Shamrao G. Samant, learned Counsel appearing on behalf of the petitioner, made a strong grievance to the effect that applications of the present type ought to be taken up and disposed of with utmost expediency as otherwise the entire object of the litigant having moved the High Court gets frustrated. While quoting the history of what has happened in this case, Shri Samant submits that even if any relief is granted in the present petition, it would be of little avail now because it may not be possible to effectively undo damage that has occurred due to the efflux of time. Shri Samant also stated at the Bar that the respondents Nos. 1 and 2 Original accused have left this country and therefore, even if the bail comes to be cancelled, it will be of no avail. The grievance made by Mr. Samant is justified and it is rather unfortunate that the petition was not heard for the last almost one year, but it was in any event upon (sic) if the urgency was utmost, that an application ought to have been made to any of the learned Judges to hear this petition out of turn.
3. Coming basically to the merits of the petitions, the order dated 29-8-1990 which is an order passed u/S. 438 of the Code of Criminal Procedure, granting anticipatory bail to the two respondents who are original accused, has been very seriously challenged both on a point of law as also with regard to the guilt of the accused and the situation under which it was passed. Having heard the learned counsel for the petitioner, I am in agreement with what has been submitted by him because the order in question which is a cryptic order does not appear to be totally and thoroughly justified and as will be pointed out presently, such an order, in the circumstances of the case, ought not to have been passed at all. S. 438 of the Code of Criminal Procedure was granted on to the new Code to take care of certain classes of cases and the statement of objects and reasons behind the amendment very well indicates that it was enacted in order to protect a litigant against possible false, malicious or vexatious criminal proceedings. The object of incorporating S. 438 of the Code of Criminal Procedure on to the statute book was not intended to stifle an investigation or to impede it.
4. Mr. Samant has referred in detail among other things to the report dated 29-8-1990 which was filed by the Police Inspector of the Andheri Police Station before the learned Additional Sessions Judge at the time when the application for anticipatory bail was made. That report which is a good report and a detailed report, very clearly indicates that there were very cogent reasons for coming to the conclusion that the two accused had committed serious offences. It was also pointed out that the offences committed indicated that the law had virtually been taken into their hands by the two accused, that the premises appeared to have been opened with the help of a lock-smith and that the property which was valued at Rs. 8.25 (8.25) lacs was taken away from the premises and only a small part of it had been recovered by the police. It is necessary for me to record, as emerges from that report, and from the affidavit filed by Inspector Anant Desai of the Andheri Police Station, that contrary to what is attributed to the Police in general, the investigating machinery in this case has performed and excellent job, and under these circumstances, they had asked the Court that they should be granted reasonable time to recover the property involved in the offences and to complete their investigation. It is no quite conceivable as to how such an application could at all have been turned down and ironically no reasons have been given. On the contrary, the learned Judge did not consider it necessary even to go into the merits of the case. It is as a result of such an unfortunate procedure adopted by the learned Additional Sessions Judge that the accused were straightway ordered to be released on bail without their having been taken into custody for the commission of such serious offences as were alleged in the complaint. To add to it all the Police were deprived of speedy and effective investigation and the remaining property which was substantial, could not be recovered.
5. Mr. Gupte, the learned Counsel appearing on behalf of the original accused, has submitted that the learned Additional Sessions Judge has taken into account one circumstance, namely, the fact that a Civil Suit has been filed and that those proceedings were being prosecuted. The filing of the civil suit appears to be in relation to the long standing dispute relating to possession of the premises. The criminal offence alleged against the accused has little to do with that suit and in this case the Police have demonstrated very clearly to the Criminal Court that serious offences had been committed. The mere existence of the civil suit or some injunction order passed in that suit ought not under circumstances to have been taken into account for the purpose of granting anticipatory bail. Had the documents, if any, in relation to that civil suit been produced, it would have been very clear to the learned Additional Sessions Judge that this was a different dispute in relation to the moveable property and a criminal offence having been disclosed that the investigating machinery was required to enquire into the matter and to recover the property at the earliest point of time.
6. More importantly, Mr. Gupte submits that the circumstances in which the High Court can exercise powers u/S. 439 of the Code of Criminal Procedure have been judicially interpreted in several decisions and he points out that even though the accused have been released on bail in spite of the Police report, that it is not alleged against them that they have tampered with the prosecution witnesses and consequently there is no ground to interfere with the order passed by the learned Additional Sessions Judge. It is true that there are many circumstances in which the High Court may be required to re-examine cases in which bail has been granted and the situation mentioned by Mr. Gupte has been referred to in several decisions. There are, however, certain additional grounds in present case where on further review this Court is justified in taking the view that the timing of the order and the circumstances in which the order was passed were both wrong and therefore interference by this Court would certainly be called for. Both the provisions of Ss. 439 and 482 of the Code of Criminal Procedure would empower this Court to interfere with the order granting bail.
7. Mr. Samant, learned counsel appearing on behalf of the petitioner, has vehemently submitted that in the present case the petitioner went to the law-enforcing authorities at the earliest point of time and at least he expected that those authorities would be able to recover the property. He has made a very strong grivance of the fact that as a result of the anticipatory bail order that was passed, that it has now become almost impossible to recover the property. As against this position, Mr. Gupte points out that neither the petitioner nor for that matter the Police seriously opposed the grant of anticipatory bail and that it is strange that neither of the parties had moved further in the matter for several months. He has pointed out that the State neither went back to the trial court nor did they make any application before this Court and that even the present petition has been filed after as long as 2 1/2 months before this Court. There may be many reasons for that but they would not serve to justify or improve on the quality of the order dated 29-8-1990 and, therefore, it is unnecessary to go into that aspect of the matter.
8. In the circumstances indicated by me above, it will be essential to set aside the order dated 29-8-1990. The petition is accordingly allowed. The order dated 29-8-1990 is set aside. The respondents Nos. 1 and 2 are directed to surrender to their bail forthwith. In the event of the respondents Nos. 1 and 2 not surrendering to their bail, non-bailable warrants shall be issued for their arrest. It shall be open to the respondents-accused after a period of 14 days from their arrest, to move the appropriate Court for grant of bail, if they so desire. The Magistrate or the Sessions Judge before whom such application will be made, shall hear and decide the application on merits. Rule is made absolute accordingly.
9. Order accordingly.