{"id":110069,"date":"2011-09-21T00:00:00","date_gmt":"2011-09-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-balasaheb-satbhai-merchant-vs-the-state-of-maharashtra-on-21-september-2011"},"modified":"2017-07-11T19:27:54","modified_gmt":"2017-07-11T13:57:54","slug":"the-balasaheb-satbhai-merchant-vs-the-state-of-maharashtra-on-21-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-balasaheb-satbhai-merchant-vs-the-state-of-maharashtra-on-21-september-2011","title":{"rendered":"The Balasaheb Satbhai Merchant … vs The State Of Maharashtra on 21 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Balasaheb Satbhai Merchant … vs The State Of Maharashtra on 21 September, 2011<\/div>\n
Bench: A. V. Potdar<\/div>\n
                                       {1}     Cri. Application No.3362\/2009\n\n     drp\n           IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n\n\n\n                                                                       \n                         BENCH AT AURANGABAD\n\n\n\n\n                                               \n               CRIMINAL APPLICATION NO.3362 OF 2009\n\n     The Balasaheb Satbhai Merchant Coop Bank Ltd.,       APPLICANT\n     Kopargaon, Tq-Kopargon, \n\n\n\n\n                                              \n     Dist-Ahmednagar, \n     Throught its Board Member of Liquidator, \n     Sham s\/o Vyankatesh Kshirsagar, \n     Age-56 years, Occ-Business\n\n\n\n\n                                   \n     R\/o Kapad Bazar, Kopargoan, \n     Tq-Kopargaon, Dist-Ahmednagar\n                     \n           VERSUS\n                    \n     1.    The State of Maharashtra                         RESPONDENTS\n\n     2.    The District Superintendent of Police, \n           Ahmednagar\n      \n\n\n     3.    Sanjay Vasantrao Satbhai\n   \n\n\n\n           Age-47 years, Occ-Business\n           R\/o Kapad Bazar, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n\n\n\n\n     4.    Ashokchand Shobhachand Kothari\n           Age-55 years, Occ-Business\n           R\/o Indira Path, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n\n\n\n\n     5.    Rameshwar Jagannath Mundada\n           Age-54 years, Occ-Business\n           R\/o Gandhi Chowk, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n     6.    Nandkumar Ramchandra Vispute\n           Age-48 years, Occ-Business\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 17:45:42 :::\n                                    {2}         Cri. Application No.3362\/2009\n\n           R\/o Sonar Galli, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n\n\n\n                                                                       \n     7.    Kishor Swarupchand Gangwal, \n\n\n\n\n                                               \n           Age-50 years, Occ-Business\n           R\/o 13 Bunglow, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n\n\n\n                                              \n     8.    Ramanlal Madanlal Kale\n           Age-62 years, Occ-Business\n           R\/o Indira Path, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n\n\n\n\n                                 \n     9.    Sanjay Narayandas Thole\n                    \n           Age-44 years, Occ-Business\n           R\/o Near Sanjay Medical, Kopargaon, \n           Tq-Kopargaon, Dist-Ahmednagar. \n                   \n     10.   Rajendra Manikchand Phulpagar\n           Age-50 years, Occ-Business\n           R\/o Gokulnagari, Kopargaon, \n      \n\n\n           Tq-Kopargaon, Dist-Ahmednagar. \n   \n\n\n\n     11.   Dilip Chunnilal Gundecha\n           Age-62 years, Occ-Retired Managar\n           R\/o Fadarwadi, Kopargaon, \n\n\n\n\n\n           Tq-Kopargaon, Dist-Ahmednagar. \n\n     12    Mina Rajendra Bhalerao\n           Age-Major, Occ-Household\n           Kopargaon, Tq-Kopargaon, \n\n\n\n\n\n           Dist-Ahmednagar. \n\n                                    .......\n     Mr.N.R.Bhavar, Advocate for the applicant\n     Mr.S.G.Nandedkar, APP for respondent State \n     Mr.C.A.Jadhav h\/f V.D.Hon, Advocate for respondents No.3 and 7\n     Mr.V.D.Sapkal, Advocate for respondent No.12\n     Mr.P.R.Adkine, advocate for respondent No.11\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 17:45:42 :::\n                                           {3}         Cri. Application No.3362\/2009\n\n     Mrs.Rashmi Kulkarni h\/f Mr.Sanket Kulkarni, for R-9\n                                  .......\n\n\n\n\n                                                                             \n                                                [CORAM : A.V.POTDAR, J.]\n\n\n\n\n                                                     \n                                                   \n                                         RESERVED ON    \n                                                          :   09.09.2011\n                                                                        \n                                        PRONOUNCED ON :   21.09.2011   \n\n\n\n\n                                                    \n     JUDGMENT:\n<\/pre>\n
     1.            By this application, the applicant has prayed to quash <\/p>\n
     the   orders   dated   16.07.2008   and   23.10.2008   passed   by   JMFC, <\/p>\n
     Kopargaon granting regular bail in favour of respondents No.3 to <\/p>\n
     12. <\/p>\n
     2.            Rule.   Rule   made   returnable   forthwith.   By   consent   of <\/p>\n
     the learned counsel for the parties, heard finally at  the stage of <\/p>\n
     admission.\n<\/p>\n
     3.            Admittedly,   respondent   No.3   was   the   Chairman   and <\/p>\n
     respondents No.4 to 10 and 12 were the Members of the Managing <\/p>\n
     Committee of applicant Bank whereas respondent No.11 was the <\/p>\n
     Manager of the said Bank. As certain irregularities and illegalities <\/p>\n
     were noticed in the conduct of the banking business, the Reserve <\/p>\n
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\n                                             {4}         Cri. Application No.3362\/2009<\/p>\n
     Bank   of   India   had   cancelled   the   license   of   the   applicant   bank.\n<\/p>\n
     Thereafter,   District   Deputy   Registrar,   Cooperative   Societies,   had <\/p>\n
     appointed Liquidator on the applicant bank to look after the affairs <\/p>\n
     of   the   said   bank.   One   Mr.N.K.Ingole   (Government   Auditor)   had <\/p>\n
     carried out the audit of the said bank for the period 1996 to 2002.\n<\/p>\n
     During the said audit, certain illegalities, allegedly committed by <\/p>\n
     the   respondent-accused,   were   noticed.   It   was   alleged   that <\/p>\n
     misappropriation   to   the   tune   of   Rs.33   crores   was   done   by   the <\/p>\n
     respondent-accused. Accordingly, complaint came to be lodged in <\/p>\n
     Kopargaon   police   station   on   05.11.2007,   pursuant   to   which   an <\/p>\n
     offence   at   Crime   No.251\/2007   was   registered   against   total   26 <\/p>\n
     persons including the present respondent-accused for an offence <\/p>\n
     punishable u\/s 405, 406, 409, 418 r\/w 120 B of the Indian Penal <\/p>\n
     Code.\n<\/p>\n
     4.            It   appears   that   following   to   the   registration   of   the <\/p>\n
     offence   and   after   all   the   attempts   of   the   accused   to   get <\/p>\n
     anticipatory   bail   were   futile,   they   were   ultimately   arrested   and <\/p>\n
     were   initially   remanded   to   police   custody   and   subsequently   to <\/p>\n
     Magisterial   custody.   Thereafter   the   respondent-accused   moved <\/p>\n
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\n                                            {5}        Cri. Application No.3362\/2009<\/p>\n
     regular bail application before JMFC, Kopargaon, who allowed the <\/p>\n
     bail   applications   of   respondents   No.3   to   11   on   16.07.2008   and <\/p>\n
     application of respondent No.12 came to be allowed and he came to <\/p>\n
     be released on regular bail on 23.10.2008.\n<\/p>\n
     5.            By   the   present   application,   the   applicant   has <\/p>\n
     questioned the legality and correctness of the said orders granting <\/p>\n
     bail in favour of the respondents-accused mainly on two grounds.\n<\/p>\n
     Firstly, that the learned JMFC, Kopargaon has no jurisdiction to <\/p>\n
     entertain the bail applications and secondly the learned JMFC has <\/p>\n
     erroneously  observed in the impugned orders that  the papers of <\/p>\n
     investigation   do   not   disclose   prima   facie   commission   of   offence <\/p>\n
     punishable u\/s 409 of the Indian Penal Code. In substance, the <\/p>\n
     impugned   orders   are   assailed   on   the   ground   that   the   same   are <\/p>\n
     being passed without jurisdiction and the observations of the trial <\/p>\n
     court, in the order granting bail, are unwarranted.\n<\/p>\n
     6.            Before   I   embark   upon   the   submissions   advanced   by <\/p>\n
     the learned counsel for the respective parties, I think it appropriate <\/p>\n
     to   advert   to   certain   undisputed   facts   which   can   be   enumerated <\/p>\n
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\n                                           {6}         Cri. Application No.3362\/2009<\/p>\n
     thus –\n<\/p>\n
            a)     During   the   pendency   of   the   present   criminal <\/p>\n
     application, the investigation has been completed and charge sheet <\/p>\n
     has been filed against the respondent-accused and others before <\/p>\n
     JMFC, Kopargoan.\n<\/p>\n
            b)<\/p>\n
                   While the impugned orders were passed at that time <\/p>\n
     also the investigation was practically over.\n<\/p>\n
            c)     Admittedly,   the   entire   prosecution   case   rests   on <\/p>\n
     documentary   evidence   and   there   is   very   limited   scope   for   oral <\/p>\n
     evidence.\n<\/p>\n
            d)     All   the   offences,   complained   against   the   respondent-\n<\/p>\n
     accused, are triable by the Judicial Magistrate First Class and not <\/p>\n
     by the Court of Sessions.\n<\/p>\n
            e)     It is not the case of the applicant nor it is alleged that <\/p>\n
     the   respondents-accused   have   misused   the   liberty   granted   to <\/p>\n
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\n                                              {7}          Cri. Application No.3362\/2009<\/p>\n
     them.\n<\/p>\n
            f)      The investigating agency has seized all the documents <\/p>\n
     relating to the present offence during the course of investigation.\n<\/p>\n
     7.             Learned   counsel  for   the  applicant   placed   reliance   on <\/p>\n
     the   judgments  “State   of   Maharashtra   V\/s   Kaushar   Yasin <\/p>\n
     Qureshi” 1996 (2) Mh.L.J.485; “Sureshkumar Singh V\/s State <\/p>\n
     of U.P.” 1996 Cri.L.J.1527; “Hanuman Vishwanath Nehare V\/s <\/p>\n
     State   of   Maharashtra”   2001   (3)   Mh.L.J.   465;   “Prahlad   Singh <\/p>\n
     Bhati V\/s N.C.T. Delhi”, 2001 (5) Bom.C.R. (SC) 727; “Md.Arif <\/p>\n
     V\/s State of Maharashtra” 2000 Bom.C.R. (Cri) 95; “State of <\/p>\n
     Maharashtra V\/s Kiran Sonawane” 1996 (3) Bom.C.R. 743 and <\/p>\n
     Chand Mohammad V\/s Mohammad Farooq” 1989 (1) Bom.C.R.\n<\/p>\n
     201. In my view, the above cited judgments need not be discussed <\/p>\n
     for the simple reason that in all the above referred judgments, the <\/p>\n
     accused were released on bail in the cases which are exclusively <\/p>\n
     triable   by   the   Court   of   Sessions.   In   law,   the   Magistrate   is   not <\/p>\n
     empowered to entertain bail applications in such cases, unless the <\/p>\n
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\n                                             {8}         Cri. Application No.3362\/2009<\/p>\n
     case of the accused is covered under the proviso to section 437 (1) <\/p>\n
     (I) (II) of the Criminal Procedure Code.\n<\/p>\n
     8.            Further reliance is placed by learned counsel for the <\/p>\n
     applicant on the judgment of this Court in the matter of “State of <\/p>\n
     Maharashtra   V\/s   Ketan   Sheth”   2003   (1)   Mh.L.J.   885.   In   the <\/p>\n
     said judgment, the question before the learned Single Judge was <\/p>\n
     that   can   the   Magistrate   exercise   the   powers   u\/s   167   of   the <\/p>\n
     Criminal Procedure Code when the charge sheet is not filed within <\/p>\n
     the stipulated period, as contemplated in law and for that purpose, <\/p>\n
     what   is   stipulated   period   to   file   charge   sheet   for   the   offence <\/p>\n
     punishable u\/s 409 of the Indian Penal Code. Hence, it would not <\/p>\n
     be applicable to the present case. Reliance is also placed by the <\/p>\n
     learned counsel for the applicant on the observations of this Court <\/p>\n
     in  “State   of   Maharashtra   V\/s   Rajkumar   Kunda   Swami”   2002 <\/p>\n
     (Supp-2) Bom.C.R.79. Learned Single Judge of this Court, in the <\/p>\n
     said   judgment,   has   observed   that   the   bail   was   granted   by   the <\/p>\n
     Magistrate in the offence punishable u\/s 409, 420, 463, 464, 471 <\/p>\n
     and 477 of the Indian Penal Code at the initial stage by rejecting <\/p>\n
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\n                                            {9}         Cri. Application No.3362\/2009<\/p>\n
     the   prayer   of   the   investigating   agency   to   grant   police   custody <\/p>\n
     remand in the crime registered of non bailable offence. However, in <\/p>\n
     the instant case, the order of bail is passed when the investigation <\/p>\n
     was practically over and the respondents-accused were transferred <\/p>\n
     and remanded to Magisterial custody from police custody, which is <\/p>\n
     the distinguishing factor form the judgment cited by the learned <\/p>\n
     counsel for the applicant and the case in hand.\n<\/p>\n
     9.            Ultimately, by placing reliance on the judgment of the <\/p>\n
     Apex   Court   in  “Himanshu   Chandravadan   Desai   V\/s   State   of <\/p>\n
     Gujrat” AIR 2006 SC 179 learned counsel for the applicant urged <\/p>\n
     that   as   the   bail   is   granted   by   the   learned   Magistrate   without <\/p>\n
     jurisdiction, the same be cancelled and the application be allowed.\n<\/p>\n
     10.           While opposing these submissions, learned counsel for <\/p>\n
     respondent No.9 drew my attention towards the latest view taken <\/p>\n
     by  this  Court   in  “Ambarish   Rangshahi  Patnigere   V\/s  State  of <\/p>\n
     Maharashtra” 2011 Cri.L.J. 515  and “Ishan Vasant Deshmukh <\/p>\n
     @ Pasad Vasant Kulkarni V\/s State of Maharashtra” 2011 (2) <\/p>\n
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\n                                             {10}         Cri. Application No.3362\/2009<\/p>\n
     Mh.L.J.361  and urged that recently, this Court has taken a view <\/p>\n
     that if the offence complained is triable by the Court of JMFC, then <\/p>\n
     the JMFC   can entertain the application for bail u\/s 437 of the <\/p>\n
     Criminal Procedure Code.\n<\/p>\n
     11.            Learned counsel appearing for respondent No.12 urged <\/p>\n
     that respondent No.12 being a lady, her case is squarely covered <\/p>\n
     within   the   proviso   to   section   437   (1)   (I)   (II)   of   the   Criminal <\/p>\n
     Procedure   Code   and   hence   requested   not   to   interfere   in   the <\/p>\n
     impugned orders. .\n<\/p>\n
     12.            Learned   counsel   for   remaining   respondents   adopted <\/p>\n
     the   submissions   of   these   counsels.   Learned   counsel   for   the <\/p>\n
     respondents   further   urged   that   the   present   application   be <\/p>\n
     considered   in   the   light   of   the   undisputed   facts,   which   I   have <\/p>\n
     referred supra.\n<\/p>\n
     13.            At   this   stage,   it   may   be   useful   to   quote   the <\/p>\n
     observations of this Court in “Ambarish Rangshhi Patnigere V\/s <\/p>\n
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\n                                             {11}          Cri. Application No.3362\/2009<\/p>\n
     State of Maharashtra” referred supra, which reads thus –\n<\/p>\n
          “17.    It may be noted here that the learned Counsel for  <\/p>\n
          intervener contended that the Magistrate did not have  <\/p>\n
          jurisdiction   to   grant   bail   because   the   offences   under  <\/p>\n
          Sections   467   and   409   IPC,   carry   punishment   which  <\/p>\n
          may   be   life   imprisonment.   According   to   the   learned  <\/p>\n
          Counsel, if the offence is punishable with sentence of  <\/p>\n
          death or life imprisonment, the Magistrate cannot grant  <\/p>\n
          bail   under   Section   437(1)   Cr.   P.C.   unless   there   are  <\/p>\n
          special   grounds   mentioned   therein.   He   relied   upon  <\/p>\n
          certain authorities in this respect including Prahlad Sigh  <\/p>\n
          Bhati   vs.   NCT,   Delhi   &   Anr.   JT<\/a>   2001   (4)   SCC   116.   In  <\/p>\n
          that   case,   offence   was   under   Section   302   which   is  <\/p>\n
          punishable   with   death   sentence   or   life   imprisonment  <\/p>\n
          and is exclusively triable by Court of Sessions.       The  <\/p>\n
          offence   under   Section   409   is   punishable   with  <\/p>\n
          imprisonment for life or imprisonment for 10 years and  <\/p>\n
          fine.   Similarly,   the   office   under   Section   467   is   also  <\/p>\n
          punishable with imprisonment for life or imprisonment  <\/p>\n
          for   10   years   and   fine.   Even   though   the   maximum  <\/p>\n
          sentence which may be awarded is life imprisonment,  <\/p>\n
          as per Part I of Schedule annexed to Cr.P.C., both these  <\/p>\n
          offences   are   triable   by   a   Magistrate   of   First   Class.   It  <\/p>\n
          appears that there are several offences including under  <\/p>\n
          sec.326   in   the   Indian   Penal   Code   wherein   sentence,  <\/p>\n
          which   may   be   awarded,   is   imprisonment   for   life   or  <\/p>\n
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\n                                       {12}         Cri. Application No.3362\/2009<\/p>\n
     imprisonment   for   lesser   terms   and   such   offences   are  <\/p>\n
     triable by Magistrate of the First Class. If the Magistrate  <\/p>\n
     is empowered to try the case and pass judgment and  <\/p>\n
     order   of   conviction   or   acquittal,   it   is   difficult   to  <\/p>\n
     understand   why   he   cannot   pass   order   granting   bail,  <\/p>\n
     which is interlocutory in nature, in such cases. In fact,  <\/p>\n
     the restriction under Sec. 437(1) Cr. P.C. is in respect of  <\/p>\n
     those   offences   which   are   punishable   with   alternative  <\/p>\n
     sentence of death or life imprisonment.  If the offence is  <\/p>\n
     punishable  with life  imprisonment  or any other lesser  <\/p>\n
     sentence and is triable by Magistrate, it cannot be said  <\/p>\n
     that   Magistrate   does   not   have   jurisdiction   to   consider  <\/p>\n
     the bail application. In taking this view, I am supported  <\/p>\n
     by the old Judgment of Nagpur Judicial Commissioner’s  <\/p>\n
     Court in Tularam & Ors. vs. Emperor 27 Cri.L.J. 1926  <\/p>\n
     page 1063 and also by the Judgment of the Kerala High  <\/p>\n
     Court in Satyan Vs. State 1981 Cr.L.J. 1313. In Satyan,  <\/p>\n
     the   Kerala   High   Court   considered   several   earlier  <\/p>\n
     Judgments and observed thus in paras 7 and 8 :-\n<\/p><\/blockquote>\n
      “7.    According to the learned  Magistrate Section 437(1)  <\/p>\n
     does   not   empower   him   to   release   a   person   on   bail   if
\n     there are reasonable grounds for believing that he has
\n     committed   an   offence   punishable   with   death   or   an
\n     offence punishable with imprisonment for life. In other
\n     words   the   learned   Magistrate   has   interpreted   the
\n     expression   “offence   punishable   with   death   or
\n     imprisonment   for   life”   in   Section   437(1)   to   include   all
\n     offences   where   the   punishment   extends   to  <\/p>\n
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\n                                       {13}         Cri. Application No.3362\/2009<\/p>\n
     imprisonment for life. This reasoning, no doubt, is seen
\n     adopted   in   an   old   Rangoon   Case   H.M.   Boudville   v.\n<\/p>\n
     Emperor,   AIR   1925   Rang   129   :   (1925)   26   Cri   LJ   427
\n     while   interpreting   the   phrase   “an   offence   punishable  <\/p>\n
     with death or transportation for life” in Section 497 Cr.
\n     P.C.   1898.   But   that   case   was   dissented   from   in
\n     Mahammed   Eusoof   v.   Emperor,   AIR   1926   Rang   51:
\n     (1926) 27 Cri LJ 401). The Rangoon High Court held that  <\/p>\n
     the prohibition against granting bail is confined to cases
\n     where   the   sentence   is   either   death   or   alternative
\n     transportation for life. In other words, what  the Court
\n     held  was  that  the  phrase  “death or transportation for  <\/p>\n
     life” in  Section  497  of   the  old   Code  did  not   extend  to
\n     offences punishable with transportation for life only, it  <\/p>\n
     will be interesting to note the following passage from the
\n     above judgment :\n<\/p>\n
                      “It is difficult to see what principle, other than
\n     pure empiricism should distinguish offences punishable
\n     with   transportation   for   life   from   offences   punishable
\n     with long terms of imprisonment; why, for instance, the  <\/p>\n
     detenu accused of lurking house trespass with a view to
\n     commit   theft,   for   which   the   punishment   is   fourteen  <\/p>\n
     years   imprisonment,   should   be   specially   favoured   as
\n     against   the   individual   who   has   dishonestly   received
\n     stolen   property,   knowing   that   it   was   obtained   by
\n     dacoity,   for       which   the   punishment   happens   to   be  <\/p>\n
     transportation   for     life?   It   cannot   seriously   be   argued
\n     that   the   comparatively   slight   difference   in   decree   of
\n     possible   punishment   will   render   it   morally   less   likely
\n     that the person arrested will put in an appearance in  <\/p>\n
     the one   case rather than the other. On the other hand
\n     the   degree   of   difference   is   so   great   as   between
\n     transportation for life and death as to be immeasurable.
\n     A prudent Legislature will, therefore, withdraw from the
\n     discretion of the Magistracy cases in which, if guilt is
\n     probable, even a man of the greatest fortitude may be
\n     wiling to pay a material price, however, exorbitant, for
\n     life.”\n<\/p>\n
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                                       {14}         Cri. Application No.3362\/2009<\/p>\n
     The   above   decision   has   been   followed   by   the   Nagpur  <\/p>\n
     High Court in the case reported in Tularam v. Emperor,  <\/p>\n
     AIR 1927 Nag 53 : (1926) 27 Cr. LJ 1063).\n<\/p>\n
     “8.         The   reasoning   applies   with   equal   force   in
\n     interpreting the phrase “offence punishable with death  <\/p>\n
     or   imprisonment   for  life”  So   long   as   an   offence   under
\n     section 326 is triable by a Magistrate of the First Class
\n     there is no reason why it should be viewed differently in
\n     the   matter   of   granting   bail   from   an   offence   under  <\/p>\n
     Section   420   I.P.C.   for   which   the   punishment   extends
\n     imprisonment   for   7   years   or   any   other   non-bailable  <\/p>\n
     offence   for   which   the   punishment   is   a   term   of
\n     imprisonment.”\n<\/p>\n
             It would be illogical and incomprehensible to say
\n     that   the   magistrate   who   can   hold   the   trial   and   pass
\n     judgment   of   acquittal   or   conviction   for   the   offences
\n     punishable with sentence of life imprisonment or lesser  <\/p>\n
     term of imprisonment, for example in offences under S.
\n     326, 409, 467, etc., cannot consider the application for  <\/p>\n
     bail   in   such   offences.   In   fact,   it   appears   that   the
\n     restriction   under   Sec.   437(1)  (a)   is   applicable   only   to
\n     those cases which are punishable with death sentence
\n     or life imprisonment as alternative sentence. It may be  <\/p>\n
     noted that in Prahlad Sigh Bhati (supra), in para 6, the
\n     Supreme Court held that even though there is no legal
\n     bar for a Magistrate to consider an application for grant
\n     of   bail   to   a   person   who   is   arrested   for   an   offence  <\/p>\n
     exclusively triable by a Court of session, yet it would be
\n     proper   and   appropriate   that   in   such   a   case   the
\n     Magistrate directs the accused person to approach the
\n     Court of Session for the purposes of getting the relief of
\n     bail. This may be applicable to many cases, wherein the
\n     sentence,   which   may   be   awarded,   is   not   even   life
\n     imprisonment, but the offence is exclusively triable by
\n     court   of   Sessions   for   example   offences   punishable  <\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 17:45:43 :::<\/span>
\n                                             {15}          Cri. Application No.3362\/2009<\/p>\n
           under   Sections   306,   308,   314,315,   316,399,   400   and\n<\/p>\n
           450.  Taking  into  consideration  the  legal  position, I do  <\/p>\n
           not   find   any   substance   in   the   contention   of   Mr.Bhatt,
\n           learned Counsel for the intervener that merely because  <\/p>\n
           the offence is under Sec. 409 and 467 IPC, Magistrate
\n           did not have jurisdiction to hear and grant the bail.”\n<\/p>\n
     14.          It may also be useful to refer the observations of this <\/p>\n
     Court   in  Ishan   Vasant   Deshmukh   V\/s   State   of   Maharashtra”\n<\/p>\n
     referred supra, which read thus-\n<\/p>\n
           “The observations of the Supreme Court that    generally
\n           speaking     if       the   punishment   prescribed   is   that   of
\n           imprisonment   for   life   or   death       penalty,       and     the  <\/p>\n
           offence   is  exclusively triable by the Court of Sessions,
\n           the Magistrate has   no     jurisdiction       to   grant     bail,
\n           unless   the matter     is   covered     by     the     provisos
\n           attached   to section 437 of the Code.       Thus, merely  <\/p>\n
           because  an offence  is  punishable  when imprisonment
\n           for life, it does not follow a Magistrate would have no  <\/p>\n
           jurisdiction   to   grant   bail,   unless   offence   is   also
\n           exclusively       triable     by     the     Court   of     Sessions.
\n           This,       implies     that       the     Magistrate         would   be
\n           entitled to grant bail in cases triable by him even though  <\/p>\n
           punishment prescribed may extend to imprisonment for
\n           life. This Judgment in Prahlad Singh Bhati’s case had
\n           not   been  cited   before Judge,   who  decided   State
\n           of     Maharashtra     Versus Rajkumar   Kunda     Swami.
\n           Had  this Judgment been noticed by the Hon’ble Judge  <\/p>\n
           deciding that case, the observation that the Magistrate
\n           may not  decide  an   application       for     bail      if    the
\n           offence  is punishable with imprisonment for life   would
\n           possibly   would   not   have   been   made.     In   view   of   the
\n           observations   of   the   Supreme   Court   in   Prahlad   Singh
\n           Bhati’s   case,   it   is   clear   that   the   view   taken   by
\n           J.H.Bhatia,   J.   in   Ambarish   Rangshahi   Patnigere   Vs.  <\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 17:45:43 :::<\/span>
\n                                            {16}        Cri. Application No.3362\/2009<\/p>\n
            State  of  Maharashtra,   reported   at   2010  ALL  MR
\n            (Cri) 2775 is in tune with the Judgment of the Supreme  <\/p>\n
            Court   and   therefore,   the   Magistrate   would   have
\n            jurisdiction to grant bail.”\n<\/p><\/blockquote>\n
     15.           As   pointed   out   above,   it   is   clear   that   the   offence <\/p>\n
     complained   against   the   respondents-accused   is   triable   by   the <\/p>\n
     Magistrate and not by the Court of Sessions. Therefore, in view of <\/p>\n
     the observations of this Court in  “Ambarish Rangshhi Patnigere <\/p>\n
     V\/s   State   of   Maharashtra”   (Supra)   it   is   to   be   held   that   the <\/p>\n
     Magistrate had the jurisdiction to entertain the bail applications.\n<\/p>\n
     16.           Again,   as   pointed   out   above,   the   applicant   has   not <\/p>\n
     come with a case nor it is alleged that the respondents-accused <\/p>\n
     have   misused   the   liberty   granted   in   their   favour   either   by <\/p>\n
     tampering evidence or that they are likely to abscond. Therefore, <\/p>\n
     the Observations in  “Himanshu Chandravadan Desai V\/s State <\/p>\n
     of Gujrat” AIR 2006 SC 179, as relied by the learned counsel for <\/p>\n
     the applicant, would not be applicable to the present application.\n<\/p>\n
     17.           The present application is filed for cancellation of bail <\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:45:43 :::<\/span>
\n                                           {17}         Cri. Application No.3362\/2009<\/p>\n
     granted in favour of the respondents-accused, therefore, it would <\/p>\n
     be appropriate to advert to the observations of the Apex Court in <\/p>\n
     “Hazari Lal Das V\/s State of West Bengal” 2010 AIR (SC) 91.\n<\/p>\n
     The Apex Court, in the said judgment, has observed thus-\n<\/p>\n
          “9. In Dolat Ram And Ors V.s State of Haryana, (1995) 1
\n          SCC 349 this Court held:\n<\/p><\/blockquote>\n
          4. Rejection of bail in a non bailable case at the initial  <\/p>\n
          stage and the cancellation of bail so granted, have to be
\n          considered   and   dealt   with   on   different   basis.   Very
\n          cogent and overwhelming circumstances are necessary  <\/p>\n
          for   an   order   directing   the   cancellation   of   the   bail,
\n          already   granted.   Generally   speaking,   the   grounds   for
\n          cancellation   of   bail,   broadly   (illustrative   and   not
\n          exhaustive) are: interference or attempt to interfere with  <\/p>\n
          the due course of administration of justice or evasion or
\n          attempt to evade the course of justice or abuse of the  <\/p>\n
          concession granted to the accused in any manner. The
\n          satisfaction of the court, on the basis of material placed
\n          on   the   record   of   the   possibility   of   the   accused  <\/p>\n
          absconding   is   yet   another   reason   justifying   the
\n          cancellation of bail. However, bail once granted should
\n          not   be   cancelled   in   a   mechanical   manner   without
\n          considering   whether   any   supervening   circumstances
\n          have  rendered  it  no  longer conducive  to  a fair trial  to  <\/p>\n
          allow the accused to retain his freedom by enjoying the
\n          concession of bail during the trial. These principles, it
\n          appears, were lost sight of by the High Court when it
\n          decided  to cancel  the  bail, already granted. The  High
\n          Court it appears to us overlooked the distinction of the
\n          factors relevant for rejecting bail in a non-bailable case
\n          in the first instance and the cancellation of bail already
\n          granted.”\n<\/p><\/blockquote>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:45:43 :::<\/span><\/p>\n
                                            {18}        Cri. Application No.3362\/2009<\/p>\n<\/blockquote>\n
     18.           It   is   not   disputed   that   respondents-accused   are <\/p>\n
     released   on   regular   bail   way   back   in   2008   and   thereafter   the <\/p>\n
     charge sheet came to be filed. Moreover, no complaint of misuse of <\/p>\n
     liberty   by   the   respondents-accused   is   lodged.   Nor   there   are   any <\/p>\n
     allegation that they may likely to abscond and would not face the <\/p>\n
     trial. In the premise and considering the overall effect of the above <\/p>\n
     discussed facts, I am of the considered view that no interference is <\/p>\n
     required in the orders impugned in the present application.\n<\/p><\/blockquote>\n
     19.           In   the   result,   the   application   fails   and   dismissed <\/p>\n
     accordingly. Rule stands discharged.\n<\/p>\n
                                                        [A.V.POTDAR, J.]
\n     drp\/B11\/criapln3362-09<\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 17:45:43 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court The Balasaheb Satbhai Merchant … vs The State Of Maharashtra on 21 September, 2011 Bench: A. V. Potdar {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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-110069","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Balasaheb Satbhai Merchant ... vs The State Of Maharashtra on 21 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-balasaheb-satbhai-merchant-vs-the-state-of-maharashtra-on-21-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Balasaheb Satbhai Merchant ... vs The State Of Maharashtra on 21 September, 2011 - 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