Back
1991 Supreme(Bom) 429
BOMBAY HIGH COURT
M. F. SALDANHA, J.
Gabriel Joseph - Petitioner
Versus
Feroz Gulam Sarvar Khan and others - Respondents.
Criminal Application No. 2567 of 1990
Decided On : 6-9-1991.
Shamrao G. Samant, for Petitioner; A. P. Gupte; Y. V. Patil, APP, for Respondents.
The court has the power to interfere with an order granting anticipatory bail if the order is not justified or if it was passed without considering the merits of the case.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 438 - ANTICIPATORY BAIL - GRANT OF ANTICIPATORY BAIL - CIRCUMSTANCES TO BE CONSIDERED - COURT'S POWER TO INTERFERE WITH ORDER GRANTING BAIL.
Fact of the Case:
The petitioner, the original complainant in a criminal case, challenged an order of the Additional Sessions Judge granting anticipatory bail to the accused. The petitioner argued that the order was passed without considering the merits of the case and that it had frustrated the investigation and recovery of property.
Finding of the Court:
The court held that the order granting anticipatory bail was not justified and ought not to have been passed. The court found that the police had filed a detailed report indicating that the accused had committed serious offences and that they had asked for reasonable time to recover the property and complete the investigation. The court also found that the learned Additional Sessions Judge had not considered the merits of the case and had not given any reasons for granting anticipatory bail.
Issues: 1. Whether the order granting anticipatory bail was justified? 2. Whether the court had the power to interfere with the order granting bail?
Ratio Decidendi: The court held that the order granting anticipatory bail was not justified because: * The police had filed a detailed report indicating that the accused had committed serious offences and that they had asked for reasonable time to recover the property and complete the investigation. * The learned Additional Sessions Judge had not considered the merits of the case and had not given any reasons for granting anticipatory bail. The court also held that it had the power to interfere with the order granting bail under Sections 439 and 482 of the Code of Criminal Procedure.
Final Decision: The court allowed the petition, set aside the order granting anticipatory bail, and directed the accused to surrender to their bail forthwith. In the event of the accused not surrendering to their bail, non-bailable warrants were to be issued for their arrest.
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 petition, 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 details 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 an 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
