Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Mangesh S. Patil, J.
Pankaj Jivdhar Katke - Appellant
Vs.
State of Maharashtra And Others - Respondents
Criminal Writ Petition No. 1607 of 2018
Decided On : 05-02-2019
Penal Code, 1860 – Section 408, 409, 420, 470, 471, 477 A, 120B read with Section 34 – Code of Criminal Procedure, 1973 – Sections 439, 437 – Cancellation of Bail – Applicant is an accused from Crime registered with MIDC Waluj Police Station lodged at the instance of Respondent No.2 for the offences punishable under Section 408, 409, 420, 470, 471, 477 A, 120B read with Section 34 of the IPC. The offence was registered – He was arrested – After initial police custody he was remanded to magisterial custody. – He submitted an application for bail. – After calling the say of the prosecution, by the order the Magistrate granted him bail subject to suitable conditions. – Respondent No.2 submitted an application for cancellation of bail under Section 439(2) of the Cr.P.C. before the Sessions Court in Criminal Miscellaneous Application – By the impugned order the learned Additional Sessions Judge allowed the application and cancelled the bail. – Hence this Writ Petition. – Held, Even if one decides to consider this aspect now, since the petitioner was an employee/ servant of Respondent No.2 who had allegedly misappropriated the money and had committed criminal breach of trust, it is only the offences punishable under Sections 403, 406 and 408 can be made out. – The offence punishable under Section 409 of the IPC is applicable only in respect of criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney or agent. – Whereas Section 408 of the IPC is applicable in respect of criminal breach of trust by a clerk or a servant. – Therefore, the learned Magistrate certainly had the jurisdiction to grant bail under Section 437 of the Cr.P.C. The submission of the learned advocate for Respondent No.2 that it was an offence punishable upto life imprisonment and therefore the Magistrate had no power under Section 437 of the Cr.P.C. to grant bail, is not sustainable. – The offence punishable under Section 408 of the Cr.P.C. is only punishable upto 7 years and the Magistrate did have the jurisdiction under Section 437 to grant bail – Overlooking all the above mentioned facts and circumstances and particularly the grounds assigned by the Magistrate and without spelling out the grounds which are well settled which govern the law relating to cancellation of bail, the learned Additional Sessions Judge has intervened apparently by setting over the order of the Magistrate as a Court of appeal. – One need not decipher the powers of a Court of appeal and the power vested in the Sessions Court or the High Court in Sub Section 2 of Section 439 of the Cr.P.C. – It appears that the learned Additional Sessions Judge has misdirected himself by referring to the decisions in the case of State of Gujrat Vs. Mohanlal Jitamlaji Parwal ; (1987) SCC (Cri.) 364, Rohit Tandon Vs. Director of Enforcement ; (2018) 11 SCC 46, Gulabrao Deokar Vs. State of Maharashtra ; (2013) 16 SCC 190 in observing that the present offence is an economic offence of a similar category when those matters were in respect of misappropriation or criminal breach of trust by public servants or bankers/ merchants etc. – The learned Additional Sessions Judge lost sight of the fact that the matter in hand pertains to a plain case of misappropriation by a servant and no public interest is involved. Still by assuming that the present offence falls under that category, he has interfered in the order passed by the Magistrate and has cancelled the bail assuming a jurisdiction under Sub Section 2 of Section 439 of the Cr.P.C. – It is also pertinent to note that though the learned advocate for Respondent No.2 has vehemently argued that the investigation is not complete and there is a strong case for interrogation of the petitioner who had not cooperated the Investigating Officer when he was remanded to police custody, it was the Investigating Officer who himself had requested for remanding the petitioner to magisterial custody. – State has not applied for cancellation of bail and therefore merely because Respondent No.2 states that presence of the petitioner behind the bar is still necessary to complete the investigation, the submission cannot be considered. – Writ Petition Allowed
JUDGMENT :
1. Heard. Rule. Rule is made returnable forthwith. The learned APP waives service for Respondent No.1 State. The learned advocate Mr. S.J. Rahate waives service for Respondent No.2. At the request of both the sides, the matter is heard finally at the stage of admission.
2. The applicant is an accused from Crime No.405 of 2018 registered with MIDC Waluj Police Station lodged at the instance of Respondent No.2 for the offences punishable under Section 408, 409, 420, 470, 471, 477 A, 120B read with Section 34 of the IPC. The offence was registered on 02.10.2018. He was arrested on 03.10.2018. After initial police custody he was remanded to magisterial custody. He submitted an application for bail. After calling the say of the prosecution, by the order dated 10.10.2018 the Magistrate granted him bail subject to suitable conditions.
3. Respondent No.2 submitted an application for cancellation of bail under Section 439(2) of the Cr.P.C. before the Sessions Court in Criminal Miscellaneous Application No.291 of 2018. By the impugned order dated 31.10.2018 the learned Additional Sessions Judge allowed the application and cancelled the bail. Hence this Writ Petition.
4. The learned advocate for the petitioner vehemently submitted that the parameters for grant of bail and those which govern the law relating to cancellation of bail are entirely different. There was no supervening or overwhelming circumstance warranting cancellation. The discretion exercised by the Magistrate in granting bail was exercised judiciously. There was no apparent perversity or illegality which could have enabled the learned Additional Sessions Judge to invoke the powers under Sub Section 2 of Section 439 of the Cr.P.C. The law has been well settled in catena of judgments of the Supreme Court viz. X Vs. State of Telangana ; 2018 SCC online SC 549, Bhim Singh Vs. Radhey Shyam ; 2018 ALL MR (Cri.) 468, Ramcharan Vs. State of Madhya Pradesh ; 2006 (1) SCC (Cri.) 511, Dolat Ram Vs. State of Haryana ; 1995 SCC (Cri.) 237.
5. The learned advocate for the petitioner would further point out that the allegations against the accused persons are to the effect that the applicant was an employee of Respondent No.2. He had won the faith and was allowed to operate the account of the firm electronically. He misused the power and managed to transfer more than Rs.95,00,000/ from the account of the firm to his personal savings account. The petitioner was arrested. He was remanded to police custody and it is thereafter that he was remanded to magisterial custody. Meaning thereby that the purpose of sending him to the police custody to enable the Investigation Officer to have his interrogation was over and therefore, there are no question of his custodial interrogation thereafter. Necessary precaution was taken by the learned Magistrate by imposing a condition inter alia directing him to attend the concerned Police Station fortnightly till filing of the chargesheet. This could have further enabled the Investigating Officer to interrogate him if necessary. It was under these circumstances the Magistrate had objectively exercised the discretion and by his elaborate/speaking order had granted bail. There was no sufficient basis for the learned Additional Sessions Judge to cancel the bail. The impugned order be quashed and set aside and the one passed by the Magistrate granting bail be restored.
6. The learned APP requested to decide the petition on its own merits but informed that the State has not applied for cancellation of bail.
7. The learned advocate for Respondent No.2 by referring to his affidavitinreply submitted that the offence is serious. It is a matter of misappropriation by a servant. He was in fact authorized to operate the bank account and for that purpose was given the User ID and the Password which he has misused and has misappropriated huge amount in connivance with the coaccused. He further contended that though the petitioner was remanded to police custody he did
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
