Devendra S/o Govind Goyal vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 671

IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
AVINASH G. GHAROTE, J.
Devendra S/o Govind Goyal – Appellant
Versus
State of Maharashtra – Respondent
Criminal Writ Petition No.139 of 2022
Decided on : 12-04-2022

Advocates:
Advocate Appeared:
For the Appellant :Mr. Devendra V. Chauhan, Mr. G.S. Gour, Advocate
For the Respondent:Mr. I.J. Damle, Mr. C.S. Kaptan, Sr. Advocate assisted by Mr. R.S. Kalangiwale, Advocate

Headnote:
Indian Penal Code, 1860 - Sections 406, 420, 467, 468, 471 and 34 – Criminal Procedure Code, 1973 - Section 439(2), 437(2) and 498 - Application of Bail - Bail Cancelled - Petition challenges order passed by learned Sessions Judge, in Miscellaneous Criminal Application whereby bail granted by learned Chief Judicial Magistrate, Nagpur to petitioners has been cancelled and petitioners have been directed to be arrested and taken into custody in pursuance to said order – Held, Argument that learned Sessions Court, acted as if it has appellate jurisdiction, is without any merits, as for purpose of considering plea that order granting bail, was perverse and did not consider material on record, it was necessary for it to have gone into material available in charge-sheet so as to test veracity of plea raised before it, and there is nothing wrong if having so found, learned Sessions Court has discussed about same, in impugned order recording reasons for its findings as to perversity, otherwise same too, would have become open to criticism on ground of lack of reasonings - It further observes that allegations that accused therein were threatening witnesses were vague, whereas in instant matter two N.C. reports have been lodged with Ganeshpeth Police Station regarding threats given to witnesses, which was a material factor to have been considered for purpose of grant of bail and therefore, on facts, Myakala is of no assistance to arguments put forth by Mr. Chauhan learned Counsel for petitioners - Contention that learned Chief Judicial Magistrate would be influenced by order of learned Sessions Judge cancelling bail and would not grant bail in spite of observations to contrary in order of learned Sessions Court, do not set well, as such observations are made day in and day out in a number of cases and all such cases which are there before First Court are decided on merit - Other side has no objection to same, considering which, learned Chief Judicial Magistrate is requested to decide bail application within a period of two weeks from today - Petition dismissed.

JUDGMENT :

1. Heard Mr. Chauhan, learned Counsel for the petitioner, Mr. Damle, learned Additional Public Prosecutor for the respondent no.1/State and Mr. C. S. Kaptan, learned Senior Counsel for the respondent no.2. Rule. Rule made returnable forthwith.

2. The petition challenges the order passed by the learned Sessions Judge, Nagpur dated 29/10/2021 in Miscellaneous Criminal Application No.2522/2021, whereby the bail granted by the learned Chief Judicial Magistrate, Nagpur to the petitioners on 16/07/2021 has been cancelled and the petitioners have been directed to be arrested and taken into custody in pursuance to the said order dated 29/10/2021.

3. Mr. Chauhan, learned Counsel for the petitioners submits that the petitioners are accused in R.C.C. No.1497/2021 pending before the learned Chief Judicial Magistrate, Nagpur, in which the petitioners are accused of having committed offences under Sections 406, 420, 467, 468, 471 r/w Section 34 of I.P.C. wherein by an order dated 16/07/2021, they were directed to be released on bail by the learned Chief Judicial Magistrate, Nagpur (pg.322) on the conditions mentioned therein.

3.1. It is submitted that an application under Section 439(2) of Cr.P. C. came to be filed by the respondent no.2 before the learned Sessions Court, for cancellation of bail, in which the Learned Sessions Court by an order dated 29/10/2021 (pg.746) has been pleased to cancel the bail granted to the petitioners, directing them to be taken into custody. He submits that the order dated 29/10/2021 is not based upon the parameters available for cancellation of bail, which require the cancellation to be only upon violation of the terms on which the petitioners were released on bail, but is also on merits, which course of action, according to him, was not permissible in law.

3.2. Reliance, in support of the above contention, is placed on Bharatbhai Bhimabhai Bharwad Vs. State of Gujarat and others, (2020) 18 SCC 693 (paras 4, 8, 9) and Gulabrao Baburao Deokar Vs. State of Maharashtra and others, (2013) 16 SCC 190 (paras 20, 21 and 27), which dilate on the difference between challenge to bail and cancellation of bail, according to him.

3.3. It is also contended that Section 439(2) of Cr.P.C. is summary in nature and not an appellate jurisdiction and therefore, the learned Sessions Court could not have decided the application for cancellation of bail, as if it was an appeal. Inviting my attention to paras 26, 39, 51 and 53 of the impugned order, it is submitted that the learned Sessions Court did not have jurisdiction of correction and the impugned order was beyond the pale and ambit of Section 439(2) of Cr.P.C. Reliance is also placed on Bhagirathsinh s/o Mahipat SinghJudeja Vs. State of Gujarat, (1984) 1 SCC 284 (para 7) and Ramcharan Vs. State of MP, (2004) 13 SCC 617 to contend that while considering an application for cancellation of bail, it was not permissible to decide whether bail should be granted or not and different considerations have to be weighed while dealing with applications for cancellation of bail and grant of bail.

3.4. It is also submitted that though the petitioner no.2, has since filed an application for bail, before the learned Chief Judicial Magistrate, the same was opposed by the respondents on the strength of the impugned order, though it was stated therein that the observations were limited to the application for cancellation of bail and any further bail application, if filed, be decided in accordance with law, without being influenced by the impugned order, and from the nature of the observations made they would always come, in the way of the petitioners in getting a fair hearing of the bail application as the learned Chief Judicial Magistrate, would dare not go against the findings, as recorded in the impugned order.

3.5. Without prejudice, it is submitted that the factors to be considered while cancelling bail have not been considered by the learned Sessions Court, due which the impugned order