TaxTMI 
TaxTMI 
2009 (6) TMI 1022
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....ng are as under: (i) The Original Complainant Mahendra Manilal Shah and Mr. Rashmikant Shah (Respondent Accused) were Directors/Shareholders of Vijay Dwellers Pvt. Ltd., a Company that was setup to acquire and develop land and building in respect of property situated at Matunga, Mumbai. (ii) Sometime in March, 2008, the original complainant and Mr. Vrajlal Gala and Mr. Vinod Gala learnt that the Respondent Accused had fraudulently diluted their majority holding into minority. Consequently, proceedings were initiated before the Company Law Board by the Galas. In the course of the proceedings, it was discovered that the Respondent Accused had disposed off 18 flats and misappropriated the sale proceeds of the flats into a separate fresh account at Abhudaya Bank, Kalachowki Branch by forging Resolutions, instead of for the benefit of the Company. Furthermore, it was also discovered that out of these 18 flats, six flats could not have been disposed off in view of the fact that the Company had agreed to provide accommodation to six tenants in the constructed building itself, thereby depriving six tenants of their right of accommodation in the re-developed building. &nbs....
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....vt. Ltd., at Ghodbunder Road, Thane and purportedly two Release Deeds were discovered in its latrine and recovered and seized under a panchanama allegedly drawn up. Furthermore, on 28th November, 2008, the Release Deeds were filed before the Ld. Magistrate in the complaint filed by Ajit kumar Jain. On 1st December, 2008, Ajit kumar Jain filed an Affidavit before this Court in the said Civil Suits annexing copies of these Release Deeds. (vii) Notice of Motion were listed before this Court on 2nd December, 2008, when it was categorically contended that these documents are false, fabricated, bogus and had not seen the light of day. (viii) This Court directed the production of the original documents. Immediately on the same day i.e. 2nd December, 2008, the Original complainant lodged the First Information Report (FIR) under Sections 420, 465, 467, 468 and 471 read with Section 341. I P.C. with Kasarvadavli Police Station, Thane alleging that these documents were false, forged, fabricated and bogus and also for offences for cheating by misappropriation of sale proceeds of the 18 flats aggregating to more than Rs. 80 crores. (ix) Upon filing of the FIR, th....
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....anted and the bail application was required to be taken up before the regular Court after reopening of the Court along with the application of the co-accused being Criminal Application No. 2129 of 2009. (xii) On the same day i.e. on 12th May, 2009, Respondent Accused attempted to flee the country. He was apprehended at the Mumbai International Airport on the night of 12th May, 2009. Upon being detained by the Immigration authorities, the Respondent Accused claimed to be sick and requested for medical treatment. The Investigating Officer (I.O.) upon reaching the Mumbai International Airport took the accused to the Civil Hospital, Thane but was thereafter referred to J.J. Hospital for various medical tests and investigation. (xiii) On 13th May, 2009 the Investigating Officer filed his report before the concerned Judicial Magistrate, First Class Court, Thane and sought police custody remand (PCR) of Respondent Accused. The Learned Magistrate ordered the Respondent Accused to be taken into police custody remand till 16th May, 2009 by observing as follows: &&.. offence is serious in nature wherein investigation is in progress. Hence, as such accused is taken into....
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....Accused. The Ld. Magistrate had granted PCR on 13-5-2009 upto 16-5-2009 to the Respondent Accused. I.O. had on 14th May, 2009 sought judicial custody of the Respondent Accused by reserving his right to PCR at the proper time i.e. when the accused would be discharged from the hospital. It was also submitted by the A.P.P. in writing that anticipatory bail of Respondent Accused was rejected in Sessions Court, Thane and also by High Court. It was submitted that under the circumstances and taking into consideration the gravity and seriousness of the offences, custodial interrogation of the Respondent Accused is essential and hence bail application of the Respondent Accused be rejected. Despite the Bail Application being strongly opposed by the Applicant and without waiting for the say of the I.O., the Ld. Magistrate on the same day i.e. 14-5-2009 granted bail to the Respondent Accused under Section 437(1) proviso of Code of Criminal Procedure. The entire order has been reproduced subsequently in Paragraph No. 34 of this order. (xvi) The said Order of the Ld. Magistrate was impugned by the Original Complainant before this Court Under Section 482 of the Code of Criminal Procedure ....
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....er, an SLP was preferred by the Respondent Accused before the Hon'ble Supreme Court impugning the Order dated 23-5-2009. In Clause (xiii) of para 3 of the SLP it is contended that, the Petitioner also immediately paid the cash security and was released on bail. It was contended before the Hon'ble Supreme Court that since there were specific provisions in the Code for cancellation of bail, the inherent powers of the High Court Under Section 482 Code of Criminal Procedure could not be invoked by the Original Complainant for this purpose. By order dated 26-5-2009 the Hon'ble Supreme Court granted leave and quashed the order of this Court dated 23-5-2009. However, the Hon'ble Supreme Court also granted liberty to the Original Complainant to move appropriate application before this Court for cancellation of bail granted to the Respondent Accused. The Hon'ble Supreme Court also clarified that if such an application for cancellation of bail is moved the same shall be decided on its own merits uninfluenced by any observation made by the Hon'ble Supreme Court or the Court below. Thereafter, the Original Complainant as well as the State filed the present applications ....
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....icant must elect only one of them. It is submitted that Article 227 of the Constitution cannot be invoked as there is another efficacious remedy available under the Code. 6. The Ld. Advocate for the Respondent Accused has submitted that the State and the Original Complainant ought to have first moved the Ld. J.M.F.C. Under Section 437(5) Code of Criminal Procedure and ought to have exhausted the remedy before approaching this Court. The jurisdiction of the Ld. J.M.F.C. empowers him to direct the accused to be arrested and commit him to custody if he considers it necessary so to do. He submitted that this suggests that the power of the Ld. Magistrate Under Section 437(5) Code of Criminal Procedure is wider than the power Under Section 439(2) Code of Criminal Procedure. Through judicial dicta the power Under Section 439(2) Code of Criminal Procedure. is substantially circumscribed but the power Under Section 437(5) Code of Criminal Procedure. is based on necessity and if the prosecution is in a position to make out a case of necessity, the accused can again be arrested. The general principle of law that a party must first approach a Court of lowest grade, competent to try a cause eq....
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....me facts and circumstances. To do so, would not only be contrary to the settled law that the Magistrate has no power to review his order, but it would confer upon a Magistrate the power to sit in judgment as a revisional/superior Court against his own order and be a judge in his own cause. Such an interpretation would result in calling upon a Magistrate to determine whether his own order is in accordance with law, a function which only a superior Court could have exercised whilst reviewing an order. It is submitted that the contention of the Applicants that the power under Section 437(5) Code of Criminal Procedure cannot be exercised by the same Judge who granted bail if the cancellation is being sought on the circumstances that were prevailing at the time when the bail was granted and the appropriate course of action is for the State to move the Superior Court against such an order which is supported by decision in the case of Gurcharan Singh v. The State (Delhi Admn.) (1978) 1 SCC 118: (AIR 1978 SC 179). 10. The Ld. Senior Advocate appearing for the Original Complainant submitted that therefore if the Applicants cannot invoke Section 437(5) Code of Criminal Procedure for the afo....
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....ingle Judge D.P. Wadhwa J. in Suo Moto Notice in the decision reported in 1993 Cri LJ 2025 (Delhi) wherein the Ld. Judge has inter alia held, the power which I have exercised in issuing notices to the Respondents while at the same time staying operation of the Orders of the Ld. Addl. Sessions Judge releasing him on bail can also be relatable to Article 227 of the Constitution giving the source of power to the High Court in that regard. Clause (1) of Article 227 of the Constitution provides that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. To my mind, no law made by Parliament or State Legislature can whittle down the powers conferred by Article 227 on the High Court. 12. I have considered the arguments advanced by the Learned Advocates for the Respondent Accused as well as the Applicants pertaining to the issue of maintainability. I have also perused the Written Submissions and considered them along with the case law submitted by the parties in this regard. I will first deal with the submissions advanced on behalf of the Respondent Accused, namely that applicants ought to have f....
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....il. This position follows from the subordinate position of the Court of Session visa-vis the High Court. (emphasis supplied) 13. The Learned Senior Advocate for the Respondent Accused has argued that there is no question of invoking Section 439(2) Code of Criminal Procedure unless the accused has been enlarged on bail as Section 439(2) Code of Criminal Procedure requires that the accused shall be arrested and committed to custody. Therefore, until and unless the accused has availed bail, the question of arresting him and committing him to custody will not apply. In the instant case the accused was not released on bail and, therefore, Section 439(2) Code of Criminal Procedure cannot be invoked by the Applicants. If the argument advanced by the Respondent Accused is correct, as regards Section 439(2) Code of Criminal Procedure the same would also apply to Section 437(5) in view of the identical language used in both the Sections namely: arrest and commit him to custody. In that event Section 437(5) Code of Criminal Procedure also cannot be invoked by the Applicants. 14. In view of the above discussion, the submissions advanced on behalf of the Respondent Accused that the Applicant....
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.... envisaged under Section 439(2) Code of Criminal Procedure. will not only cover a situation where an accused has actually been released from custody but would also apply to an order where the accused remains in custody or has not availed of the bail, in case where the order granting bail is challenged on the ground of it being illegal, unjustified or perverse. In my view the Hon'ble Supreme Court in Gurcharan Singh's case (AIR 1978 SC 179) (supra) as well as Puran v. Ram Bilas (AIR 2001 SC 2023) (supra) only explained the scope of the Courts as regards the grounds on which it can cancel the bail and has not dealt with the issue of applicability of Section 439(2) Code of Criminal Procedure in case where an order of bail has been granted but not availed of by the accused. 16. Since I have already held earlier that it is not possible for the Applicants to resort to Section 437(5) of the Code of Criminal Procedure and also since I am in agreement with the Learned Advocate for the Respondent Accused that Section 439(2) Code of Criminal Procedure cannot be invoked by the present applicants, it is clear that there are no other specific provisions under the Code for cancellation o....
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....Procedure. (emphasis supplied) 18. This view of the Madras High Court gathers strength from the decision of the Hon'ble Supreme Court in Puran v. Ram Bilas (AIR 2001 SC 2023) (supra) wherein the Hon'ble Supreme. Court has held as follows: Even if it is an interlocutory order, the High Courts inherent jurisdiction under Section 482 is not affected by the provisions of Section 397(3) of the Code of Criminal Procedure. That the High Court may refuse to exercise its jurisdiction under Section 482 on the basis of self-imposed restriction is a different aspect. It cannot be denied that for securing the ends of justice the High Court can interfere with the order which causes miscarriage of justice or is palpably illegal or is unjustified. The Hon'ble Madras High Court has thereafter in paragraph 16 held 16. Here in this case, the Petitioner/Complainant has not only invoked the provision under Section 482 of the Code of Criminal Procedure, but also the provision under Section 439(2) of the Code of Criminal Procedure. Of course, Section 439(2) of the Code of Criminal Procedure provides remedy for cancellation of the bail granted by the Court concerned. ....
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....sdiction of Article 226 of the Constitution. Even under Section 482 of the Code, this Court has the power to pass orders to prevent abuse of the process of the Court or in the interest of justice. Thus, I am of the considered view that this Court has ample powers to pass appropriate orders under the aforesaid two provisions. Thus, I am of the firm view that both under Sections 439 and 482 of the Code as also under Article 227 of the Constitution, this Court has the power to cancel bail granted by the Special Court as also to keep the said Court within the confines of its jurisdiction and to repeat, it is highlighted that none of the angular tests prescribed by the Act or the Code was satisfied by the Special Court in granting bail to the Respondents. On this ground alone, the order of bail need be cancelled. 21. The ambit of the power of the High Court under Article 227 of the Constitution has been reiterated by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors., 1998 (5) Bom CR 432: 1998 Cri LJ 1: (AIR 1998 SC 128). The Hon'ble Supreme Court observed in paras 22 and 26 as under: 22. Under Article 227 ....
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....by invoking its inherent jurisdiction Under Section 482 Code of Criminal Procedure, and/or under Article 227 of the Constitution of India. 24. I now proceed to examine the legality and correctness of the impugned order passed by the Learned JMFC Court, Thane dated 14th May, 2009. 25. As set out hereinabove after the Ld. Sessions Judge rejected the Application for Anticipatory Bail of the Respondent Accused vide his Order dated 28-4-2009, an application for Anticipatory Bail was moved before this Court by the Respondent Accused. By an order dated 12th May, 2009 this Court refused to grant any interim reliefs in the Anticipatory Bail Application taken out by Respondent Accused. 26. It is submitted by the State that on that very night after interim bail was refused to the Respondent Accused by this Court on 12th May, 2009, at about 2130 hours the Respondent Accused was flying out of India to Dubai. He was detained by the Immigration Authorities. At that time his health condition was quite okay, but after detaining him he became sick. When the Investigating Authorities reached the Airport, the Respondent Accused had been put in an ambulance. The Doctor was present in the ambulance. ....
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....roduced in the Court offence is of serious in nature wherein investigation is in progress hence as such accused is taken into PCR till 16-5-9 and the I.O. is directed to place police person at the hospital in the above circumstances. (emphasis supplied) 29. It is submitted by the State that on 13-5-2009 the I.O. tried to make enquiries with Respondent Accused at J.J. Hospital but he did not co-operate and once again threatened the I.O. Thereafter the I.O. made enquiries with the doctor treating the Respondent Accused as regards the period of hospitalization when he was informed that few tests were to be carried out because of which hospitalization for a few more days would be necessary. 30. Under the circumstances the I.O. on 14th May, 2009 moved an Application before the Ld. JFMC, Thane to convert PCR to MCR (Magisterial Custody Remand) keeping the option open for seeking further PCR in future. In the said Application dated 14th May, 2009, it was recorded that on the earlier day Police Custody was obtained till 16-5-2009, since the police were under the impression that the Respondent Accused shall be discharged from the J.J. Hospital within 1 or 2 days after which the Responden....
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....P.P. strongly opposed the bail application. The A.P.P. further recorded that he has tried to contact the I.O. on mobile and he has gone to J.J. Hospital Mumbai. It was pointed out that the offences committed by the accused are serious in nature i.e. Under Sections 465, 467, 468, 471 r/w 34. The A.P.P. has categorically stated that accused is taking medical treatment in J.J. Hospital. That is why I.O. could not interrogate with accused for investigation purpose. This Hon'ble Court has granted PCR upto 16-5-2009 on 13-5-2009 to the accused. Today I.O. has filed remand yadi seeking judicial custody of accused as the accused is under medical treatment (emphasis supplied) 34. The A.P.P. has also pointed out that the Anticipatory Bail Applications were rejected by the Sessions Court and High Court. The A.P.P. has also submitted that taking into consideration the gravity and seriousness of the offence, custodial interrogation of the accused is essential and hence the bail application of the accused be refused. The Ld. JFMC thereafter proceeded to pass the below mentioned order which is impugned before this Court vide the two Criminal Applications filed by the complainant and the Sta....
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.....B. of Rs. 15,000/-with liberty to deposit cash surety. 2) Upon getting discharge from J.J. Hospital he is to daily attend the concerned Police Station between 6.00 p.m. to 8 p.m. for 14 days and to submit the attendance report to the Court. If, his attendance is further required he too attend as and when called by the concerned I.O. 3) He is not to threaten the prosecution witness and tamper with the evidence. If at all it is found that he does so prosecution is at liberty to move Application for cancellation of bail. 4) Accused to surrender the passport to the concerned police station. 35. Having set out the facts which culminated in passing of the above impugned order, I now proceed to set out the rival contentions canvassed before me by the parties. The main ground of challenge before me in both these applications was grant of bail by the Ld. JMFC by invoking the proviso to Section 437(1) Code of Criminal Procedure. The Ld. Counsel for the Original Complainant cited a catena of below mentioned decisions before me in support of their contentions that the Ld. Magistrate ought not to have granted bail to the Respondent Accused under proviso to Section 437(....
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.... him. That the Ld. Magistrate erred in not calling for the say of the I.O. prior to grant of bail. He also drew my attention to the order of the Ld. Magistrate on remand application dated 13th May, 2009 wherein the Ld. Magistrate had justified PCR by observing that the offence was serious and required custodial interrogation of the accused. He also drew my attention to the order dated 14th May, 2009 passed by the Learned Magistrate converting PCR to MCR, minutes before the impugned order was passed and thus concluded his submissions that the impugned order is passed by the Ld. Magistrate in undue haste and that it is inconsistent and unjustified in light of the earlier orders passed by the same Ld. Magistrate on 13th and 14th instant. Therefore, under the above circumstances the said bail order can be categorized as perverse and unjustified. 38. He also submitted that considering the gravity of the offence, the conduct of the Respondent Accused towards the Court, the witnesses and the police officers, and further considering his antecedents i.e. allegedly falsely implicating one Mr. Chaturvedi in a serious offence by colluding with police officials and his propensity to flee the c....
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....ny other ground except the ground that the accused is sick. It is submitted that the Ld. Magistrate is only required to ask for the say of the A.P.P. as required under the 4th proviso to Section 437(1) Code of Criminal Procedure which he did and is not required to ask for the say of the I.O. It is submitted that the Ld. Magistrate was not required to call for any medical reports since in the reply to the bail application the A.P.P. had not challenged the sickness of the Respondent Accused and in fact in the application dated 14th May, 2009 the I.O. has recorded that medical treatment of the accused who is in the hospital is necessary. It is submitted that the State even in the grounds urged in their application have not raised any challenge to grant of bail on medical treatment. It is submitted that in the judgments pertaining to sickness cited before this Court, it is observed that the State has raised a challenge to grant of bail on that ground, which in the instant case has not been done. It is further submitted that even the Discharge Report of the Lilavati Hospital dated 23-5-2009 (post the impugned order) clearly indicates that the Respondent Accused required barriatic surger....
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.... High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Hon'ble Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not stated that he still needs medical treatment or that he has not received proper medical treatment from the jail authorities. (2) State v. Gadadhar Baral (1989 Cri LJ 627) (supra). In the said judgment the Orissa High Court has held that any nature of sickness would not entitle an accused for release on bail. It should be of such nature that unless the accused is released he cannot get proper treatment for his ailment. It is observed that unless such an interpretation is given the legislative purpose behind a non-bailable offence shall be frustrated. It is also observed that in such cases, Court should make adequate enquiries before releasing the accused on bail. (3) Sangappa v. State of Karnataka (1978 Cri ....
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....s Court, his conduct after this Court refused grant of interim anticipatory bail and his antecedence; the Ld. Magistrate, in his Remand Order dated 13-5-2009, after recording that the offence is serious in nature wherein investigation is in progress, took the Respondent Accused in PCR till 16-5-2009 and directed the I.O. to place police personnel at the hospital. Immediately on the next day the I.O. moved an application before the Ld. Magistrate stating therein that he had been informed by the Doctor that certain necessary medical tests/examination of the Respondent Accused are to be carried out. He thus submitted that since medical treatment of the Respondent Accused is necessary he prayed for converting PCR into MCR, reserving his right for demanding PCR in future. The A.P.P. has stated that the Respondent Accused may be taken in judicial custody subject to right of demanding PCR by I.O. From the said application it appears that neither the I.O. nor the A.P.P. are aware of any particulars concerning the sickness of the Respondent Accused. There is nothing to show in the application that the I.O. or the APP have submitted that the Respondent Accused is critical or put forth inform....
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.... for any medical reports of the Respondent Accused from the J.J. Hospital before deciding the Bail Application. I have therefore, no hesitation to come to the conclusion that there existed no report of the J.J. Hospital before the Ld. Magistrate at the time of passing of the impugned order. In any event the Ld. Magistrate has granted bail to the Respondent Accused only on the admission that the accused is under medical treatment. 44. As observed in the various judgments cited above, mere admission of an accused to a hospital for medical treatment does not entitle an accused to obtain bail under the proviso to Section 437(1) Code of Criminal Procedure In fact as observed earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hosp....