IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.672 OF 2003 Shri S.R.Chitnis .. Petitioner Versus The State of Maharashtra .. Respondent Mr.S.V.Kotwal with Mr.M.S.Mohite for the Petitioner. Mr.Y.M.Nakhwa, A.P.P for the Respondent. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE : 22nd August 2008. : 22nd August 2008. : 22nd August 2008. ORAL ORAL ORAL JUDGMENT: JUDGMENT: JUDGMENT: . The submissions of the learned counsel appearing for the parties were heard on the last date. By this petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the said Code), the petitioner has taken an exception to the order dated 29th October 2001 passed by the learned Special Metropolitan Magistrate, Esplanade, Bombay. 2. According to the case of the respondent, the petitioner committed an offence punishable under section 120 of the Bombay Police Act, 1951 (hereinafter referred to as the said Act of 1951). The allegation made against the petitioner is that without satisfactory : 2 : 2 : 2 : excuse he wilfully entered a prohibited area of Mumbai Port Trust on 25th October 2001. An order was passed by the learned Special Metropolitan Magistrate on 29th October 2001 recording that the petitioner was absent and bail deposit stands forfeited. The learned Magistrate further directed that the proceeding was stopped under section 258 of the said Code. 3. According to the case of the petitioner, on 25th October 2001 he was proceeding in a car alongwith his nephew who was holding a valid permit to enter the alleged prohibited area of the Mumbai Port Trust. As the petitioner was not possessing a valid permit, the concerned Officer of the Yellow Gate Police Station, Bombay made the petitioner to deposit a sum of Rs.5,000/-. According to his case, on the very day he addressed a letter calling upon the Senior Inspector of Police of Yellow Gate Police Station to furnish him a copy of notification issued under the relevant law under which the amount of Rs.5,000/- was collected. 4. On inquiry being made at the Yellow Gate Police Station, the petitioner learnt that the case has been sent to the Court. On 30th October 2001 when an inquiry was caused to be made by the petitioner, he learnt about the order dated 29th October 2001 passed by the learned : 3 : 3 : 3 : Special Metropolitan Magistrate. After the petitioner was made aware of the said order, he made an application before the learned Chief Metropolitan Magistrate praying for setting aside the said order dated 29th October 2001 and for a direction to hear the case afresh. He also prayed for a refund of the sum of Rs.5000/-. Various contentions were raised in the said application. The first contention was that summons as required under section 206 of the said Code was not issued and served to the petitioner. The second contention was that the order forfeiting the amount of Rs.5000/- was illegal. It was pointed out that in the order there was no reference to the sum of Rs.5,000/- deposited by the petitioner and vaguely it was mentioned that bail deposit was forfeited. It was submitted that there was no bail deposit made by the petitioner. The said application was rejected by the learned Metropolitan Magistrate on 24th January 2003 on the ground that the said Court had no authority to interfere with the order passed by the Special Metropolitan Magistrate. 5. Apart from the submissions which were made in the aforesaid application, various other submissions have been made by the learned counsel appearing for the petitioner. The first submission is that section 120 of the said Act of 1951 had no application considering the : 4 : 4 : 4 : fact that the notification dated 11th November 1971 issued under the Official Secrets Act, 1923 was not applicable to the area in which the petitioner had allegedly entered. The second submission is that the concerned officer of the Yellow Gate Police Station had no authority to arrest the petitioner and therefore he could not have taken bail bond from the petitioner. The third submission is that there was never any police report filed before the learned Magistrate and therefore, cognizance could not have been taken by the learned Magistrate. It was also submitted that as an order under section 258 of the said Code has the effect of discharge, there was no occasion for the learned Magistrate to forfeit the bail deposit. It was submitted that in any case, the said direction was in contravention of provisions of section 446 of the said Code. It was submitted that the concerned officer of the Yellow Gate police station had no authority to demand and accept a sum of Rs.5,000/- by way of deposit. 6. The learned A.P.P justified the impugned order. He submitted that a bond of appearance was taken from the petitioner in which it was specifically mentioned that the case will appear before the Special Metropolitan Magistrate on 29th October 2001 and the petitioner undertook to remain present. He submitted : 5 : 5 : 5 : that in view of the said bond in which the date was mentioned, it was not necessary for the learned Magistrate to issue a summons under section 206 of the said Code. He invited my attention to the reply filed by Shri Dilip Dundappa Waghmare, the Senior Police Inspector of Yellow Gate police station. He pointed out that the petitioner was duly given a receipt for the sum of Rs.5,000/-. He stated that cash deposit of Rs.5,000/- was taken as per the relevant provisions of the Police Manual. He pointed out that on 25th October 2001 eleven persons were charged with the same offence relating to entry in the same area and out of eleven, nine persons attended the Court of Special Metropolitan Magistrate. He submitted that the learned Special Metropolitan Magistrate was justified in forfeiting the bail deposit. 7. I have carefully considered the submissions. I have also perused the record of the case called from the concerned Court. The order dated 29th October 2001 passed by the learned trial Judge records that the proceeding was stopped under section 258 of the said Code. Section 258 of the said Code gives power to the learned Magistrate in any summons case instituted otherwise than upon a complaint to stop the proceedings at any stage. The section provides that where such : 6 : 6 : 6 : stoppage of proceedings is made after evidence of principal witnesses has been recorded, the learned Judge is required to pronounce a judgment of acquittal and in any other case, without pronouncing any judgment he has to release the accused and such release has the effect of discharge. Therefore, in the present case, the order dated 29th October 2001 has the effect of discharge. The said order has not been challenged by the State Government by filing appropriate proceedings and therefore it will not be necessary to enter into academic question as to whether any offence was committed by the petitioner. Perusal of the record of the case shows that there was a report submitted by the concerned officer of Yellow Gate police station which was a police report within the meaning of clause (b) of sub section 1 of section 190 of the said Code. 8. After passing an order under section 258 the learned Judge has recorded that "bail deposit forfeited". I have perused the bond taken from the petitioner on 25th October 2001 which is on the record of the trial Court. The said bond is for appearance before the Court of the learned Special Metropolitan Magistrate on 29th October 2001. The bond is in the sum of Rs.5,000/-. The bond may not be exactly in terms of Form No.45 forming part of the Second Schedule of the : 7 : 7 : 7 : said Code, but it is substantially in accordance with the said Form No.45. The receipt in the sum of Rs.5,000/- which is issued to the petitioner refers to case No.LAC 1330 of 2001, but the receipt does not show that the sum of Rs.5,000/- was on account of cash bail or bail deposit. In the affidavit-in-reply filed by the Senior Inspector of Police and in particular in paragraph 4 thereof it is asserted that the petitioner offerred cash bail by depositing a sum of Rs.5,000/- and by executing a personal bond. In paragraph 6 thereof it is stated that the cash deposit of Rs.5,000/- was taken from the petitioner as per the provisions of Bombay Police Manual. Perusal of the record of the case shows that in response to the application dated 14th January 2002 submitted by the petitioner before the Chief Metropolitan Magistrate, a report dated 25th October 2002 was submitted by the Senior Inspector of Police of Yellow Gate police station. In the said report it is stated that a sum of Rs.5,000/- was taken from the petitioner as a deposit in terms of notification dated 19th August 2000 published in the Maharashtra Government Gazette and that a receipt was issued to the petitioner recording the receipt of the said amount as a deposit. It is also stated that a bond in the sum of Rs.5,000/- was taken from the petitioner which was a bond for appearance before the learned Special Metropolitan : 8 : 8 : 8 : Magistrate on 29th October 2001. Thus, the stand taken before the learned Magistrate was not that the petitioner has given a cash bail in the sum of Rs.5,000/-. The stand was that what was taken from the petitioner was simplicitor a deposit and a separate bond of appearance in the sum of Rs.5,000/- was got executed from the petitioner. From the said report submitted by the Senior Inspector of Police on 25th October 2002 and from the receipt issued by the Senior Inspector of Police, it is obvious that the stand taken in the affidavit filed in this Court that a cash bail of Rs.5,000/- was offered by the petitioner appears to be totally incorrect. As stated earlier, in paragraph 6 of the affidavit a stand has been taken that cash deposit has been taken from the petitioner. Thus, a sum of Rs.5,000/- was purportedly taken from the petitioner as a deposit. Though the petition was adjourned repeatedly, the learned A.P.P could not produce any material to show the authority of the Senior Inspector of Police to take a deposit of Rs.5,000/- from the petitioner. 9. Section 441 provides that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or the Court thinks sufficient shall be executed by such person. The : 9 : 9 : 9 : section further provides that the said bond shall be taken for attendance at the time and place mentioned in the bond. It will be also necessary to refer section 445 of the said Code. Section 445 provides that when any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government Promissory Notes to such amounts as the Court or officer may fix in lieu of executing said bond. Therefore, an option has been given by section 445 to the police officer to permit a person required to give a bond under section 441(1) to deposit a sum of money or Government Promissory Notes in lieu of executing such a bond. In short when the said option is exercised by the officer, the person required to execute the bond has to deposit the requisite amount of money instead of executing a bond. As stated earlier, record shows that a bond in terms of sub section (1) of section 441 of the said Code in the sum of Rs.5,000/- was got executed from the petitioner. Therefore, by no stretch of imagination the amount taken from the petitioner can be termed as a bail deposit or cash bail. 10. It must be noted here that in order dated 29th October 2001 it is merely mentioned that the bail : 10 : 10 : 10 : deposit is forfeited. There is no reference to a sum of Rs.5,000/- deposited by the petitioner but the learned Magistrate may be under an impression that the sum of Rs.5,000/- was the bail deposit or cash bail offered by the petitioner. 11. Thus, there was no justification for the Senior Inspector of Police to demand and accept the sum of Rs.5,000/- by way of deposit from the petitioner. As the said amount does not represent either a deposit within the meaning of section 445 of the said Code or a cash bail, assuming that the learned Magistrate was entitled to pass order of forfeiture of bond, the said amount could not have been forfeited. 12. Apart from this aspect, after passing an order under section 258 of the said Code there was no occasion for the learned Judge to forfeit the bail bond or bail deposit as said order amounted to discharge of the petitioner in view of express language used in section 258 of the said Code. This is apart from the fact that the learned Judge has completely ignored requirements of section 446 of the said Code. 13. Thus, the only order which can by passed in this petition is of setting aside that part of the order by : 11 : 11 : 11 : which alleged bail deposit was purportedly forfeited. In addition to that the petitioner will be entitled the refund of sum of Rs.5,000/-. 14. The learned counsel appearing for the petitioner has pointed out that the petitioner is a designated senior advocate practising in this Court and he has filed this petition only with a view of bringing an illegality to the notice of this Court. Therefore, before parting with the judgment it must be recorded here that after refund is made to the petitioner, it is expected that the said amount will go either to the Maharashtra Legal State Service Authority or to the library of the Bar Association. 15. Hence, I pass the following order: (i) That part of the impugned order dated 29th October 2001 which purports to forfeit the bail deposit is set aside. (ii) A sum of Rs.5,000/- deposited by the petitioner shall be refunded to him within period of eight weeks from today. (iii) Petition is disposed of in above terms. : 12 : 12 : 12 : (iv) The record of the trial Court kept on the file of the writ petition be sent back. (A. S. Oka, J)