- 1 - IN THE HIGH COURT OF BOMBAY AT GOA. CRIMINAL WRIT PETITION NO. 43 OF 2011. 1 Kashinath Shetye, major Indian national, r/o. Babino Building, Alto Fondvem, Ribandar, Goa. 2 Ketan Govekar, major, Indian national, r/o. Wadji Building, St. Inez, Panaji, Goa. 3 Pradeep Kakodkar, major, Indian national, r/o. Curchorem, Goa. …....... Petitioners. Versus 1 Geetesh Gokuldas Naik, s/ o. Gokuldas Naik, age 32 years, married, Occupation: contractor, r/o. House No. 295/4, near Forest Nursery, Dhaulimal, Ponda, Goa. 2 Deputy Superintendent of Police, CID., attached to Crime Branch, Dona Paula, Goa. - 2 - 3 State of Goa, Through the Public Prosecutor, High Court, Altinho, Panaji, Goa. …....... Respondents. Mr. Ryan Menezes, Advocate for the petitioners. Mr. Menino Teles, Advocate for the respondent no.1. Mr. S. S. Kantak, Advocate General with Mr. C. A. Ferriera, Public Prosecutor for the respondent nos. 2 and 3. CORAM :- A. P. LAVANDE, J. Reserved on : 5 th August, 2011. Pronounced on : 10 th August, 2011 . ORDER :- By this petition, the petitioners seek cancellation of bail granted to respondent no.1 by the Principal District and Sessions Judge, North Goa, Panaji in Bail Application No.139 of 2011. Although the petition has been filed under Article 227 read with Sections 482 and 439(2) of Cr.P.C., reliefs claims are essentially under - 3 - Sections 482 and 439(2) of Cr.P.C. 2. Briefly, the facts leading to filing of the present petition are as under:- Pursuant to an application filed by the petitioners under Section 156(3) of Cr.P.C, learned Judicial Magistrate, First Class, Pernem, by order dated 7.5.2011 passed in Criminal Miscellaneous Application No. 32/2011 directed the respondents to the said application, to register an FIR in terms of the report dated 13.2.2011 filed by the petitioners. Pursuant to the said order FIR was registered by CID, Crime Branch, Panaji on 9.5.2011 under Sections 217, 218, 405, 409, 420, 468, 471, 120-B and Section 34 of I.P.C, Sections 7, 8, 9, 10, 11, 12, 13 of the Prevention of Corruption Act, Sections 17-A and 17-B of the Town and Country Planning Act and Section 7 of Mining and Minerals Act, 1957 against Jitendra Deshprabhu and others including the officials of - 4 - the Government Departments. Investigation was taken up. Respondent no.1 who was identified as the contractor who had allegedly extracted ore illegally from the property of Mr. Deshprabhu. Accused no.1, was arrested on 10.6.2011. He filed bail application before the Principal District and Sessions Judge, Panaji, which was heard and posted for order on 18.6.2011 3. On 11.6.2011, the petitioners herein filed an application before learned Judge at Panaji interalia alleging that Mr. Deshprabhu (accused no.1) and respondent no. 1 herein gave threats to the petitioners, about 200 people had contacted petitioner no.1 to withdraw the FIR. Thereafter, on 18.6.2011 the petitioners filed an application seeking impleadment and intervention in the bail application no. 139/2011 filed by the respondent no.1. After giving an opportunity of being heard to the counsel appearing for the petitioners herein, - 5 - learned Sessions Judge by order dated 21.6.2011 allowed the application for bail on certain terms and conditions and dismissed the application for impleadment filed by the petitioners. 4. Mr. Menezes, learned counsel appearing for the petitioners submitted that learned Judge ought to have allowed the application for impleadment since the FIR was registered at the behest of the petitioners under Section 156(3) and as such, the petitioners were entitled to be heard before considering the application for bail, more particularly, having regard to the application dated 11.6.2011 filed by the petitioners before the learned Judge alleging that accused no.1 and respondent no.1 herein had threatened the petitioners to withdraw the FIR. Mr. Menezes, submitted that since FIR was registered pursuant to an order passed by the Magistrate in an application filed under Section 156(3) by the petitioners they have every - 6 - right to be heard in an application for bail filed by one of the accused and as such the application filed by the petitioners for impleadment and intervention ought to have been granted by learned Judge. According to learned counsel, having regard to the nature and gravity of crime committed by the accused, the petitioners were entitled to be heard before the application for bail filed by respondent no.1 was considered by learned Judge. Learned counsel fairly submitted that in the event the impugned order is set aside, respondent no.1 would have to be remanded to Judicial custody since period of 15 days from the date of arrest has already expired. In support of his submissions Mr. Menezes placed reliance upon following judgments:- i. Vinay Poddar Vs. State of Maharashtra and anr., 2009 ALL MR (Cri) 687. ii. Siddharam Satlingappa Mhetre Vs. State of Maharashtra and ors., (2011) 1 SCC 694. iii. Brij Nandan Jaiswal Vs. Munna Jaiswal and - 7 - anr, AIR 2009 SCC 1021. 5. Per contra, Mr. Teles, learned counsel appearing for the respondent no.1 submitted that the Writ Petition itself is not maintainable and the petitioners ought to have filed revision application challenging the impugned order. Learned counsel further submitted that no case has been made out by the petitioners for setting aside the impugned order granting bail to respondent no.1 inasmuch as respondent no.1 was in police custody for 10 days and as such his further detention in custody, police or judicial is unwarranted. According to learned counsel, learned Judge has correctly appreciated factual and legal position and has granted bail to respondent no.1. In support of his submissions Mr. Teles, relied upon following Judgments:- i. Praveen Malhotra, Vs. State, 1990 Cri. L. J. 2184. - 8 - ii. Dr. Sunil Puri Vs. State of Chhattisgarh, 2006 Cri. L. J. 2866. iii. P. Muthupandi Vs. State, 2009 STPL(LE-Crim) 30388 MAD. iv. Thakur Ram Vs. State of Bihar, 1966 Cri. L. J. 700. v. Smt. Indu Bala and ors Vs. Delhi Administration and ors. 1991 Cri. L. J. 1774. 6. Mr. Kantak, learned Advocate General submitted that the investigation would be carried out in right earnest although FIR has been filed by the petitioners making wild allegations against all the bureaucrats of the State Government. He further submitted that on merits he would not like to make any submission. 7. In view of the rival submissions, the following points arise for determination:- - 9 - 1. Whether the petitioners have locus to file the present application for cancellation of bail granted to respondent no.1? 2. Whether impugned order granting bail to respondent no.1 is liable to be quashed and set aside? 3. Whether the petitioners had right to be heard in the application for bail filed by respondent no.1? 8. In the case of Brij Nandan Jaiswal( supra), the Apex Court has held that the complainant can challenge order granting bail on merits and therefore the issue is no more res- integra. The Apex Court in the case of Puran Vs. Rambilas and anr. AIR 2001 SC 2023 held that power to cancellation of bail under section 439(2) can be invoked either by the State or by aggrieved party or even suo motu by the High Court. Reliance was placed by the Apex Court upon the earlier Judgment of the Apex Court in the case of R. Rathiman Vs. State; AIR 2000 SC 1851. In - 10 - the present case, indisputably FIR was registered at the instance of the petitioners. As such applying the ratio of the Apex Court in the case of Puran( supra) Rathinam (supra) and Brij Nandan Jaiswal ( supra) there can be no dispute that the petitioners are entitled to file present application seeking cancellation of bail granted by the Sessions Court to respondent no.1. I am unable to accept the submission of Mr. Teles that the present application for cancellation of bail filed by the petitioners under Section 439(2) is not maintainable and the appropriate remedy is to file revision application. 9. The next point which arises for consideration is whether considering the facts and circumstances of the case, bail granted to respondent no.1 deserves to be cancelled. Learned Judge in the impugned order held that respondent no.1 who had filed bail application was in custody for 10 days. Moreover, his house search was - 11 - taken and the documents were also seized from him; there was no likelihood of respondent no.1 tampering with the records. Learned Judge further held that the main participants in crime were not touched by the investigation officer; there was no justification to curtail liberty of the respondent no.1. In my considered opinion, the reasons given by the learned Judge for granting bail to respondent no.1 cannot be said to be patently illegal or perverse. It is well settled that the order granting bail by a Sessions Court can be cancelled by this Court if the order is patently illegal or perverse or on account of supervening circumstances justifying cancellation of bail. In the present case, as stated above, the reasons given by the learned Judge for granting bail cannot be said to be perverse or illegal. There are no supervening circumstances placed before me justifying cancellation of bail granted to respondent no.1. Therefore, I am of the considered opinion that the petitioners have not made out - 12 - any case for cancellation of bail granted to respondent no.1. In my considered opinion, the investigation can be effectively carried out by securing the presence of respondent no.1 in case the same is required by the investigating agency. 10. In so far as the third point is concerned, having reached to the conclusion that the bail granted to the respondent no.1 is not liable to be cancelled, the same becomes academic. It would not be proper for this Court to set aside the bail granted to respondent no.1 solely on the ground that petitioners, at whose instance FIR was registered, were not heard. No doubt the petitioners had made a grievance before the learned Judge by their application dated 11.6.2011 that they were threatened by accused no.1 and accused no.7( respondent no.1 herein). However, the facts remains that the application for impleadment was filed on 18.6.2011 when the matter was - 13 - posted for order on bail application. In my view, having regard to the fact that the bail application was filed on 12.6.2011 and the same was fixed for orders on 18.6.2011, no fault can be found with the learned Judge in dismissing the application since if the application would have been allowed the same would have resulted in delay in disposing of the bail application which was pending for order. As stated above, even on the date of passing of the order respondent no.1 was in police custody for a period of 10 days. Therefore, considering the facts and circumstances of the case, I do not find any fault committed by the learned Judge in rejecting the application. I do not propose to decide the issue as to whether the first informant is entitled to be heard in a bail application filed by the accused. In the case of Vinay Poddar relied upon by Mr. Menezes, learned Single Judge has held that the complainant is bound to be heard in an application filed by the accused for Anticipatory bail, but - 14 - the said right cannot be allowed to be exercised in a manner which will delay the disposal of an application for anticipatory bail. Learned Judge has held that this principle may not be applied in an application filed for regular bail. No doubt Mr. Menezes, is right in contending that the issue as to whether in a bail application, the first informant or the complainant is entitled to be heard has not been finally decided by the learned Judge in the case of Vinay Poddar(supra) since the learned Judge has held that the legal position on this aspect in case of an application for regular bail may not be the same. Having already held that the bail granted to respondent no.1 cannot be faulted, I do not deem it necessary to decide the issue as to whether in the present case the petitioners were entitled to be heard in the application for bail filed by respondent no.1. 11. Admittedly, the petitioners had filed an - 15 - application before the learned Judge on 11.6.2011 alleging that threats were given to the petitioners at the instance of accused no.1 and accused no.7(respondent no.1 herein). Mr. Menezes has fairly submitted that the petitioners would have no difficulty in approaching the investigating agency with this grievance. Learned Advocate General for the respondent nos. 2 and 3 submitted that in case the petitioners choose to approach the investigating officer with such grievance, the investigating agency shall hold appropriate inquiry in the matter and will take appropriate steps in the matter. Therefore, in case the petitioners choose to approach investigating agency with such grievance, the investigating officer is expected to hold appropriate inquiry in the matter expeditiously and take appropriate steps in accordance with law. 12. I have taken into consideration the ratio of the judgments relied upon by Mr. Menezes, learned Advocate - 16 - for the petitioners and Mr. M. Teles, learned Advocate for the respondent no.1, and I do not deem it necessary to deal with them threadbare. 13. Petition stands dismissed subject to the observations made above. No order as to costs. A. P. LAVANDE, J. vn*