* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 772 OF 2009 W I T H CRIMINAL APPLICATION NO. 773 OF 2009 W I T H CRIMINAL APPLICATION NO.769 OF 2009 Mohd.Raees @ Kala Pappu Shehajade Ansari ........ Applicant V/S. State of Maharashtra ........ Respondent ======== Mr.Ganesh Gole, advocate for applicant. Mrs.M.M.Deshmukh, advocate for respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 4TH MARCH, 2009. P.C. : 1. Heard counsel for both sides. 2. This is a common order on all the above three applications filed under Section 482 Cr.P.C. for cancellation of three notices issued by the Learned Metropolitan Magistrate, 52nd Court, Kurla, Mumbai calling upon the applicant to show cause as to why bail granted to him in the three cases should not be cancelled. Criminal Application NO.772 of 2009 relates to Court Case No.278/PW/2005. Criminal Application No.774 of 2009 relates to Criminal Case No. 576/PW/2006 and Criminal * 2 * Application No. 769 of 2006 relates to Court Case No. 231/PW/2005. The application made by the prosecution for cancellation of bail on which the impugned show cause notices came to be issued to the applicant is a single application giving particulars of all the three cases. The grounds, however alleged in the application for cancellation of bail made by the prosecution are same for all the three cases. Hence, this common order. 3. On 13th January, 2009, Senior Inspector of Police, Shivaji Nagar Police Station, Gavandi Mumbai filed an application seeking cancellation of bail granted to the applicant in (i) Court Case No. 278/PW/2005 (C.R.No.262/2004) filed for the offences punishable under Section 324 read with Section 34 IPC, (ii) Court Case No.231/PW/2005 (C.R.No.272/2004) filed for the offences punishable under Section 324, 326 read with Section 34 IPC, and (iii) Court Case No.576/PW/2006 (C.R.No.173/2006) filed for the offence punishable under Section 387 IPC. In the application, the Senior Inspector has listed eight cases against the applicant out of which in three cases of the year 2005, he is shown to have been acquitted. Out of the remaining five cases, as per the application, in two cases, the applicant is convicted and in balance three cases, the proceedings are still pending. The * 3 * application also refers to the latest complaint filed against him vide C.R.No. 11 of 2009 for the offence punishable under Section 387 read with Section 34 IPC in which he is alleged to have threatened to kill the complainant in that case while he was within the premises of the police station. The police apprehend that if the applicant is released on bail, he will be a threat to the complainant in C.R.No.11 of 2009 registered on 10th January, 2009. Therefore, within three days after the incident, the application for cancellation of bail was filed. After receiving the application, the learned Metropolitan Magistrate issued the impugned notices on 31st January, 2009. 4. Mr.Gole learned counsel for the applicant submits that there is total non-application of mind on the part of the learned Metropolitan Magistrate in issuing the notices to the applicant. In order to establish his submission, he refers to the notice challenged in Criminal Application No. 769 of 2008. This is seen to have been issued in respect of “Court Case No. 231/PW/2001 (C.R.No.9 of 2001)”, though there is no case pending against the applicant of such number. No such number is found in the application by the prosecution either. Ms.Deshmukh, the learned APP submits in reply that the applicant is creating an issue out of a minor typographical error in the notice. There is an error in the number of the * 4 * year of the Court Case. The correct number of the court case is “231/PW/2005”. The notice erroneously refers to the case as of the year 2001 instead of 2005. The notice however correctly mentions the crime register number out of which the case arose. Mr.Gole submits that the error in the number should not be treated as a clerical error and this according to him displays non-application of mind by the learned Judge while issuing the notice. The copy of the notice annexed at Exhibit-C to the application shows that the same has been signed by the Judicial Clerk of the Metropolitan Magistrate, 52nd Court, Kurla, Mumbai. It is not signed by the learned Judge. Therefore, the inference as suggested by Mr.Gole cannot be drawn. Further, it is undisputed fact that a copy of the application by the prosecution has been forwarded to the applicant alongwith the notice. Therefore, he is aware of the case in respect of which the notice is issued to him. 5. The other grounds taken up by the applicant to challenge the three notices are common to all the three notices. Mr.Gole submits that in the application, the prosecution has suppressed the relevant information, in as much as, the applicant is shown to have been convicted in C.R.No.296 of 2004 filed under Section 307 read with Section 34 IPC by the judgment and order dated 4th November 2007. What is not * 5 * disclosed in the application is that the applicant had challenged this order by preferring appeal therefrom and has since succeeded in the appeal. He stands acquitted of the offence charged against him in C.R.No.296 of 2004. A similar error on the part of the prosecution pointed by Mr.Gole is in respect of the order of externment dated 14th December 2002. The application shows that the applicant was externed for a period of two years by the order dated 13th December, 2002. The applicant had challenged the order by preferring an appeal before the appropriate authority. The appeal was allowed and the order dated 13th December 2002 was set aside. Mr.Gole points out that both the appellate orders are of the date much prior to the date of the application. Therefore, it was necessary for the police to place the correct facts in the application. Even if the two proceedings in which the applicant has succeeded in appeal are to be ignored, it cannot be said that there is no material whatsoever remaining on the application for the learned Metropolitan Magistrate to issue show cause notice. There are three cases which are pending against the applicant and one case in which he has been convicted. More important is the concern and apprehension expressed by the police in view of the facts of the new case i.e. C.C.No.231/P/2001 vide C.R.No.9 of 2001 wherein it is * 6 * alleged that applicant had issued threats to kill the complainant in that case. 6. It has been lastly submitted by Mr.Gole that it is not the case of the police that the applicant has committed breach of any of the bail orders. He also submits, relying upon a decision of the Apex Court in the case of Dolat Ram V/s.State of Haryana reported in 1995(1) S.C.C.page 349, that cancellation of bail already granted and rejection of the bail have got different basis and they have to be considered and dealt with on different aspects. What is presently under challenge in the three applications is mere issuance of show cause notices. The applicant is yet to show cause which will later be considered by the learned Metropolitan Magistrate. The legal position of the different considerations for cancellation of the bail and for rejection of the bail will have to be kept in mind by the learned Metropolitan Magistrate while considering the reply, if any, filed by the applicant and while deciding the application for cancellation of bail. 7. In my opinion, the above three Criminal Applications are meritless and hence dismissed. [SMT.R.P.SONDURBALDOTA, J]