1 WP-2785-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL WRIT PETITION NO. 2785 OF 2009 with CRIMINAL APPLICATION NO. 425 OF 2010 CRIMINAL WRIT PETITION NO. 2785 OF 2009 1. Ambarish Rangshahi Patnigere, ) Aged 43 years, Occu: Service, ) R/o Abhishek, flat N.101, Plot No.B-72/2, ) Sector N.23, Nerul, Navi Mumbai. ) 2. Namdeo Narayan Alhat, ) Aged 53 years, Occu: Business, ) R/o H/1/2/3, Paradise Society, Sector No.7, ) Sanpada, Navi Mumbai. ) 3. Divakar Nandkumar Samel, ) Aged 47 years, Occu: Service, ) R/o Madhusmita Plaza, ) MCM Society, Old Panvel Road, ) Navi Mumbai. ) 4. Jaywant Parbat Dalvi, Aged 51 years,Occu: Service, ) R/o. 11, Twins Heritage, ) Plot No.70, A/B, Sector-19, ) Nerul, Navi Mumbai. ) 5. Prakash Laxman Kamble, ) Aged 46 years, Occu: Service, ) R/o 306, Manas C.H.S., Sector 6, ) Airoli, Navi Mumbai. ).. Petitioners (Orig.Accused) Versus 2 WP-2785-09.sxw The State of Maharashtra, ) Through Sr. P.I., CBD Belapur Police ) Station, Navi Mumbai. ).. Respondent (Orig.Complainant) CRIMINAL APPLICATION NO.425/2010 Mr. Ramakant Mhatre ) Age: 47 years, Occu: Corporator, ) R/at : Gothivali, Post Ghansoli, ) Thane Belapur Road, Navthe Applicant ) Mumbai. .. Applicant (Orig.Intervener) Versus 1. Mr. Ambarish Rangshahi Patnigere, ) Aged 43 years, Occu: Service, ) Dy. - Commissioner, NMMC. ) 2. Mr. Divakar Nandkumar samel ) Age 33 years, Occupation - Service. ) Assist Commissioner, NMMC. ) 3. Mr. Jayawant Parbat Dalvi ) Age 51, Occupation - Servicde, ) Chief Accountant and Finance Officer ) NMMC. ) 4. Mr. Namdeo Narayan Alhat ) Age: 53, Occupaion - Service. ) Dy. Commissioner, NMMC. ) 5. Mr. Prakash Laxman Kamble, ) Aged 46 years, Occu: Service, ) Sr. Accountant - NMMC. ) 3 WP-2785-09.sxw 6. The State of Maharashtra ) (At the instance of CBD Police ) Station, Navthe Applicant Mumbai. )..Respondents (Nos. 1 to 5 original Opponents No.6 original Applicant. Mr. Shirish Gupte, i/b. Mr. J.G.Reddy, Advocates, for the petitioners. Mr.Manoj J.Bhat,Advocate for the Intervener/Applicant. Smt. A.A.Mane, APP, for the Respondent - State.. CORAM: J.H.BHATIA,J. DATE : 22nd July, 2010. JUDGMENT: 1. Rule. Rule made returnable forthwith. Heard Counsel for the parties. 2. To state in brief, Writ Petition No.2785 of 2009 is filed by the five accused persons in Crime No.I-73/2009, registered with CBD Belapur police Station, Navi Mumbai on 17.5.2009. The petitioners are the senior officers of Municipal Corporation of Navi Mumbai. Petitioner No.1 was the Deputy Municipal Commissioner, petitioner No.2 was the Assistant Municipal Commissioner, petitioner No.3 was the Office Superintendent/Ward Officer and then Assistant Municipal Commissioner, petitioner No.4 was working as Senior Accountant and the petitioner No.5 was the Deputy Accountant and then Assistant Account Officer. On 16.5.2009, Suresh Ramu Patil, Assistant Commissioner of 4 WP-2785-09.sxw Navi Mumbai Municipal Corporation filed a report with the Senior Inspector of Police, CBD Belapur Police Statioon, Belapur, Navi Mumbai. That report revealed that for the purpose of removal of encroachment and for transportation of he goods removed after encroachment, the Municipal Corporation required supply of labourers, instruments, machinery and vehicles. For this purpose, Municipal Corporation had called tenders. H.B. Bhise & Co.. of which H.B.Bhise was the proprietor, had submitted tender which was accepted. On 12.5.2009, a meeting of all the concerned officials and the Assistant Commissioners was called by the Deputy Commissioner for the purpose of removal of encroachment and unauthorised construction, to stop new encroachment and for carrying out immediate works during the rainy season. During the meeting, some officers made a grievance that men and machinery and vehicles were not made available by the contractor H.B.Bhise and, therefore, the work of removal of encroachment, unauthorised construction, etc. could not be carried out effectively. It was also pointed out by some of the officers that the contractor was required to submit one copy of the challan showing the work done by him and the bill for that work to the concerned ward officer and one copy in the office for passing the bills, so that the concerned officers of the different areas could verify the correctness of the bill. In view of the complaint that the contractor was not following the procedure and used to was submit the bills and challans directly in the office to get them 5 WP-2785-09.sxw passed, the Deputy Commissioner became suspicious and, therefore, he called the record for the period from 1.4.2007 to 31.3.2008. Several officers pointed out that either the bills and the challans did not bear their signatures or when they were signed by the officers, there were over-writings and forgery in respect of number of labourers, vehicles and machinery supplied. It appears that in some cases, the signatures of the concerned officers of the different areas were not obtained and in some cases after obtaining their signatures, changes wee made in the contents of bills and challans by over-writing for the benefit of the contractor. The said contractor was working for the Navi Mumbai Municipal Corporation since 27.2.2003. On audit of the record for the financial year 2007-08, it was revealed that the bills, worth Rs.53,68575/- submitted by the contractor H.B.Bhise, were passed and payment was made. However, as per the entries taken in the note books pertaining the work of removal of encroachment the actual work done was worth Rs.17,51,916/-. It did not include the amount of work done for Airoli area. That amount appears to be Rs.6,82,610/-. Excluding that amount and the actual work done as per the record, excess payment of Rs. 26,31,796/- was made to the contractor H.B.Bhise for one financial year. In the report lodged by the police, it was stated that this was the excess payment for one year and as the said contractor was working since February 2003, there was possibility of much more excess payment and defalcations. On the basis of that 6 WP-2785-09.sxw report, the offence was registered as Crime No.I-173/2009 for the offences punishable under Sections 420, 465, 467,468, 471 IPC against H.B.Bhise, the proprietor of H.B.Bhise & Co. 3. During investigation, it was revealed that excess payment to the tune of Rs.1,38,03,008/- was made and several persons including staff members of the Municipal Corporation were involved in commission of the said offence and helped the said contractor H.B.Bhise. As per the remand report dated 9.9.2009 submitted by CBD Belapur Police Station before the J.M.F.C. Vashi, Navi Mumbai, besides H.B.Bhise, 7 other persons were already arrested and remanded to Judicial Custody. On 8.9.2009, at 16.30 hrs., 5 more persons, who are the petitioners before the Court, came to be arrested for the said offence. In the remand report, it was submitted that these accused persons were also involved in commission of offence, as some of them were in charge of the concerned areas, the Assistant Municipal Commissioner and some were accountants and the offences are committed by H.B.Bhise in collusion with and active assistance of these petitioners. However, as per the remand report immediately after the arrest each of these five persons, complained of different medical problems and were required to be taken to the Municipal Corporation Hospital at Vashi where they were immediately admitted in the Intensive Care Unit. In the remand report, it 7 WP-2785-09.sxw was stated that in view of their admission in ICU in the Hospital, they could not be produced before the Court. Therefore, in absence of those accused persons, the learned Magistrate was requested to grant their judicial custody, but at the same time, the Investigating Officer clearly stated that this application for remand was without prejudice to his right to make an application for police custody remand as and when these accused persons would be found medically fit. In view of this, on 9.9.2009, the learned Magistrate granted Judicial Custody remand of these petitioners till 11.9.2009. 4. When these petitioners were indoor patients in ICU in the Hospital, on 10.9.2009 an application for bail was moved on their behalf by their Advocate. It appears that the application was moved at 2.30 p.m. and the learned Magistrate directed the learned APP to file reply immediately. On that bail application, at 4 p.m., the learned Magistrate endorsed that despite giving directions to the concerned Court duty constable, he was absent till 4 p.m. and that when the matter was called, nobody was present nor affidavit was filed. After that endorsement, the mater was placed on the next day i.e. 11.9.2009. On 11.9.2009 at 11.25 a.m. the Magistrate endorsed on the bail application - "I.O. absent Case diary not produced till 11.25 a.m. At 11.35 a.m., the learned Magistrate endorsed and directed I.O. to remain present with case diary immediately. It appears from 8 WP-2785-09.sxw the record that the learned APP had submitted his strong objection to the bail application contending that because of the medical reasons, immediately after arrest, the accused persons were required to be admitted in the Hospital. Magisterial custody remand was sought having reserved a right to seek police custody. The period of 15 days after arrest was not over during which police custody could be sought by police under Sec. 167. Defalcation of huge public money was committed and the accused persons, as public servants, had committed serious offences which included offence under Sec. 467 IPC which is punishable for imprisonment for life and therefore the Magistrate could not grant bail. 5. The learned Magistrate passed the order on the application granting bail. That order reveals that he had started dictation of the order at 11.40 a.m. and completed at 4.30 p.m. He also noted that at 4.30 p.m., the Investigating Officer filed an application for grant of police custody remand on several grounds. However, by that time, the dictation of the order on bail application was completed and though the learned APP and I.O. were present during dictation, I.O. had not moved application for police custody remand nor he had stated that he was moving an application for police custody remand. On the remand report dated 11.9.2009,submitted at about 4.30 p.m., the learned Magistrate passed the brief order rejecting the application. The main ground for rejection of the request 9 WP-2785-09.sxw for police custody was that charge-sheet was already filed and in view of the authority of the Bombay High Cout in Mohammed Ahmed Yasin Mansuri vs. State of Maharashtra 1994 (1) Mh.L.J.688, once charge-sheet is filed and cognizance of the offence is taken, only custody which could be granted is Magisterial custody even in respect of the accused who is arrested during investigation after taking cognizance of the case. The said order does not reveal any other reason for refusal of the police custody. The said order rejecting the application for police custody remand was challenged in Revision Application No.178/2009. That Revision Application was partly allowed by the learned Additional Sessions Judge, Thane by the impugned judgment and order dated 9.10.2005. The learned Additional Sessions Judge observed that while the order granting bail is an interlocutory order and cannot be challenged by filing Revision Application, the order refusing to grant police custody is not an interlocutory order and it can be challenged. The learned Additional Sessions Judge set aside the order passed by the Magistrate refusing to grant police custody and directed the learned magistrate to fix the matter on12.10.2009 for passing proper order in connection with police custody of the accused for the purpose of further investigation. The said order in the Revision Application setting aside the order of the Magistrate refusing Police Custody has been challenged by the accused/petitioners in the present Petition. The said order is also challenged by 10 WP-2785-09.sxw the Intervenor in the Criminal Application No.425/2010. The intervener, was a Corporator and Leader of the Opposition during the relevant period. He also claims to be whistle-blower. He has challenged the order passed by the Additional Sessions Judge refusing to set aside the order granting bail to the accused persons. 6. Before going to the facts and the arguments advanced by the learned Counsel for the parties raising several grounds for and against the grant of bail and refusal of police custody, it may be noted that the learned Magistrate had rejected the request for police custody on the sole ground that in view of the Judgment and authority of this High Court in Mohammed Yasin Mansuri (supra), the police custody remand could not be granted even in respect of the accused who would be arrested for the first time after the charge-sheet was filed and cognizance of the case was taken. The said Judgment of the Division Bench of this Court was over-ruled by the Supreme court in State through CBI vs. Dawood Ibrahim Kasker & Ors. (2000) 10 SCC 438. The Supreme Cort after having considered the similar arguments as advanced on behalf of of the present petitioners and the provisions of sections 167, 173(8) and 309 Cr.P.C. observed thus in paras 10 and 11 :- 11 WP-2785-09.sxw "10. In keeping with the provisions of Section 173 (8) and the above-quoted observations, it has now to be seen whether Section 309(2) of the Code stands in the way of a Court, which has taken cognizance of an offence, to authorise the detention of a person, who is subsequently brought before it by the police under arrest during further investigation, in police custody in exercise of its power under Section 167 of the Code. Section 309 relates to the power of the Court to postpone the commencement of or adjournment of any inquiry or trial and sub-section (2) thereof reads as follows : "309. (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time." "11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to judicial custody, detention under the latter relates to the stage of investigation 12 WP-2785-09.sxw and can initially be either in police custody or judicial custody. Since, however, even after cognizance is taken of an offence the police has a power to investigate into it further, which can be exercised only in accordance with Chapter XII, we see no reason whatsoever why the provisions of section 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custody under Section 167 of the Code, the Investigating Agency would be deprived of an opportunity to interrogate a person arrested during further investigation, even if it can on production of sufficient materials, convince the Court that his detention in its (police) custody was essential for that purpose. we are, therefore, of the opinion that the words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of 13 WP-2785-09.sxw the offence may exercise its power to detain him in police custody, subject to the fulfillment of the requirements and the limitation of Section 167." 7. From the above observations of the Supreme Court, it is clear that Their Lordships specifically considered the interpretation put by this Court in Mohd. Yasin Mansuri and overruled the same. From the above observations, it is clear that words "accused if in custody" appearing in Section 309(2) refer and relate to an accused who was before the Court when cognizance was taken or when enquiry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. Their Lordships made it clear that the accused who would be arrested during further investigation after filing of the charge sheet and taking cognizance of the case would be governed by Section 167 Cr.P.C. so long as further investigation continues subject to limits and requirements of sec. 167. In view of this legal position, the order passed by the Magistrate refusing police custody on the sole ground was clearly wrong and could not be sustained. The manner in which the learned Magistrate dealt with the bail application by making different endorsements thereon minute to minute as noted earlier, it appears that the Magistrate was in great haste and hurry to grant the bail to the accused persons and he did not give sufficient and reasonable 14 WP-2785-09.sxw time to the prosecution to oppose that application and to bring the correct legal position before the Court. The learned Magistrate had almost completed dictation of the order on bail application by 4.30 p.m. and at about 4.35 p.m., he rejected the application moved by the Investigating Officer for police custody by passing a short order referring to the authority in Mohd. Yasin Mansuri. Had the learned Magistrate given sufficient and reasonable time to the prosecution, the learned Assistant Public Prosecutor could point out to the Magistrate that the said authority of the Bombay High Court was overruled long back in the year 2000 by the Supreme Court. However, because of the haste shown by the learned Magistrate, he rejected the application for police custody remand on the basis of the overruled authority of this Court. 8. The learned Counsel for the petitioners vehemently contended that the order granting or refusing bail or police custody remand is an interlocutory order and therefore such an order is not subject to revisional jurisdiction under Section 397 Cr.P.C. Section 397(2) provides that powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The question before this Court is whether the order granting bail is or is not interlocutory order and whether the superior Courts can interfere if the bail order is passed without jurisdiction or if it 15 WP-2785-09.sxw is passed without application of mind by the concerned Magistrate and without considering the gravity of the matter. Similarly a question also arises whether the refusal to grant police custody remand is interlocutory order and is not subject to revisional jurisdiction of the superior Courts. The learned Counsel for the petitioners vehemently contended that in a catena of judgments, the Supreme Court held that the order granting bail is an interlocutory order and is not subject to revisional jurisdiction. What is interlocutory order within the meaning of Section 397 Cr. P.C. was the subject matter for consideration before the Supreme Court in number of cases beginning with Madhu Limaye vs. State of Maharahtra AIR 1978 SC 47, V.C. Shukla, V.C. Shukla vs. State (1980) SCC 695, Usmanbhai Dawoodbhai Memon v. State of Gujarat, 1988 (2) SCC 271, In Usmanbhai, the Supreme Court considered the earlier Judgments and observed thus in para 24 :- "24.... The expression `interlocutory order' has been used in Section 19(12) in contradistinction to what is known as final order and denotes an order of purely interim or temporary nature. The essential test to distinguish one from the other has been discussed and formulated in several decisions of the Judicial Committee of the Privy Council, Federal Court and this Court. One of the tests generally accepted by the English Courts and the federal Court is to 16 WP-2785-09.sxw see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue. In V.C. Shukla v. State, Fazal Ali, J. in delivering the majority judgment reviewed the entire case law on the subject and deduced therefrom the following two principles, namely, (i) that a final order has to be interpreted in contradistinction to an interlocutory order; and (ii) that the test for determining the finality of an order is whether the judgment or order finally disposed of the rights of the parties. It was observed that these principles apply to civil as well as to criminal cases. In criminal proceedings, the word `judgment' is intended to indicate the final order in a trial terminating in the conviction or acquittal of the accused. Applying these tests, it was held that an order framing a charge against an accused was not a final order but an interlocutory order within the meaning of section 11(1) of the Special Courts Act, 1979 and therefore not appealable. It cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. There is no finality to such an order for an application for bail can always be renewed from time to time...." 9. Thus, in Usmanbhai, it was held that the grant or refusal of bail application is essentially an interlocutory order as there is no finality to such an order for an application for bail can always be renewed from time to time. The 17 WP-2785-09.sxw Supreme Court dealt with only the question whether the grant of bail was or was not interlocutory order. In State represented by Inspector of Police vs. N.M.T. Joy Immaculate 2004 (5) SCC 729, Police custody for one day was granted by the Magistrate and it was held to be interlocutory order and it was held that revision against such an order is not maintainable. However, the question whether refusal of the police custody is final or interlocutory order was not subject matter for consideration. That point came before this Court in R. Shakuntala vs. Roshanlal Agarwal and othrs 1985 Cri. L.J. 68 wherein the learned Single Judge of this Court considered the observations in Amar Nath v. State of Haryana AIR 1977 SC 2185, Madhu Limaye and other Judgments. The learned Judge observed thus in para 9 :- "9.... In this connection the Supreme Court had occasion to deal with Amar Nath's case AIR 1977 SC 2185 : (1977 Cri LJ 1891). The Supreme Court observed in that connection as follows :- "It is neither advisable, nor possible to make a catalogue of orders to determine which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two." 18 WP-2785-09.sxw It will be seen that having regard to this view taken by the Supreme Court, in fact in Madhu Limaye's case AIR 1978 SC 47: (1978 Cri LJ 165), the larger Bench of the Supreme Court has expressed an opinion that the broad statement of law contained in Amar Nath's case needed certain modification. However, the Supreme Court reaffirmed the decision in Amar Nath's case and held that the order releasing some of the accused on perusal of the police report and subsequently summoning them was not an interlocutory order but was a final order. To my mind, reading the two cases together Amar Nath's case and Madhu Limaye's case, no doubt is