1 APPLN 5342/10 APPLN 5345/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5342 OF 3010 Alim A. Patel .... Petitioner. V/s The State of Maharashtra .... Respondents. Mr. S.R. Chitnis, Senior Counsel with Ms. Pooja Bhojane i/b Mr. Nitin Sejpal for the Petitioner. Mr. R.S. Desai for the Intervener/original complainant Mr. P.S. Hingorani APP for the State. ALONGWITH CRIMINAL APPLICATION NO.5345 OF 2010 Altaf Yusuf Naik .... Petitioner. V/s The State of Maharashtra .... Respondents. Mr. S.R. Chitnis, Senior Counsel with Ms. Pooja Bhojane i/b Mr. Nitin Sejpal for the Petitioner. Mr. R.S. Desai for the Intervener/original complainant. Mr. P.S. Hingorani APP for the State. CORAM: V. M. KANADE, J. DATE : 16th December, 2010 P.C.:- 1. These separate applications have been filed by original accused being aggrieved by the judgment and order passed 2 APPLN 5342/10 APPLN 5345/10 by the Ad-hoc Additional Sessions Judge, Raigad at Alibag on 23/11/2010. 2. Brief facts are as under:- 3. A complaint has been filed by the respondent herein for the offence punishable under sections 406, 420, 507 & section 34 of the Indian Penal Code against the Petitioners which was registered at the Pen Police Station vide C.R. No. 118 of 2010. It is alleged in the complaint that the complainant was induced by the accused, the petitioners herein to deliver a huge amount of Rs 65,71,000/- for the purchase of land at Ambeghar, Taluka Pen. It is further alleged that in spite of receiving the said amount of consideration, the said land was purchased in the name of the accused and their family members and, therefore, the complainant has been deceived and that the accused have committed an offence of cheating and criminal breach of trust as also other offences which are mentioned in the complaint. 4. Petitioners – accused came to be arrested on 09/11/2010 and they were produced before the Judicial Magistrate, First Class on 10/11/2010 and an application for Police Custody Remand (PCR) was made for the purpose of investigation. The learned Magistrate, by his order of the same date, was pleased to observe that dispute in question 3 APPLN 5342/10 APPLN 5345/10 appeared to be a civil dispute and, therefore, was of the view that it was not necessary to grant police custody and, therefore, transferred the accused to judicial custody. Thereafter, Petitioners filed application for releasing them on bail before the Magistrate on the same day and the learned Magistrate was pleased to grant bail to the Petitioners. The State preferred Criminal Revision Application in the Sessions Court and the following reliefs were claimed by the State in the said Criminal Revision Application:- “[1] That the impugned order dt. 10/11/2010 rejecting the prayer for Police Custody passed by Ld. J.M.F.C., Pen may please be quashed & set aside. [2] That the accused opponents be directed to surrender and the bail bonds be cancelled. [3] Other just and suitable orders in the interest of justice may please be passed in favour of prosecution.” 5. It is a matter of record that the order granting bail to the Petitioners was not challenged by filing an application for cancellation of bail. Be that as it may, Criminal Revision Application came up for hearing before the Sessions Judge 4 APPLN 5342/10 APPLN 5345/10 and the Sessions Judge was pleased to allow the Criminal Revision Application and the order of refusing to grant PCR dated 10/11/2010 was set aside and the learned Magistrate was directed to reconsider the application for PCR once again. Being aggrieved by the said judgment and order, present two Criminal Applications have been filed by the two accused. 6. Shri Chitnis, the learned Senior Counsel appearing on behalf of the Petitioners submitted that the Sessions Court erred in passing the impugned order firstly because the said Revision Application was not maintainable. He submitted that the order refusing to grant PCR was an interlocutory order and, therefore, Revision Application against the said order was not maintainable. In support of the said submission he relied upon the judgment of the Apex Court in State represented by Inspector of Police and others vs. N.M.T. Joy Immaculate1. He invited my attention more particularly to para 13 of the said judgment in support of the said submission. Secondly, it is submitted that the Petitioners were not served by the State and the said order was an ex parte order and, therefore, the said order was clearly in violation of the principles of natural justice since the said order adversely affected the rights of the Petitioners and the learned Sessions Judge ought to have ensured that the said Revision Application was first served on the Petitioners herein. Thirdly, it is submitted that so far as the 1 (2004) 5 SCC 729 5 APPLN 5342/10 APPLN 5345/10 grant of police custody is concerned, since the period referred to in section 167 sub-clauses (1) & (2) commences from the order of remand and since the said order was passed on 10th of the said month and thereafter period of 15 days had already expired, the learned Sessions Judge ought to have taken this fact into consideration and, even otherwise, it is submitted that the said period having expired, the learned Magistrate could not have reconsidered the question of grant of police remand. In support of the said submission, reliance was placed on the judgment of the Apex Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi vs. Anupam J. Kulkarni1. He invited my attention to the relevant paragraphs in the said judgment wherein the Supreme Court has considered the question as to whether after expiry of initial period of 15 days a person could still be remanded to police custody by the Magistrate before whom he was produced. He submitted that the Apex Court in no uncertain terms had held that the said period would begin from the order of remand and it was first 15 days after the said date which had to be calculated. He also submitted that the correct course of action for the State was to have filed an application for cancellation of bail by filing an application under section 482 of the Criminal Procedure Code in this Court. He submitted that the State, admittedly, has not filed the application for cancellation of bail. 1 (1992) 3 SCC 141 6 APPLN 5342/10 APPLN 5345/10 7. Shri Desai the learned Counsel appearing on behalf of the original complainant submitted that he may be permitted to intervene in the case. In my view, instead of formally granting permission for adding the original complainant as party respondents in these applications, I considered it appropriate to permit the Counsel for original complainant to assist this court. He submitted that so far as the question of maintainability of the Criminal Revision Application is concerned, in view of the judgments of the Supreme Court in Madhu Limaye vs. State of Maharashtra1 and in Amar Nath vs. State of Haryana2, the revision application was maintainable. He submitted that the learned Single Judge of this Court after relying on the judgment of the Apex Court and after distinguishing the judgment of the Apex Court in N.M.T. Joy Immaculate3 (supra) had held that revision application against refusal to grant police custody was maintainable. He invited my attention to the judgment of the learned Single Judge of this Court in Ambarish Rangeshahi Patnigere vs. State of Maharashtra4. Secondly, on the question of service of notice, he submitted that the Sessions Court had in para 3 and 4 noted that the advocate for the accused had appeared and had given an undertaking to appear before the Sessions Court and thereafter had stated that they had not received any instructions and the learned Sessions Court has recorded this fact. He submitted 1 AIR 1978 SC 47 2 AIR 1977 SC 2185 3 (2004) 5 SCC 729 4 2010 ALL MR (Cri) 2775 7 APPLN 5342/10 APPLN 5345/10 that, therefore, in view of the statement made by the advocate for the accused, there was no question of separately serving the accused. So far as question of consideration of PCR is concerned, he submitted that ratio of the judgment in Anupam J. Kulkarni1 (supra) would not apply to the facts of the present case. He submitted that, in the present case, Petitioners were arrested on 09/11/2010 and they were produced before the Magistrate on 10/11/2010 on which date the learned Magistrate has refused to grant police custody and had transferred the petitioners to judicial custody. He submitted that, therefore, the order passed by the Sessions Court was a reasoned order and, therefore, there was no reason to interfere with the said impugned order. 8. The learned APP appearing on behalf of the State submitted that no application for cancellation of bail was filed. He, however, adopted the arguments made by the learned Counsel appearing on behalf of the original complainant. 9. After having heard both the parties at length, I am afraid, it is not possible to accept the submissions made by the learned Counsel appearing on behalf of the Petitioners for the following reasons. 10. So far as the question of maintainability of the revision 1 (1992) 3 SCC 141 8 APPLN 5342/10 APPLN 5345/10 application is concerned, the Apex Court in the case of Madhu Limaye1 (supra) has observed in paragraphs 9 and 10 as under:- “9. In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like sub section (2) of section 397 in the 1973 Code.” 1 AIR 1978 SC 47 9 APPLN 5342/10 APPLN 5345/10 “10. As pointed out in Amar Nath's case (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub- section (2), in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include subsection (2) of section 10 APPLN 5342/10 APPLN 5345/10 397 also, "shall be deemed to limit or affect the inherent powers of the High Court". But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub- section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court 11 APPLN 5342/10 APPLN 5345/10 under the 1898 Code. the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we 12 APPLN 5342/10 APPLN 5345/10 shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused upto the end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.” Similarly, in the case of Amar Nath1 (supra) which has been 1 AIR 1977 SC 2185 13 APPLN 5342/10 APPLN 5345/10 referred to by the Apex Court in Madhu Limaye1 (supra), the Supreme Court in para 13 has observed as under:- “13.......... It is neither advisable, nor possible, to make a catalogue of orders to demonstrate 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....” The Court, therefore, has to consider the nature of the order and determine whether the said order becomes final or not and, accordingly, decide whether the revision application can be filed against it. The learned Single Judge of this Court in Ambarish Rangeshahi Patnigere2 (supra) considered this aspect in respect of refusal by the Magistrate to consider the request for police custody and, in my view, has rightly observed that observation of the Apex Court in N.M.T. Joy Immaculate3 (supra) would not apply to the facts of that case since the question which fell for consideration before the Apex Court in the said case was whether the order passed by the Magistrate granting police custody for one day was an interlocutory order or not. 1 AIR 1978 SC 47 2 2010 ALL MR (Cri) 2775 3 (2004) 5 SCC 729 14 APPLN 5342/10 APPLN 5345/10 11. In the present case, the learned Magistrate has refused to grant police custody and, therefore the said order, in my view clearly had become a final order since thereafter the State cannot file further application for granting of police custody and in respect of the said subject matter the order had become final. The ratio of the judgment in Ambarish Rangeshahi Patnigere1 (supra), therefore, in my view, would squarely apply to the facts of the present case. Therefore, I am of the view that the Sessions Court has correctly held that the revision application is maintainable. 12. So far as the question of continuation of PCR is concerned, Shri Chitnis, the learned Senior Counsel for the Petitioners relied upon the judgment in Anupam J. Kulkarni2 (supra) in support of his submission. In my view, ratio of the judgment in the case of Anupam J. Kulkarni3 would not apply to the facts of the present case. In the said case, facts were that on the basis of the material which was available Shri Kulkarni was arrested on 4/10/1991 and was produced before the Chief Metropolitan Magistrate, Delhi on 05/10/1991. On the request of CBI, Shri Kularni was remanded to judicial custody till 11/10/1991. On 10/10/1991, a test identification parade was arranged but Shri Kulkarni refused to cooperate and his refusal was recorded by the Munsif Magistrate concerned. On 11/10/1991, application was moved by the Investigating 1 2010 ALL MR (Cri) 2775 2 (1992) 3 SCC 141 3 (1992) 3 SCC 141 15 APPLN 5342/10 APPLN 5345/10 Officer seeking police custody of Shri Kulkarni which application was allowed. However, in the meantime, Shri Kulkarni was taken to hospital and he remained confined on the ground of illness upto 21/10/1991 and, thereafter, upto 29/10/1991 he was remanded to judicial custody by the Magistrate and was sent to jail. Since during this period he cold not be remanded to police custody, an application was made by the Investigating Officer seeking police custody which was refused by the learned Magistrate. A revision application was preferred. However, in the revision application, High Court observed that it was not desirable to confine him in jail and, therefore, he was granted bail. Against this order the matter was taken to the Apex Court. The Apex Court has made the following observation in para 2 of its said judgment in Anupam J. Kulkarni1:- “2...... The High Court, however, did not decide the question whether or not after the expiry of the initial period of 15 days a person can still be remanded to police custody by the Magistrate before whom he was produced. The said order is challenged in these appeals.” The Apex Court, thereafter, in view of the facts of the said case viz. that the accused was arrested and remanded to 1 (1992) 3 SCC 141 16 APPLN 5342/10 APPLN 5345/10 judicial custody after some time, held that the accused, thereafter, cannot be remanded to police custody after expiry of initial 15 days and in the light of the said facts the Apex Court came to the conclusion that such a course of action was not permissible in law. In my view, ratio of the said judgment would not apply to the facts of the present case. In the said case applicant was arrested and was remanded to judicial custody where he remained for more than 15 days. The Apex Court, therefore, held that the period of calculating the custody would commence from the date of order of remand which in the said case was 05/10/1991 and, thereafter, he remained in jail custody till 29/10/1991 continuously for a period of more than 15 days and, under these circumstances, the Apex Court has observed that thereafter an application for PCR could not be made. 13. So far as the facts of the present case are concerned, it is an admitted position that the Petitioners were arrested on 09/11/2010 and they were produced before the learned Magistrate on 10/11/2010 and on the same day, police custody was not granted and they were transferred to judicial custody. It is an admitted position that on the same day they filed an application for bail and the bail was granted to them. Therefore, the Petitioners did not remain in custody either of the police or the Magistrate for more than one day. The period, therefore, would not continue to 17 APPLN 5342/10 APPLN 5345/10 operate on account of order of bail which was granted by the Magistrate. If the said contention is accepted, it would lead to disastrous consequences. It is always open for the police to challenge the order refusing to grant police custody for a period of 15 days and it cannot be said that the said period would continue to operate even though he is not in custody after the first date. The submission made by the learned Senior Counsel appearing on behalf of the Petitioners, therefore, in my view, is unacceptable. If the higher court reconsiders the order of the Magistrate refusing to grant police custody and during that period, period of 15 days is not over, the higher court can always give a direction to the Magistrate to reconsider the said aspect of granting police custody. In the present case had the Petitioners continued to remain in jail custody after a period of 15 days, then the submission made by Shri Chitnis the learned Senior Counsel appearing on behalf of the Petitioners would have been correct but since they were released on bail on 10/11/2010, there was a break in the said period since the Petitioners were not in custody either of the police or of the Magistrate. Under these circumstances, therefore, there is no reason to interfere with the order passed by the Sessions Court. 14. Both the Criminal Applications are accordingly dismissed. 15. It is clarified that since the Petitioners were released on 18 APPLN 5342/10 APPLN 5345/10 bail on 10/11/2010 and which order admittedly was not challenged by the State in the Criminal Revision Application which is evident from the prayers in the Criminal Revision Application as also the order passed by the Sessions Court, the effect of the order granting bail may be considered by the learned Magistrate on merits and in accordance with law. It is open for the Petitioners to raise this issue of the effect of the order of granting bail and what is the result thereof and the same would be considered by the learned Magistrate. 16. The learned Magistrate may decide the application as directed by the Sessions Court within six weeks after the Petitioners appeared before him either personally or through their advocate. Petitioners shall appear before the learned Magistrate either personally or through their advocate on 3/01/2011. (V.M. KANADE, J.) 19 APPLN 5342/10 APPLN 5345/10