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Sardarilal, Superintendent of Police, C.B.i./S.i.C. Vs. Narendra Narottamdas Kapadia, Chairman Industrial Consulting Bureau Ltd. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 833 of 1981
Judge
Reported in1982(1)BomCR486
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 167, 167(2), 437(1), 439(2) and 482; Official Secrets Act, 1923 - Sections 5(1), 13(3) and 13(4); Prevention of Corruption Act, 1947 - Sections 5(1) and 5(2)
AppellantSardarilal, Superintendent of Police, C.B.i./S.i.C.
RespondentNarendra Narottamdas Kapadia, Chairman Industrial Consulting Bureau Ltd.
Appellant AdvocateA.S. Bobade, Adv.G., ; S.G. Samant and ; Suraj Shah, Advs.
Respondent AdvocateRajani Patel, ; Ram Jethmalani and ; D.N. Canteenwala, Advs.
DispositionPetition dismissed
Excerpt:
(i) criminal - bail - sections 167, 167 (2), 437 (1), 439 (2) and 482 of criminal procedure code, 1973 and sections 5 (1), 13 (3) and 13 (4) of official secrets act, 1923 - respondent arrested on suspicion of leakage of official documents and secrets - session judge granted bail - petition under section 439 (2) against order of bail on ground that respondent's presence required in interrogation - bail was conditional bail and petitioner (investigating officer) had been given wide power to ensure presence of respondent at any time and place for interrogation - no substance in petition - bail order confirmed. (ii) jurisdiction - sections 167, 167 (2), 437 (1), 439 (2) and 482 of criminal procedure code, 1973 - whether court in bombay have jurisdiction to grant bail when offence was.....s.w. puranik, j.1. by this petition under section 439(2) of the criminal procedure code and in the alternative under section 482 of the criminal procedure code the petitioner seeks to invoke the extraordinary jurisdiction and inherent powers of this court for cancellation of the order of bail granted in favour of the respondent narendra narottamdas kapadia.2. the brief facts relevant for the purposes of this petition are as follows. the petitioner is the superintendent of police, c.b.i./s.i.c. at new delhi. he is entrusted with the investigation of the alleged offence under section 5(1) of the official secrets act, 1923 and section 5(1)(a) read with section 5(2) of prevention of corruption act against one k.l. arora and others. the first information report in the case was registered on.....
Judgment:

S.W. Puranik, J.

1. By this petition under section 439(2) of the Criminal Procedure Code and in the alternative under section 482 of the Criminal Procedure Code the petitioner seeks to invoke the extraordinary jurisdiction and inherent powers of this Court for cancellation of the order of bail granted in favour of the respondent Narendra Narottamdas Kapadia.

2. The brief facts relevant for the purposes of this petition are as follows. The petitioner is the Superintendent of Police, C.B.I./S.I.C. at New Delhi. He is entrusted with the investigation of the alleged offence under section 5(1) of the Official Secrets Act, 1923 and section 5(1)(a) read with section 5(2) of Prevention of Corruption Act against one K.L. Arora and others. The first information report in the case was registered on March 6, 1981 at New Delhi.

3. The respondent is the Chairman of the concern known as Industrial Consulting Bureau Ltd., having its registered office at Bombay and a branch office at Delhi. The respondent's nephew is the Regional Manager of the New Delhi Office and one I.S. Pai is the Branch Manager of Harshadrai Pvt. Ltd., New Delhi.

4. In 1979, the Union Government awarded contracts of setting up of ammonia plants at Thal-Vaishet and Hazira to M/s.C.F. Braun & Co. of U.S.A. The concern known as the Industrial Consulting Bureau Ltd., of which the respondent is the Chairman was at the relevant time, Indian consultant of the said C.F. Braun & Co.

5. The decision taken by the Union Government was, however, reversed and the contracts were awarded to some other films from Denmark and U.K. This was done in August 1980.

6. It is alleged by the prosecution and the present petitioner that classified documents of secret nature forming part of the files of Ministry of Petroleum, Chemicals & Fertilizers, Government of India relating to the answers to the above contracts had been wilfully leaked to outside unauthorised agencies, and the documents so leaked out included the notes of the Ministries of Petroleum and Finance as well as a copy of the clean draft for the Cabinet. This information was received in the office of the New Delhi on March 6, 1981 and upon registration of the aforesaid offences investigation had commenced. The initial report was filed against one K.L Arora, Personal Assistant of Petroleum to the Director (F), Department of Chemicals and Fertilizers, Ministry of Petroleum, Fertilizers and Chemicals, Government of India. In the course of investigation, 7 others also came to be arrested. It also transpired during the investigation that the concern of which the respondent is the Chairman and some relatives and employees of the respondent were involved in the said disappearance of official documents and secrets.

7. According to the prosecution, from the material collected during the investigation, the Investigating Officer has a strong suspicion that the respondent is directly concerned with the said offence particularly inasmuch as he was likely to gain an astronomical amount of Rs. 80 lakhs if the original contract with the C.F. Braun & Co. had subsisted. It is the allegation of the prosecution that the respondent is the king-pin of this whole episode and has masterminded the conspiracy as well as spiriting away the classified documents and information.

8. On or about March 20, 1981, the respondent filed an application for grant of an anticipatory bail being Application No. 49 of 1981 in the Court of Sessions Judge, Greater Bombay. On March 23 and 24, 1981, the Investigating Officer, viz., the petitioner conducted searchers of the residence of the respondent as well as the office. On March 26, 27 and 29, the respondent at the request of the Investigating Officer attended the Bombay office of the C.B.I. for the purposes of interrogation.

9. On March 28, 1981, the respondent's application for anticipatory bail was rejected by the Sessions Court, who, however, granted him time to move the High Court upto March 30, 1981. On March 30, 1981, the respondent filed an application for the grant of anticipatory bail before the Bombay High Court. On April 2, 1981, the High Court rejected the respondent's application. Immediately thereafter the respondent moved the Supreme Court, and the Supreme Court by its interim order restrained the C.B.I. from arresting the respondent upto April 15, 1981. On a direction from the Supreme Court the respondent was asked to be available for interrogation by the C.B.I. during the period April 6, 1981 to April 11, 1981. The respondent accordingly attended the office of the C.B.I. for the purpose of interrogation.

10. On April 14, 1981, the special leave petition of the respondent was dismissed by the Supreme Court. He was, however, granted time to surrender upto April 16, 1981. Since the C.B.I. authorities wanted the respondent to surrender at Delhi office, a further motion was taken out before the Supreme Court and by its order dated April 15, 1981, the Supreme Court directed that the respondent should surrender at Bombay, and further directed that the Court deciding the regular bail application of the respondent should decide the same on merits uninfluenced by the orders passed by the High Court and the Supreme Court in the matter of rejection of grant of anticipatory bail.

11. The respondent accordingly surrendered at the Bombay office of the C.B.I., and he was produced before Third Court, Esplanade, Bombay, along with a remand application for police custody. Simultaneously, the respondent preferred an application for grant of bail. By its order dated April 20, 1981, the Magistrate concerned granted bail in favour of the respondent.

12. On April 21, 1981, the present petitioner moved an application for cancellation of bail before the Sessions Judge, Bombay, vide Criminal Application No. 97 of 1981. The said matter was transferred to another Court viz., the Court of Mr. Shinde, Additional Sessions Judge by the order of the High Court. It was heard and decided on May 7, 1981 whereby the learned Sessions Judge rejected the petitioner's application for cancellation of bail.

13. Feeling aggrieved by the said order, the petitioner has preferred this petition under section 439(2) of the Criminal Procedure Code read with section 482 of the Criminal Procedure Code.

14. Mr. A.S. Bobade, Advocate General of Maharashtra appeared for the petitioner while Mr. Rajni Patel along with Mr. Ram Jethmalani appeared for the respondent. They were heard at length on May 20 and 21, 1981.

15. The learned Advocate General for the petitioner contended that the principles and guidelines laid down by the Supreme Court regarding grant of bail or refusal of bail are well established. He contended that even in a case where bail has been granted by the trial Court, the High Court has wide powers to go into the merits of the case, and on assessment of the material on record as was available before the trial Judge, and even if there are no other supervening circumstances in between, can independently come to a finding as to whether the bail should be confirmed or should be cancelled. He contended that in cases where there has been a basic error by the trial Court in either appreciation of the material on record or in assuming jurisdiction over a matter which it did not posses, then on the self-same set of facts, the High Court can in its original jurisdiction under section 439(2) of the Code, cancel the bail so granted by the trial Court.

16. It is submitted by the petitioner that the offence was committed over a period of time during August to December 1980 at Delhi. According to the petitioner, it has transpired in the investigation that all the accused were at Delhi during the relevant time, and it has further transpired that the respondent who has his offices at Bombay as well as at Delhi was the mastermind behind this whole episode. According to the petitioner, since the offence has been registered at Delhi, it is the Magistrate's Court at Delhi which is the competent Court with jurisdiction to try the case, and hence all accused that are or that may be arrested in pursuance of the present investigation have to be produced before the Magistrate at Delhi. The petitioner's Counsel laid emphasis on the fact that the prosecution alleges that a conspiracy has been effected amongst the accused persons for the commission of the offence and that the situs of the offence was at Delhi. Hence, it will be the Magistrate's Court at Delhi who shall have jurisdiction to try the offence. The learned Advocate General also referred to section 57 of the Code of Criminal Procedure whereunder any person detained by the Police Officer has to be produced before the nearest Magistrate within 24 hours of the arrest. He referred to the procedure laid down under section 167 of the Code whereby the person arrested or detained has to be produced before the nearest Magistrate. He laid particular emphasis on the procedure laid down in sub-clause (2) of section 167 which says; 'The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 15 days in the whole; and if he has no jurisdiction to try the case or omit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction'. The learned Advocate General, therefore, submitted that in the instant case, the jurisdiction to try the present case is with the Magistrate at Delhi. The accused was taken into custody at Bombay, and was, therefore, produced before the Magistrate at Bombay under section 57 of the Code. He also contended that since the Magistrate at Bombay has no jurisdiction to try the case, then after a term not exceeding 15 days in case he comes to the conclusion that further detention is not necessary, the Magistrate at Bombay ought to forward the accused to the one at Delhi who has such jurisdiction to try the case. The petitioner, therefore, submits that the Magistrate at Bombay has no jurisdiction to grant bail to the accused in the peculiar facts and circumstances of the case. This being an inherent infirmity in the order of the trial Court which was subsequently confirmed by the Additional Sessions Judge. The learned Advocate General submitted that this Court can assess afresh the facts of the case and direct that the bail granted to the respondent be cancelled and further direct that he be forwarded to the Magistrate at Delhi who has jurisdiction to try the case.

17. On merits of the case, the learned Advocate General submitted that the offence under section 5 of the Official Secrets Act, 1923 is of a very serious and grave nature, inasmuch as it involves the security of the State, and is directly connected with the leakage of the classified information in the matters related to the affairs of the State. He contended that in spite of interrogation of the respondent on about 7 or 8 days, the Investigating Officer has not been able to procure proper clues and leads, and it is utmost necessary that the accused be taken into custody for the purposes of interrogation as well as for the purposes of confronting the respondent to other connected persons and to point out places and events during the course of alleged commission of offence.

18. The learned Advocate General also contended that under section 13(4) of the Official Secrets Act, the trial of a person could be held at the place where the offence was actually committed or at any place in India in which the offender may be found. It is, therefore, the submission on behalf of the petitioner that in the instant case, the offence was actually committed at Delhi while the accused/respondent was found at Bombay and hence the option is with the prosecution to try the case either at Delhi or Bombay, and according to the Advocate General, since the offence is already registered at Delhi, the Court at Bombay has no jurisdiction to try the same. In a nutshell therefore be the petitioner contended that the trial Court at Bombay has no jurisdiction to grant bail, that the Magistrate at Delhi alone has jurisdiction to try the case, and lastly that the circumstances and merits of the case demand that the accused be taken in custody for the purpose of fair investigation. The petitioner, therefore, claims cancellation of the bail granted to the respondent.

19. Mr. Rajni Patel, the learned Counsel for the respondent resisted the petition on several counts and in particular the following. He contended that no case has been made out by the petitioner for cancellation of the bail. He also submitted that the respondent has been available for interrogation to the Investigating Officer from March to April end, and he has been extensively interrogated for a period of over 17 1/2 hours. He also pointed out that the search of the residence as well as the office premises was conducted around March 23 and 24, 1981 and several documents have been taken into custody by the Investigating Officer. From the date of search that is from March 23, 1981 till this day that is May 20 and 21, 1981, the prosecution has not been able to put up any supervening circumstances during this period which would entitle them to seek cancellation of the bail. He urged that the prosecution no where alleges that the respondent is likely to tamper with the evidence available or received or he has in any way misused the bail granted to him.

20. As regards the submission regarding want of jurisdiction in the Court at Bombay, Mr. Patel refuted by stating that the petitioner Investigating Officer has merely filed a report for the purpose of registering an offence and conducting the investigation. Under the provisions of the Code of Criminal Procedure, the Magistrate within whose jurisdiction an offence has been registered has powers to supervise the said investigation. He, however, submitted that it is yet to be decided as to where the prosecution is going to file the charge-sheet. It is only on the filing of the charge-sheet under section 190 of the Code that the Magistrate takes cognisance of the offence complained of. He also drew my attention to section 13(3) of the Official Secretes Act, 1923 which states that 'No Court shall take cognisance of any offence under this Act unless upon complaint made by order of or under authority from, the appropriate Government or some office empowers by the appropriate Government in this behalf'. In this connection, he submitted that in the instant case, no such complaint duly authorised by the appropriate Government has been tendered, and therefore, no Court either at Delhi or at Bombay as such has taken cognisance of the alleged offences.

21. In this behalf, he submitted that the powers under Chapter 33 of the Criminal Procedure Code are independent of the provisions of sections 167 of the Code. The powers under Chapter 33 and in particular sections 436, 437, 438 and 439 do not in any way restrict the jurisdiction of the Court in the matter of grant of bail or refusal of bail on the ground of territorial jurisdiction in respect of offence concerned. He submitted that section 167 merely provides for a procedure to produce the accused before the nearest Judicial Magistrate, and the said Magistrate, whether he has jurisdiction or has no jurisdiction to try the case, is authorised to detain the person in custody for a maximum period not exceeding 15 days. He laid special emphasis on the wording of sub-clause 2 of section 167 that the word 'may' has been used which clearly expresses the intention of the Legislature in granting judicial discretion to the said Magistrate whether he has jurisdiction to try the case or not. He contended that section 167 has to be read in conjunction with Chapter 33 of the Code in the matter of grant of bail. According to Mr. Patel, any person produced in custody within 24 hours before a Judicial Magistrate has a right to ask for being released on bail, and if the Judicial Magistrate is satisfied, then there are no fetters to the powers of the Judicial Magistrate as provided by Chapter 33 in granting the same. In the instant case, however, since no Court has taken cognisance as required under section 13(3) of the Official Secrets Act and the matter is under investigation and the principal site of offence is yet to be arrived at, it is not open for the petitioner to contend that it is the Delhi Magistrate alone who has jurisdiction to try the case.

22. Mr. Jethmalani appearing with Mr. Patel also urged not as a Counsel for the respondent, but as an Advocate that certain remarks in the order of the learned Sessions Judge were not only incorrect, but, were gross distortion of facts and of appreciation of law, and he requested in particular the remarks in para 47 be expugned. He also contended that the learned Sessions Judge entered upon an academic discussion on the property or otherwise of the grant of ad interim bail by the learned Magistrate pending the hearing of the bail application between April 16, 1981 to April 20, 1981. According to Mr. Jethmalani, the remarks of the learned Sessions Judge from paras 27 to 39 clearly show that the learned Sessions Judge has highly influenced by the rejection of anticipatory bail to the respondent earlier to the hearing in spite of specific directions given by the Supreme Court by its order dated April 15, 1981 that the bail application of the respondent after his detention should be considered on merits uninfluenced by the earlier rejection of the anticipatory bail by the High Court and the Supreme Court. According to Mr. Jehtmalani, this shows gross disrespect to the highest judicial forum of the Country, and he submitted that these remarks were unwarranted and uncalled for. Next he also submitted that these remarks in para 39 of his order, the Sessions Judge has shown special consideration to the fact that the learned Advocate General has personally appeared in the Court of the learned Magistrate to oppose the bail application. The learned Sessions Judge appears to have been influenced by the fact that the mere circumstance that the learned Advocate General was appearing before a Magistrate, the matter must be of great importance. Mr. Jethmalani with due respect to the learned Advocate General submitted that this approach on the part of the learned Sessions Judge would depreciate the respect for the rule of law and for the judiciary, and such remarks are also unwarranted and uncalled for.

23. In the context of the above submissions, the short point involved in the present petition is whether the Magistrate has wrongly assumed jurisdiction at the time when he granted the bail to the respondent and whether the same is liable to be cancelled. The next point to be determined is whether in the facts and circumstances of the present case, it is imperative to cancel the bail of the respondent. The law relating to the grant of bail under section 437(1) and under section 439(1) of the Criminal Procedure Code as well as for cancellation of bail under section 439(2) of the Code is well established in the case of Gurucharansingh v. State, A.I.R. 1978 S.C. 179. The Supreme Court has laid down the guidelines in that behalf. The same need not be reproduced. Suffice to say that the liberty of the individual is of the paramount consideration for the Court and unless there are special circumstances which lead to judicious inference of the fact that putting the individual in custody will lead to a proper and fair investigation, the Court shall not ordinarily refuse bail or cancel the bail already granted. The liberty of the individual cannot be jeopardised at the ipsi dixi of the investigating agency, but only on certain material facts brought out during the investigation which can lead the Court to the conclusion that there is a prima facie case made out that the accused is directly involved in the commission of the offence, that the offence is of a serious nature, that it is a non-cognisable offence and that the accused if enlarged on bail is likely to hamper the investigation or tamper the witnesses or is likely to flee from justice and thereby put obstruction in the fair trial of the case. If on these considerations the Court comes to the conclusion that it is necessary to put the accused in custody, then it certainly has wide powers even to cancel the bail granted earlier by the trial Court. But this Court will not ordinarily interfere with the order of bail if in the given circumstances of the case it is satisfied that all these considerations have been taken into account at the time when the trial Court exercised its discretion in favour of the accused and further if there are no other supervening circumstances disclosed during the investigation from the time the initial bail was granted till the date the matter comes up before this Court.

24. On the affidavits filed by the petitioner as well as the respondent, it is seen that certain information from the Ministry of Petroleum, Fertilizers and Chemicals, New Delhi has leaked out at the time when a contract for installation of Amonia plant in India granted to one company in U.S.A. was cancelled and granted in favour of two other companies in Denmark and U.K. It further appears that these facts were disclosed by a Hon'ble Member of the Parliament in December, 1980 which created a lot of criticism in the public and the press. It is thereafter that in March 1981, an offence under section 5 of the Official Secrets Act came to be registered by the C.B.I. at Delhi against one Arora, P.A. to the Director (F), Department of Chemicals and Fertilizers, New Delhi. It is thereafter that during the course of investigation, some others also came to be detained. It is pertinent to note from the chart presented by the petitioner himself that before the detention of this respondent, during the period March 7, 1981 to March 23, 1981, 8 persons were taken into custody, and all of them were in police custody for a very short period and for another short period in judicial custody, and subsequently all of them have been bailed out by the Court at New Delhi. It is after recording the statement of these persons, it is alleged that a strong suspicion arose in the mind of the Investigating Officer that the present respondent is connected with the commission of the offence and is the mastermind behind the operation of the whole episode. It is also pertinent to note that the residence of the respondent as well as his office have been extensively searched and documents seized, but no material effective towards the inference to show that there is any nexus between the respondent and the commission of the offence have been disclosed so far. It is also important to bear in mind that the respondent has been interrogated on 9 days for a total period of 17 hours and 35 minutes as per the orders of the Addl. Sessions Judge, Bombay, High Court of Bombay and Supreme Court of India. Thus, from the time the respondent was taken into custody and even before, that he has been interrogated on many occasions for long durations. More particularly, the respondent was released on bail on his regular bail application on April 20, 1981. The petitioner's chart does not show that the respondent has ever been called upon for interrogation after his release on bail on April 20, 1981. No doubt the Investigating Officer has been attempting to move one Court or the other for cancellation of bail granted to the respondent. Yet that by itself is no excuse not to further interrogate the respondent during this intervening period. Thus, at any rate, the Investigating Officer has not attempted to continue with the investigation, in so far as the respondent is concerned, for the period April 20, 1981 to May 20, 1981. It is an admitted position that some of the documents were seized during the search of March 23 and 24, 1981. This is almost two months back. The petitioner has not been able to point out any document in particular or set of documents in general which may throw some light on the culpability of the respondent in the commission of the offence.

25. The learned Advocate General vehemently urged that the investigation could not be proceeded within so far as the respondent is concerned since he was not available in police custody, inasmuch as if any clues or leads are available through interrogation, the same are dried up by the time the investigation proceeds. He contended that it is imperative that the accused be place in police custody for the purpose of investigation. I fail to understand this argument on behalf of the petitioner, particularly in view of the fact that the order passed by the learned Magistrate granting a bail to the accused is a conditional order. The Addl. Chief Metropolitan Magistrate, III Court, Esplanade, Bombay has passed the following order on April 20, 1981: 'The accused be released on bail on furnishing security of Rs. 50,000/- and personal recognition in the like amount on condition that (1) he shall either accompany C.B.I. police or shall remain present at any place including Delhi wherever C.B.I. police shall ask him to remain present or to accompany. (2) The accused shall make himself available for interrogation to C.B.I police whenever they want him at any place including Delhi, otherwise, police custody till 30th April 1981.' This order has been confirmed by the learned Sessions Judge by his judgment and order dated May 7, 1981. Thus, the conditional bail granted to the respondent gives wide powers to the Investigating Officer to ensure the presence of the respondent/accused as and when period required, and in Bombay, Delhi or any other place in India wherever the Investigating Officer wants him to accompany him and make himself available for the purpose of interrogation. A passing reference may also be made to the case of Miss Harsh Sawhney v. Union Territory, Chandigarh, : 1978CriLJ774 . The Supreme Court in the said case, after referring to the principles laid down in the matter of grant or refusal of bail already explained in Gurucharansingh v. State, A.I.R. 1978 S.C. 179 held that for either of these reasons, that is to say, for interrogation and for search and recovery of certain documents, the accused need not be taken into custody. If by an order of this Court the presence of the accused before the police for the purpose of interrogation is secured, then there appears to be no necessity at all whatsoever for cancelling the bail of the accused for the purpose of investigation. In this view of the matter, I do not think it necessary to deal with the submissions of the learned Advocate General that the presence of the respondent is imperative for the purpose of investigation. It is all the more so in view of the fact that no supervening circumstances have been brought on record from the time the premises of the respondent were searched on March, 23, 1981 till this date.

26. This is as far as the merits of the case is concerned. Apart from this, the contention of the learned Advocate General is two fold. He submits that since the Magistrate at Bombay has no jurisdiction to entertain the bail application, there is an inherent infirmity in the order of grant of bail, and the same is liable to be quashed and the bail is liable to be cancelled. In that regard, it must be borne in mind that the main charge as alleged in the F.I.R. is one under section 5 of the Official Secrets Act. Under section 13(3) of the said Act, no Court shall take cognisance of an offence committed under the said Act, except upon a complaint made by order of or under authority from the appropriate Government. In the instant case, no such complaint duly authorised by the appropriate Government has been tendered and consequently, no Court has yet taken cognisance of this offence. Under section 13(4) of the said Act, for the purposes of trial of a person for the offence under the said Act, the offence may be deemed to have been submitted either at the place in which the same actually was committed or at any place in India in which the offender may be found. Thus, in the present case, even on the allegation of the prosecution, the offence has been committed at Delhi and the mastermind behind the same was the present respondent who was found at Bombay. Thus, either Court at Delhi or at Bombay to try the case after a regular charge-sheet is filed. No doubt it is true that the option may be with the Investigating Officer as to which Court the regular charge-sheet is to be presented. But it would be difficult to visualise the final picture that may emerge after the entire investigation is over. It could very well be found the offence was committed not at Delhi, not at Bombay but some other place like Madras and Kathmandu, in which case, it would be needless to enter into an academic discussion on about the jurisdiction of a particular Court.

27. Chapter 33 of the Code does not inhabit or curtail the powers of a Court of criminal jurisdiction on the ground of territorial restrictions. The wording of section 437 to 439 of the Code merely refer to the situation as to when a person is arrested or detained, than that the said person has a right to seek his enlargement on bail from the concerned Court. These powers as to bail and bonds enumerated in Chapter 33 of the Code are not subject to section 167 of the Code. Such a restriction is conspicuously absent. Thus, the provisions of Chapter 33 read with section 167(2) of the Code clearly show that a criminal Court has inherent jurisdiction to enlarge a person on bail, if the said Court is satisfied that his detention is unnecessary. In view of the above discussion, I am of the opinion that the Court of the Magistrate at Bombay, during the pendency of investigation and in the facts and circumstances peculiar to this case, has jurisdiction at the time when bail was granted on April 20,1981. Thus on the question of jurisdiction as well as on merits on the facts and circumstances of the case, I do not find that there is any substance in the contention of the petitioner that the bail granted to the respondent should be cancelled for the purpose of further investigation.

28. Finally, I deal with the criticism levelled at the order passed by the learned Sessions Judge.

29. The learned Advocate General contended that the wordings in the said order dated May 7, 1981 clearly show that the Sessions Judge was influenced by some averments in the bail application which inter alia states that at the earlier stage of grant of anticipatory bail, the learned Advocate General has conceded that there is no admissible evidence available against the respondent. He strongly objected to those remarks in the impugned order of the Sessions Judge. The Advocate General particularly made a reference to para 27(J) at page 436 of the compilation. On the reading of the said impugned order, it does appear prima facie that the learned Sessions Judge was harping on the said alleged concession which in fact was never given. Mr. Rajan Patel for the respondent, however, urged that irrespective of the said statement appearing in the judgment, the learned Sessions Judge has independently come to the conclusion that the bail granted to the respondent is not liable to be cancelled. Be it as it may, it appears that the learned Sessions Judge has gone a step ahead in discussing at length the various proceedings which took place at the time of grant of anticipatory bail irrespective of the fact that the Supreme Court in its order dated April 15, 1981 has made it explicitly clear that the regular bail application of the respondent ought to be considered on its own merits, uninfluenced by the rejection of the anticipatory bail by the High Court and the Supreme Court. Mr. Ram Jethmalani also pointed out several paras from the said judgment which clearly show the working of the mind of the learned Sessions Judge while coming to such a conclusion. It was absolutely unnecessary for the learned Sessions Judge to enter into a discussion of the facts and circumstances regarding rejection of anticipatory bail. I do hope that these observations will be taken note by the learned Sessions Judge.

30. A more serious criticism has been levelled at the said order of the learned Sessions Judge by Mr. Ram Jethmalani. It appears that at the time of arguments, the learned Sessions Judge had to put up a query as to how the trial Court had granted ad interim bail to the respondent while the hearing of the bail application was proceeding. It further appears that Mr. Ram Jethmalani appearing for the respondent had pointed out that the arguments of the accused and of the Advocates General for the State were not completed on the first day of hearing, and since there were Court holidays on the subsequent days, the learned Magistrate had granted ad-interim bad till the hearing of the bail application was completed. It appears further that Mr. Ram Jethmalani had put up a hypothetical argument that in a matter where the Public Prosecutor appearing for the State were to delay the arguments and not completing the same during the day, it would be impossible for the accused to get enlarged even if he is entitled merely by the tactics entertained and indulged by the Public Prosecutor. He has made no reference to the learned Advocate General, but was merely putting up a hypothetical argument at that stage. In this view of the matter, the observations made by the learned Sessions Judge in para 47 of the impugned order are pertinent. It reads :

'47......In his enthusiasm to defend his order, Mr. Jethmalani went to the extent of saying that in a case of this type when the accused is taken in custody and if the police desire to keep him in their lock-up, then the Advocate General may continue his arguments for the whole day and the day thereafter and by such dishonest tactics, i.e. by a legal filibuster he can prevent the Court making a bail order in favour of the accused. I am extremely sorry that such an argument should be advanced and canvasses in a Court of Law. Of course Mr. Jethmalani made amends by saying that the present Ld. Advocate General was not the person of that type and he would not indulge in dishonest filibuster. I fail to understand how such unwarranted and sinister insinuations can be hurled at any Advocate General or any Counsel for the prosecution. I am unable to accept the suggestion that Counsel for prosecution will deliberately and dishonestly indulge in filibuster tactics to prevent accused going on bail. I am also unable to accept the suggestion that the possibility of filibuster tactics empowers or confers any special power on the Court in addition to section 437 Criminal Procedure Code.'

Mr. Ram Jethmalani took strong objection to the language used and the remarks passed against him in particular and against the system of rule of law in general. The learned Advocate General fairly accepted the proposition that it was merely a hypothetical argument which was being put forth and no aspersions were caste by Mr. Jethmalani against the Advocate General or for that matter against any Public Prosecutor. I am personally surprised at such remarks being incorporated in the judgment of the learned Additional Sessions Judge, and to my mind, they are most repugnant to the whole system of judiciary in our country. It is hereby ordered that the impugned remarks quoted above from para 47 of the judgment dated May 7, 1981 passed by the Additional Sessions Judge, Greater Bombay in Criminal Application No. 97 of 1981 be and are hereby expugned from record.

31. In view of the above discussion, I find that there is no merit in this petition for cancellation of the bail already granted to the respondent. Consequently, the petition stand dismissed.

Later Counsels for the petitioners seek certificate of this Court to prefer appeal to Supreme Court. I do not think that there is any substantial question of law of public importance included in this petition. Consequently the leave is refused.


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