2010 (7) TMI 1191 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction and propriety of the Magistrate in granting bail.
2. Validity of the refusal of police custody by the Magistrate.
3. Applicability of Section 167 and Section 309 of Cr.P.C. in granting police custody post-cognizance.
4. Interlocutory nature of orders granting bail and refusing police custody.
5. Grounds for cancellation of bail by superior courts under Section 439(2) Cr.P.C.

Issue-wise Detailed Analysis:

1. Jurisdiction and Propriety of the Magistrate in Granting Bail:
The petitioners, senior officers of the Municipal Corporation of Navi Mumbai, were accused of aiding a contractor in committing forgery and misappropriation, resulting in a loss of over Rs. 1,38,00,000 to the Corporation. The Magistrate granted bail to the petitioners hastily, without giving the prosecution sufficient time to oppose the bail application or to file for police custody. The court found that the Magistrate's order was passed without proper application of mind and was based on an overruled authority. The court emphasized that the Magistrate showed undue haste and failed to consider the gravity of the allegations.

2. Validity of the Refusal of Police Custody by the Magistrate:
The Magistrate refused police custody on the ground that once a charge sheet is filed and cognizance is taken, only judicial custody can be granted, citing the Bombay High Court's decision in Mohammed Yasin Mansuri. However, this decision was overruled by the Supreme Court in State through CBI vs. Dawood Ibrahim Kasker, which clarified that Section 167 Cr.P.C. applies to a person arrested during further investigation even after cognizance is taken. The court held that the Magistrate's refusal to grant police custody was incorrect and based on an overruled judgment.

3. Applicability of Section 167 and Section 309 of Cr.P.C. in Granting Police Custody Post-Cognizance:
The Supreme Court in Dawood Ibrahim Kasker held that Section 167 applies to an accused arrested during further investigation, allowing for police custody even after cognizance is taken. The court reiterated that the words "accused if in custody" in Section 309(2) refer to an accused present before the court when cognizance was taken, not to one arrested later during further investigation. Thus, the Magistrate could have granted police custody under Section 167.

4. Interlocutory Nature of Orders Granting Bail and Refusing Police Custody:
The court examined whether orders granting bail or refusing police custody are interlocutory. It cited Supreme Court judgments stating that while the grant or refusal of bail is interlocutory, the refusal of police custody is not, as it has finality and cannot be repeatedly sought. The court concluded that the Magistrate's refusal of police custody was not an interlocutory order and could be challenged under revisional jurisdiction.

5. Grounds for Cancellation of Bail by Superior Courts under Section 439(2) Cr.P.C.:
The court referred to several Supreme Court judgments, including Puran vs. Rambilas and Subodh Kumar Yadav, which allow superior courts to cancel bail if it is granted without jurisdiction, on irrelevant material, or with manifest impropriety. The court found that the Magistrate granted bail without proper consideration of the seriousness of the offences and without giving the prosecution a fair opportunity to oppose. This justified the cancellation of bail under Section 439(2) Cr.P.C.

Conclusion:
The court dismissed the petitioners' writ petition and allowed the intervener's application, setting aside the bail granted by the Magistrate. The petitioners were directed to present themselves before the Judicial Magistrate, who would reconsider the request for police custody. The court clarified that after the expiry of police custody, the petitioners could apply for bail again, which would be decided in accordance with the law.