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2009 (6) TMI 1022 - HC - Indian LawsMaintainability - Applications seeking cancellation of bail granted by the Ld. Magistrate - accused charged for the offence Under Sections 420, 465, 467, 468, 471, r/w. 34 of I.P.C - Original Complainant is u/s 439(2) - HELD THAT - I am therefore of the firm view that since Sections 437(5) and 439(2) Code of Criminal Procedure cannot be invoked by the Applicants for reasons set out hereinabove, and since there is no other efficacious remedy available to the applicants under the Code, this Court can decide the applications by invoking its inherent jurisdiction Under Section 482 Code of Criminal Procedure, and/or under Article 227 of the Constitution of India. In the present case as set out earlier even the basic inquiry as to the nature of sickness is not made prior to grant of bail, more so when the Bail Application was also silent on this aspect. In the absence of any such material before the Ld. Magistrate, he ought not to have granted bail to the accused u/s 437(1) proviso only on the ground that admittedly the accused is under medical treatment. If such orders are allowed to be passed it would open flood gates for such applications to be made in serious non-bailable cases, only on the pretext of the accused being on medical treatment. In my view the Ld. Magistrate by granting bail to the accused only on the ground of him being under medical treatment at the hospital exhibits a totally casual approach in granting bail to an accused u/s 437(1) proviso which is a discretionary power required to be exercised in a judicial manner and on well settled judicial principles. Also in my view the Ld. Magistrate by not taking into account the relevant circumstances like the nature of sickness, the medical facilities/treatment available at the existing hospital, etc. and by granting bail only on the ground of the Respondent Accused taking medical treatment in hospital amounts to granting of bail u/s 437(1) proviso under irrelevant circumstances. The Ld. Magistrate has not only failed to call for a medical report from the Hospital but has not even prima facie satisfied himself as regard the nature of the sickness, which ought to have been done by him at the threshold. The submissions now made as regard the contents of the discharge report of Lilavati Hospital is admittedly subsequent to the passing of the impugned order and, therefore, is of no assistance to the Respondent Accused as the said discharge report was not even in existence when the impugned order was passed. Before I part with the Order I must record that several submissions were advanced before me by the parties to the Applications touching the merit of the matter. However, since the limited question before me pertains to the correctness or otherwise of the impugned Order, I have thought it fit to keep such submissions out of the purview of the foregoing discussion. The observations made in this Order are for the limited purpose of deciding the Applications for cancellation of bail. It is clarified that notwithstanding this Order the Respondent Accused may apply for regular bail before the appropriate Court. If such Application is made the same shall be decided on its own merits. Thus, the order passed by the Ld. J.M.F.C., granting Bail to the Respondent Accused is perverse, arbitrary, without application of mind and displays incorrect exercise of discretion. Hence I pass the following order - The order of the Ld. J.M.F.C., granting bail to the Respondent Accused is hereby quashed and set aside. Application allowed.
Issues Involved:
1. Cancellation of bail granted by the Judicial Magistrate First Class (JMFC), Thane. 2. Maintainability of the applications under Sections 439(2) and 482 of the Code of Criminal Procedure (CrPC) and Article 227 of the Constitution of India. 3. Grounds for cancellation of bail. 4. Legality and correctness of the impugned order granting bail. Issue-wise Detailed Analysis: 1. Cancellation of Bail Granted by JMFC, Thane: The applications for cancellation of bail were filed by the State and the Original Complainant under Sections 439(2) and 482 CrPC and Article 227 of the Constitution of India. The bail was initially granted by the JMFC, Thane, in C.R. No. I/240 of 2008. The Respondent Accused was involved in serious allegations of fraud and forgery, including misappropriation of sale proceeds of flats and forging resolutions. The Original Complainant and others initiated proceedings against the Respondent Accused, leading to the discovery of fraudulent activities. 2. Maintainability of the Applications: The Respondent Accused contended that the applications were not maintainable under Section 439(2) CrPC since the accused was not released on bail. The court examined the maintainability of the applications under Sections 437(5) and 439(2) CrPC and Article 227 of the Constitution. It was argued that the Magistrate cannot be approached to cancel bail on the grounds of illegality or perversity of the order. The court held that the applications were maintainable under Section 482 CrPC and Article 227 of the Constitution, as there were no other specific provisions for cancellation of bail in the given circumstances. 3. Grounds for Cancellation of Bail: The court considered the rival contentions regarding the maintainability and grounds for cancellation of bail. It was argued that the Magistrate had granted bail under the proviso to Section 437(1) CrPC without proper assessment of the sickness of the accused. The court referred to several judicial decisions, emphasizing that every sickness does not justify bail under the proviso to Section 437(1) CrPC. The court must assess whether the sickness is of such a nature that it cannot be treated while keeping the accused in custody. The court found that the Magistrate had failed to call for any medical report or ascertain the particulars about the sickness/treatment/ailment of the accused before granting bail. 4. Legality and Correctness of the Impugned Order: The court examined the legality and correctness of the impugned order passed by the JMFC, Thane. The court found that the Magistrate had granted bail to the Respondent Accused only on the ground that the accused was under medical treatment, without proper inquiry into the nature of the sickness or the availability of medical facilities in custody. The court held that the order was perverse, arbitrary, without application of mind, and displayed incorrect exercise of discretion. Conclusion: The court quashed and set aside the order of the JMFC, Thane, dated 14th May 2009, granting bail to the Respondent Accused. The applications for cancellation of bail were allowed, and the cash bail furnished by the Respondent Accused was ordered to be refunded. The court clarified that the Respondent Accused may apply for regular bail before the appropriate court, which shall be decided on its own merits.
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