Bombay High Court
Mohammed Arif Din Mohd, Shaikh vs State Of Maharashtra on 25 February, 1999
Equivalent citations: 2000(5)BOMCR95, 2000BOMCR(CRI)~, 1999CRILJ2645
Author: Vishnu Sahai
Bench: Vishnu Sahai
ORDER Vishnu Sahai, J.
1. Heard learned Counsel for the parties. This is an application for bail in a case under section 307, I.P.C. On 4-7-1997, sometimes between 7 to 7.30 p.m. Rajiv Roy, son of late Gulshan Roy, a Film Producer Director and Distributor by profession received a telephone call from Dubai and the caller gave him a telephone number of Dubai and asked him to contact Abu Salem. Rajiv Roy telephoned Dubai and the person from the other end said^^vki jktho xSx ds vkWQhl esa cksy jgs gks D;k** and disconnected the telephone. Ten days later, Rajiv Roy received another telephone call from Dubai and asked his operator to talk to the caller. The operator tape recorded the conversation which pertained to a demand of Rs. 20 crores and a threat that he and his family members would be killed if they failed to fulfil it, Thereafter, one day the said person rang from Dubai and threatened Rajiv Roy's wife and told her that her husband had not telephoned Abu Salem, even after he had been asked to do so. Since Rajiv Roy was very afraid, he contacted police officials of Crime Branch, C.I.D. Mumbai, to provide him with armed protection. On 21-7-1997, the said person again telephoned him from Dubai. His operator Dilip lifted the receiver. The caller threatened Dilip to ask Rajiv Roy to ring up Dubai on the number given by him. He also threatened Roy's wife. It is said that police constable Mohan Singh had been assigned the duty of protecting Rajiv Roy from 12-7-1997 onwards. On 31-7-1997, about 10 a.m. he reported for duty at Roy's residence. At about 12.45 noon, Roy left his residence for his office in his car accompanied by Mohan Singh. At about 4.40 p.m. in the office of Rajiv Roy at Tardeo, Mumbai, the applicant came near the reception counter followed by his associates. He whipped out a pistol and said that since Rajiv Roy had taken a confrontation with Abu Salem, he would be finished. At that time, Constable Mohan Singh stood up with his loaded carbine. Other five accused who had come with the applicant whipped out fire arms and pointed them at the office staff. Mohan Singh sensing danger, pointed out his carbine gun towards the applicant and others and shouted ^^idMks xksyh ekjrh gS D;k!** and thereafter, the applicant and his associates started running towards the stair case followed by Mohan Singh. When Mohan Singh was chasing them at Tardeo Road, the applicant and his associates started firing at him. Mohan Singh in his self-defence started firing with the result that the applicant received bullet injuries on left arm. Immediately, the applicant was apprehended with his pistol. The associates of the applicant however, managed to escape away. On making enquiries, from the applicant, it transpired that he and his associates were working with the gang of the notorious gangster Abu Salem.
Thereafter, Mohan Singh took the applicant to Tardeo Police Station and lodged his F.I.R. under sections 147, 148, 307, 407, 452 read with 149 and 120-B of I.P.C. and under sections 3 and 25 of the Arms Act.
2. The applicant was arrested on 31-7-97. Since the charge-sheet against the applicant was not submitted within sixty days, on 9-10-97, the learned Additional Chief Metropolitan Magistrate, 4th Court, Girgaum Mumbai was pleased to grant bail to the applicant under section 167(2), Cr.P.C. From a perusal of the order dated 9-10-97, it appears that it was urged before him that since it was the case of no injury, the maximum punishment under section 307, I.P.C. would be imprisonment up to 10 years and therefore, under section 167(2), Cr.P.C. time for filing the charge-sheet would only be 60 days. He accepted the contention of the applicant's Counsel and granted bail.
3. It appears that the applicant could not avail of the bail granted to him under section 167(2), Cr.P.C. Subsequent to the commitment of the case to the Court of Sessions, Mumbai the applicant approached the Registrar, Sessions Court, Mumbai for accepting the surety in terms of the bail order dated 9-10-1997, but the Registrar refused to accept it. Consequently, the applicant preferred Criminal Application No. 960 of 1998 before the Sessions Court for bail, which was rejected on 21-12-1998. On 24-12-1998, he moved another bail application (Criminal Bail Application No. 1191 of 1998) on which the learned Additional Sessions Judge, issued a show cause notice to him as to why his bail under section 167(2), Cr.P.C. be not cancelled. Thereafter, the Additional Sessions Judge vide order dated 22-1-1999 cancelled the bail of the applicant on the following considerations:--
(1) that the case of the applicant has come up for trial;
(2) that bail under section 167(2), Cr.P.C. was not on merits and there is a strong prima facie case against the applicant on merits.
(3) that the gravity of the offence is such that the witnesses would feel threatened to depose;
(4) that the applicant was likely to abscond from India or can go underground in case he was granted bail.
4. Feeling aggrieved by the order dated 22-1-1999 passed by the Additional Sessions Judge, Greater Mumbai, cancelling the bail of the applicant, the applicant has preferred the present application for bail. Learned Counsel for the applicant strenuously urged that the Supreme Court in para 10, has observed in the case of Mohammed Iqbal Madar Sheikh v. State of Maharashtra, that bail under section 167(2) would be bail under section 437(1) and (2) and section 439(1), Cr.P.C. and can only be cancelled when a case for cancellation is made out under sections 437(5) and 539(2), Cr.P.C. He contended that submission of the charge-sheet would not bring to an end the bail order under section 167(2), Cr.P.C. Learned Counsel for the applicant also urged that the reasons given for cancellation of bail by the learned Additional Sessions Judge are wholly extraneous, and therefore the order be set aside.
5. I have given my due and anxious consideration to the submissions canvassed by the learned Counsel for the applicant but, regret that I do not find merit in them. It is well-settled that under sections 437(5) and 439(2), Cr.P.C. twin reasons for cancellation of bail are: Possibility of the accused absconding and/or of his tampering with the prosecution witnesses. Earlier, 1 have adverted to the reasons given by the Additional Sessions Judge, Greater Mumbai for cancelling the bail of the applicant and their perusal would show that two of the grounds which have weighed with him for cancelling the bail of the applicant are possibility of the accused-applicant threatening the witnesses and of his absconding.
6. In other words, the order of cancellation of bail is founded on the reasons which are tenable for cancelling bail. It is true that some other reasons namely that the case has been fixed for trial and the prosecution has made out a strong prima fade case against the applicant, have also been given by the learned Additional Sessions Judge but, these reasons in my view, would not vitiate the entire order.
7. Apart from it, I find that the learned Additional Chief Metropolitan Magistrate, Greater Mumbai, erred in granting bail under section 167, Cr.P.C. on a misconceived premise that case of the applicant would fall under section 167(2)(a)(ii), Cr.P.C.
It would be pertinent to extract the relevant part of section 167, Cr.P.C. :---
Section 167.---
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(2) "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding---
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXVII for the purposes of that Chapter."
8. It would become clear from the provision extracted above, that if an offence is not punishable with death or imprisonment for life or imprisonment for a term not less than ten years and the investigation has not been completed within 60 days of the arrest of the accused, the person detained shall be released on bail.
9. Section 307, I.P.O. reads thus:--
Attempt to murder.---Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is herein before mentioned.
Attempts by life convicts.---When any person offending under this section is under sentence of imprisonment for life, he may if hurt is caused be punished with death.
10. A perusal of section 307, I.P.C. would show that where hurt is not caused, the punishment may extend to 10 years and fine. The expression 'which may extend to ten years' used in section 307, I.P.C. in my view, includes a sentence of 10 years. In other words, even in an offence under section 307, IPC, where hurt is not caused, punishment of 10 years can be imposed and if punishment of 10 years can be imposed in such a case, the period for completing the investigation under section 167(2)(a)(i), Cr.P.C. would be 90 days.
11. In my view, the expression 'not less than 10 years' used in section 167(2)(a)(ii), Cr.P.C. would include offences wherein a sentence of 10 years can be awarded. Since in a case of no injury under section 307, I.P.C., imprisonment of ten years can be awarded section 167(2)(a)(i), Cr. P.C. would be applicable and the period for completing the investigation would be ninety days. It is only where the period of imprisonment is less than 10 years that the investigation has to be completed within 60 days in terms of section 167(a)(ii), Cr. P.C. In my judgment, the learned Magistrate has been oblivious to the fact that the expression imprisonment which may extend to 10 years includes 10 years and it is only where punishment is less than 10 years, would section 167(2)(a)(ii), Cr. P.C. come into operation.
For the said reasons, the learned Magistrate erred in applying section 167(2)(a)(ii), Cr. P.C.
12. Consequently, I find that the bail order passed by the learned Magistrate cannot be sustained in law.
13. Coming to the merits of the bail application, I find that the facts of this case are gross. In the heart of Mumbai, in broad-day light, the applicant along with his associates, all armed with revolvers entered the office premises of Rajiv Roy in Tardeo, Mumbai and thereafter enquired in an abusive tone where Rajiv Roy was and along with his associates brandished revolvers and fired at police constable Mohan Singh who, in self-defence returned the fire resulting in the applicant sustaining bullet injuries and being apprehended on the spot.
On these facts, the mere circumstance that the applicant is in jail since 31-7-1997, and his trial is not over would not entitle him to bail.
14. Consequently, I reject this bail application.
At this stage, learned Counsel for the applicant prays for expediting the trial. The learned trial Judge shall endeavour to dispose of the trial within 6 months from today.
15. Application rejected.