2010:BHC-AS:16937

1 Appln 2915-10

Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.2915 OF 2010

Amar Dinesh Shah ..Applicant

V/s.

The State of Maharashtra ..Respondents

& ors

Mr.Niteen Pradhan i/b.Mr.Yusuf Iqbal Yusuf

Neville Majra i/b.M/s.Yusuf & Associates,
Advocate, for the Applicant
Mrs.Geeta Mulyekar, APP, for Respondent No.1 -
State
Mr.Rajendra Rathod, Advocate, for the
Respondent Nos.3 & 4

CORAM : R.C.CHAVAN, J.

DATE : 1ST SEPTEMBER, 2010

P.C.

. This an Application for cancellation

of bail granted by the Additional Chief

Metropolitan Magistrate, 19th Court, Esplanade,

Mumbai.

2. I have heard the learned Counsel for

the Applicant.

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3. The Applicant filed a report with the

police complaining of having been cheated by

the Respondent Nos.3 & 4 by handing over

forged letters of credit issued by Corporation

Bank, Bhopal. Forgey of that letters of

credit was said to have made by one Deepak

Zala. The learned Counsel for the Applicant

was right in submitting that the forgery of

letters of credit by Zala cannot exclude

complicity of the Respondent Nos.3 & 4 since

it is the Respondent Nos.3 & 4, who had

delivered the letters of credit to the

Applicant. This aspect should have been

considered by the learned Magistrate.

4. The learned Counsel for the Applicant

submitted that the learned Magistrate should

have also seen that an offence where letters

of credit have been forged is punishable with

imprisonment for life. He should not have

exercised powers under Section 437 to admitted

the Respondent Nos.3 & 4 to bail.

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5. I have heard the learned Counsel for

the Respondent Nos.3 & 4 as well. First,

though the offence punishable under Section

467 prescribes punishment of imprisonment

which may extend to imprisonment for life and

therefore, the magistrate's powers to grant

bail under Section 437 of the Code of Criminal

Procedure is not ousted. It has been held by

this Court very recently in Criminal Writ

Petition No.2785 of 2009 dated 22nd July, 2010

that merely because punishment prescribed may

extend to imprisonment for life, powers of

magistrate to grant bail under Section 437 of

the Code of Criminal Procedure are not

excluded. Only if the offence is punishable

with only death or imprisonment for life the

magistrate cannot grant bail. Ordinarily,

when Magistrate has power to grant bail, he is

expected to exercise that powers with

circumspection. In this case, it was not

necessary to make the observation which he has

made while admitting the Respondent Nos.3 & 4

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to bail, which virtually show that the

learned Magistrate had reached a prima facie

conclusion that the Applicants were not

involved in the offence punishable under

Section 467 of the Indian Penal Code. This

question would have to await trial.

6. As to the cancellation of bail, if the

Magistrate, who held to have power to grant

bail, question of cancellation could also be

raised before the Court of Sessions. I would

however not like to send the parties back to

the Sessions Court after I have spent my time

on the matter. Considering the fact that

investigating officer from Economic Offences

Wing of CID had himself sought magisterial

custody of the Respondent Nos.3 & 4, presence

of the Applicant in custody for the purpose of

investigation was obviously not necessary.

There being in jail is unlikely to be

necessary for completing the investigation,

since offence is based on the documents which

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have been secured by the police. The learned

Magistrate has also directed that the

Respondent Nos.3 & 4 shall attend the office

of investigating officer Economic Offences

Wing, CID, Unit-III, Mumbai, twice a week,

which should be sufficient to ensure that they

remain present and also co-operate with the

police for investigation.

7. In view of this, excluding the

observations which the learned Magistrate has

made while deciding bail Application which he

could have avoided there is no reason, to

cancel bail granted.

8. Criminal Application is, therefore,

rejected.

(R.C.CHAVAN, J.)

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