Dismissed

Anandraj Jauanal Nadar v. Gopal Raj Nadar and Ors.

Bombay HC7 Aug 2013APL/192/2013

Case brief

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What is this about?

This court dismissed a criminal application challenging the grant of anticipatory bail. The court held that the challenge should have been filed under Section 439(2) Cr.P.C. regarding cancellation of bail rather than under Section 482 Cr.P.C. on grounds of perversity, finding no error in the lower court's order.

What did the court decide?

Criminal Application No.192 of 2013 was dismissed.

Anandraj Jauanal Nadar Vs Gopal Raj Nadar and Ors. — Bail and Remand | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPLICATION NO.192 OF 2013 IN ANTICIPATORY BAIL APPLICATION NO.1668 OF 2012 AND ANTICIPATORY BAIL APPLICATION NO.6 OF 2013

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Anandraj Jayabal Nadar. …Petitioner/Applicant versus 1.Gopal Raj Nadar & Ors. ...Respondents

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Mr.J.G.Bhanushali, for Petitioner/Applicant.

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Mr.Ramesh Jadhav, for Respondent nos.1 to 4.

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Mr.R.D.Suryawanshi, for Respondent no.5.

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Mr.S.S.Pednekar, APP for State-Respondent no.6.

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CORAM : K.U.CHANDIWAL, J.

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DATED : 7^th AUGUST, 2013

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P.C. :

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Heard extensively.

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Grant of bail under Section 438 of Cr.PC on 3.1.2013 in Anticipatory bail application no.1668 of 2012 by the learned Additional Sessions Judge at Greater Mumbai, is questioned by the original complainant.

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On 9.9.2011 owing to Puja ceremony of the deity and accused insisting for preference in prasad, a commotion took place. Resultantly, it is alleged by the applicant that the accused-respondent carried gold ornaments of the deity worth Rs.5,74,000/-. This gave rise to file FIR no.288 of 2011. The accused-respondent has also filed another FIR no.289 of 2011. Since initial application of Penal provision was felt inadequate, Section 397 of IPC was incorporated. An application for cancellation of bail was moved before the learned M.M. and the learned M.M. on 27.12.2012 observed in paragraph 9 as under:-

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“ In view of the judgment in Pralhad Sing's case, the question of cancellation of bail does not arise. The prosecution is at liberty to arrest the accused in relation to the added offence as and when required.”

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The respondents approached this Court in Anticipatory Bail Application no.1215 of 2012 apprehending their arrest and this Court observed in paragraph 4 as under:-

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“4. After considering all the relevant aspects of the matter and after hearing the counsel for the parties and the learned APP, application is disposed of in the following terms, for which none has any objection: (i) The learned Magistrate shall decide the application for cancellation of bail expeditiously, and within a period of 15 days from today.

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(ii) In the event of the Magistrate's coming to the conclusion that bail granted to the applicants, or any of them, is liable to be cancelled, he may pass an order to that effect; but he shall not give an effect to any such order for a period of 7 days from the date of passing of such order.”

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Precisely it was in tune with the directions of this Court, the learned Additional Sessions Judge entertained the anticipatory bail application no.1668 of 2012 on 3.1.2013 which apparently was on change of circumstances. It cannot be said that the order was perverse or the learned Additional Sessions Judge sidelined the earlier order of rejection of Anticipatory Bail Application recorded on 12.12.2012 (ABA No.1566 of 2012).

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Learned Counsel says, the petition is maintainable under Section 482 of Cr.P.C. as there is perversity in the order, without resorting to the provisions of Section 439(2) of Cr.P.C.

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Section 439(2) of Cr.P.C. deals with a situation in respect of cancellation of bail granted to a person. Even if there is perversity, it was imperative and expected of the applicant to have approached under the banner of Section 439(2) of Cr.P.C. instead of rushing to this Court under Section 482 thereof. Reliance placed by the learned Counsel to the

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judgment in the matter “Mahendra Manilal Shah & Etc. Vs. Rashmikant Mansukhlal Shah (2010 Cri.L.J. 4357)” of this Court will not come to assistance as in the case before the learned Judge, the bail was entertained on medical ground. The discretion was exercised by the Magistrate. The learned Judge has indeed observed, the State can move High Court under Section 439(2) of Cr.P.C. for cancellation of bail.

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In the result, I do not see any error in the orders of the learned Additional Sessions Judge. Criminal Application no.192 of 2013 is dismissed.

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A statement is made on behalf of respondent nos.1 to 4 that they have not threatened the complainant/applicant or not created impediment in day to day functioning at the temple.

Anandraj Jauanal Nadar v. Gopal Raj Nadar and Ors.

Case brief

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Anandraj Jauanal Nadar v. Gopal Raj Nadar and Ors.

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