Petitioners challenged orders granting permanent exemption from personal appearance conditioned on furnishing bail bonds in cheque cases. The High Court dismissed the petitions, holding the Magistrate's discretionary order was based on cogent reasons and was neither perverse nor illegal.
Petitions dismissed; rule discharged.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
24-WP-1339-1340-1341-1342-2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.1339 OF 2017
WITH
CRIMINAL WRIT PETITION NO.1340 OF 2017
WITH
CRIMINAL WRIT PETITION NO.1341 OF 2017
ALOK SHARMA AND OTHERS)...PETITIONERS
V/s.
THE STATE OF MAHARASHTRA AND ANR.)...RESPONDENTS
Mr.Manish Bohra i/b. A.S.Khan and Associates, Advocate for the
Petitioners.
Mr.A.R.Kapadnis, APP for the Respondent – State.
Mr.Lalit Katariya, Ms.Benedicta Lobo i/b. Katariya and Associates,
Advocate for Respondent No.2.
CORAM:A. M. BADAR, J.
DATE:23rd JANUARY 2020
ORAL JUDGMENT:
1Rule. Rule is made returnable forthwith. Heard finally
with consent of parties.
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2Orders dated 19th December 2016 passed by the
learned Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai,
is challenged in these petitions. By the said orders, applications of
petitioners/accused nos.5 to 7 for permanent exemption came to
be granted but with a condition that they should furnish bail
bonds within next three months.
3Heard the learned counsel appearing for petitioners.
By relying on judgment of the Hon'ble Apex Court in the matter of
Bhaskar Industries Ltd. vs. Bhiwandi Denim and Apparels Ltd. and
Others1 he argued that in summons cases even a Magistrate can
exempt personal appearance of the accused right from day one.
To buttress this contention, reliance is also placed on Mr.Bhaskar
Sen vs. State of Maharashtra & Ors.2. In addition, it is argued that
in other four cases wherein petitioners are accused, they are
permanently exempted without asking them to furnish bail bonds.
4As against this, the learned counsel for contesting
1 (2001) 7 Supreme Court Cases 401
2 2004 (4) ALL MR 606
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respondent i.e. original complainant argued that cogent reasons
are given by the learned trial Magistrate, as found in paragraph 6
of the impugned order, and therefore, no interference is required
in the impugned order.
5I have considered the submissions so advanced and
also perused the impugned orders. In paragraph 17 of its
judgment, the Hon'ble Apex Court in the matter ofBhaskar
Industries Ltd. (supra)has observed thus :
“17Thus, in appropriate cases the magistrate
can allow an accused to make even the first
appearance through a counsel. The magistrate is
empowered to record the plea of the accused even
when his counsel makes such plea on behalf of the
accused in a case where the personal appearance of
the accused is dispensed with. Section 317 of the
Code has to be viewed in the above perspective as it
empowers the court to dispense with the personal
attendance of the accused (provided he is
represented by a counsel in that case) even for
proceeding with the further steps in the case.
However, one precaution which the court should
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take in such a situation is that the said benefit need
be granted only to an accused who gives an
undertaking to the satisfaction of the court that he
would not dispute his identity as the particular
accused in the case, and that a counsel on his behalf
would be present in court and that he has no
objection in taking evidence in his absence. This
precaution is necessary for the further progress of
the proceedings including examination of the
witnesses.”
6Bare perusal of this paragraph makes it clear that
discretion is vested with the learned trial court in the matter of
grant of exemption. In the cases in hand, following are the
observations of the learned trial court made in paragraph 6 of the
orders while deciding applications for grant of permanent
exemption :
“6…….However it is pertinent to note that
though the present case is triable by summons case
or summary trial procedure then also I am of
opinion that considering the cheque amount it can
not be said that the present case is of petty nature.
Moreover, before this court there are 4000 cases
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U/sec. 138 of N.I.Act pending and in those cases
there are several instances that even after furnishing
bail and engaging advocate at the last movement of
case i.e. at the point of final arguments Advocate
who conducted the matter in absence of accused
through out the trial filed no instructions pursis and
in that circumstances atleast there is the security in
the form of bail and bonds to penalise the accused
by forfeiting the same. Here in the present case
before me Ld. Advocate for accused No.5 to 7 claims
permanent exemption without furnishing the bail,
only on sole ground that the accused are resident of
long distance but as per my opinion this ground is
not at all satisfactory to dispense the accused from
furnishing bail and bonds. According to law, bail
and bonds are taken only for the security of
appearance of the accused as and when called and
without such security I am of view that accused in
this case are not at all entitled to get exemption
from furnishing bail-bonds. However, considering
undertakings of accused on record of this case and
assurance of advocate for the accused I am of the
view that if Advocate for accused records plea on
next date on behalf of accused as per the
undertaking and agrees to submit bail application
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and furnishes the same within 3 months then on
these conditions permanent exemption of accused
No.5 to 7 can be approved or granted.”
7I am of the considered opinion that discretionary
orders came to be passed by the learned Magistrate by exercising
his jurisdiction in terms of law. It cannot be said that exercise of
discretion by the learned trial court in these matters is arbitrary or
capricious. Cogent reasons are recorded for directing petitioners/
accused persons to furnish bail bonds while granting their prayer
for permanent exemption.
8No fault can be found in the decision making process
of the learned trial Magistrate. The impugned orders are neither
perverse nor illegal. Hence, the following order :
ORDER
i)The petitions are dismissed.
ii)Rule is discharged.
Arti V. Khatate
Digitally signed by Arti V. Khatate Date: 2020.01.24 16:21:52 +0530
(A. M. BADAR, J.)
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2 issues framed by the court
Whether the High Court should interfere with the trial Magistrate's order granting permanent exemption to accused persons subject to the condition of furnishing bail bonds
Whether the trial Magistrate's exercise of discretion to require bail bonds for exemption was arbitrary or capricious.
Colour shows how this judgement treated each authority
Bhaskar Industries Ltd. vs. Bhiwandi Denim and Apparels Ltd. and OthersReferred¶27
Bhaskar Industries Ltd. vs. Bhiwandi Denim and Apparels Ltd. and Others > 1 (2001) 7 Supreme Court Cases 401
Bhaskar Sen vs. State of Maharashtra & Ors.Referred¶19
Mr.Bhaskar Sen vs. State of Maharashtra & Ors. > 2 2004 (4) ALL MR 606
2 provisions across 2 enactments
ALOK SHARMA AND OTHERS
THE STATE OF MAHARASHTRA
A. M. BADAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court