- (1.) Heard learned senior counsel for the applicant/original complainant, also heard learned senior counsel for respondent No. 1, also heard learned counsel for respondent No. 2 and also heard learned A.P.P. for the State-respondent Nos. 3 and 4. This is an application for cancellation of bail granted to respondent Nos. 1 and 2 by the learned Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai (hereinafter referred to as "the ACMM") dated 1st February, 2014. The said impugned order was passed on two separate bail applications bearing Nos. 12 and 13 of 2014 preferred by present respondent Nos. 1 and 2.
(2.) At the threshold, it must be mentioned that initially respondent Nos. 1 and 2 preferred bail application No. 2109 of 2013 before this Court for their release on bail. Said application was heard at length and by a reasoned order this Court dismissed the said application vide order dated 20th December, 2013. When that order was passed, subsequently an application for 'speaking to the minutes' was preferred before this Court asking for certain clarification regarding the observations made by this Court. Said application for speaking to the minutes was disposed of vide order dated 8th January, 2014. That time, it was submitted on behalf of respondent Nos. 1 and 2 that certain observations were made in the order rejecting the bail application and as such trial Court/Sessions Court may not be influenced by the said observations when the matter will be put to trial or in repeated bail application. It is further submitted that an addition is required to be made in the final order mentioning that the said observations are only for the purpose of deciding bail application No. 2109 of 2013. This Court in paragraph Nos. 4 and 5 concluded the said application for speaking to the minutes. The said observations in paragraph Nos. 4 and 5 read thus:- "4. Needless to mention that the every order on bail application is definitely confined to the matter which is dealt with in a particular Bail Application and never the contents thereof can be taken shelter of at the time of final hearing of the matter on merits before the trial Court or before the Sessions Court. 5. As such, in view of the above legal position, there is no necessity to add anything more in the order already passed and as such present application for speaking to the minutes is disposed of."
(3.) After getting the order of this Court on speaking to the minutes, on the above terms, the matter was taken before the learned Addl. Chief MM by filing bail application Nos. 12 and 13 of 2014, as mentioned above. Apparently, what was mainly canvassed before the learned Addl. Chief MM was that, this Court rejected the bail application only on the count that the investigation was continuing and as such after filing of the charge-sheet separate bail applications were preferred before the learned Addl. Chief MM. Said Additional Chief Metropolitan Magistrate, allowed both the bail applications by giving reasoning only in paragraph Nos. 3, 4 and 5 and then passed the final order granting bail in the sum of Rs. 50,000/- with surety in the like amount. Contents of said three paragraphs were assailed on behalf of present applicant/original complainant and it is argued that the learned Addl. Chief MM had not taken into consideration the relevant material available against the respondent Nos. 1 and 2 in turn wrongly construed order of this Court as the order passed mainly sensing the investigation was going on. Also much is argued by learned counsel for respondent No. 1 and the learned counsel for respondent No. 2 on the contents of said only three paragraph Nos. 3, 4 and 5 and which are only the paragraphs so far as reasoning is given by the learned Addl. Chief MM while granting bail. These paragraphs are produced hereunder, in order to have a ready reference and to appreciate the arguments of rival parties and in order to test whether the said order is of such a nature as required to be altered under the inherent powers of this Court as per section 482 of the Code of Criminal Procedure (for short "the Cr.P.C") and under section 439(2) of the Code regarding cancellation of bail. Said paragraphs read thus:- "3. The accused have been in custody since beginning and their earlier bail applications came to be rejected mainly since the investigation was going on. Now the charge sheet has been filed. 4. The prosecution made much ado about the forgery made in the commencement certificate issued by the Corporation and also claimed that accused have committed other forgeries too, investigation into which is going on. To ascertain the status of such investigation the case diary was called for. The Investigating Officer produced it today. Its perusal reveals that the investigation as it was when the bail application of accused was rejected lastly by the Hon'ble High Court is still at the very stage. Since the case diary is a confidential document and particularly when the accused is not entitled to any access to it, it is not desirable to reproduce its contents or even mention them in the order. As such, a restraint is being observed. Suffice it to say that the case diary does not substantiate the purposes of investigation as have been mentioned in the say of Investigating Officer nor such purposes at all appear to be sound enough to warrant further detention of the accused. Even there is nothing to support the contention of the prosecution that this case involves other issues than mere forgery and cheating. Therefore, it shall certainly be unjust for the accused to be kept in custody under the garb of an on going investigation, without there being any actual or substantial progress, as the case diary reveals. Therefore, the ground of incomplete investigation raised to oppose the bail applications appears absolutely implausible. The investigating agency have got ample time for investigation. Material investigation is also over. 5. In view of the principles laid down in the case of Sanjay Chandra by the Hon'ble Apex Court for grant of bail it is to be noted that the investigation even as proposed can still be carried out without the accused being detained nor is there any other ground to justify the contention of the accused any further. There is nothing to doubt that the accused would not be available during trial. Similarly, the apprehension of the prosecution that the accused may tamper with the evidence and witnesses can be taken care of by imposing necessary conditions. However, the circumstances do not necessitate further detention of the accused. Hence the order:";