Order in BA no. 96/2024

BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO.96 OF 2024

Anwar Ali Machiwala
Aged : 42 years, Occ : Business
Residing at Bldg. No.13, Room No.703,
7th Floor, Myfair, Virar Garden,
Lily Housing Society, Virar (W), Palghar. ] Applicant/ … Accused

Versus

The State of Maharashtra (At the instance of EOW, Mumbai) ] ]… Respondent

Appearances:Ld. Advocate Mr. Abhayjeet Khairwar h/f Adv. Dilip Shukla for the
Applicant. Ld. SPP Seema Deshpande for the State/ Respondent. Ld. Advocate Sachin Bansode h/f Adv. A. M. Saraogi for Complainant / Intervenor.

CORAM : HIS HONOUR JUDGE S. B. JOSHI (Court Room no. 61) DATE : 30th January, 2024.
ORAL ORDER

1.The present 2nd successive application is moved by the Applicant/Accused Anwar Ali Machiwala resident of Virar (W), Palghar under Section 439 of The Code of Criminal Procedure, 1973 for grant of regular bail in connection with C.R. No. 47 of 2016 registered with EOW, Mumbai for the offences punishable under Sections 406, 417, 418, 420 465, 467, 468, 471 r/w Section 120-B of the Indian Penal Code, 1860 (hereinafter referred as “IPC”).

2.According to Applicant, he is accused in crime No.47 of 2016 which is registered on 27.05.2016. After his arrest, he has moved Bail Application bearing No.135/BA/2017 before Ld. Additional
Chief Metropolitan Magistrate, 47th Court, Esplanade, Mumbai (hereinafter referred as “ACMM Court”) which came to be allowed on 8.8.2017 and he was released subject to condition that he shall deposit Rs.1,67,00,000/- (Rupees One Crores Sixty Seven Lakhs only) as condition precedent beside surety for
Rs.2,00,000/- (Rupees Two Lakhs only). Th ereafter, during pendency of the charge-sheet in the crime in question, non Bailable Warrant issued against him and thus, he came to be arrested on 03.03.2023 for breach of condition of bail. Thereafter, he again applied before the Ld. ACMM Court for granting him
bail. The said application came to be rejected on 28.06.2023 by observing that after grant of regular bail, the Applicant remained absent for long period since 2017, so warrant came to be issued
and he was arrested on 03.03.2023. Further he has not obeyed the condition imposed by Court while releasing him on bail. Thus, the Ld. Trial Court rejected the application on ground that he will remain abscond again due to which the trial will be delayed. Against this rejection of his Bail Application he moved BA No. 1693/ 2023 before this court which came to be rejected on 30.09.2023. So this 2nd successive application is out come. He further submitted that if the Applicant kept behind bar, he will
not able to fulfill the condition imposed on him while releasing him on bail by order dt 8.8.2017. The amount for which he has been directed to deposit is heavy one and it cannot be deposited by keeping him behind the bars. According to him, he has absconded due to fear of death. Initially, he was paying the amount in installment but due to Covid-19, he could not arrange for the amount. However, now he is ready to pay whole amount as ordered by the Ld. ACMM Court within the period of Six (6) months and also assured that he will appear before the Trial Court on each and every date. So according to him, since the investigation is over, charge-sheet is filed, and at once he was released on bail no purpose will be served by keeping him in custody again. Also up-til charge is not framed. Thus, according to him, he is in jail for a period of more than Ten (10) months, he is entitled for bail.

3.The Prosecution and EOW both objected this application by filing common say at Exhibit No.2 on ground that there is sufficient evidence against the Applicant. Though this Applicant has been released on bail but he failed to comply the condition as regard deposit of Rs.1,67,00,000/- (Rupees One Crores Sixty Seven Lakhs only). Only a sum of Rs.15 Lakhs to 20 Lakhs have been deposited by him but thereafter, he was absconding one and therefore, arrest warrant came to be issued against him. Thus, he was absconding for Five (5) years after granting bail. He has been arrested from out side State. He has given incorrect and false address of his residence. He is not residing at the given address as said house is sold out by him.

If he came to be released on bail then he will remain abscond again and thus, on these ground the Prosecution submitted for rejection of the application. The complainant/ Intervenor also objected this
application.

4.Heard the Ld. Counsel for the Applicant who submitted on the same lining as averred in the application. The crux of the submission by the Ld. Counsel is that if the Applicant kept behind bars then he will not comply the conditional bail i.e. to make deposit of conditional amount so he assured to that effect. If he released on bail then within Six (6) months he will arrange to comply earlier bail order. Secondly, the earlier Bail Application has been objected on merit and therefore, no merits are required
to be seen again. So far as the observation of the Ld. ACMM Court while rejecting his Bail Application on his arrest under NBW, concerned since his arrest he has not been produced before the Ld. Trial Court even after it was specifically directed by this court in the order passed in earlier B. A No.1693/23, for
expediting the trial up-til no charge is framed by trial court and therefore, there is delay on account of Prosecution itself. So it cannot be said that trial is going to be prolonged due to his absence. So far as non compliance of the bail order, as observed by the Ld. ACMM Court, according to Ld. Counsel, for that
purpose or on that account bail to the accused cannot be denied. In support of his submission that if there is delay in concluding the trial, the accused is entitled for bail, Ld. Counsel for the Applicant relied upon the case laws as cited below :- a. 2005 (11) SCC 569 in the case of Babba alias Shankar Raghuman Rohida Vs. State of Maharashtra. b. He also relied on the observation in Vivek Kumar Vs. State of U.P. (2000) 9 SCC 443 in the case of Vivek Kumar Vs. State of U.P. , which is reproduced as
under:

“2.We are told that the appellant is in jail from:

4//98 in connection with offences under Section 394 and 395 read with Sec. 149 of the Indian Penal Code. It is quite a long period that the has been in custody without commencing the trail.
There is a need to detain him further in custody and therefore we are inclined to release him on bail
notwithstanding the suppression of certain factual position when the bail application was filed. It would not have been done by the appellant. We feel that lapses on the part of the counsel should not in this case be allowed to prejudice the appellant who is languishing is jail.
1. FOR the aforesaid reason we order that the appellant be released on bail o n execution of a bond with two solvent sureties to the satisfaction of Chief Judicial Magistrate, Pratapgarh.”

c. He also relied on the observation in the case of (Sanjay Chandra Vs. C. B. I to contend that grant of
bail is the rule and refusal is the exception.
d. He also relied on following case laws:
(i) (1996) 2 SCC 6/6 in the case of Shaheen Welfare Asn Vs. Union of India.

“a. We are conscious of the fact that even the trial of ordinary criminal cases does take some time because of the courts being overloaded with work and the concept of a speedy trail in the case of TADA case must be viewed in the context fo pendency in relation to criminal trials also.”
(ii) (2017) 2 SCC 731 in the case of Umarmia Alias Mamumia Vs. State of Gujarat: No likelihood of completion of trial in near future, accused is entitled to release on bail. (iii) (2018) 3 SCC 22 in the case of Dataram Singh Vs. State of Uttar Pradesh and Another. “4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding suspect or an
accused person to police custody or judicial custody.” And “The grant of bail is the general rule and putting a person in jail or in a prison is an exception.” iv. Anand Swaroop Arora Vs. State , BA. No.
1077/2015 decision dt. 22.12.2015 to contend that one cannot lose sight of the fact that the investigating agency has already completed investigation and the trial has not began.
v. (2011) 1 SCC 784 in the case of State of Kerala Vs. Raneef by relying on the observation in Paragraph
No.15 which is reproduced as under :

“15.In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody?”
And “In the present case the respondent has already spent 66 days in custody (as stated in paragraph 2 of his counter affidavit), and we see no reason why he should be denied bail.”

6.In rebuttal, Ld. Prosecutor and Intervenor both submitted that this Applicant has disobeyed the undertaking given while granting him bail before Ld. ACMM Court. He has not obeyed the same and thus, remained absent for a long period. Therefore, NBW came to be issued against him and under NBW he came to be arrested. His earlier B. A. No 1693 of 2023 has been rejected on merits by this court on 30.09.2023 and there is no change in circumstance to consider this application.

He is proclaimed offender as well as caused breach of earlier bail granted and therefore, the Applicant is not entitled for his release on bail. In the light of facts and circumstances coupled with

7.submissions following points arise for my determination and findings are given for the reasons mentioned thereunder are as follows:

Sr.No 1.2.POINTS Whether second successive bail application u/s 439 of CPC filed by the
Applicant Anwar Ali Machiwala is liable to be allowed as prayed?

What Order ?

FINDINGS In the Negative. As per final order.

REASONS
As to point nos. 1 and 2 :

8.It is undisputed that present Applicant was initially came to be released by Ld. M. M Court on conditional bail by order dated 08.08.2017 and he was directed to deposit Rs.1,67,00,000/(Rupees One Crore Sixty Seven Lakhs only). Thereafter, it was for him to fulfill said condition but, as stated in the say of Prosecution he had made deposit of only Rs.15 to 20 Lakhs. This fact is also not disputed one. Then it is stated that he remained abscond for a period of five years during which NBW came to be issued against him and also proclamation came to be issued against him by the Ld. Trial Court. Finally, he came to be arrested at Bhuvaneshwar, on dated 03.03.2023 since then he is in jail as under-trial prisoner. It is also not in dispute that he had moved fresh Bail Application bearing No.745/BA/2023 before Ld. ACMM Court, Mumbai which came to be rejected by order dated 28.06.2023 by observing that he was absconding for a long period since 2017 which resulted in issuing NBW and proclamation against him and if released possibility of his absconding again can not be ruled out as well as it will result in delay of trial.

9.It is also undisputed that the charge-sheet is already filed against the accused before Trail Court but due to his abscondance the trial has not proceeded which is old more than five years. He could not be traced out for a period of more than five years since granting him bail initially. At the cost of repeatation it is also a fact that till today this Applicant has not preferred any application before Ld. Trial Court for relaxation of condition directing him to make deposit of Rs.1,67,00,000/- (Rupees One Crore Sixty Seven Lakhs only) or has not moved for modification of said conditional bail , if he is stating that he is unable to comply the conditions.

He kept mum for a long period by remaining absent till his arrest. Also his application is silent to
show why he remained abscond for such a long period that too without obeying the bail order. For this reason the trial before the Ld. Trial Court has been prolonged. If really he was not able to fulfill condition imposed while releasing him on bail on 08.08.2017, he could have filed an application for modification of
the said order or could have preferred revision against said conditional bail order. But that is not so on record. It is without explanation. It appears that after remaining abscond for a period of five years and causing his arrest from outside State he is coming with a case that condition imposed being heavy one he is not able to fulfill the same, which is highly not believable. This type of defence / ground taken by the Applicant appears just to give go-bye to the order granting him bail. As he is proclaimed offender he cannot be allowed to say that on his re-arrest still charge is not framed therefore, he be released. It is not his case that he moved application before Ld. Trial Court for releasing him on bail due to non framing of charge and it came be rejected. So the applicant cannot be allowed to take benefit of his own mistake more particularly when he remained abscond without any genuine reason or bonafide reason for a long period. He being absconding since 5 years, his presence has been secured from outside State. By placing copies of roznama since his arrest in March 2023 the Ld. Counsel pointed out that the Applicant in jail being not produced before the Court, the charge is not framed and therefore the trial is not prolonged due to his mistake. Thus there is no change in circumstance. Perusal of copy of roznama shows that for adjudication of Discharge Application moved by other accused, Charge could not be framed. So this being the factual aspect, the Ld. Trial Court can be directed to expedite that
application as well as the trial. Therefore already there being bail order in favour of this applicant then it is for him to comply its conditions.

If the Applicant released on bail, possibility of remaining abscond again by the Applicant cannot be ruled out and also the trial before the Ld. Metropolitan Magistrate Court would affect due to his absence.

10.In conclusion, having regard to the fact that the Applicant being proclaimed offender has jumped bail and fleed away for a period of five years from trial, and there is no change in circumstance it would not be justifiable one to consider the prayer in this application.

He is at liberty to apply for modification of bail conditions, before the Ld. Trial Court if he so desire. The Ld. Counsel also placed on record certified copy of undertaking given before Ld. Trail Court by the so called cousin sister of the applicant contending that on release on bail the Applicant will stay with her at her house at Vihar, Thane. But this court is not concerned with it and it is of no use to consider this
application. In this set of facts, and this application being not challenge to the order granting conditional bail by saying that condition is onerous, the submission made by the Ld. Counsel for the Applicant finds not acceptable.

11.In view of the facts and circumstances in the case at hand, with due respect the observations in the rulings ( supra) relied are not helpful to the Applicant. As such the Applicant has not made out the case for considering 2nd successive application for bail. So he is not entitled for his release. As such the Point no.1 is answered in the negative.

12. In view of reasoning and findings to Point No.1 as above, the application being not made out, it is liable to be rejected. As such Point No.2 is answered as per following order :

ORDER

1. The Second Successive Bail Application No. 96 of 2024 filed by the Applicant Anwar Ali Machiwala in connection with C.R. No. 47 of 2016 registered with EOW, Mumbai for the offences punishable under Sections 406, 417, 418, 420, 465, 467, 468 and 471 r/w Section 120-B of the Indian Penal Code, 1860 is
hereby rejected.

2. The Ld. Trial Court is directed to expedite the matter by giving preference for effective trial and to dispose off the trial according to law as early as possible.

3. Inform the Ld. Trial Court accordingly.

4. Respondent / State to take the note of this order.

5. The present Bail Application No. 96 of 2024 stands disposed of accordingly.
(Dictated and pronounced in the open Court.)

Date : 30.01.2024.

( S. B. Joshi) Designated Judge and Addl. Sessions Judge, City Civil & Sessions Court, Mumbai. Typed on : 30.01.2024. Checked and Signed on : 30.01.2024. “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT /ORDER” 30.01.2024 at 5.20 p.m. UPLOADED DATE AND TIME
MS Y. D. KINI NAME OF TYPIST Name of the Judge (with Court Room no.) H.H.J. S. B. Joshi C.R. No.61 Date of Pronouncement of Judgment/Order 30.01.2024 Judgment /Order signed by P.O. on
30.01.2024 Judgment/Order uploaded on 30.01.2024