Bombay High Court
Robert Gragery Dsouza vs The State Of Maharashtra And Anr on 11 March, 2026
Author: N. J. Jamadar
Bench: N. J. Jamadar
2026:BHC-AS:12002
WP 235-26.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 235 OF 2026
Robert Gragery D'Souza,
Age: 58 years, Occ.: Business,
R/at. 2nd Floor, Gaurav Plaza,
Lamiben Chheda Marg, Nallasopara (W),
Tal. Vasai, Dist. Palghar - 401 203
(Presently lodged in Thane Central
Prison, Thane) ...Petitioner
Versus
1. The State of Maharashtra
(At the instance of Naigaon Police
Station/EOW, Mira-Bhayander,
Vasai Virar Police Commissionerate)
2. Sunil Madhukar Shinde,
Age: 53 years, Occ: Business,
R/at. Opp. Shejar Chhaya Ashram,
H. No. 229, Sagpada, Devdal, Pokaman
Tal. Vasai, Dist. Palghar. ...Respondents
_____________________ ___ _________
Mr. Saurabh Butala i/b Regina Correia, for the Petitioner.
Mr. Hrishikesh Mundargi a/w Ms. P. Chadha, for the
Respondent No. 2.
Mr. D J Haldankar, APP for the Respondent - State.
_____________________________________
CORAM : N. J. JAMADAR, J.
RESERVED ON : 12th FEBRUARY 2026
PRONOUNCED ON : 11th MARCH 2026
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JUDGMENT:
1. Rule. Rule made returnable forthwith, and, with the
consent of learned Counsel for the parties, heard finally.
2. By this petition under Article 226 of the Constitution
of India and Section 528 of the Bhartiya Nagarik Suraksha
Sanhita, 2023 (“BNSS, 2023) (Section 482 of the Code of
Criminal Procedure, 1973), the petitioner assails the
legality and correctness of an order dated 09 th December,
2025 passed by the learned Magistrate, Vasai whereby an
application preferred by the petitioner to enlarge him on
default bail under the provisions of Section 167(2) of the
Code of Criminal Procedure, 1973 (‘the Code, 1973’), came
to be rejected.
3. Shorn of superfluities, the background facts can be
stated as under:-
3.1 Shejar Chhaya Trust, Devdal (the trust) is a public
charitable trust. The Trust was formed in the year, 1984
with the object of providing shelter and education to
orphan children. On 28th December, 2019, the petitioner
became the Secretary of the Trust.
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3.2 Father Francis Peter Gonsalves, the Chief Trustee of
the Trust had entrusted the responsibility of obtaining the
sanction of the Charity Commissioner for the sale of trust
property i.e. 21 Guntha land out of 40 Guntha land,
situated at Survey No. 63, Hissa No. A/1.
3.3 The prosecution alleges on 14th December, 2020, the
petitioner filed an application before the Charity
Commissioner to sale the entire Survey No. 63, A/1
admeasuring 40 Guntha and another Survey No. 16
admeasuring 76.60 Guntha. False statements were made
in the said application. On the basis of such false
statements and false documents on 24th September, 2023,
the petitioner obtained the sanction of the Charity
Commissioner for the sale of 116.60 Guntha land of the
Trust in favour of the R. K. Developers for a consideration
of Rs. 6,21,00,000/- (Rupees Six Crores Twenty One
Lakhs). Out of the said amount, on 22nd July 2021, the
petitioner obtained an advance consideration of Rs.
1,20,00,000/- (Rupees One Crore Two Lakhs) and instead
of depositing the said amount in the account of the Trust
maintained with the Federal Bank, Vasai Road Branch, the
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petitioner opened a new account with Basin Catholic Co-
operative Bank by forging the signatures of the chief
trustees and other trustees and got credited the said
amount in the said account. Subsequently, the petitioner
transferred the said amount to the account of petitioner’s
D’Souza Education and Charitable Trust and thereby
committed offences of cheating and forgery.
3.4 F.I.R was registered on 27th December, 2024, initially
for the offences punishable under Sections 471, 468, 465
and 420 of the Penal Code. Subsequently, the offence
punishable under Sections 409 came to be added.
3.5 The petitioner was detained on 06 th October, 2024 by
the Immigration Officers at IGI Airport, New Delhi. The
petitioner was produced before the learned Magistrate,
Patiala House Court, New Delhi on 07th October, 2025 and
transit remand was obtained. The petitioner was produced
before the learned Magistrate at Vasai on 10 th October,
2025, and was remanded to Police custody.
3.6 On 09th December, 2025, the petitioner preferred an
application before the learned Magistrate seeking his
release under the provisions of Section 167(2) of the Code.
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It was inter alia asserted that, the petitioner has been
arraigned for the offences punishable under Section which
entail punishment not exceeding seven years. As the 60
days period expired on 07th December, 2025 and the
Investigating Agency has not filed the charge-sheet, the
petitioner has an indefeasible right to be enlarged on
statutory bail.
3.7 By the impugned order, the learned Magistrate was
persuaded to reject the application observing inter alia
that, the petitioner has been arraigned for offences
punishable under Sections 420, 409, 465, 468 and 471 of
the Penal Code. The offence punishable under Section 409
entails punishment of imprisonment for life or
imprisonment for a term which may extend to ten years.
Thus, the case would be governed by sub-clause (ii) of
clause (a) of the proviso to Section 167(2) of the Code.
3.8 Being aggrieved the petitioner has invoked the writ
jurisdiction.
4. I have heard Mr. Saurabh Butala, the learned
Counsel for the petitioner, Mr. D J Haldankar, the learned
APP for the Respondent – State (R-1) and Mr. Hrishikesh
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Mundargi, the learned Counsel for the Respondent No. 2 –
first informant.
5. With the assistance of learned Counsel for the
parties, I have perused the material on record.
6. Mr. Butala, the learned Counsel for the petitioner
would urge that, the learned Magistrate has rejected the
application for statutory bail in a mechanical manner. It
was submitted that, initially the F.I.R was lodged for
offences punishable under Sections 420, 465, 468 and 471
of the Penal Code, only. Section 409 of the Penal Code,
came to be subsequently added vide report dated 13 th May,
2025. Though initially, the petitioner has assailed the
addition of the said offence, yet, in view of the fact that on
the date the petitioner came to be apprehended, the
offence punishable under Section 409 of the Penal Code
was already added, the petitioner restricts the challenge to
the non-application of mind by the learned Magistrate and,
even otherwise, the non-applicability of the provisions
contained in Section 409 of the Penal Code.
7. Elaborating the submission Mr. Butala would urge, it
was incumbent upon the learned Magistrate to examine
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whether the provisions contained in Section 409 of the
Penal Code were at all attracted. Mere reference to the
provisions of the particular section by the Investigating
Officer in the F.I.R and the remand report cannot be
determinative of the offences for which an accused has
been detained. To this end, Mr. Butala placed reliance on a
judgment of this Court in the case of Alnesh Akil Somji Vs.
State of Maharashtra1, wherein it was enunciated that,
though the investigation is within the province and domain
of the Investigating Agency, yet, it does not imply that, in
almost all cases, the court would be bound by the
invocation of a particular section against the accused by
the prosecuting agency. The label of the section or the
provision invoked would not be decisive.
8. Mr. Butala further submitted that, the learned
Magistrate simply proceeded on the premise that, an
offence punishable under Section 409 was added against
the petitioner. Whether the petitioner satisfied the
description of one of the seven eight specified categories of
persons against whom only the offence punishable under
Section 409 of the Penal Code could be invoked was not at
1 2022 SCC OnLine Bom 11566
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all examined. In the absence of the material to
demonstrate that, the alleged breach of trust was
committed, in any of those seven specified capacities, the
learned Magistrate could not have rejected the application
by mechanically observing that since an offence
punishable under Section 409 of the Penal Code was
invoked, the authorized period of detention would be 90
days.
9. Mr. Butala, laid emphasis on the fact that if the
entire tenor of the prosecution is considered, at best, it can
be alleged that, the petitioner was a trustee of the Trust. In
the capacity of the Secretary of the Trust the petitioner was
entrusted with the responsibility of obtaining the sanction
of the Charity Commissioner for sale of certain portions of
the property of the Trust. However, even if the prosecution
case is taken at par, the indictment against the petitioner
does not fall within the ambit of any of the seven
categories of the persons who only can be prosecuted for
having committed an offence punishable under Section
409 of the Penal Code. Amplifying the submission Mr.
Butala would urge, a trustee can, in law, never be said to
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be an agent of the trust. The property of the trust,
according to Mr. Butala, vests in the trustees. Therefore,
the invocation of the provisions contained in Section 409 of
the Penal Code was clearly unsustainable.
10. To buttress this submission, Mr. Butala placed a very
strong reliance on a three-Judge Bench judgment of the
Supreme Court in the case of W. O. Holdsworth & Ors. Vs.
State of Uttar Pradesh2, and another judgment of the
Supreme Court in the case of Robert John D’Souza & Ors.
Vs. Stephen V. Gomes & Anr3.
11. Per contra, Mr. Haldankar, the learned APP for the
Respondent – State supported the impugned order. It was
submitted that, after having been entrusted with the
property of the Trust, the petitioner has committed
criminal breach of the trust. Not only the petitioner sold a
larger area of the Trust property but even wrongfully
converted a portion of the sale proceeds for his use. In this
view of the matter, it cannot be said that the offence
punishable under Section 409 of the Penal Code has not
been made out.
2 1957 SCC OnLine SC 94
3 (2015) 9 SCC 96
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12. Mr. Mundargi, the learned Counsel for the
Respondent No. 2 supplemented the submissions of Mr.
Haldankar. Taking the Court through the allegations in the
F.I.R and the material on record Mr. Mundargi would
submit that, an open and shut case of breach of trust
which falls within the tentacles of the offence punishable
under Section 409 of the Penal Code has been made out.
According to Mr. Mundargi reliance on the decision in the
case of W. O. Holdsworth (supra) , which arose out of a
taxing statute is of no assistance to the petitioner. In the
case at hand, the petitioner was, indisputably, a trustee of
the trust. Mr. Mundargi submitted that, even the persons
who hold the position akin to the trustees have been held
liable for punishment under Section 409 of the Penal Code,
if they commit breach of trust. Mr. Mundargi banked upon
a three-Judge Bench judgment of the Supreme Court in
the case of R. K. Dalmia Vs. Delhi Administration4.
13. At the outset, it is necessary to note, the nature of
the right to statutory bail under Section 167(2) of the Code,
1973. The right to be enlarged on bail under Section 167(2)
4 1962 SCC OnLine SC 83
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of the Code, flows from the constitutional guarantee of
protection of life and personal liberty against unlawful and
arbitrary detention. Section 167(2) enshrines a fair
procedure and is a subset of overarching fundamental
right guaranteed under Article 21. It becomes an
indefeasible right once the default in filing the charge-sheet
within the stipulated period is demonstrated. It cannot be
defeated by resorting to the technicalities and subterfuge.
14. The duty of the Magistrate in examining albeit prima
facie whether a particular offence arrayed against the
accused is made out cannot be debated. A Magistrate is
not expected to mechanically proceed to order the
detention of an accused on the basis of the offences
invoked by the prosecution. It is the bounden duty of the
Magistrate to carefully examine whether an offence
punishable under a particular section is prima facie made
out to determine the entitlement to bail; regular or
statutory. The sections invoked by the Investigating Agency
in the F.I.R or remand report cannot be the be all and end
all of the matter. If the Magistrate does not bestow
deserving consideration on the aspect of the applicability
of a particular section of the Penal Code, on which the
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entitlement to bail often hinges, the personal liberty of the
accused would be a casualty. As the right to be released on
statutory bail, being a part of the fair procedure, is a facet
of the protection of right to life and personal liberty, Mr.
Butala is thus wholly justified in canvassing a submission
that, the authorized period of detention under the proviso
to Section 167(2) cannot be determined merely on the basis
of the sections invoked by the Investigating Agency.
15. In the case at hand, evidently apart from the offence
under Section 409 of the Penal Code, rest of the offences
do not entail punishment which exceeds 10 years. The
controversy thus boils down to the question, whether, in
the facts of the case, the offence punishable under Section
409 of the Penal Code, can be said to have been prima
facie made out.
16. The offence of criminal breach of the trust is defined
in Section 405 of the Penal Code. From the text of Section
405 of the Penal Code, to constitute the offence of criminal
breach of trust, the following ingredients ought to be
satisfied:
i) A person is entrusted with property or with any
SAINATH, PA 12/24
WP 235-26.DOCdominion over property;
ii) That person dishonestly misappropriates or
converts that property to his own use; or
iii) That person dishonestly uses or disposes of
that property or willfully suffers any other person so
to do, in violation of any directiion of law or a legal
contract.
17. The entrustment of the property and dishonest
misappropriation, conversion or use thereof, in the manner
proscribed under Section 405 of the Penal Code, are the
principal components of the offence of criminal breach of
trust. Section 409 of the Penal Code is an aggrevated form
of the offence of criminal breach of trust. It punishes
criminal breach of trust by a public servant or the
specified person in respect of the property entrusted to the
former. To fall within the dragnet of the offence punishable
under Section 409 of the Penal Code, the following
elements need to be satisfied:-
a) The accused must be a public servant, or a
banker, merchant, factor, broker, attorney or agent;
b) He must have been entrusted with the property
or any dominion over property, in such capacity;
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c) He must have committed breach of trust in
respect of such property.
18. In the case of N. Raghavender Vs. State of Andhra
Pradesh, CBI5, a three-Judge Bench of the Supreme Court
enunciated that, unless it is proved that, the accused, a
public servant or a banker, etc. was, “entrusted” with the
property which he is duty-bound to account for and that
such a person has committed criminal breach of trust,
Section 409 IPC may not be attracted. “Entrustment of
property” is a wide and generic expression. While the
initial onus lies on the prosecution to show that the
property in question was “entrusted” to the accused, it is
not necessary to prove further, the actual mode of
entrustment of the property or misappropriation thereof.
Where the “entrustment” is admitted by the accused or has
been established by the prosecution, the burden then
shifts on the accused to prove that the obligation vis-a-vis
the entrusted property was carried out in a legally and
contractually acceptable manner.
5 (2021) 18 SCC 70
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19. In the case of The Superintendent & Rememberancer
of Legal Affairs, West Bengal Vs. S K Roy6, another three-
Judge Bench of the Supreme Court enunciated that, the
“entrustment” within the meaning of Section 409 of the
Penal Code may arise “in any manner whatsoever”. The
observations in Paragraph No. 12 of the said judgment
read as under:
“12. To constitute an offence under Section 409,
I.P.C., it is not required that misappropriation
must necessarily take place after the creation
of a legally correct entrustment or dominion
over property. The entrustment may arise in “in
any manner whatsoever”. That manner may or
may not involve fraudulent conduct of the
accused. Section 409, I. P. C., covers dishonest
misappropriation in both types of cases ; that is
to say, those where the receipt of property is itself
fraudulent or improper and those where the
public servant misappropriates what may have
been quite properly and innocently received. All
that is required is what may be described as
“entrustment” or acquisition of dominion over
property in the capacity of a public servant who,
as a result of it, becomes charged with a duty to
act in a particular way, or, atleast honestly.”
(emphasis supplied)
6 (1974) 4 SCC 230
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20. In the aforesaid judgment it was further clarified
that, the obligation to act in a certain manner with regard
to or to deal honestly with the property, over which a
public servant obtains dominion or control by the use of
his official capacity, may arise either expressly or impliedly.
21. In the case at hand, there is prima facie material to
show that, the petitioner was a trustee and secretary of the
trust. At this juncture, the allegations with regard to the
manner in which the petitioner dealt with the trust
property or the sale proceeds thereof would be required to
be taken at their face value.
22. The core controversy revolves around the question
whether the entrustment of the Trust property and the sale
proceeds with the petitioner was in the capacity of one of
the seven persons who fall within the ambit of Section 409
of the Penal Code.
23. Under Section 2(18) of the Maharashtra Public Trusts
Act, 1950, a trustee means a person in whom either alone
or in association with persons the trust property is
vested, and includes a Manager. The trustee is said to be a
legal owner of the trust property, but he has no beneficial
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interest in it. The trustee holds the property for the benefit
of the persons for whom the trust is created. Thus, the
trustee cannot be said to be the owner of the property in
the real sense of the term. The legal ownership of the
property vests in the trustee for the purpose of the trust or
for the benefit of the persons for whom the trustee is
settled.
24. In the case of W. O. Holdsworth & Ors. (supra), the
nature of the interest of the trustee in the trust property
arose in the context of the provisions contained in U.P.
Agricultural Income Tax Act, 1948. In that context, the
Supreme Court after adverting to the provisions contained
in Section 3 of the Indian Trusts Act, 1882, exposited the
nature of the vesting of the property in the trustees, in the
following words :
“21.Whatever be the position in English Law,
the Indian Trusts Act, 1882 (2 of 1882) is
clear and categoric on this point. Section 3
of that Act defines a Trust as an obligation
annexed to the ownership of property, and
arising out of a confidence reposed in and
accepted by the owner, or declared and
accepted by him, for the benefit of another,
or of another and the owner : the person
who accepts the confidence is called theSAINATH, PA 17/24
WP 235-26.DOC‘trustee’ : the person for whose benefit the
confidence is accepted is called the
“beneficiary” : “the beneficial interest” or
“interest of the beneficiary is his right
against the trustee as owner of the trust
property; the subject matter of the trust is
called “trust property” or “trust money”.
22. These definitions emphasize that the
trustee is the owner of the trust property
and the beneficiary only has a right against
the trustee as owner of the trust property.
The trustee is thus the legal owner of the
trust property and the property vests in him
as such. He no doubt holds the trust
property for the benefit of the beneficiaries
but he does not hold it on their behalf. The
expressions “for the benefit of” and “on
behalf of” are not synonymous with each
other. They convey different meanings. The
former connotes a benefit which is enjoyed
by another thus bringing in a relationship
as between a trustee and a beneficiary or
cestui que trust, the latter connotes an
agency which brings about a relationship as
between principal and agent between the
parties, one of whom is acting on behalf of
another…….”
25. In the case of R. K. Dalmia Vs. Delhi Administration
(supra), the Supreme Court was confronted with a
question as to whether Dalmia, Appellant therein, being
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the Chairman and Principal Officer of the company, was an
agent within the meaning of Section 409 of the Indian
Penal Code. It was urged before the Supreme Court that
Dalmia was not an agent within the meaning of Section
409 of IPC and only that person could be such agent who
professionally carries on the business of the agency. The
Supreme Court did not accede to the submission that the
word ‘agent’ in Section 409 refers to a professional agent
i.e. a person who earns on the profession of agency and
that since Dalmia did not carry on such profession, he
could not be covered by the expression “agent” in the said
section.
26. The Supreme Court after adverting to the previous
pronouncements and the commentary in Palmer’s
Company Law that the directors are not only agents but
they are in some sense and to some extent trustees or in
the position of trustees, repelled the contention that the
term “agent” in Section 409 of IPC is restricted only to
those person who carry on the profession of agent. The
Supreme Court expounded the import of the term “agent”
under Section 409 IPC, as under :
“What section 409, Indian Penal Code requires
is that the person alleged to have committedSAINATH, PA 19/24
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property be entrusted with that property or
with dominion over that property in the way of
his business as an agent. The expression in the
way of his business’ means that the property is
entrusted to him in the ordinary course of his
duty or habitual occupation or profession or
trade’. He should get the entrustment or
dominion in his capacity as agent. In other
words, the requirements of this section would
be satisfied if the person be an agent of another
and that other person entrusts him with
property or with any dominion over that
property in the course of his duties as an
agent. A person may be an agent of another for
some purpose and if he is entrusted with
property not in connection with that purpose
but for another purpose, that entrustment will
not be entrustment for the purposes of Section
409, Indian Penal Code, if any breach of trust is
committed by that person.”
27. In the case of CBI V/s. Duncans Agro Industries
Ltd.7, the Supreme Court postulated that the expression
“entrusted with property” appearing in Section 409 is not
necessarily a term of law. It has wide and different
implications in different context. The said expression
connotes that the property in respect of which criminal
breach of trust can be committed must necessarily be the
property of some person other than the accused or that the
beneficial interest in, or ownership thereof, must be in the
7 (1996) 5 SCC 591
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other person, and the accused must hold such property in
trust of such other person or for his benefit. The
observations of the Supreme Court in para 27 read as
under :
“27. In the instant case, a serious dispute
has been raised by the learned counsel
appearing for the respective party as to
whether on the face of the allegations, an
offence of criminal breach of trust is
constituted or not. In our view, the
expression ‘entrusted with property’ or ‘with
any dominion over property’ has been used
in wide sense in Section 405 I.P.C. Such
expression includes all case in which goods
are entrusted, that is, voluntarily handed
over for a specific purpose and dishonestly
disposed of in violation of law or in violation
of contract. The expression ‘entrusted
appearing in Section 405 I.P.C. is not
necessarily a term of law. It has wide and
different implication in different context. It is,
however, necessary that the ownership or
beneficial interest in the ownership of the
property entrusted in respect of which
offence is alleged to have been committed
must be in some person other than the
accused and the latter must hold it on
account of some person or in some way for
his benefit. The expression ‘Trust’ in Section
405 I.P.C. is a comprehensive expression andSAINATH, PA 21/24
WP 235-26.DOChas been used to denote various kinds of
relationship like the relationship of trustee
and beneficiary, bailer and bailee, master
and servant, pledger and pledgee. When
some goods are hypothecated by a person to
another person. the ownership of the goods
still remains with the person who has
hypothecated such goods. The property in
respect of which criminal breach of trust can
be committed must necessarily be the
property of some person other than the
accused or the beneficial interest in or
ownership of it must be in other person and
the offender must hold such property in trust
for such other person or for his benefit. In a
case of pledge, the pledged article belongs to
some other person or for his benefit. In a
case of Pledge, the pledged article belongs to
some other person but the same is kept in
trust by the pledgee.”
28. Applying the aforesaid principles to the case at hand,
I find it difficult to accede to the submission on behalf of
the Petitioner that the Petitioner cannot be said to be an
agent qua the trust or the beneficiaries of the trust
property. As noted above, it is not imperative that the
property should come in the hands of the accused in the
business of an agency. It would suffice, if the accused is
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entrusted with the property for execution of a particular
task.
29. In the case at hand, in the capacity of the trustee of
the trust, the Petitioner was entrusted with the task of
obtaining the sanction of the Charity Commissioner for the
sale of the trust property, execute the instrument and
receive the consideration. In breach of the duties of the
trustee and specific engagement, the Petitioner allegedly
sold a larger area of the property of the trust than resolved
to by the trust, and converted to his own use a part of the
consideration dishonestly. The payment of the
consideration to the Petitioner was by way of entrustment
in the capacity of the accused as an agent of the trust.
Thus, prima facie, the acts attributed to the accused fall
within the tentacles of the offence punishable under
Section 409 of the IPC.
30. It is true, the learned Magistrate did not examine the
applicability of the provisions contained in Section 409 of
IPC to the extent desired and proceeded to reject the
application by simply observing that, since offence
punishable under Section 409 of IPC was arrayed against
the accused, the case would fall under sub-clause (i) of
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clause (a) of the proviso to Section 167(2) of the Code.
However, having examined the matter in the light of the
legal provisions and the judicial precedents, this Court
prima facie finds that the provisions contained in section
409 are attracted to the facts of the case at hand, at least
at the stage of consideration of the prayer for statutory
bail. Thus, the Writ Petition deserves to be dismissed.
31. Hence, the following order:-
::ORDER::
i] The Writ Petition stands dismissed.
ii] Rule discharged.
iii) It is, however, clarified that the consideration in this
judgment is confined to determine the prayer for statutory
bail and this Court may not be understood to have
expressed any opinion on the merits of the matter and the
learned Magistrate shall not be influenced by any of the
observations in the further proceedings arising out of
C.R.No.639 of 2024.
[N. J. JAMADAR, J.]
Signed by: S.S.Phadke SAINATH, PA 24/24
Designation: PS To Honourable Judge
Date: 11/03/2026 21:20:29
