Punjab-Haryana High Court
Parveen Bhatia And Others vs State Of Punjab And Another on 31 October, 2012
Author: S.S. Saron
Bench: S.S. Saron
Criminal Misc. No. M-71250 of 2005 (O&M) and
Criminal Misc. No. M-71691 of 2005 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Misc. No. M-71250 of 2005 (O&M)
and
Criminal Misc. No. M-71691 of 2005 (O&M)
Date of decision: 31.10.2012
Parveen Bhatia and others
.... Petitioners
Versus
State of Punjab and another
..... Respondents
Present: Mr. J.S.Bhatti, Advocate for the petitioners.
Mr. Shilesh Gupta, Deputy Advocate General
for respondent No.1- State.
Mr. Sunil Chadha, Advocate for respondent No.2-
Complainant.
***
S.S. SARON, J.
This order will dispose of Criminal Misc. No. M-71250 of 2005 and Criminal Misc. No. M-71691 of 2005 as these are between the same parties and are inter connected. Criminal Misc. No. M-71250 of 2005 has been filed by the petitioners Parveen Bhatia son of Ram Krishan Bhatia, Ram Krishan Bhatia son of Rai Mal Bhatia, Ashwani Bhatia son of Ram Krishan Bhatia and Smt. Promilla Bhatia wife of S.K.Bhatia under Section 438 of the Code of Criminal Procedure ('Cr.P.C.'-for short) for grant of pre arrest bail in respect of non bailable warrants issued against the petitioners in case FIR No. Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -2- 303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi (U.P.) for the offences under Sections 406, 468 and 471 Indian Penal Code ('IPC'-for short) now pending in the Court of learned Chief Judicial Magistrate, Chandigarh on transfer by the Hon'ble Supreme Court of India vide order dated 24.2.2003 (Annexure P-1).
Criminal Misc. No. M-71691 of 2005 has also been filed by the said petitioners under Section 438 read with Section 482 Cr.P.C. for grant of interim relief of stay of arrest/execution of the non bailable warrants issued against the petitioners during the pendency of Criminal Misc. No. M-71250 of 2005 as the non bailable warrants of the petitioners have been issued in the aforesaid FIR No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi (U.P.).
The facts in both the criminal miscellaneous petitions are similar and inter connected, which are taken from Criminal Misc. No. M-71250 of 2005.
The petitioners, it is submitted, are respectable and law abiding citizens. They are filing the petition for grant of pre-arrest bail as the learned Chief Judicial Magistrate, Chandigarh has issued non-bailable warrants against them in case FIR No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi (U.P.), which now on transfer is pending in the Court of learned Chief Judicial Magistrate, Chandigarh. One of the grounds Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -3- that has been urged by the petitioners for the grant of pre arrest bail is that their arrest was stayed in this very FIR on 08.01.2002 by this Court in Criminal Misc. No.M-823 of 2002 decided on 29.05.2002 (Annexure P-6) while ordering investigation.
The dispute between the petitioners and the complainant Shree Baidyanath Ayruved Bhawan through its General Manager Y.P.Sharma (hereinafter referred to as the 'Complainant') (respondent No.2) arises out of litigations initiated by each of the said parties against the other. Parveen Bhatia (petitioner No.1) at the time of the incident relating to case FIR No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi (U.P.) was the Clearing and Forwarding Agent ('C & F Agent' - for short) of the Complainant (respondent-2). According to Parveen Bhatia (petitioner No.1), the officials and employees of the Complainant (respondent No.2) ransacked his office and godown. He accordingly vide complaint dated 19.10.2001 got case FIR No.276 dated 21.10.2001 (Annexure P-2) registered at Police Station Haibowal, Ludhiana. Thereafter, it is alleged that the Complainant (respondent No.2) got registered FIR No.303 dated 13.11.2001 (Annexure P-3) at Police Station Kotwali Jhansi (U.P.) as a counter-blast to the FIR No.276 dated 21.10.2001 (Annexure P-2) registered at Police Station Haibowal, Ludhiana.
The Complainant (respondent No.2) also filed a civil suit dated 31.10.2001 before the learned Civil Judge (Junior Division), Ludhiana. The Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -4- aforesaid fact, it is submitted, is noticed in Criminal Misc. No.M-823 of 2002 decided on 29.05.2002 (Annexure P-6) and in the order of the Hon'ble Supreme Court of India passed on 24.02.2003 (Annexure P-1) and in various other stages of litigations pending between the petitioners and the Complainant (respondent No.2).
Parveen Bhatia (petitioner No.1) initially lodged FIR No.276 dated 21.10.2001 (Annexure P2) at Police Station Haibowal, District Ludhiana alleging the commission of offences under Sections 452, 373, 342, 382 and 384 IPC in respect of an incident that occurred on 19.10.2001 at 3.00 p.m. in their office at Upkar Nagar, Ludhiana. An application was addressed by him to the Senior Superintendent of Police, Ludhiana for registration of a case against Shailesh Sharma, Senior Branch Manager, Mobin Khan, Accountant residents of and care of Shree Baidyanath Ayurved Bhawan Limited, Nalagarh Road, Baddi (HP), S.K. Thakur, Dwarka Parshad (Accountants), Shree Baidyanath Ayurved Bhawan Limited, 172, Gosainpura, Jhansi for having committed criminal trespass assault, extortion and illegal confinement. It was alleged by Parveen Bhatia (petitioner No.1) that prior to 1991, he had been working as a Stockist but vide agreement dated 28.8.1991, he was appointed as C&F Agent of the Complainant. A fresh agreement was written on 1.4.1999 and since 1997 he (Parveen Bhatia-petitioner No.1) was working at Street No.10, Upkar Nagar, Ludhiana. He deposited Rs.20 lacs as security with the Complainant Company. Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -5- It is alleged by Parveen Bhatia (petitioner No.1) that he and his Manager Amrik Singh were present in their office at Upkar Nagar, Ludhiana on 19.10.2001 and were attending to their daily work. It was then that the officials of the Complainant Company namely Sh. Shailesh Sharma, Senior Manager, Dr. S. Ramachandran, Sh. S.K. Thakur, Sh. Dwarka Parshad headed by Mobin Khan along with 5-6 unknown 'gunda' elements forcibly trespassed in his C&F Agency office-cum-godown at Upkar Nagar, Ludhiana at around 3.00 p.m. Sh. Shailesh Sharma and Sh. S.K. Thakur asked him to hand over all the books of accounts and cash of the C&F Agency. When he asked them to produce an authority letter in this regard issued by the Head Office of the Complainant Company, Mr. Shailesh Sharma flatly refused to show any authority letter. Rather he threatened the applicant (Parveen Bhatia) to make all the books of accounts and cash of the office available to him. Parveen Bhatia (petitioner No.1) insisted for proper authority letter but when none of the officials could produce any relevant letter of authority, he clearly told them that the books of accounts as well as other relevant records could not be handed over to them and he promised that after verifying the matter from the Complainant Company Head Office at Jhansi, he shall only then hand over the relevant records. The aforesaid persons, however, lost their temper and started hurling filthy abuses, besides, threatened him of dire consequences. Soon thereafter, Parveen Bhatia (petitioner No.1) was deliberately and forcibly detained in his office by the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -6- said persons at the instance of Shailesh Sharma. He was not even allowed to move out of the office or make some phone calls. Shailesh Sharma, S.K. Thakur and Mobin Khan forcibly with the help of other persons removed the books of accounts including the cash books, ledgers and other records of his office. Inspite of his peaceful resistance and requests, Sh. Shailesh Sharma forcibly removed cash amount of Rs.1,47,600/- from the cash drawer. In the meantime a friend of Parveen Bhatia (petitioner No.1) namely Davinder Singh also came at the spot and they again requested the accused to return the books of accounts and cash that was taken by them, but they kept hurling abuses at Parveen Bhatia (petitioner No.1) and threatened him of dire consequences. Shailesh Sharma started inflicting fist blows to Parveen Bhatia (petitioner No.1) and pushed him to the ground. In the meantime, Dr. S. Ramachandran pacified the matter by saying that the Complainant Company officials were staying at Hotel Park Plaza. Parveen Bhatia (petitioner No.1) was asked to contact them at the said Hotel to sort out the differences. When Parveen Bhatia (petitioner No.1) went to Hotel Park Plaza, Room No.420 at about 9.00 p.m. as was informed by Dr. S.Ramachandran, one of the officials of the Complainant Company was present. A message was left for Parveen Bhatia (petitioner No.1) to contact Dr. S. Ramachandran in the morning at Hotel Park Plaza. In the morning when Parveen Bhatia (petitioner No.1) went to his office, he was shocked to see that outside his office, Mobin Khan was present with some Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -7- private security persons. They did not allow him to enter his office. They told him that they had already taken control of the entire office including stocks. They handed over one photocopy of Fax and told Parveen Bhatia (petitioner No.1) that he could contact Dr. S. Ramachandran. Mobin Khan informed Parveen Bhatia (petitioner No.1) that in terms of the said Fax, the control of the C&F Agency and the entire operations and activities had been given to Shailesh Sharma. The applicant hurriedly rushed to Hotel Plaza to contact Dr. S. Ramachandran but he was not in the Hotel. The act and conduct of the said persons it was submitted was unwarranted and illegal, besides, against law and they had committed offences punishable under Sections 452, 323, 342, 382 and 384 read with Section 149 IPC. It was, therefore, prayed that a case against the accused be registered to provide justice to him.
After registration of the above said FIR No.No.276 dated 21.10.2001 (Annexure P2) at Police Station Haibowal, District Ludhiana; FIR No.303 dated 13.11.2001 (Annexure P3) was registered at Police Station Kotwali, District Jhansi (UP) for the offences under Sections 406, 468 and 471 IPC with respect to the occurrences between different periods of time from 1.4.2001 to 18.10.2001. Sh. Y.P. Sharma, authorized person on behalf of the Complainant alleged that he was employed with the Complainant Company having its office at 172, Gusainpura, Jhansi (UP). The Complainant Company had authorised him to lodge the FIR against Parveen Bhatia (petitioner No.1), Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -8- Ashwani Bhatia (petitioner No.3), Ram Krishan Bhatia (petitioner No.2) and Smt. Promila Bhatia (petitioner No.4). It is alleged that the Complainant Company was engaged in manufacturing and selling of herbal and Ayurvedic medicines. As part of selling network, the Complainant Company appoints its C&F agents in various parts of the country and sells its products through them. As per the system of the Company, the goods are entrusted to the C&F agents for sale. The goods are kept in trust of C&F agents who after sale of goods make the payments to the Company. The Complainant Company appointed M/s S. Bhatia Enterprises as its C&F agents for Punjab. The accused (petitioners) it is stated are partners of the said firm M/s S. Bhatia Enterprises and were responsible for the acts and omissions of the said firm. After appointment of the accused (petitioners), the Complainant Company started supply of goods to them for sale. The accused (petitioners) had to sell the goods and remit the money received by them to the Company and submit Statements of Accounts to the Company from time to time. The accused (petitioners) initially worked with honesty but since September 2000, it is alleged that they started working dishonestly. The goods, which where were entrusted by the Company with them were dishonestly misappropriated and converted to their own use. The accused (petitioners) sold the goods in violation and directions of the Company under the contract and consumed/converted the sale proceeds for their own use. According to the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -9- contract between the Complainant Company and the accused (petitioners) they were to sell the goods as agents and the sale proceeds were to be remitted to the Complainant Company along with Statements of Accounts of payment and inventory of goods showing the stock position. From 1.4.2001 to 18.10.2001, it is alleged that the accused (petitioners) received goods from the Complainant Company worth Rs. 3,40,35,517/- and sold them in violation of the Company's trust. The sale proceeds were not remitted with the Company, besides, wrong and misleading statements were submitted. In this manner, the accused (petitioners), it is alleged, misappropriated goods worth Rs.2,36,44,828/-. The sale proceeds collected by them had been converted for their personal use. Therefore, the accused (petitioners) with dishonest intentions caused loss to the Company and further submitted false Statements of Accounts and stocks and accordingly forged and fabricated documents. In this manner, the accused (petitioners) in the capacity of Company's agent had committed the offence of criminal breach of trust under Section 409 IPC as also Sections 468 and 471 IPC. They were, therefore, guilty of having committed the said offences. Thus, FIR was liable to be registered against them. It was, therefore, prayed that FIR be registered against the accused (petitioners) for the offences under Sections 409, 468 and 471 IPC and necessary action be taken.
The petitioners then filed Criminal Misc. No.M-823 of 2002 in this Court seeking quashing of FIR No.303 dated 13.11.2001 (Annexure P- Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -10-
3) registered at Police Station Jhansi (U.P.) and in the alternative for transfer of the investigation in the said case to Ludhiana. It is submitted that on the first date of hearing, the Complainant (respondent No.2) contested the petition. Notice of motion was issued and in terms of order dated 8.1.2002 (Annexure P-
4), the arrest of the petitioners was stayed. During this period the petitioners joined the investigation in the case. The order in the said case i.e. in CRM No.M-823 of 2002 was reserved by this Court on 22.3.2002. However, according to the petitioners, the Complainant (respondent No.2) apprehended that the investigation in the case was likely to be transferred to Ludhiana where the cause of action had accrued. Therefore, the Complainant (respondent No.2) got the police report (challan) dated 1.4.2002 (Annexure P-5) in case FIR 303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi filed in the Court of the learned Chief Judicial Magistrate at Jhansi so as to defeat the very purpose of filing the Criminal Misc.No.M-823 of 2002. The police report (challan) (Annexure P-5), it is submitted, was filed in terms of the amended/added sections against the petitioners. It was filed alleging the commission of offences under Sections 409, 468, 471 and 120B IPC. The Complainant (respondent No.2) accordingly filed Criminal Misc. No.15661 of 2002 in Criminal Misc. No.M-823 of 2002 for placing on record the aforesaid fact before this Court by way of an additional affidavit along with copy of the police report (challan) and the same has been noticed in the order dated Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -11- 29.5.2002 (Annexure P-6) passed by this Court. It was inter alia submitted by the Complainant (respondent No.2) by way of an additional affidavit in Criminal Misc. No.823-M of 2002 that investigation in the case at Jhansi had been completed and the police report (challan) had been filed, therefore, an order for transfer of the investigation was not liable to be passed. This Court, vide order dated 29.5.2002 (Annexure P-6) passed in Criminal Misc. No.M- 823 of 2002 inter alia held that merely because the police report (challan) had been filed, would not bring any qualitative change in the position and in view of the law laid down by the Supreme Court in Navinchandra N. Majithia v. State of Maharashtra, 2000 (4) RCR (Criminal) 30, the cause of action basically being at Ludhiana, it would be in the interest of justice that the proceedings take place at Ludhiana Court. Accordingly, it was directed that the proceedings in case FIR No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi shall stand transferred to the Court of the Chief Judicial Magistrate, Ludhiana for decision in accordance with law. According to the petitioner, the complainant in order to defeat the order dated 29.5.2002 (Annexure P-6) passed by this Court, got submitted another police report (challan) dated 7.6.2002 (Annexure P-7) in the Court of the learned Chief Judicial Magistrate, Jhansi under the amended and added sections in the said FIR (Annexue P-3) against the remaining accused namely Ram Krishan Bhatia, Ashwani Bhatia and Smt Promila Bhatia (petitioners No.2 to 4) as well. Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -12- The Complainant (respondent No.2), thereafter, filed SLP (Cr) No.3391 of 2002 in the Supreme Court of India along with an application for stay of the operation of the order dated 29.5.2002 (Annexure P-6) passed by this Court whereby proceedings in the Court at Jhansi had been transferred to the Court of the Chief Judicial Magistrate, Ludhiana. According to the petitioners, the Complainant (respondent No.2) mis-stated facts in the aforesaid SLP as if the transfer of investigation had not taken place rather it was the case pending with the Court at Jhansi which had been ordered to be transferred to Ludhiana. Upon notice in the SLP, the petitioners filed a counter affidavit and also filed Transfer Petition (Cr) No.48 of 2003 in the Supreme Court seeking transfer of the case from the Court of the learned Chief Judicial Magistrate at Jhansi to a Court of competent jurisdiction at Chandigarh. The SLP filed by the Complainant (respondent No.2) and the transfer petition filed by the petitioners were taken up together by the Supreme Court and were disposed of in terms of order dated 24.2.2003 (Annexure P-1). It was inter alia observed by the Supreme Court that having regard to the facts and circumstances of the case but without commenting on facts, lest it may prejudice the parties, it was found expedient to secure the ends of justice to transfer the case arising out of FIR No.303 dated 13.11.2001 (Annexure P-3) where the police report (challan) is said to have been filed from the Court of the Chief Judicial Magistrate, Jhansi (U.P.) to a Court at Chandigarh. It was ordered accordingly. The learned Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -13- Sessions Judge, Chandigarh, it was directed, would entrust the case on transfer to a competent Court at Chandigarh. It was further directed that cases arising out of FIRs Nos.276 of 2001, 29 of 2001 and 15 of 2002 shall also be tried by the same Court to which the case transferred from Jhansi is entrusted. The SLP and the transfer petition were disposed of in the said terms.
It is alleged by the petitioners that after the passing of the order dated 24.2.2003 (Annexure P-1) by the Supreme Court, the complainant got another police report (challan) filed before the learned Chief Judicial Magistrate, Jhansi and also got non-bailable warrants of the petitioners issued with some obvious motive which are reflected from the events. The petitioners then apprehending their arrest because of non-bailable warrants being issued filed Criminal Misc No. M-15001 of 2003 in this Court on 5.4.2003 for the grant of pre-arrest bail under the amended and altered/added Sections of FIR No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali Jhansi (U.P.). It was contended on behalf of the petitioners that their arrest had already been stayed by this Court vide order dated 8.1.2002 in FIR No.303 dated 13.11.2001 (Annexure P-3) under Sections 406, 468 and 471 IPC but later the offences had been changed to Sections 409, 467, 468 and 120 B IPC and they are again being threatened to be arrested. Notice of motion was issued vide order dated 8.4.2003 for 8.7.2003 and meanwhile, the arrest of the petitioners was stayed in respect of the newly added offence. The Complainant Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -14- (respondent No.2) filed Criminal Misc No.20311 of 2003 in Criminal Misc No.M-15001 of 2003 for vacating the interim order dated 8.4.2003 passed by this Court whereby the arrest of the petitioners had been stayed. It was inter alia submitted that the prayer in the said petition gave an impression as if the petitioners had been earlier granted the concession of anticipatory bail in FIR No.303 dated 13.11.2001 (Annexure P3) registered at Police Station Kotwali Jhansi for the offences under Sections 406, 468 and 471 IPC and they were now seeking the concession to be extended only in view of the newly added Sections to the said FIR i.e. Sections 409, 467, 468 and 120-B IPC. Therefore, the petitioners had given false impression that they were earlier granted anticipatory bail. Notice in Criminal Misc No.20311 of 2003 was issued to the petitioners through their counsel on 13.5.2003 for the date already fixed i.e. 8.7.2003. On 8.7.2003 the interim order was ordered to continue. Thereafter, it was adjourned from time to time. On 22.9.2003 this Court inter alia observed that stay had been granted to the petitioners in Criminal Misc No.M- 823 of 2002 vide order dated 8.1.2002. The said petition was for quashing FIR No.303 dated 13.11.2001 (Annexure P3) registered at Police Station Kotwali, Jhansi (U.P.). Criminal Misc No. M-823 of 2002 was decided by this Court vide order dated 29.5.2002. The stay of arrest granted to the petitioners on 8.1.2002 it is alleged became a part and parcel of the final order.
The petitioners filed Criminal Misc No. M-15001 of 2003 under Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -15- Section 438 of the Code of Criminal Procedure. This Court vide its order dated 8.4.2003 passed an order; "meanwhile arrest of the petitioners is also stayed under the newly added offences". The newly added offences in terms of order dated 8.4.2003 would be Sections 409, 467, 468 and 120-B IPC. Bail as per the said order had not been granted to the petitioners under Sections 468 and 471 IPC. The case was adjourned to 26.9.2003. Thereafter, it was again adjourned from time to time. The case was then taken up on 20.7.2004 on which date none appeared for the petitioners. It was observed that on 20.2.2004 no one was present on behalf of the petitioners and even on the said date i.e. 20.7.2004, no one was present on their behalf. The case was adjourned to 26.7.2004. The interim order dated 8.4.2003 was, however, vacated. On 26.7.2004 this Court observed that it was informed that proceedings in case FIR No.303 dated 13.11.2001 (Annexure P3) had since been transferred to Chandigarh vide order passed by the Supreme Court on 24.2.2003 (Annexure P1). In view of the said position, notice of the petition for anticipatory bail was issued to the Standing Counsel for UT, Chandigarh for 20.8.2004. At the said stage it was submitted by Counsel for the petitioners that due to his non-appearance on 20.7.2004, the interim order dated 8.4.2003 by which arrest of the petitioners was stayed had been vacated. He further contended that till then the petitioners were apprehending arrest. Therefore, their arrest may be stayed. In view of the said position, the arrest of the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -16- petitioners was ordered to be stayed till the next date of hearing. On 20.8.2004 on the request of the learned Counsel for UT Administration, Chandigarh, the case was adjourned to 1.10.2004 and interim order dated 26.7.2004 was ordered to continue. On 1.10.2004 learned Counsel for the respondent-UT Administration, Chandigarh submitted that case file had not been received from Jhansi. Therefore, without the police file he could not properly assist this Court and sought an adjournment to await the police file, which was likely to be received very soon by the department. The case was adjourned to 2.11.2004. On the said date, the case was adjourned to 18.1.2005 and the interim order was ordered to continue. Thereafter, it was again adjourned for some dates. It was then taken up on 25.2.2005. On the said date, learned counsel appearing for the State of Punjab on instructions submitted that the custody of the petitioners was not required for the purposes of investigation. Learned counsel for the UT Administration Chandigarh also submitted that the custody of the petitioners was not required for the purposes of investigation. Learned counsel appearing for the petitioners and learned counsel appearing for the Complainant were in agreement that the proceedings had been transferred from the Supreme Court of India vide order dated 24.2.2003 (Annexure P1) and that the challan in the case had been filed. They were also ad idem that the arrest of the petitioners was initially stayed by this Court on 8.4.2003 and thereafter, it was continuing. Learned counsel for the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -17- Complainant, however, contended that the said order i.e. the order dated 8.4.2003 had been obtained by misrepresentation. It was observed by this Court that keeping in view the fact that the custody of the petitioners was not required for the purposes of investigation, it would be just and expedient to extend the period of interim bail for a period of one month to enable the petitioners to approach the Court concerned to seek regular bail in terms of Section 439 CrPC in the light of the observations of the Hon'ble Supreme Court in Sunita Devi v. State of Bihar, (2005) 1 SCC 608. The petitioners were accordingly granted one month's time to apply for regular bail after surrendering before the Court concerned. In the circumstances, no opinion on the merits of the case was expressed and the Court concerned was ordered to deal with the application for regular bail in accordance with law. The Criminal Misc. petition was disposed of. In the order instead of mentioning the date as 25.2.2005 it was inadvertently mentioned as 25.2.2004. Accordingly Criminal Misc. No. 16218-19 of 2005 was filed for correction of the date of order on the certified copy; besides, a further request was made to issue clarification regarding the concerned Court in view of the facts and circumstances of the case. In terms of order dated 24.3.2005, the date of the order was corrected to that of 25.2.2005 instead of 25.2.2004 being a clerical mistake. The Registry was asked to issue a fresh copy of the order. Besides, the petitioners were granted one month's more time from the date of preparation of the copy of the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -18- order to apply for regular bail after surrendering before the Court concerned. Insofar as the clarification regarding the Court concerned, this Court was of the view that no clarification was required. Criminal Misc. Nos.16218-19 of 2005 were disposed of accordingly. Another Criminal Misc. No.17517-18 of 2005 was filed by the Complainant also for correcting the date of order, which was also allowed on 25.4.2005.
The petitioners then applied for bail before the Court of Sessions Judge, Chandigarh. The said petition was assigned to the Court of learned Additional Sessions Judge, Chandigarh who received the same by entrustment. The learned Additional Sessions Judge observed that the petition had been filed in compliance with the directions of this Court vide order dated 25.2.2005 subsequently modified vide order dated 23.4.2005. It was observed that a bare perusal of both the orders would reveal that the petition for regular bail could be moved by the petitioners before the concerned court and that too after surrendering there. It was further observed by the learned Additional Sessions Judge that the case was registered vide FIR No.303 dated 13.11.2001 at Police Station Kotwali Jhansi under Sections 406, 468 and 471 Indian Penal Code. Subsequently while presenting the challan, Sections 409 and 120-B IPC were further added after conversion of offence punishable under Section 406 into one under Section 409 IPC. The case, it was observed, was transferred from the Court of Chief Judicial Magistrate, Jhansi (U.P.) to the competent Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -19- Court at Chandigarh by the Hon'ble Supreme Court vide order dated 24.2.2003. It was observed that the case was exclusively triable by the Magistrate. Therefore, in terms of the said order the case could be taken to have been transferred to the Court of the Chief Judicial Magistrate, Chandigarh who could further entrust it to any Court competent to try the case. In such a situation when the application could be moved before the concerned Court, the petition having been filed in the Sessions Court, it was observed, could not be entertained as the said Court could not be construed to be the concerned Court in terms of the said order. The petition was, accordingly returned to the petitioners for its presentation before the concerned Court in terms of the order dated 19.4.2005 passed by the learned Additional Sessions Judge, Chandigarh.
The petitioners then filed Criminal Misc 21939-41 of 2005 in Criminal Misc M-15001 of 2003 in this Court seeking grant of bail. The case of the petitioners was that the concerned Court (learned Chief Judicial Magistrate, Chandigarh) may interpret the order as to deal with the application for regular bail in accordance with law on merits. It was submitted by the petitioners that the procedural harassment in the due process involved in obtaining bail from the learned Chief Judicial Magistrate, Chandigarh may entail service of a notice to the State and in the intervening period in dealing with the application for bail the learned Chief Judicial Magistrate, Chandigarh may exercise the discretion and opt for custody. It was submitted that this Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -20- Court in exercise of its inherent powers to secure the ends of justice and to prevent procedural harassment can impose onerous conditions which may be considered necessary for granting bail under Section 439 CrPC . The arrest of the petitioners, it was submitted, had been initially stayed on 8.1.2002 in Criminal Misc. No.M-823 of 2002. The order passed by this Court on 29.5.2002 disposing of the said petition was assailed before the Supreme Court and the said order had remained intact when the SLP and the Transfer Petition of the petitioners were disposed of. A civil suit regarding the same matter was pending at Ludhiana and arbitration award was pending execution before the learned Court of competent jurisdiction at Ludhiana. The petitioners in these events, it was submitted, would suffer due to procedural harassment in the event of the dealing with the application for bail. On 28.4.2005 notice of Criminal Misc. No. 21939 of 2005 was issued to the Advocate General Punjab, Standing Counsel for U.T. Chandigarh and also to the learned Counsel for the Complainant for 2.5.2005. The same was adjourned from time to time and thereafter Criminal Misc. No.42590 of 2005 was filed for the grant of ad interim/anticipatory bail/stay of arrest to the applicants during the pendency of Criminal Misc. No.21939 of 2005 till the matter was finally taken up by this Court; besides, Criminal Misc. No.42589 of 2005 in Criminal Misc. No.M- 15001 of 2003 was filed for stay of arrest and execution of the re-issued non- bailable warrants of the petitioners in the above noted case. Both the said Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -21- criminal miscellaneous petitions were primarily for staying the arrest till the main case was taken up. However, the Criminal Misc. No.M-15001 of 2003 had in fact already been disposed of on 25.2.2005. Therefore, vide order dated 19.8.2005, it was observed that the application for pre-arrest bail of the applicants was disposed of by this Court on 25.2.2005 and the petitioners were granted one month's time to approach the Court concerned and seek regular bail in terms of Section 439 Cr.P.C in the light of the observations of the Hon'ble Supreme Court in Sunita Devi v. State of Bihar (Supra). However, no opinion on the merits was expressed. It was further observed that the petitioners applied for regular bail before the learned Sessions Judge, Chandigarh and the learned Additional Sessions Judge, Chandigarh to whom the case was assigned vide order dated 19.4.2005 returned the petition for its presentation before the concerned Court in terms of the order passed by this Court. It was observed by the learned Additional Sessions Judge that the offences for which the petitioners had been challaned were exclusively triable by the Magistrate; besides, in terms of the order dated 24.2.2003 passed by the Hon'ble Supreme Court, the case had been transferred to the Court of Chief Judicial Magistrate, Chandigarh who could further entrust it to any Court competent to try the case. In such a situation, it was further observed by the learned Additional Sessions Judge, Chandigarh that when the application could be moved before the concerned Court, the petition that had been filed before Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -22- the Court of Session, could not be entertained as such the said Court could not be construed to be the concerned Court in terms of the order referred to therein. Keeping in view the aforesaid circumstances, this Court was of the view that the petition under Section 482 read with Section 439 Cr.P.C. was not maintainable in a petition which had already been disposed of by this Court vide order dated 25.2.2005. Accordingly, criminal miscellaneous application was dismissed. In view of the above, the other miscellaneous applications filed in the case had become infructuous and were accordingly disposed of as such.
The petitioners then filed Criminal Misc. No.46929 of 2005 in Criminal Misc. No.M-15001 of 2003 for granting extension of time/pre-arrest bail as granted to them while protecting the liberty by way of issuing appropriate orders in case FIR No.303 dated 13.11.2001 (Annexure P-3) to enable them to seek bail in view of the order dated 25.2.2005 passed by this Court. The same was taken up for hearing on 22.9.2005 on which date it was adjourned to 26.9.2005 and then to 3.10.2005. On 03.10.2005, notice of criminal miscellaneous No.46929 of 2005 was issued to Advocate General, Punjab, Standing counsel for U.T. Chandigarh and learned Counsel for the complainant. The case was adjourned to 25.10.2005. It was then taken up on 08.11.2005. However, no one was present and it was adjourned to 29.11.2005. The petitioners then filed Criminal Misc. No.67922 of 2005 in Criminal Misc. No.M-15001 of 2003. In the said criminal miscellaneous application, a prayer Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -23- was made for staying the operation of the order dated 6.12.2005 passed by the learned Chief Judicial Magistrate, Chandigarh or alternatively staying the arrest of the applicants during the pendency of the petition before this Court. The learned Chief Judicial Magistrate, Chandigarh in terms of aforesaid order dated 6.12.2005 had issued warrants of arrest against the petitioners. The learned Chief Judicial Magistrate, Chandigarh was of the considered opinion that it would be in the interest of justice to issue warrants of arrest against the petitioners to procure their presence in the Court. Notice of Criminal Misc. No.67922 of 2005 was issued on 12.12.2005 for 22.12.2005. The case was not taken up during this time.
The petitioners then filed Criminal Misc. No.M-71250 of 2005 on 22.12.2005 for grant of pre-arrest bail, which is one of the present criminal miscellaneous petition. The same came up for hearing on 23.12.2005 and it was ordered to be listed before this Bench in view of the earlier petitions filed. In between during the winter vacations, the petitioners filed Criminal Misc. No.M-71691 of 2005 for grant of interim relief of stay of arrest/execution of non-bailable warrants during the pendency of the Criminal Misc. No.M-71250 of 2005 pending in this Court. The said petition came up for hearing before the vacation Bench and the learned Vacation Judge on 27.12.2005 passed the following order:-
"Present: Mr. J. S. Bhatti, Advocate for the
Criminal Misc. No. M-71250 of 2005 (O&M) and
Criminal Misc. No. M-71691 of 2005 (O&M) -24-
petitioner.
Adjourned to 03.1.2006.
To be heard with Criminal Misc. No.M-71250
of 2005.
In the meantime, the petitioners shall appear
before the learned Chief Judicial Magistrate,
Chandigarh and on their appearance, shall be
released on bail by the learned Chief Judicial
Magistrate. The petitioners shall, however,
continue to appear before the Chief Judicial
Magistrate on all dates so fixed."
On the passing of the said order, the Complainant filed
Criminal Misc. No.2717 of 2006 in Criminal Misc. No.M-71691 of 2005. It was inter alia submitted by the Complainant that the petitioners had originally filed Criminal Misc. No.M-15001 of 2003 for grant of anticipatory bail in case FIR No.303 dated 13.11.2001 (Annexure P-3) under Sections 406, 409, 467, 468 and 120-B IPC registered at Police Station Kotwali Jhansi. The said petition was disposed of by this Court vide order dated 25.2.2005 and the petitioners were granted anticipatory bail for a period of one month to enable them to approach the Court concerned to seek regular bail in terms of Section 439 Cr.P.C in the light of the observations of the Hon'ble Supreme Court in Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -25- Sunita Devi v. State of Bihar (Supra). However, the petitioners failed to apply for regular bail before the learned trial Court and instead applied for regular bail before the Court of learned Additional Sessions Judge, Chandigarh who vide order dated 19.4.2005 returned the bail application to the petitioners for its presentation before the Court concerned in terms of the order passed by this Court. Even thereafter the petitioners failed to apply for regular bail before the Court of learned Chief Judicial Magistrate, Chandigarh and kept on playing hide and seek with the due process of law with the sole intention to delay the trial. The petitioners then filed Criminal Misc. No.21939 of 2005 in Criminal Misc. No.M-15001 of 2003 which was disposed of vide order dated 25.02.2005. It is further submitted that the petitioners thereafter filed Crl. Misc. No.42589 of 2005 in Crl. Misc. No.M-15001 of 2003 praying for stay of execution of non-bailable warrants against the petitioners by the learned trial Court. Notice was issued in the said criminal miscellaneous application. The Complainant through the Counsel brought the entire position to the notice of this Court and it was submitted that the applications filed by the petitioners were not maintainable and no relief could be granted to them in the above applications as that would amount to review of the order dated 25.02.2005 passed by this Court. Accordingly, the applications filed by the petitioners were dismissed by this Court on 19.08.2005. Thereafter it is submitted that the petitioners again filed Crl. Misc. No.46928 of 2005 in Crl. Misc. No.M-15001 Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -26- of 2003 seeking extension of time/pre-arrest bail. Notice was issued in the said application thereafter. In December, 2005, the petitioners filed Crl. Misc. No.67922-24 of 2005 in Crl. Misc. No.M-15001 of 2003 praying for stay of operation of the order dated 06.12.2005 passed by the learned Chief Judicial Magistrate, Chandigarh issuing warrants of arrest against the petitioners or to stay the arrest of the petitioners. Notice was issued in the said application also but no stay was granted to the petitioners. The said two applications were taken up on 13.12.2005 and 22.12.2005 and after hearing were adjourned to 10.01.2006 but no stay was granted to the petitioners keeping in view their conduct. It is submitted that thereafter the petitioners filed Crl. Misc. No.M- 71250 of 2005 in this Court for grant of pre-arrest bail in the above mentioned cases and also for stay of the order dated 06.12.2005 passed by the learned Chief Judicial Magistrate, Chandigarh vide which warrants of arrest had been issued. The said petition was ordered to be heard with the identical applications filed by the petitioners which were pending before this Bench. It is submitted that main Crl. Misc. No.M-71250 of 2005 was listed on 23.12.2005 itself but was adjourned to 03.01.2006. The petitioners, it is submitted acted in a fraudulent and illegal manner and filed another main Crl. Misc. No.M-71691 of 2005 during winder vacations which was not legally maintainable in view of the earlier pending petitions who stood adjourned to 03.01.2006 and 10.01.2006. The Crl. Misc. No.M-71691 of 2005 filed during Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -27- winter vacations it is submitted could not be even legally passed by the office as it was not maintainable but the petitioners it is submitted manipulated to get it listed during winter vacations and in a totally wrong and illegal manner to obtain interim order dated 27.12.2005 vide which in the meantime they were ordered to be released on bail on their appearance before the learned Chief Judicial Magistrate, Chandigarh and the petition was ordered to be listed along with Crl. Misc. No.M-71250 of 2005 already filed by the petitioners. Therefore, it was prayed that the interim order dated 27.12.2005 passed in Crl. Misc. No.M-71691 of 2003 be vacated. Notice of criminal miscellaneous No.2717-19 of 2006 in Crl. Misc. No.M-71691 of 2005 was issued to the non- applicant-petitioners. On 28.04.2006, it was observed that criminal miscellaneous application had been filed for vacating the interim order dated 27.12.2005; besides, the petitioners appeared before the learned Chief Judicial Magistrate, Chandigarh and furnished their necessary regular bail bonds. In view of the fact that the petitioners had appeared before the learned Chief Judicial Magistrate, Chandigarh in compliance with the order dated 17.12.2005 passed by a Coordinate Bench of this Court, no further action was warranted in terms of the prayer made by the complainant (respondent No.2) by way of Crl. Misc. No.2717 of 2006. Consequently, the criminal miscellaneous application was dismissed. On 28.04.2006 itself Crl. Misc. No.46928-29 of 2005 and Crl. Misc. No.67922-24 of 2005 in Crl. Misc. No.M-15001 of 2003 were disposed Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -28- of. It was observed that the main criminal miscellaneous petition i.e. Crl. Misc. No.M-15001 of 2003 had been disposed of on 25.02.2005.
Learned counsel appearing for the petitioners stated that the criminal miscellaneous applications had become infructuous as the petitioners were granted interim bail on 27.12.2005 (in Crl. Misc. No.M-71691 of 2005) and they had appeared before the learned Chief Judicial Magistrate, Chandigarh and furnished necessary bail bonds. Accordingly, the criminal miscellaneous petition was dismissed as having become infructuous.
The complainant then filed SLP (Criminal) No.4992 of 2006 which was converted to Criminal Appeal No.1412 of 2009. The same was disposed of vide order dated 04.08.2009. The Hon'ble Supreme Court held that an interim order is always passed subject to the final order; besides, before a final order granting anticipatory bail is passed, the High Court was required to apply its mind not only with regard to the stage in which the investigation was pending but several other factors including the conduct of the accused. The Supreme Court was of the opinion that that the impugned order could not be sustained and it was accordingly set aside. The appeal was allowed and the matter was remitted to this Court for consideration of the appellants' application for cancellation of interim bail as also respondent's application for grant of anticipatory bail. For the aforementioned purpose, the order dated 28.04.2006 permitting the respondent's not to press their application was also Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -29- set aside. The matter was asked to be considered afresh after hearing the parties. Therefore the matter has been remitted to this Court to consider the matter afresh after hearing the parties.
The case of the complainant (respondent No.2) primarily is that in terms of the agreement dated 1.10.1999 between the Complainant -Company and the firm M/s S. Bhatia Enterprises of the petitioners in which the petitioners are the partners were appointed C&F agents of the Complainant Company and they had in connivance with the various dealers embezzled huge amount of the Complainant Company by usurping the stocks supplied to them as C&F agents. It is submitted that it is only for this reason that they are different dealers who embezzled the various amounts of the Complainant- Company that different FIRs came to be registered. Since the dealers had embezzled the stocks in active connivance with the petitioners, therefore, the petitioners had to be named in the said FIRs also as co-accused. The petitioners submitted a false outstanding list to the Complainant-Company on 3.12.2000 with the intention to embezzle huge amount of sale proceeds. When these were detected during audit, the petitioners admitted their guilt vide affidavit dated 25.12.2000 and assured the Complainant Company not to repeat the same in future. The Audit report dated 2.1.2001 revealed that the petitioners had passed false credit entries of Rs.4 lacs each on 31.3.2000 in the accounts of three stockist for which they were warned by the Complainant Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -30- Company. On 18.10.2001, during Audit it was again detected that the petitioners had passed false credit entries of Rs.5.20 lacs in the account of M/s Bhatia Medicos which is their sister concern and of Rs.25000/- in the account of M/s Bhatia Enterprises. On 18.10.2001, the petitioners along with their employees and other miscreants stormed in the hotel room of the Company's Accounts Manager namely S.K. Thakur and assaulted him, besides, threatened to kill him. They snatched away all records of C&F Agency, Ludhiana from the Company's Accounts Manager including all books of accounts and stocks, ledgers, bank books etc. with the intention to destroy evidence of the fraudulent acts of committing embezzlement against the Complainant Company. Mr. S.K. Thakur filed an application on 20.10.2001 before the SHO, Kailash Chowk, Ludhiana who acknowledged receipt of the said complaint regarding the incident dated 18.10.2001. However, on account of influence of the petitioners over the local police, the FIR was not registered immediately. When the matter was reported to the higher police authorities, the local police lodged FIR No.29 dated 7.12.2001 on the basis of the aforesaid complaint dated 20.10.2001. The FIR was registered after an inordinate delay of about one and a half months. Trial in the said FIR is pending in the Court of learned Chief Judicial Magistrate, Chandigarh. The Complainant-Company, it is submitted, instructed the petitioners to hand over all the stocks, sales proceeds and books of accounts and stocks, ledgers etc. to the officials of the Complainant- Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -31- Company which the petitioners failed to do. Therefore, the Complainant- Company terminated the C&F agency and directed the petitioners to return stocks and render accounts to the Company at Jhansi as per agreement dated 1.10.1999. However, instead of doing this, the petitioners illegally locked the C&F agency and disappeared from the scene. It is submitted that the said facts speak volumes about the criminal intention of the petitioners that they had embezzled huge stocks and sale proceeds of the Complainant Company by that time and for which reason they were not willing to return the stocks and render accounts to the Complainant Company. In order to illegally pressurize the Complainant Company, the petitioners managed to get registered an absolutely false FIR No.276 dated 21.10.2001 (Annexure P2) with the police of Police Station Haibowal, Ludhiana i.e. on the next day of filing the application dated 20.10.2001 by Mr. S.K. Thakur the Accounts Manager of the Complainant Company with the police of Police Station Kailash Chowk, Ludhiana regarding the incident that had occurred on 18.10.2001. The said FIR was got registered against the officials of the Company by the petitioners by exercising their undue influence over the local police so as to mask the offences committed by them on 18.10.2001 against the Company's Accounts Manager. Therefore, it is submitted that FIR No.276 dated 20.10.2001 (Annexure P2) is a counterblast to the application dated 20.10.2001 filed by the Company's Accounts Manager on the basis of which FIR No.29 was later registered by the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -32- Police on 7.12.2001 and not vice versa. It is submitted that it is only to brow beat the Complainant Company and to pressurize it not to pursue its claim of the amount, which the petitioners have embezzled that various officials of the Complainant Company have been implicated in a false FIR, which the petitioners got registered against them. It is submitted that in the application dated 17.3.2010 filed on behalf of the petitioners before this Court the date of FIR No.276 has been wrongly mentioned as 18.10.2001 deliberately so as to mislead the Court whereas the correct date of said FIR is 21.10.2001 (Annexure P2). The Audit report dated 2.11.2001 of the Chartered Accountant of the Complainant's Company revealed that the petitioners had embezzled stocks and sale proceeds worth more than Rs.2.36 crores. They and their family members had also siphoned off stocks worth Rs.26.50 lacs approximately in their bogus firm M/s Dhanwantri Ayurvedic Centre, Hambran and over Rs.21 lacs in their another sister concern i.e. M/s S. Bhatia Medicos, Ludhiana. In terms of the agreement dated 1.10.1999 the petitioners were required to return stocks and render accounts at the Company's administrative office at Jhansi which they failed to do and hence the complainant-Company got the aforesaid FIR No.303 dated 13.11.2001 (Annexure P3) registered at Police Station Kotwali Jhansi. The petitioners filed CRM No.M-823 of 2002 before this Court seeking quashing of FIR No.303 dated 13.11.2001 (Annexure P1) or to transfer proceedings from Jhansi to Ludhiana. In the said petition, Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -33- interim order regarding stay of arrest was passed but there was no such direction in the order vide which the said petition was finally disposed of with the direction that proceedings of FIR No.303 dated 13.11.2001 (Annexure P3) shall stand transferred from Jhansi to Ludhiana. The said final order dated 29.5.2002 (Annexure P6) was stayed by the Supreme Court on 19.8.2002. Later, the Supreme Court transferred the proceedings to the Court of learned Chief Judicial Magistrate, Chandigarh. It is submitted that in FIR No.303 dated 13.11.2001 (Annexure P3) the petitioners neither joined the investigations nor appeared before the Court either at Jhansi or Chandigarh despite issuance of non-bailable warrants against them by the said two Courts. In CRM No.M 15001 of 2003 filed by the petitioners before this Court it is submitted that the petitioners gave a false impression that a stay order of their arrest was granted to them in CRM No.M-823 of 2002 which had continued. This it is submitted is evident from the order dated 8.4.2003 passed by this Court wherein it is contended on behalf of the petitioners that their arrest had already been stayed by this Court vide order dated 8.1.2002 in FIR No.303 dated 13.11.2001 (Annexure P3) under Sections 406, 468 and 471 IPC but later on offences had been changed to Sections 409, 467, 468 and 120 B IPC. It is submitted that in fact in terms of the order dated 8.1.2002 passed in CRM No. M-823 of 2002 it was only an interim order vide which the arrest of the petitioners was stayed and became inoperative after the final order was passed Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -34- on 29.5.2002 (Annexure P6) in which the said interim order dated 8.1.2002 was not confirmed. Even the final order dated 29.5.2002 (Annexure P6) passed in CRM No.M-823 of 2002 was stayed by the Supreme Court on 19.8.2002 i.e. much earlier to the order dated 8.4.2003 passed by this Court. Meanwhile, when the complainant-Company found that the petitioners had illegally locked the C&F agency it filed a Civil Suit in November 2001 itself in the Civil Court at Ludhiana for grant of permanent injunction against the petitioners with the prayer to restrain them not to interfere in removal of stocks, books and other items being the sole property of the Company. Despite various objections raised by the petitioners, the Civil Court ordered to break open locks of C&F agency and it appointed a Local Commissioner for making inventory and thereafter to hand over the keys to the Complainant Company. The petitioners filed a revision petition in this Court against the order of the Civil Court which was dismissed and a review application was also filed which too was dismissed by this Court. The Local Commissioner appointed by the Civil Court broke open the locks of the C&F agency, made an inventory and handed over the stocks and keys to the Company's officials, which not only revealed huge shortage of stocks and other items but important books of accounts, stocks, ledger, sales and sale proceeds recorded etc. were also found missing. The petitioners when they failed to render the accounts, remit sales proceeds and deliver full stocks to the complainant Company, the latter Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -35- invoked arbitration clause of the agreement and as per terms of agreement appointed Mr. M.P. Dixit as an abritrator who pronounced an Award of Rs.3,56, 54,487.37 on 10.7.2004 against the petitioners after adjusting all their dues. The petitioners though initially appeared before the said arbitrator but subsequently stopped appearing. The award is pending for execution in the Court of learned District Judge, Jhansi but the petitioners are not appearing in spite of the fact that several summons have been issued to them by Court of Jhansi. They are also fully aware that as per latest orders of the Supreme Court passed in the Civil Transfer petition filed by the Complainant Company only Jhansi Court has the jurisdiction to decide all civil litigations between the parties. As soon as the petitioners came to know about the appointment of Mr. M.P. Dixit as Arbitrator they illegally appointed another arbitrator i.e. Mr. Sudesh Kukreja of Chandigarh in total violation of the terms of agreement dated 1.10.1999. The said arbitrator who passed an illegal Award in their favour. The Complainant-Company challenged the said Award given by Mr. Sudesh Kukreja before the Civil Court at Jhansi under Section 34 of the Arbitration Act but the petitioners have not appeared even in the said case so far. In July 2008 once again by abusing the legal process, the petitioners prematurely filed execution of the Award of Mr. Sudesh Kukreja before the Civil Court at Ludhiana, despite having full knowledge of the fact that the said Award had not become a decree due to pendency of the aforesaid proceedings Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -36- taken out by the Complainant Company under Section 34 of the Arbitration Act in respect of the said Award. The petitioners by misleading the District Judge, Ludhiana and District Judge, Ropar managed to get issued a precept and attachment warrant against the complainant Company and consequently its stocks at its Zirakpur Depot were attached. The orders of Ludhiana and Ropar Courts were assailed by the Complainant Company before this Court and this Court was pleased to set aside the aforesaid orders of the Ludhiana and Ropar Courts and restore the attached goods to the Complainant Company. In another instance of abusing legal process, it is submitted that the petitioners lodged two false and frivolous FIRs No.48 and 139 with the Ludhiana Police against the officials of Complainant Company, which after due investigations were cancelled by the police finding them to be false. It is submitted that instead of complying with the final order dated 25.2.2005 passed in CRM No.M-15001 of 2003 i.e. Applying for regular bail after surrendering before the concerned Court i.e. the Court of Ilaqa Magistrate, Chandigarh, the petitioners started playing hide and seek with the Court as well as the process of the law. Firstly, they filed an application before the Court of learned Sessions Judge, Chandigarh for grant of bail. However, the said application was returned with the direction to present the same before the concerned Court in terms of the order dated 25.2.2005. Thereafter, the petitioners firstly filed an pplication bearing CRM No.21939 of 2005 in CRM No.M-15001 of 2003 under Section Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -37- 482 read with Section 439 CrPC seeking grant of bail. Then on 10.5.2005 they filed another application i.e. CRM No.25590 of 2005 in CRM No.M- 15001 of 2003 for grant of ad-interim anticipatory bail/stay arrest during the pendency of CRM No.21939 of 2005. Still further on 9.8.2005, another application i.e. CRM No.42589 of 2005 was filed in CRM No.M-15001 of 2003 seeking stay of arrest/execution of re-issued non-bailable warrants of the petitioners by the learned Chief Judicial Magistrate, Chandigarh. On 19.8.2005 this Court was pleased to dismiss the said applications i.e. CRM No.21939 of 2005 and CRM No.42589 of 2005. On 29.8.2005, the petitioners filed another CRM No.46929 of 2005 in CRM No. M-15001 of 2003 itself seeking extension of time/pre-arrest bail so as to seek bail in view of the order dated 25.2.2005. In the meanwhile on 6.12.2005 the Court of learned Chief Judicial Magistrate, Chandigarh issued bailable warrants against the petitioners. This made the petitioners file another application bearing CRM No.67922 of 2005 in CRM No. M-15001 of 2003 seeking stay of operation of order dated 6.12.2005 or in the alternate to stay their arrest. In the said application, only notice of motion was issued on 12.12.2005. However, CRM No. 46929 of 2005 and CRM No.67922 of 2005 were dismissed as infructuous on 28.4.2006 on the ground that on 27.12.2005, the petitioners were granted interim bail in CRM No. M-71691 of 2005 and they had appeared before the learned Chief Judicial Magistrate, Chandigarh and had furnished bail bonds. By concealing Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -38- the aforesaid order dated 19.8.2005 passed by this Court in CRM No.21939 of 2005 and CRM No.42589 of 2005, the petitioners had filed a fresh petition i.e. CRM No. M-71205 of 2005 without even impleading State of UP as a party. After the said petition had been adjourned from 23.12.2005 to 06.1.2006 petitioners had filed third petition bearing CRM No. M-71691 of 2005 during vacations for grant of interim relief of stay arrest/execution of non-bailable warrants during the pendency of CRM No. M-71205 of 2005. While filing the said petition i.e. CRM No.M-7169 of 2005 in which the State of UP had not been impleaded as a party, the petitioners once again concealed the order dated 19.8.2005. Soon after coming to know about the aforesaid interim order dated 27.12.2005 passed in CRM No. M-71691 of 2005, the Complainant Company filed an application bearing CRM No.2717 of 2006 seeking vacation of the said interim order whereby the stay had been granted. On 28.4.2006, however, the said application filed by the complainant was dismissed and the main petition i.e. CRM No. M-71691 of 2005 was dismissed on the ground that in compliance with the order dated 27.12.2005, the petitioners had appeared before the learned Chief Judicial Magistrate, Chandigarh and had been released on their furnishing bail bonds and in the circumstances, counsel for the petitioners did not press the petition. Therefore it is submitted that the petitioners have been playing hide and seek and are not entitled to the grant of pre-arrest bail. It is submitted that the petitioners had tried to mislead this Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -39- Court by alleging that the Complainant Company had lodged FIRs in various cities of Punjab and they had got anticipatory bail in all the FIRs. Therefore, they do not deserve anticipatory bail in the present FIR No.303 dated 13.11.2001 (Annexure P3). It is submitted that the Complainant-Company has lodged four FIRs at Ludhiana, two in Amritsar and one in Malerkotla against the partners/proprietors of its various stockists in which the accused persons named in FIR No.303 dated 13.11.2001 (Annexure P3) are also the co- accused as all of them have embezzled huge amounts of sale proceeds of the Company in collusion and connivance with each other. In terms of the agreement dated 1.10.1999 it is the C&F Agent, who is responsible to collect sale proceeds from the various stockists. It was not possible for the Complainant-Company to lodge FIRs against its stockists, who are located in various stations in the State of Punjab with Jhansi Police due to lack of jurisdiction of Jhansi police as the goods were supplied to them from Ludhiana by the petitioners who were the partners of the Complainant Company's terminated C&F agent M/s S. Bhatia Enterprises. This fact had not been deliberately disclosed by the petitioners before this Court. As a matter of fact, there was a great difference between the subject matter of FIR No.303 dated 13.11.2001 (Annexure P3) and other FIRs as referred above. The subject matter of FIR No.303 dated 13.11.2001 includes embezzlement of huge quantity of stocks and sale proceeds, fabrication of forged documents, non- Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -40- returning of books of accounts, stocks, ledgers and other books etc by the petitioners to the Complainant-Company, whereas the other FIRs relate to embezzlement of sale proceeds of the Complainant Company by the partners/proprietors of the respective stockists as well as by the partners of the C&F agent who were also accused in FIR No.303 dated 13.11.2001 (Annexure P3) in connivance with each other. The petitioners it is submitted never surrendered in the Court of the learned Chief Judicial Magistrate, Chandigarh and had obtained the order dated 27.12.2005 by misrepresentation. Learned Counsel for the Complainant-Company cites Ramji v. State of Punjab, 2001 (1) RCR (Criminal) 538 and Ashireddygari Narasimhareddy v. State of A.P., 2000 (3) RCR (Criminal) 573 wherein it has been held that a Magistrate has the power to grant regular bail in respect of an offence is punishable with life imprisonment. It is submitted that once the first anticipatory bail application i.e. CRM No. M-15001 of 2003 filed by the petitioners stood decided on 25.2.2005, they could not file two petitions i.e. CRM No.M-71250 of 2005 and CRM No.M-71691 of 2005 thereafter.
I have given my thoughtful considerations to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. The questions, therefore, that require consideration are whether the petitioners are entitled for pre-arrest bail, whether the interim bail granted to the petitioners vide order dated 27.12.2005 is liable to be cancelled Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -41- and the conduct of the petitioners. It may appropriately be noticed that the initial petition i.e. CRM No.M-15001 of 2001 was disposed of on 25.2.2005. There was no consideration of the matter on merit and the arrest of the petitioners was stayed for a period of one month to enable them to approach the concerned Court and apply for regular bail after surrendering before the said Court. Thereafter, the petitioners filed a petition in the Court of learned Sessions Judge, Chandigarh which was returned to them in terms of order dated 19.04.2005. Thereafter, the petitioners filed various miscellaneous applications in this Court for correcting the date of the order, clarifying the meaning of concerned Court and for staying their arrest/interim bail. These petitions were filed in pending petitions which were not maintainable. The petitioners then filed CRM No. M-71691 of 2005 in which the order dated 27.12.2005 was passed by the Vacation Bench whereby the petitioners it was ordered shall appear before the learned Chief Judicial Magistrate, Chandigarh and on their appearance shall be released on bail by the learned Chief Judicial Magistrate. The said order has been set aside in SLP (Cr) 4992 of 2006 which was converted to CRA No.1412 of 2009. Therefore, there has indeed been no consideration of the matter on merit. The case relates to huge amount of embezzlement said to have been committed by the petitioners in their capacity as C&F agents of the Complainant-Company. The litigation between them is quite grave. The Complainant-Company has alleged that the petitioners in Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -42- their capacity as C&F agents had embezzled huge quantity of stocks and sale proceeds, fabricated and forged documents, did not return books of accounts, stocks ledgers and other books. In terms of the audits that were conducted, the petitioners in their affidavit dated 25.12.2000 had submitted incorrect, false and fraudulent outstanding list of their C&F agency stating therein total outstanding dues of Rs.1,31,96,373/- as on 3.12.2000 instead of mentioning the true and correct total outstanding amount of Rs.2,44,78083. It was declared and undertaken by Parveen Bhatia (petitioner No.1) that the total outstanding amount and interest due accrued thereon at the rate of 18% per annum would be recovered from the respective parties at the earliest failing which he would be personally liable to the Complainant-Company for the entire un-recovered amount of the outstanding dues plus interest accrued thereon. It was also assured that in future he would not submit any incorrect or fraudulent statement.
The case, therefore, involves substantial inter se dispute with regard to the embezzlements that are said to have been indulged into by the petitioners. The present case relates to FIR No.303 dated 13.11.2001 (Annexure P3). On the filing of the said FIR, Criminal Misc. No.M-823 of 2002 was filed in which notice of motion was issued and the arrest of the petitioners was stayed by this Court vide order dated 8.1.2002 (Annexure P4).
Learned counsel appearing for the Complainant who was Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -43- respondent No.3 in the said petition accepted notice on behalf of the Complainant on the same day. According to the petitioners, during this period the petitioners joined the investigation and cooperated in the investigations. The orders in the said Criminal Misc. petition were reserved by this Court on 22.3.2002. Without waiting for the order to be pronounced, the police authorities at Jhansi filed the police report (challan) (Annexure P5) in the Cout of learned Chief Judicial Magistrate, Jhansi (UP) on 1.4.2002. The police report (challan) (Annexure P5) was filed in respect of offences under Sections 409, 468, 471 and 120-B IPC. The complainant filed an application before this Court for placing on record the fact regarding filing of the police report. This Court on 29.5.2002 (Annexure P6) noticed the fact of filing the police report (challan). It was observed that after the parties had concluded their arguments and the judgment had been reserved on 22.3.2002 and before the judgment could be pronounced, CRM No.15661 of 2002 had been filed for placing on record an additional affidavit and copy of the challan to indicate that investigation in FIR No.303 dated 13.11.2001 had been completed and the challan dated 1.4.2002 had been filed and therefore an order for transfer of investigation could not passed. The application for placing on record the document was allowed on 13.5.2002 subject to just exceptions. The stand of the petitioners was that the challan had been filed at the instance of the complainant with a view to preempt the passing of the order of transfer of Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -44- investigation. It was observed by this Court that merely because the challan had been filed would not bring in qualitative change in the position and in view of the law laid down by the Supreme Court in Navinchandera Majithia v. State of Maharashtra, 2000(4) RCR (Criminal) 30. This Court was of the view that the cause of action being basically at Ludhiana it would be in the interest of justice that the proceedings take place at Ludhiana. Accordingly, the proceedings in FIR No.303 dated 13.11.2001 (Annexure P3), it was ordered, shall stand transferred to the learned Chief Judicial Magistrate, Ludhiana for decision in accordance with law. CRM No.10791 of 2002 was filed for contempt. However, this Court was not inclined to entertain the same at the said stage in view of the conflicting versions and the same was accordingly disposed of. After the passing of the order dated 29.5.2002 (Annexure P6) by this Court, another police report (Challan) (Annexure P7) was filed by the police authorities at Jhansi under Sections 409, 468, 471 and 120-B IPC. It was submitted that FIR No.303 dated 13.11.2001 (Annexure P3) was registered on the complaint of Sh. Y.P. Sharma, General Manager, Sri Baidyanath Ayurveda Bhavan against Parveen Bhatia (petitioner No.1) and challan No.59/2002 dated 30.3.2002 had been filed in Court. Against the remaining persons, investigation was going on and persons mentioned in column No.2 i.e. Ram Krishan Bhatia, Ashwani Bhatia and Smt. Promila Bhatia (petitiones No.2 to 4) had now been challaned and evidence be summoned for their Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -45- examination. Against the remaining accused Sham Lal, Amrik Singh, Yogesh Tara and Manjit Singh, the investigation was going on. The Complainant filed SLP (Criminal) No.3391 of 2002 assailing the order dated 29.5.2002 (Annexure P6) passed by this Court. The petitioners filed transfer petition CRM No.48 of 2003. The Supreme Court vide order dated 24.2.2003 having regard to the facts and circumstances of the case but without commenting on the facts, lest it may prejudice the parties, was of the view that it was expedient to secure the ends of justice to transfer the case arising out of FIR No.303 dated 13.11.2001 where the challan is said to have been filed from the Court of learned Chief Judicial Magistrate, Jhansi to a Court at Chandigarh. It was ordered accordingly. The learned Sessions Judge, Chandigarh was to entrust the case on transfer to a competent Court at Chandigarh.
The above said facts and circumstances show that there has been litigation between Parveen Bhatia (petitioner No.1) and the complainant. Various civil and criminal cases are pending against each other. Initially, in terms of order dated 25.2.2005 passed in CRM No. M-15001 of 2003, learned counsel appearing for the State of Punjab submitted on instructions that the custody of the petitioners was not required for the purposes of investigation. Learned counsel appearing for UT, Chandigarh also submitted that the custody of the petitioners was not required for the purposes of investigation. Learned counsel appearing for the petitioners and learned counsel appearing for the Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -46- complainant were also agreed that the proceedings had been transferred by the Supreme Court vide order dated 24.2.2003 and that the police report (challan) in the case had been filed. They were also agreed that the arrest of the petitioners was initially stayed by this Court on 8.4.2003 and thereafter, it had been continuing. Learned counsel for the complainant, however, contended that the said order was obtained by misrepresentation. Keeping in view the fact that the custody of the petitioners was not required for the purposes of investigation. It was considered just and expedient by this Court to extend the period of interim bail for a period of one month to enable the petitioners to approach the Court concerned to seek regular bail in terms of Section 439 CrPC in the light of the observations of the Supreme Court in Sunita Devi v. State of Bihar (Supra). The petitioners were accordingly granted one month's time to apply for regular bail after surrendering before the Court concerned. In the circumstances, no opinion on the merits of the case was expressed and it was left to the Court concerned to deal with the application for regular bail in accordance with law. Therefore, evidently the case for grant of pre-arrest bail was not considered on merit by this Court in terms of order dated 25.2.2005. Thereafter, as has been noticed above, various others litigations were initiated but one aspect remains quite evident that the custody of the petitioners was not required for the purposes of investigation. At the time of passing the aforesaid order dated 25.2.2005, the view of the Hon'ble Supreme Court in a series of Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -47- judgments was that pre-arrest bail is not to be granted for an indefinite period. A perusal of the order dated 4.8.2009 passed by the Hon'ble Supreme Court remitting the case to this Court also inter alia observed that ordinarily, an order granting anticipatory bail should not be for an indefinite period. The said position now is somewhat different as later judgments of the Supreme Court would show.
In Savitri Aggarwal and Others v. State of Maharashtra and another, (2009) 8 SCC 325 it was inter alia observed that very cogent and overwhelming circumstances are necessary for an order directing cancellation of bail already granted. In the said case, nothing had been brought on record from which it could be inferred that appellants had not cooperated in the investigation or had in any manner abused the concession of bail granted to them. It was held that the imposition of unnecessary restrictions on the scope of section which were not to be found in Section 438 CrPC could make the provision constitutionally vulnerable since the right of personal freedom as enshrined in Article 21 of the Constitution cannot be made to depend on compliance with unreasonable restrictions. The Courts must keep in mind the guidelines while dealing with an application for grant of anticipatory bail laid down by the Constitution Bench in Gurbaksh Singh Sibia v. State of Punjab, (1980) 2 SCC 565. It was also held that the amendment to Section 438 brought about by the CrPC (Amendment) Act, 2005 which is yet to be enforced is more Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -48- or less in line with the parameters laid down in Gurbaksh Singh Sibia's case (supra). In Gurbaksh Singh Sibia's case (supra) it was inter alia observed by the Constitution Bench of the Supreme Court that if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 CrPC, as and when such an occasion arises. Such a course would defeat the very object of Section 438 CrPC. Another aspect that was considered was whether the operation of an order passed under Section 438 (1) CrPC can be limited in point of time. It was held not necessarily and the Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of a FIR in respect of the matter covered by the order. It was held that the applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 CrPC within a reasonably short period after filing of the FIR as aforesaid. But this need not be followed an an invariable rule. It was further held that the normal rule should not be limit to the operation of the order in relation to a period of time. Therefore, the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibia's case (supra) categorically held that the normal rule should be not to limit the operation of the order in relation to a period of time.
In Siddharam Satlingappa Mhetre v. State of Maharashtra Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -49- and Others, (2011) 1 SCC 694 it was held that the decision of a Constitution Bench of the Supreme Court binds a Bench of two learned Judges of the Court. The judgments which limit the operation of the order of bail in point of time were ignored which included the judgment passed in Sunita Devi v. State of Bihar and another (Supra) on the basis of which the order dated 25.2.2005 was passed by this Court in CRM No. M-15001 of 2003. It was held that the anticipatory bail granted by the Court should ordinarily be continued till the trial of the case and that the accused was not required to surrender and apply for regular bail.
In the present case as has already been noticed this Court in the order dated 25.2.2005 did not consider the question regarding grant of pre- arrest bail on merit, which was liable to be considered. The petitioners not to be left liable to raise the contentions before the Magistrate as has been held in Gurbaksh Singh Sibia's case (Supra). Besides, the learned counsel for the State of Punjab and Standing Counsel for UT Chandigarh had submitted that the custody of the petitioners was not required for the purposes of investigation. The police report (challan) in the case even has been filed. The custody of an accused in fact is normally required so as to carry out effective and meaningful investigations. The investigating authorities have, however, stated that the custody of petitioners is not required. The police of Police Station Kotwali Jhansi has also filed the police report (challan) which would mean that they Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -50- also do not require the custody of the petitioners for the purposes of investigation. In respect of the various litigations that are going on even the allegations though are that the petitioners have embezzled huge amounts of stocks and sale proceeds. However, the same are not yet proved or established. Therefore, it would be quite inappropriate to subject the petitioners to custody without their guilt having been proved. The trial in the case is going on and the petitioners have put in appearance. The earlier order passed on 25.2.2005 in CRM No. M-15001 of 2003 limited the operation of the pre-arrest bail which in fact was not necessary as the normal rule is not to limit the operation of the order in relation to a period of time. Therefore, to put the petitioners in custody in a case where the civil and criminal litigations are going on would affect their liberty and may result in pressurizing them to compromise the matter for fear of being confined to custody. Besides, liberty of a person cannot be affected by confining him to custody, which in the facts and circumstances may be construed as a pre-determination of a matter which is yet to be determined. This would be against the settled norms to have adjudication of a dispute gone into by leading evidence and hearing the parties. Therefore, it would be just and expedient when the trial is going to admit the petitioners to pre-arrest bail and order that in the event of their arrest they be admitted to bail.
As regards the conduct of the petitioners, it may be noticed that they had filed Crl. Misc. petitions in pending petitions seeking stay of Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -51- execution of non-bailable warrants or for grant of pre-arrest bail. Filing of Crl. Misc. petitions in an already disposed of matter are to be deprecated. The petitioners were liable to file fresh petitions. However, in this regard the petitioners by themselves cannot be faulted and it was for their counsel to take legal remedies as permissible under the law. The Complainant it may be noticed has alleged that the petitioners deliberately filed an application for regular bail in the Court of Sessions at Chandigarh instead of filing it in the Court of Chief Judicial Magistrate, Chandigarh. The learned Counsel for the Complainant has referred to the case of Ramji v. State of Punjab (Supra) to contend that a Magistrate trying an offence punishable with imprisonment for life is competent to grant bail to an accused under Section 437 CrPC. It was further held that Magistrate Ist Class will not, however, be competent to grant bail in an offence which is punishable alternatively with death or imprisonment for life. Learned counsel for the Complainant also referred to the case of Ashireddyeari Narasimhareddy v. State of Andhra Pradesh (Supra) wherein the Hon'ble Andhra Pradesh High Court has held that a Magistrate has power to grant bail to an accused who is involved in an offence punishable with life imprisonment even if the offence is exclusively triable by the Court of Sessions. The prohibition it was held is where the sentence prescribed in the Act is either death alternatively imprisonment for life. In the said case, the accused was on anticipatory bail in respect of an offence under Section 307 Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -52- IPC which is punishable with life imprisonment. The chargesheet was submitted before the Magistrate and it was held that the Magistrate was competent to grant bail even if the case is exclusively triable by the Court of Sessions. A perusal of the said two judgments indeed show that the Magistrate is competent to grant bail in a case which is triable by it even if the same entails punishment for life imprisonment. However, this Court in Prithvi Raj v. State of Punjab, 1998 (3) RCR (Crl.) 104 observed that it was inappropriate for a Judicial Magistrate Ist Class to grant bail for an offence under Section 409 IPC punishable with imprisonment for life. The matter in the said case was referred to the Inspecting Judge for considering the propriety to initiate departmental action against the Judicial Magistrate who had granted anticipatory bail. The Hon'ble Supreme Court in Prahlad Singh Bhati v. NCT, Delhi and another, (2001) 4 SCC 280 considered the powers of Magistrate while dealing with an application for grant of bail. It was held that these are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed for imprisonment for life and death penalty and the offences exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the proviso attached to Section 437 CrPC. Therefore, it was for the petitioners to urge before the learned Additional Sessions Judge, Chandigarh that a Chief Judicial Magistrate may not entertain an application for regular Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -53- bail as the offence under Section 409 IPC for which the petitioners had been challaned was punishable with imprisonment for life and the Magistrate may have declined to entertain such an application. In the circumstances, it cannot be said that the conduct of the petitioners in approaching the Sessions Judge, Chandigarh for the grant of regular bail being the Court concerned for grant of such bail was inappropriate. Therefore, nothing can be said as regards the conduct of the appellants insofar as their approaching the Sessions Court at Chandigarh for the grant of regular bail is concerned as that in fact may have been the concerned Court. This aspect is not now to be gone into as the anticipatory bail has been considered on merit and keeping in view the nature of accusation the evidence that is on record and the fact that even civil litigations are pending between parties for the same circumstances, it would be just and expedient to grant them pre-arrest bail. In Manjit Singh Arora v. U.T. Chandigarh, 1997 (3) RCR (Crl.) 475, this Court considered a case where allegations against the accused were that he cheated by misrepresentation. A civil suit was filed by the accused for adjudication of rights of the parties. It was held that filing of suit showed that the complainant's rights had been challanged and anticipatory bail was granted.
For the foregoing reasons, the Criminal Misc. petitions are allowed and the petitioners in the event of their arrest shall be admitted to bail. They shall appear before the learned Chief Judicial Magistrate, Chandigarh Criminal Misc. No. M-71250 of 2005 (O&M) and Criminal Misc. No. M-71691 of 2005 (O&M) -54- where the case is pending and furnish their bail bonds and surety each, if not already furnished, to the satisfaction of the said Court.
(S.S. SARON) 31.10.2012 JUDGE amit