Rajasthan High Court - Jaipur
Om Prakash Mund And Anr vs State Of Rajasthan Through P P on 24 September, 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B.Criminal Misc.Bail Application No.7469/2013 (Om Prakash Mund & another Vs. State of Rajasthan) Date of Order :::: 24.09.2013 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.A.K.Gupta with Mr.Sharad Purohit, for the petitioners. Mr.Peeyush Kumar, Public Prosecutor for State.
Mr.A.K.Jain with Mr. Sanjeev Kumar Saini, for the complainant.
REPORTABLE Heard learned counsel for the parties.
The accused-petitioners have moved this application for grant of bail under Section 439 Cr.P.C. in respect of Complaint Case No.81/2009 pending before the Additional Chief Judicial Magistrate No.1, (Jaipur Development Authority), Jaipur for the offences under Sections 420, 467, 468, 471 read with Section 120-B IPC and Sections 31 and 72 of the Jaipur Development Authority Act. The application filed by the petitioners for grant of bail under Section 439 Cr.P.C. has been dismissed by the Additional Sessions Judge No.3, Jaipur Metropolitan vide order dated 27.07.2013.
Brief relevant facts for the disposal of this application may be stated as under:-
(i) Complainant-Shri Hamendra Kumar Mehta filed criminal complaint against the petitioners and co-accused for the offences under Sections 420, 467, 468, 471, 474 read with Section 120-B IPC and Sections 31 and 72 of the Jaipur Development Authority Act before the Additional Chief Judicial Magistrate No.1, (Jaipur Development Authority) and cognizance was taken for the aforesaid offences vide order dated 13.10.2010. In support of the complaint, statement of the complainant was recorded under Section 200 Cr.P.C. and documents were also filed and vide order dated 12.2.2009, a case for the aforesaid offences was registered against the petitioners and the co-accused and it was ordered that their presence before the Court may be procured by way of warrant of arrest.
(ii) Feeling aggrieved, petitioners and some of the co-accused filed revision petitions against the aforesaid order dated 13.10.2008 and 12.2.2009 and the learned revisional court after hearing the respective parties vide order dated 12.1.2012 although affirmed and upheld the orders passed by the trial Court, but at the same time converted the warrant of arrest into summons and it was ordered that the petitioners and co-accused may be called through summons.
(iii) In pursuance of the aforesaid order of the revisional court, co-accused-Shri Pankaj Bhanu Singh and Shri Harkirat Singh appeared before the trial Court and moved application for grant of bail under Section 437 Cr.P.C. but the same was dismissed vide order dated 5.2.2013 and they were taken into judicial custody.
(iv) Each of the aforesaid co-accused then moved separate application for grant of bail under Section 439 Cr.P.C. but the same were dismissed by the Additional Sessions Judge No.15, Jaipur Metropolitan vide common order dated 7.2.2013. Thereafter, they were granted benefit of bail by this Court vide order dated 1.3.2013 under Section 439 Cr.P.C.
(v) Apprehending that if the petitioners would appear before the trial Court they may also be taken into judicial custody and their application for grant of bail under Section 437 Cr.P.C. may be dismissed despite the fact that the revisional court has already ordered to procure their presence before the trial Court by way of summons, they filed S.B.Criminal Misc.Petition No.1391/2013 before the High Court.
(vi) Learned Single Judge after hearing the parties disposed of the aforesaid petition vide order dated 20.5.2013 with a direction to the trial Court to hear all concerned and take into consideration the judgments relied by the counsel for the petitioners to the effect that in complaint case wherein summons have been issued accused cannot be taken into custody and their bail bonds are to be accepted. It was further ordered that in case the concerned Magistrate pass any adverse order against the petitioners, it shall not be given effect and kept in abeyance for a period of three weeks to enable the petitioners to re-approach the High Court.
(vii) In pursuance of the order dated 20.05.2013, petitioners without making physical appearance and without submitting themselves to the jurisdiction of the trial Court through their counsel moved an application with a prayer that they are ready and willing to file requisite bail bonds, therefore, they may be informed of the amount for which the bail bonds are to be submitted. The petitioners without physically appearing before the trial Court through their counsel also filed an application under Section 437 Cr.P.C. for grant of bail but the same was dismissed by the trial Court vide order dated 3.7.2013.
(viii) Again petitioners moved S.B.Criminal Misc.Petition No.2322/2013 before this Court and the learned Co-ordinate Bench vide order dated 16.7.2013 extended the period of abeyanace for a further period of three weeks to enable the petitioners to apply for bail under Section 439 Cr.P.C.
(ix) Again the petitioners without physically appearing and submitting before the Sessions Judge, moved an application for grant of bail under Section 439 Cr.P.C. and the same was dismissed by the Additional Sessions Judge No.3, Jaipur Metropolitan vide order dated 27.7.2013. It is in these circumstances the present application under Section 439 Cr.P.C. for grant of bail has been moved before this Court. It is an admitted fact that the petitioners have neither been arrested nor are in juridicial custody.
In support of the application, learned counsel for the petitioners has raised the following grounds:-
(i) Once the warrant of arrest issued by the trial Court to procure the presence of the petitioners and the co-accused were converted by the revisional Court into summons, the petitioners got an undeniable right of bail, but the learned trial Court as well as the learned Sessions Judge by ignoring the principle of law laid down by this Court from time to time rejected the bail application filed by the petitioners under Sections 437 and 439 Cr.P.C. respectively. The learned Single Judge in S.B.Criminal Misc.Petition No.1391/2013 vide order dated 20.5.2013 directed the trial Court to hear all the concerned and take into consideration the judgments relied by the counsel for the petitioners during the course of hearing of the petition before the High Court. In pursuance of the order dated 20.5.2013, an application to accept requisite bail bonds was filed on behalf of the petitioners on 26.6.2013, but the same was not decided and was kept pending but at the same time the petitioners were compelled to move an application for grant of bail under Section 437 Cr.P.C. and it was dismissed without following the well settled legal position to the effect that in a complaint case wherein summons have been issued, accused cannot be taken into custody and their bail bonds ought to be accepted. In these circumstances, the petitioners had no option but to re-approach the High Court and they filed S.B.Criminal Misc.Petition No.2322/2013 and liberty was given to the petitioners to apply for bail under Section 439 Cr.P.C. and the life of order of abeyance was extended for a further period of three weeks. In view of the legal position and direction of the learned Single Bench it was expected from the Sessions Judge to grant benefit of bail to the petitioners under Section 439 Cr.P.C. without going into the merit of the case but the same was not done and their application was dismissed. It is well settled legal position that when warrant of arrest has been converted into summons or bailable warrant or accused have been called by summons or bailable warrant they cannot be arrested and sent to judicial custody.
(ii) It is well settled that in a complaint case after taking cognizance against an accused normally at a first instance summons has to be issued to procure his presence before the Court and if the execution of the summons is not purposely effected then the Court at second stage should issue bailable warrant and as the last resort non-bailable warrant may be issued. The message is clear that if in compliance of summons or bailable warrant issued by the Court accused appears benefit of bail is to be granted to him without considering the merit and the gravity of the offence because the same has already been considered by the Court at the time of issuance of the summons or the bailable warrant as the case may be.
(iii) Inviting attention of the Court towards the Form No.2 provided in Second Schedule of Cr.P.C. for a bailable warrant learned counsel for the petitioners submitted that when bail bonds are submitted by the accused as required by the Court issuing the bailable warrant, the same are effective not only for the first date fixed for his appearance, but also for all subsequent dates which may be fixed for his appearance during the trial and, therefore, if in a case in which bailable warrant has been issued by the Court to procure the presence of the accused before it and after submitting bail bonds to the person to whom the warrant was directed, if the accused appears before the Court he is not required to apply for bail as bail bonds as required by the Court have already been submitted by him and such bail bonds are effective for the whole of the trial. In such a case, if bail is refused by the Court it is violation of fundamental right of personal liberty enshrined in Article 21 of the Constitution of India.
(iv) The application filed by the petitioners for grant of bail under Section 439 Cr.P.C. cannot be held to be not maintainable on the ground that they neither have been arrested nor taken into judicial custody nor physically appeared before the Court as liberty was given to them to move application for bail under Section 439 Cr.P.C. by the learned Single Bench vide order dated 16.7.2013 and the adverse order passed by the trial Court was kept in abeyance for a further period of three weeks and in the meanwhile application was filed before the Sessions Judge and after dismissal of the same, application has been moved before this Court and thus the petitioners were always in the deemed custody of the Court which is as effective as real custody for the purpose of bail. In the facts and circumstances of the present case it was not necessary for the petitioners to be physically present in the court or to be in custody as required by Section 437/439 Cr.P.C.
(v) So far as the merit of the case is concerned, from the material available on record and more particularly from the order of cognizance passed by the trial Court, it is clear that the petitioners neither fabricated any document nor they deceived any person rather they are bonafide purchasers having purchased the plot in dispute by way of agreement to sell paying a huge amount of sale consideration from a person in whose name the plot in dispute stood having title on the basis of a valid patta issued by the Housing Society. It is not even the case of the complainant that he entered into any kind of transaction with the petitioners and they pretending to be the owner of the plot in dispute deceived him in any manner. It is pertinent to note that power of attorney-Shri Om Prakash also lodged two FIRs in respect of the same plot but after investigation no offence was found to be made out and negative final reports were filed. The complainant filed a petition under the provisions of Rajasthan Cooperative Societies Act, 2001 against the petitioners and co-accused in respect of the plot in disputes and the learned Arbitrator vide its judgment and award dated 29.11.2011 dismissed the petition with a finding that the complainant has failed to prove his title in the plot in dispute.
(vi) The rule of judicial discipline demands that a Bench of High Court invariably must follow the view already taken by the Co-ordinate Bench of the equal strength also so as to avoid confusion regarding legal position on a particular point of law and in case if a Bench of coordinate jurisdiction disagrees with the view taken by the another bench of coordinate jurisdiction on a question of law, it is appropriate that the matter be referred to a larger bench for resolution of the issue rather than to leave two conflicting judgments to operate, creating confusion. In the present case also, if by any reason this Court disagrees with the view taken by the different single Benches of this High Court, it is appropriate that the matter be referred to a larger bench to resolve the issue raised in this case.
In support of his submissions, learned counsel for the petitioners relied upon the following cases:-
Official Liquidator vs. Dayanand and Ors. reported in 2008 (10) SCC 1, Special Deputy Collector (L.A.) v. N.Vasudeva Rao and Ors. reported in AIR 2008 SC 944, order dated 16.8.2013 passed by the Hon'ble Supreme Court in Criminal Appeal No.1190/2013 Vikas Vs. State of Rajasthan, Md.Ibrahim and Ors. Vs. State of Bihar and another reported in 2009 (8) SCC 751, Inder Mohan Goswami and anr. Vs. State of Uttaranchal reported in AIR 2008 SC 251, Sasa Ram vs. State reported in 1990 RCC 321, Prakash and ors. vs. State of Rajasthan reported in 2004 (5) WLC (Raj.) 641, Anil Sogani and anr. Vs. State of Rajasthan 2013 (1) Cr.L.R.(Raj.)455, Gokal Meena and ors. vs. State of Rajasthan and anr. reported in 2013 (2) RCC (Raj.) 646 and Pritam Singh vs. Daljit Singh etc. reported in 1997 (3) Recent Criminal Reports 1 (Punjab & Haryana High Court).
On the other hand, learned Public Prosecutor assisted by the counsel for the complainant controverting the submissions made on behalf of the petitioners submitted as below :-
(i) Issuance of bailable warrant or summons in a non-bailable case is only a method/mode to procure the presence of the accused before the Court to face the trial, but mere issuance of those processes does not give to the accused absolute right to be released on bail and in such a case also when the accused appears or brought before the Court, he has to submit an application for grant of bail and the Court on consideration of the facts and circumstances of the case and the principle of law applicable for grant or refusal of bail in non-bailable cases exercising its judicial discretion may either grant or refuse bail but the same cannot be granted merely on the ground that the Court itself issued bailable warrant or summons for the presence of the accused or a higher court converted the non-bailable warrant issued by the Court into bailable warrant or summons. In the present case, although the revisional Court converted the non-bailable warrant issued by the trial Court into summons but no absolute right accrued to the petitioners to be released on bail either under Section 437 or Section 439 Cr.P.C. The Single Bench also vide order dated 20.5.2013 did not direct the trial Court that in case the petitioners appear before it they shall be released on bail without considering the facts and circumstances of the case and the gravity of the offence for which cognizance has been taken against them. The Single Bench merely directed to consider the decisions relied on by the petitioners before it.
(ii) In the present case although the trial Court after taking cognizance issued warrant of arrest at the first instance to ensure presence of the accused before it but once the same was converted by the revisional court into summons, it cannot be said that the principle of law laid down by the Hon'ble Supreme Court was not followed or it was grossly violated. In the present case, even if summons would have been issued by the trial Court at the first instance even then merely by that reason petitioners were not entitled to be released on bail as a right.
(iii) In the present case, the proforma provided in Second Schedule of Cr.P.C. for bailable warrant is not required to be considered as bailable warrants were issued neither by the trial Court nor ordered to be issued by the revisional court. Otherwise also, proforma provided for bailable warrant in the Schedule cannot over-ride the provisions of bail bonds as provided in Chapter-XXXIII of Cr.P.C. and bail to an accused in a case can be granted only by following the relevant legal provisions as well as the well settled legal position.
(iv) It is well settled legal position that unless accused is arrested or is in custody of the Court, bail cannot be granted under Section 437 or Section 439 Cr.P.C. In the present case, it is an admitted position that petitioners have not been arrested nor they were in custody of any Court at any point of time and, therefore, they were not entitled to move application for grant of bail under Section 437 Cr.P.C. before the trial Court or under Section 439 Cr.P.C. before the learned Sessions Judge. The present application is also not maintainable for the same reasons. The directions given by the learned Single Bench vide orders dated 20.5.2013 and 16.7.2013 did not result into deemed custody of the petitioners. No such order was made by the Single Bench that without appearing or surrendering before the Court petitioners are entitled to move application for grant of bail. At the most it was directed that in case adverse order is passed against the petitioners, the same shall remain in abeyance for a period of three weeks. The direction being contrary to the well settled legal position was of no help to the petitioners. Otherwise also even the extended period granted by the Single Bench vide order dated 16.7.2013 has already expired during the pendency of this petition and the petitioners have not surrendered or appeared before any court.
(v) So far as the merit of the case is concerned, it is clear that the petitioners entered into criminal conspiracy with the co-accused and by preparing fabricated and forged documents claimed title in the plot in dispute to deprive the complainant who is purchaser of the same through the power of attorney holder of the original allottee. The petitioners being ultimate beneficiary of the plot in dispute are the main accused, therefore, not entitled to get benefit of bail even on the ground of parity with the co-accused to whom benefit of bail has already been granted by this Court.
(vi) So far as award dated 29.11.2011 is concerned, it is not relevant and binding in the present criminal case as the question of fabrication of relevant documents was not considered by the learned Arbitrator.
In support of his submissions, learned counsel for the complainant relied upon the following cases:-
State of Haryana and ors. Vs. Dinesh Kumar reported in AIR 2008 SC 1083, Niranjan Singh and anr. Vs. Prabhakar Rajaram Kharote and ors. reported in AIR 1980 SC 785 (1), Nirmal Jeet Kaur Vs. State of M.P. and anr. reported in (2004) 7 SCC 558, Sharad Kumar etc. vs. Central Bureau of Investigation reported in 2001 Manu, Delhi High Court 2374, Income Tax Officer Central Circle-I, Jaipur vs. Gopal Dhamani reported in 1988 (1) RLW 84.
I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the releval legal provisions and the case law.
Chapter-VI of Cr.P.C. contains the provisions regarding processes to compel appearance of an accused or any other person before a court. Part-A of it provides for summons whereas Part-B deals with warrant of arrest. Section 70 (1) provides that a warrant of arrest shall remain in force until it is cancelled by the court which issued it or until it is executed. Thus, it is not essential the warrant of arrest should bear a date upto which it is to be executed. Such warrant can be executed at any time unless it is cancelled by the Court before its execution. The life of such a warrant comes to an end only on its cancellation or execution. Although, a warrant to be issued in the manner prescribed under Section 71 has not been named to be "bailable warrant" in it, but it certainly provides for bailable warrant. According to this provision the court may issue bailable warrant for the attendance of an accused before the court and if such a warrant is issued then it must contain the time at which the accused is to attend the court. If at the time of execution of the bailable warrant, the required security is given, the accused is bound to appear before the court at the time and date fixed in the warrant itself. Thus, the security so taken from the accused is only for the purpose of his attendance before the court at the time so specified in the warrant itself. Thus, the provisions contained in Chapter-VI of the Code provides only for the method/mode in which presence of an accused can be procured before a court to face trial or otherwise. This Chapter does not provide the circumstances in which bail is to be granted or refused to an accused for the offence for which accusation has been levelled against him. I am of the considered view that issue of a process to compel or procure the appearance of an accused before the court and grant of bail to him in a non bailable case are separate and distinct subject matters and do not depend on each other and it would depend on the relevant provisions of bail bonds as provided in Chapter-XXXIII of Cr.P.C. and the well settled legal position prevalent in this regard. A close look at Chapter-VI of Cr.P.C. reveals that it deals with process to compel appearance of an accused and provides that the court may in its discretion either issue summons or warrant of arrest. The warrant may be either bailable or non-bailable. When a bailable warrant is served upon an accused, security is taken from him and he is required to attend the court at a specified date and time whereas in the case of non-bailable warrant, he is to be arrested and brought before the court by the police officer or other person to whom it was directed and by whom it was executed. This Chapter nowhere provides in what cases summons or bailable warrant or non-bailable warrant are to be issued and it is in the discretion of the court what process is to be issued to ensure the attendance of the accused before it. The court may in its discretion issue bailable warrant or summons even in non-bailable cases and in a case of most grave offence also as the sole purpose to issue such a process is to procure his presence before the court, but merely by that reason it cannot be held that the accused is entitled to be released on bail as a right. In a case it is possible that the accused without service of the process upon him at his own may appear before the court as soon as it comes into his knowledge that such process has been issued against him by the court. In such a case also he is not entitled to be released on bail as a right without considering the merit and demerit of the case. Thus, grant of bail to an accused does not depend upon the nature or mode of the process issued for his appearance before the court, but it would depend on the provisions of the bail bonds as provided in Chapter-XXXIII of the Cr.P.C. and the well settled principle of law for grant of bail. The release of an accused on bail is in the discretion of the court which is to be exercised judiciously taking into consideration overall facts and circumstances of the case including the gravity of the offence and the court is not bound to release him on bail merely because bailable warrant or summons were issued to him to secure his attendance and in case of bailable warrants security was taken from him to attend the court on specified date and time. The court granting bail has to consider among other circumstances the factors such as the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witnesses or apprehension of threat to complainant, and prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering an application for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused flee from justice and tampering with the prosecution witnesses have to be noted. Similarly, grant or refusal of bail to a person in a non-bailable case is not controlled by the Form No.2 of Second Schedule or the language used in Section 71 of the Code but it is governed by the provisions of bail contained in Chapter-XXXIII. Although, Section 71 (1) provides for attendance of the person before the Court at a specified time and thereafter and Form No.2 (under Section 71) also provides for attendance before the Court on a specified date and his continuous attendance before it but that does not mean that court has already granted him bail and he is not required to apply for the same. These provisions do not and cannot override the specific provisions of bail contained in Chapter-XXXIII of the Code. So, the submissions made on behalf of the petitioners that they are entitled to be enlarged on bail as a right merely by the reason that they have been summoned by the court by way of summons is not legally tenable. This Court has already taken the same view in S.B.Criminal Misc.Bail Applicatio No.1076/213 (Roop Singh Vs. State of Rajasthan) decided on 20.02.2013.
So far as the view taken by the Co-ordinate Single Benches of this Court is concerned, I am of the view that the same does not have any precedential or binding value as the same has been taken without considering the relevant legal provisions. It is well settled that where in a case the decision has been rendered without taking into consideration the relevant statutory provisions, the same cannot have any precedential or binding value and shall have to be treated having been rendered per incurrium. In the case of Sasa Ram Vs. State (supra) it was observed by the learned Single Bench that when after taking cognizance the learned Magistrate issued bailable warrant it was expected that if the accused appears in court he shall release him immediately on bail and it will not be proper exercise of jurisdiction to send him to jail when initially bailable warrant has been issued and bail should not be refused. This is a very short order in which none of the statutory provisions of Cr.P.C. have been considered and even no reasons have been recorded in support of the view because bailable warrant has been issued by the Magistrate, the accused cannot be refused bail and cannot be sent to judicial custody. From the order it is also not clear whether the case related to non-bailable offence.
In the case of Prakash and ors. vs. State of Rajasthan (supra) also, no reasons have been recorded by the learned Single Judge in support of his view when in a case in which cognizance has been taken against the accused under Section 319 Cr.P.C. in a non-bailable case and non-bailable warrant has been converted into bailable one, the accused is entitled to be released on bail as a right without considering the merit and demerit of the case when he appears before the court on service of bailable warrant being effected upon him. In this case also none of the relevant statutory provisions of Cr.P.C. were considered.
In the case of Anil Sogani Vs. State of Rajasthan (supra), learned Single Bench after converting the non-bailable warrant issued by the Court below into bailable warrant further directed the trial court to keep the ratio of Sasa Ram Vs. State (supra) in mind when the accused appears before it. Thus, in this case also without considering the releval legal provisions the learned Single Bench has only followed the view expressed in the case of Sasa Ram Vs. State (supra).
In the case of Income Tax Officer Central Circle-I, Jaipur vs. Gopal Dhamani (supra) decided on 7.1.1987, it was held by another Single Bench of this Court that merely because bailable warrant is issued in a case, it cannot be the sole premise for granting bail, if the offence is of serious nature. It was further observed that the lower court should not have considered the sole reason of issue of bailable warrant in granting bail as the jurisdiction to grant or not to grant bail under Section 439 Cr.P.C. is not to be vetoed by the Magistrate by issuing a bailable warrant. It is pertinent to note that the view taken in this case in the year 1987 was not considered by the subsequent Single Benches of this Court.
The issue of grant of bail as a right to an accused in a non-bailable case merely on the ground that summons or bailable warrant was issued to procure his presence before the court was considered in some detail by the Hon'ble High Court of Delhi in the case of Sharad Kumar etc. vs. Central Bureau of Investigation (supra). In this case after investigation CBI submitted charge-sheet against many accused including the petitioners before the Special Court for offences under Section 120-B IPC read with Section 7/11 and 12 of the Prevention of Corruption Act, 1988. The trial Court issued summons against them and when the petitioners appeared they were sent into judicial custody and their application for grant of bail was dismissed. One of the grounds taken by the petitioners before the High Court for the grant of bail was that once summons were issued by the trial court for their appearance, bail cannot be refused and they could not be remanded to judicial custody, but the same was rejected. It was observed that issue of process under Section 204 Cr.P.C. is meant for ensuring the presence of the accused in the court. Issuing summons under Section 204 Cr.P.C., by no means, is an assurance that the accused on appearance in the court shall be granted bail nor it amounts to misleading the accused and preventing him from seeking his legal remedy for moving an application for anticipatory bail in the superior court. It was further observed that Section 204 Cr.P.C. confers discretion upon the court taking cognizance in a warrant trial case either issue warrants or summons for appearance of the accused. The use of this discretion is only to procure the presence of the accused for trial. It has nothing to do with the grant or refusal of the bail to the accused. For that purpose, only relevant Section is 437 of the Code of Criminal Procedure in accordance with which the court is supposed to exercise its judicial discretion to grant or refuse the bail. Just because the court taking cognizance of a warrant trial case has opted to issue summons for appearance instead of warrants, it cannot be assumed that he had applied its mind to the facts of the case from the point of view of grant or refusal of bail to the accused. It is to be noted that the order of the High Court refusing bail was challenged before the Hon'ble Supreme Court by way of special leave to appeal but the same was dismissed vide order dated 20.6.2011 as reported in (2012) 1 SCC 65.
As the decisions relied upon by the learned counsel for the petitioners have no precedential or binding value and have to be treated having been rendered per incurrium, the issue raised in the present case need not to be referred to a larger Bench as prayed by the learned counsel for the petitioners despite the fact that this court disagrees with the view taken in those cases more particularly in view of the fact that the view taken by the learned Single Bench of this High Court in the case of Income Tax Officer Central Circle-I, Jaipur vs. Gopal Dhamani (supra) was not considered in those cases and the view taken by the Hon'ble Delhi High Court has not been disapproved by the Hon'ble Supreme Court in the case of Sharad Kumar etc. vs. Central Bureau of Investigation (supra).
Now, it is to be seen whether the application filed by the petitioners is liable to be dismissed as not maintainable on the ground that they neither have been arrested nor taken into judicial custody nor they physically appeared before the court. It is an admitted position that till date petitioners have not been arrested nor they were in custody of any court at any point of time. The petitioners claim that they should be deemed to be in custody of the court in the light of directions made by the learned Single Judge vide orders dated 20.5.2013 and 16.7.2013, but in the facts and circumstances of the case the claim of the petitioners is not legally tenable. In Criminal Misc.Petition No.1391/2013, the prayer on behalf of the petitioners was that the trial court may be directed not to arrest them and send them behind the bar and they may not be forced to submit the bail bonds. It was also prayed that any relief which the Court may deem fit just and proper may also be granted in their favour. As already said, learned Single Judge vide order dated 20.5.2013 disposed of the aforesaid petition by issuing direction to the trial court to hear all concerned and take into consideration the judgments relied by the counsel for the petitioners to the effect that in a complaint case wherein summons have been issued accused cannot be taken into custody and their bonds ought to be accepted. It was further ordered that in case the concerned magistrate pass any adverse order against the petitioners, it shall not be given effect and kept in abeyance for a period of three weeks to enable the petitioners to re-approach this court. It is thus clear that nowhere in the aforesaid order liberty was given to the petitioners that they are not required to be physically appear before the trial Court or in case they appear, they shall not be taken into custody. When the application under Section 437 Cr.P.C. filed by the petitioeners was dismissed by the trial Court and an adverse order was passed against them they in the light of the order dated 20.5.2013 re-approached the High Court by filing S.B. Criminal Misc.Petition No.2322/2013 with a prayer to the effect that the learned magistrate be directed to decide the application dated 26.6.2013 first of all. It was further prayed that the order dated 3.7.2013 dismissing their bail application under Section 437 Cr.P.C. may be set aside and the petitioners be directed to appear before the trial court on summons personally or through an advocate in the light of the observation of the revisional court, who converted the order of warrant of arrest into summons vide its order dated 12.01.2012. It was further prayed that any appropriate order which the court may deem fit may also be passed in favour of the petitioners. In the order dated 16.7.2013, it was observed by the learned Single Judge that neither the order of this Court was taken in right perspective by the petitioners nor by the court below. The petitioners have assumed that by order passed in S.B.Criminal Misc.Petition No.1391/2013 the Court has granted the bail whereas trial Court assumed that the observations made in the order are not to be given credence. It was further observed that the correct course for the petitioners was to file an application to pray that due to conversion of warrants, their bail be accepted by the court whereas the trial court instead of deciding the application dated 26.6.2013 had decided the another application filed by the petitioners under Section 437 Cr.P.C. Although, the adverse order passed by the trial court was kept in abeyance for a further period of three weeks to enable the petitioners to apply for bail under Section 439 Cr.P.C., but again liberty was not given to the petitioners that without making physical appearance or without being in custody they are entitled to move application under Section 439 Cr.P.C.
In the case of Niranjan Singh and anr. Vs. Prabhakar Rajaram Kharote and ors.(supra), it was held by Hon'ble Supreme Court that no person accused of an offence can move the court for bail under Section 439 Cr.P.C. unless he is in custody. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged custody, in the context of Section 439 Cr.P.C., is physical control or atleast physical presence of the accused in court coupled with submissions to the jurisdiction and orders of the court. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when surrenders before the Court and submits to its directions.
This view has also been approved by Hon'ble Supreme Court in the case of State of Haryana & ors. Vs. Dinesh Kumar reported in AIR 2008 SC 1083.
Similarly, in the case of Nirmal Jeet Kaur Vs. State of M.P. and anr.(supra), it was held that unless a person is in custody, an application for bail under Section 439 Cr.P.C. would not be maintainable. There is no question of bail unless a person is arrested in connection with a non-bailable offence by the police. The expression "custody" as used in Section 439 Cr.P.C., must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. Such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the Court of the Magistrate. An application under Section 439 Cr.P.C. must be in accordance with law and the accused seeking remedy thereunder must ensure that it would be lawful for the court to deal with the application. Unless the applicant is in custody his making application only under Section 439 will not confer jurisdiction on the court to which the application is made. It was further observed that if the application for grant of bail under Section 439 Cr.P.C. is held to be maintainable without the accused being in custody, the distinction between the orders under Section 438 and 439 shall be rendered meaningless and redundant.
In the present case, although the petitioners could not have been arrested by the police as the warrant of arrest issued by the trial court were converted into summons by the revisional court, but merely by that reason the petitioners are not entitled to be released on bail without physically appearing before the court and being taken into judicial custody either on service of summons upon them or otherwise. Merely because application for grant of bail has been filed by the petitioners through their counsel with an offer to submit requisite bail bonds, it cannot amount their physical control or appearance before the court or submission to the jurisdiction and order of the court. If for the sake of arguments it is admitted that the liberty was given by the learned Single Judge to apply for bail without physically appearing or without being taken into custody by the court, being contrary to the well settled legal position it is of no help to the petitioners to hold their application to be maintainable. Although, neither the trial Court nor learned Sessions Judge dismissed the bail application filed by the petitioners on the ground of maintainability, but the question being raised before this Court it was required to be considered and decided. In the light of well settled legal position, the objection raised on behalf of the complainant, being legally sound, is to be accepted and the present bail application is liable to be dismissed as not maintainable.
So far as Division Bench decision of Hon'ble Punjab & Haryana High Court reported in Pritam Singh vs. Daljit Singh etc. (supra) is concerned, the question raised before the court was whether the bail application filed by the accused under Section 439 Cr.P.C. was not maintainable as he was not in custody. In the light of the facts available on record, it was found by the Hon'ble Court that accused-Daljeet Singh was physically present before the learned Sessions Judge when the order of grant of bail under Section 439 Cr.P.C., was passed and, therefore, the application filed for grant of bail before him was maintainable. Being based on different set of facts this decision is no help to the petitioners.
So far as the merit of the case is concerned, it is well settled that at the stage of consideration of bail application, the Court is required to take prima facie view of the evidence collected during investigation or inquiry conducted under Section 200 and 202 Cr.P.C. as the case may be, and it is not supposed to undertake an intricate exercise of scrutinising the evidence with a view to find out its truthfulness or otherwise. On consideration of the complaint, evidence oral and documentry produced in support thereof and the reasons recorded by the trial Court in support of the order dated 12.02.2009, I prima facie find the complicity of the petitioners in the criminal conspiracy resulting in the preparation of forged and fabricated documents of title and alteration of official records so as to falsely claim title in the plot in dispute and, therefore, looking to the role of the petitioners found in the incident and the gravity of the offence, I am not inclined to grant benefit of bail to them at this stage of the proceedings under Section 439 Cr.P.C. The petitioners are also not entitled to be enlarged on bail on the ground of filing of negative final reports in respect of two previous first information reports. Claiming to be the owner of plot in dispute on the basis of some agreement to sell, one Shri Hemraj Choudhary lodged FIR No.196/2008 on 26.02.2008 at Police Station Vaishali Nagar, Jaipur against the petitioner-Shri Omprakash Mund for offences under Sections 453, 380, 420, 467, 468 and 471 IPC. After investigation negative final report being led before the concerned Magistrate, notice was issued to Shri Choudhary, but he did not appear before the Court to oppose the final report submitted by the police and, therefore, the same was accepted without considering the reasons recorded by the investigating agency in support thereof. It is to be noted that Shri Choudhary could not produce documents in support of his claim and it was also found that Smt.Leela Sharma the alleged original allottee did not deliver physical possession to Shri Om Prakash Sharma, her power of attorney. Similarly, Shri Om Prakash Shama, the power of attorney of Smt.Leela Sharma, also lodged FIR No.490/2008 on 19.8.2008 against many persons including the present petitioners for offences under Sections 420, 467, 468, 471 read with Section 120-B IPC at Police Station Vaishali Nagar, Jaipur in respect of the plot in dispute, but after investigation negative final report was filed as during investigation Smt.Leela Sharma admitted that physical possession was not delivered to Shri Om Prakash Sharma. In this case it has not been made clear whether final report has been accepted by the Court or not.
Consequently, the bail application filed by the petitioners under Section 439 Cr.P.C. is, hereby, dismissed.
As the petitioners are not in custody, they are directed to surrender before the trial Court on or before 30.09.2013. It is needless to say that on their surrender, they would be taken into custody and remanded to judicial custody. But in case the petitioners fail to obey this direction/order, warrant of arrest would be issued by the trial Court to procure their presence before it.
(PRASHANT KUMAR AGARWAL), J teekam Reserved Order/ All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary