Punjab-Haryana High Court
Poonam Kumari And Another vs Neeraj Kumar Singla And Another on 28 May, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
COCP No.1003 of 2013
Date of decision: 28th May, 2013
Poonam Kumari and another
Petitioners
Versus
Neeraj Kumar Singla and another
Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present: Mr. Gurcharan Dass, Advocate for the petitioners.
RAKESH KUMAR GARG, J.
As per the averments made in this petition, FIR No.229 dated 09.10.2011 was registered under Sections 304-B, 201 and 34 IPC at Police Station Focal Point, Ludhiana against the petitioners. Their prayer for grant of anticipatory bail was rejected by the Court of Additional Sessions Judge, Ludhiana. Thereafter, they filed CRM No.M-26248 of 2012 in this Court. On 07.09.2012, this Court passed the following order in CRM No.M-26248 of 2012:
"Contends that husband of deceased has already surrendered before learned Chief Judicial Magistrate, Ludhiana, and however, parents-in-law have not yet surrendered. It is further contended that petitioner No.1 is unmarried sister-in-law, whereas petitioner No.2 is brother- in-law and petitioner No.3 is nephew of father-in-law of the deceased and that they are having no concern with the married life of deceased and her husband. It is also contended that it is a case of natural death and that COCP No.1003 of 2013 2 deceased was suffering from dengue and she died in the hospital and the dead-body was handed over to her husband.
Notice of motion to Advocate General, Punjab, for 6.10.2012.
However, in the meantime, petitioners are directed to join the investigation and in case they are arrested, they shall be released on interim bail by the Arresting Officer to his satisfaction subject to compliance of conditions specified under Section 438(2) Cr.P.C.
7.9.2012 Sd/- Ram Chand Gupta Judge"
The said criminal miscellaneous petition was disposed of vide order dated 06.10.2012, which reads thus:
"The present petition filed under Section 438 Cr.P.C. is for grant of anticipatory bail to the petitioners in case FIR No.229, dated 9.10.2011, under Sections 304-B, 201 and 34 IPC, registered at Police Station Focal Point, Ludhiana.
I have heard learned counsel for the parties and have gone through the whole record carefully.
This Court while issuing notice of motion on 7.9.2012, passed the following order:"Crl.M.No.50558 of 2012
Application is allowed subject to all just exceptions.
Crl.M.No.M-26248 of 2012
Contends that husband of deceased has
already surrendered before learned Chief
Judicial Magistrate, Ludhiana, and, however, parents-in-law have not yet surrendered. It is further contended that petitioner no.1 is unmarried sister-in-law, whereas petitioner no.2 COCP No.1003 of 2013 3 is brother-in-law and petitioner no.3 is nephew of father-in-law of the deceased and that they are having no concern with the married life of deceased and her husband. It is also contended that it is a case of natural death and that deceased was suffering from dengu and she died in the hospital and the dead-body was handed over to her husband.
Notice of motion to Advocate General, Punjab, for 6.10.2012.
However, in the meantime, petitioners are directed to join the investigation and in case they are arrested, they shall be released on interim bail by the Arresting Officer to his satisfaction subject to compliance of conditions specified under Section 438(2) Cr.P.C."
It has been stated by learned counsel for the petitioners that pursuant to the said order, the petitioners have already joined the investigation.
It has been stated by learned State counsel as well on instructions from ASI Rishipal, that the petitioners have joined the investigation and that they are no more required for any custodial interrogation by the police.
There are no allegations on behalf of the State that petitioners are likely to abscond or that they are likely to dissuade the witnesses from deposing true facts in the Court, if released on bail.
In view of these facts and without expressing any opinion on the merits of the case, order dated 7.9.2012, granting interim bail to petitioners-Poonam Kumari, Dharminder Kumar and Arbind Kumar is hereby made absolute subject to the compliance of conditions contained in Section 438(2) Cr.P.C.
COCP No.1003 of 2013 4
The present petition stands disposed of accordingly." It is the further case of the petitioners that they were released on bail on their furnishing personal surety bonds to the satisfaction of the Investigating Officer on 29.09.2012. Thereafter, a supplementary report under Section 173 (8) Cr.P.C. was prepared and submitted in the Court of Judicial Magistrate 1st Class, Ludhiana (respondent No.1).
It is their further case that the challan was presented against them in their absence by SHO, Police Station Focal Point, Ludhiana and when they came to know about this fact, they moved an application for surrender and regular bail in the Court of Judicial Magistrate 1st Class, Ludhiana (respondent No.1). They also produced copies of the orders passed by this Court in CRM No.M-26248 of 2012, whereby they were granted anticipatory bail.
On 05.04.2013, respondent No.1 passed the following order on the said application of the petitioners:
"Present:- APP for the State.
Counsel for applicants/accuseds.
File is taken up today on the application moved on behalf of applicants/accused namely Poonam Kumari, Dharminder Kumar, Arbind Kumar for surrender and bail. Learned counsel for the applicants/accused argued that they have been granted interim bail by the Hon'ble High Court and order of same is placed on record and the same was made absolute on 6.10.2012 and as such this bail application of abovesaid accused be accepted and they be released on bail.
On the other hand, learned APP for the State argued that the offence under which the challan against the accused was presented are under Section 304-B, 201, 34 IPC which COCP No.1003 of 2013 5 are non-bailable offences and are triable by the Court of Sessions. As these offences are serious offences, so this bail application be rejected.
After hearing the contention of both the sides and going through the record, I am of the view that the offences under which the accused are challaned are serious offences and same are non-bailable offences. Moreover, the notice issued to the accused was sent through SHO, PS Focal Point, and the same received back unserved and non- bailable warrants of accused were issued. At this stage, even if lenient view is taken against the accused, even then no ground is made out for granting bail to all the three accused. As such bail application of accused is dismissed and accused are sent to judicial custody and be produced on 18.4.2013, the date already fixed.
Sd/- (Neeraj Singla), JMIC/5.4.2013"
According to the petitioners, the aforesaid order has been passed in willful disobedience of the order dated 06.10.2012 passed by this Court in CRM No.M-26248 of 2012, and respondent No.1 could not have passed the said order as the petitioners were granted anticipatory bail by this Court and there was no direction in the order dated 06.10.2012 to take the petitioners into custody on their appearance before the Judicial Magistrate 1st Class, Ludhiana.
It is further case of the petitioners that respondent No.2, who is counsel for the State, had also not assisted respondent No.1 properly and therefore she is also liable for committing contempt of this Court.
It is their further case that respondent No.1 has passed the order dated 05.04.2013 without going through the provisions of Section 438 Cr.P.C., as the learned Magistrate has issued non-bailable warrants COCP No.1003 of 2013 6 against them instead of bailable warrants; and therefore, in view of the judgment of Hon'ble the Supreme Court rendered in 'Siddharam Satlingappa Mhetre v. State of Maharashtra and others' cited as 2011(1) RCR (Criminal) 126, the respondents have committed contempt of the Court.
I have heard learned counsel for the petitioners and perused the documents as well as the judgment placed before this Court.
A careful perusal of the petition and the documents would further show that the challan against the petitioners was filed on 20.11.2012 after giving them a notice; however, they failed to appear before the learned Magistrate at the time of presentation of challan.
It is further found that the petitioners were also issued notices by the Court of Judicial Magistrate 1st Class for 04.04.2013, which were received back and therefore, the said Magistrate issued non-bailable warrants of the accused for 18.04.2013 through SHO, Police Station Focal Point, Ludhiana; but in the meantime, the petitioners surrendered before the Judicial Magistrate 1st Class, Ludhiana on 05.04.2013 and also filed an application for regular bail.
However, it may be seen that the offences against the petitioners are triable exclusively by the Court of Sessions/Additional Sessions Judge and the Judicial Magistrate 1st Class (respondent No.1) could not have granted regular bail. But since the petitioners have chosen to surrender before him and non-bailable warrants already stood issued against them for their non-appearance at the time of presentation of challan, the Magistrate had no other option but to send the petitioners COCP No.1003 of 2013 7 into judicial custody as he was not competent to hear the application for regular bail.
Simply because the petitioners showed the orders of this Court granting them anticipatory bail in the case in hand does not mean that a Court, even if it has no jurisdiction to try the offence, could have granted the bail to the petitioners. In fact, the right course for the petitioners was to move an application in an appropriate Court of competent jurisdiction for grant of bail after their surrender.
At this stage, it may further be noticed that no other allegation has been leveled either against respondent No.1 or respondent No.2, except to state that there is non-application of mind.
In fact the petitioners have tried to set a very dangerous trend by filing the instant contempt petition against a Judicial Magistrate and a lawyer of the opposite party for passing a wrong order (even on the basis of assumptions).
This Court is of the view that the petitioners have chosen a wrong forum to move application for grant of bail after their surrender in pursuance of the non-bailable warrants issued against them after presentation of challan.
The point in issue can further be seen from another angle, i.e. after the grant of anticipatory bail by this Court, the petitioners were expected to cooperate with the investigation and trial of the case and were supposed to respond to the notices issued to them at the time of presentation of challan. Having failed to do so, it could not be said that non-bailable warrants could not have been issued against the petitioners. COCP No.1003 of 2013 8 In fact, the whole attempt seems to have been made only to cover up the lapse on the part of the petitioners themselves.
In this view of the matter, this Court finds that the order dated 05.04.2013 passed by the respondent No.1 cannot be held to be in disobedience of the orders passed by this Court.
Thus, no contempt is made out.
Dismissed.
(RAKESH KUMAR GARG) JUDGE May 28, 2013 rps