Allahabad High Court
Smt. Raj Mohini Srivastava vs State Of U.P. And Another on 8 February, 2019
Equivalent citations: AIRONLINE 2019 ALL 369, (2019) 108 ALLCRIC 651 (2019) 1 ALLCRIR 619, (2019) 1 ALLCRIR 619
Author: Chandra Dhari Singh
Bench: Chandra Dhari Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved In Chamber Case :- APPLICATION U/S 482 No. - 37260 of 2018 Applicant :- Smt. Raj Mohini Srivastava Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manu Khare Counsel for Opposite Party :- G.A.,Priyanka Midha Hon'ble Chandra Dhari Singh,J.
01. This application under Section 482 Cr.P.C. has been filed seeking quashing of the impugned order dated 27.09.2018 passed by Additional Chief Metropolitan Magistrate, Court no.8, Kanpur Nagar in complaint case no.3507 of 2007, under Sections 255, 259, 260, 406, 420,467,468 and 471 I.P.C., P.S. Kotwali, District Kanpur Nagar.
02. Learned counsel for the applicant submitted that the allegation in the complaint is that the documents had been forged to substantiate the maintainability of petition under Sections 397 and 399 of the Company's Act, 1953. The said Company Petition is between two branches of the family i.e. headed by applicant's late husband and other side headed by brother of the applicant's late husband (Sri H. K. Srivastava).
03. It is submitted that same set of the allegation has already been made in Application under Section 340 Cr.P.C. before the Hon'ble High Court of Madhya Pradesh, Gwalior Bench. On the same set of facts the present complaint was filed before the court at Kanpur on behalf of Gwalior Sugar Company. The Metropolitan Magistrate-I vide order dated 17.11.2000 summoned the applicant without applying judicious mind. The entire proceeding and summoning order dated 17.11.2000 were challenged before this Court under Section 482 Cr.P.C. being Criminal Misc. Application No.7242 of 2002, wherein co-ordinate Bench of this Court vide order dated 08.08.2002 has stayed further proceedings of the case until further orders.
04. It is stated that second complaint was also filed by one Anand Srivastava, Law Officer of Gwalior Sugar Company on 21.03.2002 almost under the same section as the first complaint. In this complaint, the applicant has not been arrayed as an accused. Second complaint was challenged before this Court in Criminal Misc. Application No.4268 of 2006, under Section 482 Cr.P.C. Vide order dated 25.04.2006, the coordinate Bench of this Court has observed that complaints are almost on the identical facts and between the same parties. Therefore, both the complaints were transferred to one Court and clubbed with each other. The coordinate Bench of this Court by common judgement passed in Criminal Misc. Application Nos. 7242 of 2002, 12983 of 2008 and 35346 of 2008 dismissed all the petitions vide order dated 27.04.2017. A Special Leave Petition has been filed against the order dated 27.04.2017, which was also dismissed at the admission stage by Hon'ble the Supreme Court vide order dated 14.07.2017. The applicant also filed a Transfer Petition No.251 of 2017, in which the Hon'ble Supreme Court considering the old age of the applicant directed the trial court to grant exemptions from personal appearance in accordance with law vide order dated 31.07.2017. In pursuance of the order dated 31.07.2017 the applicant filed various applications seeking exemption on various dates before the court below. The court below dismissed the exemption applications vide order dated 13.02.2018. The order dated 13.02.2018 was challenged before this Court in Criminal Misc. Application No.6955 of 2018. The application was disposed of with a direction to court below to decide application of the applicant afresh in accordance with law. The applicant moved an application on 29.03.2018 before the court below to grant her exemption from personal appearance and to grant bail through her counsel. The opposite party filed objection to the application on 29.03.2018
05. Learned counsel for the applicant submitted that first proviso to sub-section (1) of Section 437 Cr.P.C. provides that any person under the age of 16 years woman, sick or infirm, if accused of offence punishable with death or with life imprisonment or imprisonment for life may be released on bail.
06. He further submitted that Section 317 Cr.P.C. read with Section 205 Cr.P.C. specially provides power to the Judge or Magistrate to dispense with the attendance of the accused at any stage of enquiry or trial, if the accused is represented by his/her counsel. Thus the applicant's case falls within the ambit of Section 317 Cr.P.C. read with Section 205 Cr.P.C. Vide order dated 27.09.2018, the court below has dismissed the application for exemption recording the finding that for grant of bail a person, who has been charged for commission of offence, must be present before court concerned. The order passed by the court below is contrary to Section 317 Cr.P.C. read with Section 205 Cr.P.C., therefore, the same is liable to be quashed.
07. The learned counsel submitted that the language used in Sections 437 Cr.P.C. that, 'appears or is brought before a court, was not to be construed or meant that such an appearance must be a physical appearance of the accused and it should be construed that the appearance must be through his or her counsel. Therefore, in this context, the learned counsel would further submit that since the accused was represented by counsel before the court below, it should be taken into account that the appearance through the counsel satisfying the ingredients as mentioned under Section 437 (1) of the Code, that the accused appeared or brought before the court and therefore, the requirement of physical presence or personal appearance of the accused ought not to have been insisted upon by the court below, especially in the court of Magistrate for consideration of grant of bail involving Section 437 of the Code.
08. Per-contra learned A.G.A. vehemently opposed the submissions made by learned counsel for the applicant and submitted that the offences, for which the accused is charged, are non bailable offence. Therefore, the order impugned does not suffer from any illegality. It is further contended that as per Section 437 (1) Cr.P.C., when any person accused or suspected of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the court or court of session, he may be released on bail. It is submitted that the words arrested or detained without warrant and the word, appears or brought before a court are to be strictly interpreted and necessarily to be fallowed or such a situation should have emerged before the court for consideration of grant of bail. In the instant case, the applicant neither surrendered nor appeared before the court below at the time of filing of the application or during its hearing. The court below refuses to entertain the bail application cannot be said to be incorrect or illegal or without propriety.
09. It is next submitted that on careful reading of the law relied upon by the accused, this Court will appreciate that the same does not support the case of the applicant as such no benefit of the same can be extended to the applicant. This Court will appreciate that no affidavit in support to the contents and submissions made in the application for exemption and bail has been filed as such the gravity and worthiness of the allegations cannot be checked and without ascertaining the veracity of the submissions, no order for exemption from appearance & bail can be accorded to the applicant.
10. I have heard learned counsel for the applicant and learned A.G.A. for the State and perused the entire record.
11. Here in the case in hand the complaint was filed against the applicant for the offence punishable under Sections 255, 259, 260, 406, 420,467,468 and 471 I.P.C. before the court concerned. Entire proceedings were challenged before this Court and the coordinate Bench of this Court vide order dated 27.04.2017 dismissed the petition and vacated the interim order. Same was challenged before the Hon'ble Supreme Court by way of Special Leave Petition. The Special Leave Petition was dismissed vide order dated 14.07.2017 by Hon'ble Supreme Court. The exemptions applications were filed by the applicant before the court below on the ground that the applicant is an old person. The court below dismissed the exemption applications vide order dated 13.02.2018. The order dated 13.02.2018 was challenged before this Court. This Court has passed an order on 28.02.2018 directing the court below to decide application of the applicant afresh in accordance with law. The applicant filed an application on 29.03.2018 before the court below to grant her exemption from personal appearance and to grant bail through her counsel. The same was rejected vide order dated 27.09.2018.
12. The language used in Section 437(1) of Cr.P.C. is very clear and unambiguous, which, for the purpose of easy reference, is extracted hereunder:
"437. When bail may be taken in case of non-bailable offence.
(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
........
........."
13. Under Section 437 (1) of the Code, the language used therein clearly demonstrates that if any person on the commission of non-bailable offence is arrested or detained without warrant or appeared or is brought before the Court other than High Court or Court of Session, he may be released on bail.
14. Therefore, the necessary ingredients which are required for invoking Section 437 Cr.P.C. is that a person must be an accused and on commission of non-bailable offence, he should have been arrested or should have been detained without warrant or should have appeared or should have been brought before the said Court.
15. In the present case in hand, admittedly the applicant was not arrested as she moved an application for bail and application for exemption from appearance before the court concerned. When the bail application was moved before the court below invoking Section 437 of the Code seeking for a regular bail, the necessary ingredients should have been satisfied by the accused persons to the satisfaction of the Magistrate for consideration of grant of bail.
16. In this context, it may be relevant to note that the accused person was not ready to be arrested or to be surrendered before the Magistrate or not even ready to appear before the Magistrate for consideration of grant of bail. The words 'arrested' or 'detained without warrant' and the words, 'appears or brought before a Court', found in Section 437(1) of the Code are to be strictly interpreted and necessarily to be followed or such a situation should have emerged before the Court for consideration of grant of bail in that circumstances only. However, it was the stand of the applicant/accused before the Court below that, she was not surrendered before the Court nor even appeared before the lower Court either at the time of filing the petition or at the time of hearing the petition. Only in that context, the Magistrate has refused to entertain the said petition invoking Section 437 of the Code and therefore, the said decision cannot be said to be incorrect or illegal or without propriety.
17. Here in the case in hand, since the allegation made against the applicant is very serious in nature and in that context, even if the applicant was not inclined to appear before the court or surrender before the court for consideration of the bail application and in the context of invocation of Section 437 (1) of the Code, the conduct of the applicant, to the mind of this Court, cannot be considered to be a responsible and accountable act of a citizen or a member of the society. Therefore, in that context also, the applicant is undeserved to claim any liberty by filing the bail application without complying with the mandatory provisions of law and therefore, in that context also, the plea raised by the applicant is not worthy to be considered and her hue and cry is undeserved to be considered for grant of bail.
18. Taking into account the facts and circumstances of the case as well as the legal position, this Court is of the firm view that the impugned order dated 27.09.2018 passed by Additional Chief Metropolitan Magistrate, Court no.8, Kanpur Nagar, which is assailed herein, does not suffer with any infirmity or illegality or any impropriety. Therefore, the impugned order does not warrant any interference from this Court invoking extraordinary jurisdiction under Section 482 Cr.P.C..
19. The instant application is devoid of merit and is accordingly dismissed.
Order Date :- 08.02.2019 Asha (Chandra Dhari Singh,J.)