Punjab-Haryana High Court
Harbans Lal vs Amit Kumar And Another on 14 September, 2021
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CRM-M-6893-2021 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-6893-2021
Date of Decision:14.09.2021
Harbans Lal .....Petitioner
Versus
Amit Kumar and another ....Respondents
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Dinesh Mahajan, Advocate,
for the petitioner.
Mr. Munish Puri, Advocate,
for respondent no.1
Mr. Neeraj Poswal, AAG, Haryana.
***
Amol Rattan Singh, J. (Oral)
1. On February 15, 2021, the following order had been passed by this court:-
"Case heard by video conference.
By this petition, the petitioner seeks the concession of 'anticipatory bail' under the provisions of Section 438 Cr.P.C., upon issuance of non-bailable warrants vide an order dated 02.02.2021 passed by the learned Sessions Judge, Pathankot, in Complaint No.NI Act/468/2015, dated 07.08.2015 under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (CRA No.204 of 2019 "Harbans Lal vs. Amit Kumar").
Learned counsel for the petitioner submits that since, earlier, the appeal filed by the petitioner was not being heard by way of physical hearing due to the Covid-19 pandemic, thereafter due to a mis-communication between his counsel and him (as alleged), he was not informed of the order dated 18.11.2020 (Annexure P-4), directing that he was to personally appear on the next date of hearing, i.e.
02.02.2021, on which date his bail and surety bonds were ordered to be forfeited and the order granting him bail cancelled.
Notice of motion be issued to respondent no.1 through normal process.
On the asking of the Court, Mr. Ramdeep Partap Sngh, DAG, Punjab, accepts notice on behalf of respondent 1 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 2 no.2 i.e. the State.
It being a matter relating to a complaint filed under the provisions of Section 138 of the Negotiable Instruments Act, 1881, with in any case physical hearing in appeals not having opened till recently, the petitioner is directed to surrender before the learned trial court within 10 days.
Upon him so appearing, he shall be admitted to interim bail, upon him furnishing adequate bail and surety bonds to the satisfaction of the appellate court, till the next date of hearing before this court.
In the meanwhile, uptil the time that the petitioner is granted bail (subject to him surrendering on 25.02.2021), he be not arrested, after which of course he would be admitted to bail by the trial court in terms of this order (if he surrenders).
Learned counsel for the petitioner would place on record the order passed by the trial court on 25.02.2021.
Adjourned to 22.03.2021."
Thereafter, the matter having been adjourned on 22.03.2021 on a request made by learned counsel for respondent no.1, he had sought time to cite judgments to the effect that without invoking the jurisdiction of the Sessions Court under the provisions of Section 438 of the Cr.P.C., such jurisdiction of this court could not be invoked, except in exceptional circumstances.
To allow him to refer to those judgments, hearing in the matter had been adjourned to 03.05.2021, but with the matter seemingly not having been listed on that date (in view of the ongoing pandemic), it was only listed on August 20, 2021, on which date its turn does not seem to have come up with the hearing therefore adjourned "by order" to 01.09.2021, and with learned counsel for the petitioner having made a request for an adjournment on that date and counsel for the complainant also having filed an application seeking to place on record the judgments that he wished to refer to.
2 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 3 On September 09, 2021, i.e. the date on which the order had been reserved, learned counsel for the said respondent had relied upon various judgments, one of a Division Bench of the Gauhati High Court in Kwmta Gawra Brahma vs. State of Assam (Gauhati), 2015(32) RCR (Crl.) 313, another of a co-ordinate bench of the Rajasthan High Court in Hajialisher vs. The State of Rajasthan, 1967(1) Crl.LJ 658, as also of the Delhi High Court in Jasbir Singh Sodhi vs. UOI and another 2010(10) RCR Crl. 523 and of the Madhya Pradesh High Court, in Smt.Priya Agrawal @ Shubhlata Agrawal and others vs. State of M.P., 2013 (7) RCR (Crl.) 1038.
On the other hand learned counsel for the petitioner has relied upon the following judgments:-
i) Barun Chandra Thakur v. Central Bureau of Investigation and others, 2018(5) RCR (Criminal) 49;
ii) Mubarik and another v. State of Uttarakhand and others, 2019(1) NCC 303,
iii)Balan v. State of Kerala, 2003 (4) RCR (Criminal) 733;
iv) Dharambir Badhana v. State of Haryana, 2013(14) RCR (Criminal) 333.
In view of paucity of time the order had been reserved, with the matter now being decided finally.
2. Before considering the judgments that have been cited, it needs to be noticed that a complaint under the provisions of Section 138 of the Negotiable Instruments Act, 1881, has been filed by respondent no.1, on three cheques alleged to have been issued by the petitioner in the years 2013 and 2014, for a total amount of Rs.9,00,000/-, having been dishonoured.
That complaint resulted in conviction of the petitioner by the learned JMIC, Pathankot, for the commission of the aforesaid offence, with 3 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 4 him being sentenced to imprisonment for a period of 2 years, and with him also ordered to pay the complainant an amount of Rs.9,50,000/- "at the rate of 9% p.a. from the date of cheque till date".
3. That judgment and order having been appealed against, the matter came up before the learned Sessions Judge, Pathankot and on account of the ongoing pandemic, on 18.11.2020 hearing in the matter was deferred by that court to 02.02.2021 (the petitioner having been admitted to bail by that court as is stated in paragraph 4 of this petition itself).
On 02.02.2021, the impugned order came to be passed, which reads as follows:-
"Letter being No.46 RG/Spl./Misc. Dated 08.01.2021, in continuation of letter dated 06.10.2020 has been received from the Hon'ble Punjab and Haryana High Court, Chandigarh vid which it has been ordered that all the District and Sessions Judges in the State of Punjab, Haryana and U.T., Chandigarh shall permit the physical hearing in all categories of cases subject to their own assessment of prevailing local conditions including the intensity of spread of Covid-19 pandemic. However, it has been made clear that the guidelines/Health Advisories issued by the Government of India and the respective State Government from time to time, shall be strictly followed and all other conditions laid down in letter dated 06.10.2020 to be followed as such.
Appellant Harbans Lal is absent without any prior intimation. Case called several times since morning but none has appeared on behalf of the appellant. As such the bail order is ordered to be cancelled and bail and surety bonds are forfeited to the State. Let, appellant Harbans Lal is ordered to be served through non bailable warrants of arrest and notice to his surety under Section 446 Cr.P.C. be issued or 10.03.2021."
4. Thus, this petition thereafter came to be filed on 10.02.2021, with the petitioner seeking to be admitted to anticipatory bail.
Obviously, this court has nothing to say with regard to the merits of the case of the complainant with the petitioner in appeal before the learned 4 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 5 Sessions Court, the issue before this court presently only being as to whether the petitioner deserves to be admitted to anticipatory bail or not.
5. It is to be noticed that as per the judgment in Kwmta Gawra Brahmas' case (supra), a Division Bench of the Gauhati High Court upheld the order of a learned Single Judge of that court, upon a reference made to the Division Bench, in view of a contradictory view taken by another single judge of that court.
It was eventually held by the Division Bench of that court that in exceptional circumstances a person/an accused can directly approach the High Court with a petition under Section 438/439 of the Cr.PC., with those circumstances having been enumerated by that court to be (essentially):-
i) When a person from another State had to approach the High Court which was nearer in distance to him than the Sessions Court, falling under the jurisdiction of such High Court;
ii) when a lot of public and media attention had been attracted in the jurisdiction of a particular Sessions Division and thereafter adverse public opinion had been built up against the accused;
iii) when the Sessions Court had already rejected a similar application filed by a person similarly placed;
It was thereafter held that other than the aforesaid three circumstances, an accused should first exhaust the remedy before the learned Sessions Judge and only thereafter approach the High Court.
6. A learned Single Judge of the Delhi High Court, in Jasbir Singh Sodhis' case (supra), held that though concurrent jurisdiction was conferred upon both, the High Court and the Sessions Court, as regards granting bail 5 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 6 either under Section 438 or 439 of the Cr.P.C., a self imposed restriction is 'vested' in the High Court, to the effect that it should only exercise such jurisdiction at the first instance in exceptional cases, though of course in such cases the High Court would be within its jurisdiction to do so.
To almost similar effect is the judgment of a co-ordinate bench of the Rajasthan High Court in Hajialishers' case (supra).
7. Per contra, learned counsel for the petitioner has referred to a judgment of the Supreme Court in Barun Chandra Thakurs' case (supra), in a case where this court had admitted the petitioners before this court to interim bail under the provisions of Section 438 of the Cr.P.C., with the complainant thereafter having challenged that order before the Supreme Court.
The contention of the appellant before the Apex Court was that this court could not/should not have entertained the petition at all without the petitioners before this court having first approached the Sessions Court at Gurugram, and therefore, the order passed by this court deserves to be set aside on that ground alone.
After considering the matter (pertaining to the unfortunate murder of a school student in Gurugram), their Lordships held as follows, as regards the contention that the accused/petitioners before this court should have first approached the Sessions Court:-
"9. Further, we cannot lose sight of the fact that this incident had received wide coverage in the media, both electronic and print. In fact, it can be said that there was a trial by media, therefore, when the private respondents have directly approached the High Court for grant of anticipatory/interim bail under Section 438 of the Code, that too when the High Court has concurrent jurisdiction, we cannot find any fault with the action of the private 6 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 7 respondents."
Eventually, it was held that with the CBI yet to come to a conclusion regarding the involvement of the respondents (before the Apex Court), in the commission of the crime (or not), no fault could be found by the order passed by this court (co-ordinate bench).
In the judgment of the co-ordinate Bench of this court, in Dharambir Badhanas' case (supra) also, it has been held that though normally a person should first approach the Sessions court, there is no bar on this court entertaining such a petition at the first instance.
8. In the other two judgments relied upon by learned counsel for the petitioner in the present petition, of Division Benches of the Uttrakhand High Court and Kerala High Court, it was held that it was for the accused to chose as to which forum that he/she should approach for seeking bail under the provisions of Section 438/439 of the Cr.P.C., with the Kerala High Court having followed a judgment of a Full Bench of the Himachal Pradesh High Court as also of a Full Bench of the Allahabad High Court in Mohan Lal vs. Prem Chand, AIR 1980 HP 36 and Onkar Nath vs. State, 1976, Crl.Law Journal 1142, respectively (as also other judgments cited by the Kerala High Court).
However, in the judgment of the Madhaya Pradesh High Court in Smt.Priya Agrawals'case (supra), it was held by a co-ordinate Bench that an applicant/petitioner should approach the Sessions Court for invoking the jurisdiction of the High Court in an application/petition under the provisions of Sections 438/439 of the Cr.P.C.
Even though a judgment of the Supreme Court and of some 7 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 8 other courts had been cited before the learned Single Judge of the Madhya Pradesh High Court in that case, it was held that the judgment of the Madhya Pradesh High Court on the issue, holding that the High Court can only be approached after exhausting a similar remedy before the Sessions Court, not having been noticed in those judgments, the judgment of the Division Bench of the Madhya High Court was binding, with it therefore held as above.
9. Thus, all in all, other than the judgment of the Madhya Pradesh High Court, no judgment cited before this court even by learned counsel for the respondent/claimant holds that in no circumstances can a High Court entertain a petition filed under Section 438/439 of the Cr.P.C., even if such petition is filed at the first instance before the High Court.
10. In the present case, it is to be noticed that the impugned order has been passed by the learned Sessions Judge, Pathankot, himself, on 02.02.2021, with the petitioner having filed the instant petition in this court on 10.02.2021, i.e. within 8 days after passing of that order.
Therefore, I would see no reason (other than the fact that obviously this court has concurrent jurisdiction to entertain a petition under Section 438 of the Cr.P.C.), to hold that this court cannot, or should not, entertain this petition, especially as the order by which the petitioners' bail and surety bonds were ordered to be forfeited was passed by the learned Sessions Judge himself.
In my opinion, that would be reason enough for the petitioner to approach this court directly for grant of anticipatory bail to enable him to appear before that court in order to continue 'with his appeal' before that 8 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 9 court.
11. Of course, having said that, it needs to be reiterated, as has been held by a co-ordinate bench of the Delhi High Court in Jasbir Singhs' case (supra), as also by the Rajasthan High Court in Hajialishers' case (supra), that a High Court should only entertain any such application at the first instance in exceptional circumstances, or at least not in ordinary circumstances, after which of course it would be within its jurisdiction to do so, with the Supreme Court in any case having held that either court could be approached by a petitioner/applicant, the High Court and Sessions Court having concurrent jurisdiction in the matter, (with it to be again noticed that in the case before the Supreme Court, in Barun Chandras' case (supra), it was observed by their Lordships that the matter had received a lot of media attention in the Sessions Division).
12. Hence, to repeat, with the order in the present case being that of the Sessions Judge himself, by which the petitioners' bail and surety bonds were ordered to be forfeited, I would see no reason to not entertain this petition.
13. Coming then to the merits of the case; as already noticed, after hearing in the appeal of the petitioner had been adjourned on 18.11.2020 to 02.02.2021 by that court, for arguments (though in the presence of his counsel), on account of the administrative instructions of this court in the wake of the ongoing pandemic, the petitioner simply not having appeared on one date, i.e. 02.02.2021, due to which his bail and surety bonds were ordered to be forfeited to the State, in my opinion, it would be appropriate that he is directed to surrender before the learned appellate court within 10 9 of 10 ::: Downloaded on - 15-09-2021 20:10:51 ::: CRM-M-6893-2021 10 days of today and upon him doing so, he would be admitted to bail, upon him furnishing adequate bail and surety bonds to the satisfaction of that court during the pendency of the appeal there.
However, the complainant having been put to unnecessary harassment at least for one day due to the non-appearance of the petitioner on 02.02.2021, before the learned Sessions Court and thereafter having had to 'defend' his case before this court in the present petition, thereby leading to an unnecessary delay in the proceedings before that court, the petitioner would pay costs of Rs.10,000/- to the complainant upon appearance before the Sessions Judge, after which he would be admitted to bail to the satisfaction of that court, as directed hereinabove.
With the aforesaid directions, the petition stands allowed.
September 14, 2021 (AMOL RATTAN SINGH)
dharamvir JUDGE
Whether speaking/reasoned : YES
Whether Reportable : YES
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