Chattisgarh High Court
Gagan Rahangdale vs State Of Chhattisgarh on 17 January, 2024
-1-
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 5334 of 2023
Gagan Rahangdale S/o Shri Lalit Rahangdale Aged About 34 Years
R/o Near Bharti Tent House, Maharana Pratap Chowk, Nagar Nigam
Colony, Bilaspur, District : Bilaspur, Chhattisgarh
---- Applicant
Versus
State Of Chhattisgarh Through Police Station Balod, Balod, District :
Balod, Chhattisgarh
---- Respondent
For Applicant : Mr. Kishore Bhaduri, Senior Advocate assisted by Mr. Bhaskar Payashi, Advocate For State : Mr. Jitendra Shrivastava, Govt.
Advocate For Complainant/Objector : Mr. Hemant Kumar Agrawal, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 17/01/2024
1. This case initially came up for hearing on 28.07.2023. On the same date, bail application was admitted and considering the submission of learned counsel for the applicant, application for grant of ad-interim bail was considered, allowed and ad-interim bail was granted to the applicant till final disposal of the main bail application. Operative portion of the order dated 28.07.2023 is extracted below for ready reference :
" Having considered the submission of learned counsel for parties and considering -2- the facts and circumstances of the case and also having gone through the documents annexed with the application, this Court is of the view that present is a good case for grant of ad-interim bail.
It is directed that on applicant's furnishing a personal bond in the sum of Rs.25,000/- with one surety for the like sum to the satisfaction of the concerned Court, he shall be released on interim bail till final disposal of the main petition. Accordingly, IA No.1/2023 is allowed."
2. Learned senior counsel for the applicant would submit that when once the Court has considered and allowed the application for grant of ad-interim bail, interim bail granted to the applicant shall continue till final disposal of the bail application. There is no requirement of the applicant to surrender again before the Court below and, in turn, sending him to jail. He submits that in such circumstances, if the applicant files application for surrendering himself before the jurisdiction of this Court, then such surrender can be deemed to be in constructive custody and after such surrender, bail application filed under Section 439 of Cr.P.C. can be considered and heard finally. In support of his contention, he places reliance upon the decision of Hon'ble Supreme Court in the case of Sundeep Kumar Bafna Vs. State of Maharashtra and Anr. (2014) 16 SCC 623 and the order passed by High Court of Orissa in the case of Susanta Kumar Samantaray and Anr. Vs. State of Odisha (VIG.) (CRLMC No.1483 of -3- 2023). He contended that the applicant is present before this Court and he has moved an application (IA No.7/2024) on 09.01.2023 and IA No.14 of 2024 dated 16.01.2024 for permission to surrender before this Court. Surrender of the applicant may be treated to be constructive custody of the Court.
3. Learned counsel for the State as also learned counsel for the complainant submit that they are having no objection to the application submitted by the applicant for his surrender before this Court.
4. It is not in dispute that this Court while admitting this bail application under Section 439 of Cr.P.C. had further considered the application submitted by the applicant for grant of ad-interim bail and as extracted above, ad-interim bail was granted to the applicant till final disposal of the bail application.
5. Section 439 of Cr.P.C. provides special power to the High Court or Court of Session regarding bail to a person who is in custody.
6. Applicant, prior to filing of bail application under Section 439 of Cr.P.C. before the Court of Sessions, was arrested and after rejection of bail application by the Court of Sessions, present application for grant of regular bail is filed. He was released on ad-interim bail pursuant to order passed by this Court.
7. Hon'ble Supreme Court in the case of Sundeep Kumar Bafna (supra) has considered the word "custody" though while considering the order rejecting the application for grant of regular bail under Section 439 of Cr.P.C. by the High Court after -4- passing of order by Hon'ble Supreme Court considering the prayer for grant of anticipatory bail. Hon'ble Supreme Court in that case had extended to the applicant therein transient insulation from arrest for a period of four weeks to enable him to apply for regular bail. The word meaning of "custody" was considered and discussed by Hon'ble Supreme Court in para-9 which is extracted below:-
"9. Unfortunately, the terms "custody", "detention" or "arrest" have not been defined in the Cr.P.C., and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance.
9.1. Oxford Dictionary (online) defines "custody" as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance.
9.2. Cambridge Dictionary (online) explains "custody" as the state of being kept in prison, especially while waiting to go to court for trial.
(emphasis supplied) 9.3. Longman Dictionary (online) defines "custody"
as "when someone is kept in prison until they go to court, because the police think they have committed a crime".
9.4. Chambers Dictionary (online) clarifies that custody is "the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them".
9.5. Chambers' Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration. 9.6. Collins Cobuild English Dictionary for Advance -5- Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison.
9.7. Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us.
9.8. Corpus Juris Secundum under the topic of 'Escape & Related Offenses; Rescue' adumbrates that "Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement."
9.9. This is how 'Custody' is dealt with in Black's Law Dictionary, (5th ed. 2009):-
"Custody - The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual -6- possession. Term 'custody' within statute requiring that petitioner be 'in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U. S. ex rel. Wirtz v. Sheehan, D.C.Wis, 319 F.Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be 'in custody' for purposes of habeas corpus proceedings."
Hon'ble Supreme Court, considering its earlier decision in case of Niranjamn Singh and Anr. Vs. Prabhakar Rajaram Kharote and Ors. (1980) 2 SCC 559, has observed as under :-
"23. .... This Court, speaking through Krishna Iyer J elucidated the law in these paragraphs : ( Niranjan Singh case, SCC pp 562-63, paras 6-9) -
"6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in one view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice.
But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused -7- of an offence can move the court for bail under Section 439 CrPC unless he is in custody.
7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with -8- anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
9. 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 he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 CrPC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the -9- custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below." ........
(Emphasis supplied) Further, Hon'ble Supreme Court after considering its various earlier decisions has observed thus:-
"33. In conclusion, therefore, we are of the opinion that the learned Single Judge erred in law in holding that he was devoid of jurisdiction so far as the application presented to him by the Appellant before us was concerned. Conceptually, he could have declined to accept the prayer to surrender to the Courts' custody, although, we are presently not aware of any reason for this option to be exercised. Once the prayer for surrender is accepted, the Appellant before us would come into the custody of the Court within the contemplation of Section 439 CrPC. The Sessions Court as well as the High Court, both of which exercised concurrent powers under Section 439, would then have to venture to the merits of the matter so as to decide whether the -10- applicant/Appellant had shown sufficient reason or grounds for being enlarged on bail."
8. Considering facts of the case in particular the ad-interim bail granted by this Court on 28.07.2023 and the decision of Hon'ble Supreme Court, application filed by the applicant for his surrender before this Court is accepted and the applicant is treated to be in constructive custody of the Court.
9. Heard on Application under Section 439 Cr.P.C. filed by the applicant for grant of regular bail.
10. Applicant has filed this application under Section 439 of Cr.P.C. for grant of regular bail as he has been arrested in connection with Crime No.577/2022 (wrongly mentioned in bail rejection order) registered at Police Station -Balod, District- Balod (CG) for the offence punishable under Sections 406, 408, 420, 467, 468 & 471 read with Section 34 of IPC.
11. Case of the prosecution, in brief, is that complainant was appointed as Dealer of Nuvoco Vistas Corporation Limited for sale of cement at Balod. The applicant entered into an agreement and the applicant was supplied cement on different vehicles from time to time which was unloaded at godown of complainant, however, after lapse of about more than one and half year, complaint was lodged with the Company that number of vehicles by which cement was supplied do not contain the capacity of transportation of such quantity of cement as the -11- laden weight of the vehicle is much less than the quantity of the cement said to have been supplied from the said vehicles and made request for the supply difference of quantity of cement i.e. 7820 bags, to the complainant/Dealer. When the difference of cement as demanded by the complainant, was not paid, complaint was filed to the concerned police station and when no action was taken on his report/complaint, complainant also filed application under Section 156 (3) of Cr.P.C. before the Chief Judicial Magistrate, Balod, District- Balod. The Magistrate after considering the complaint, directed the concerned police station to investigate into the the complaint. Pursuant thereto the Police registered the FIR and applicant was arrested on 14.07.2023.
12. Learned senior counsel for the applicant would submit that the applicant is an employee of Nuvoco Vistas Corp. Ltd. and posted at Durg as Sales Manager. Applicant's place of working is at Durg area and, Balod also comes within the territorial jurisdiction of Durg area. He contended that Nuvoco Vistas's Cement Plant is at Sonadih, District Baloda Bazar-Bhatapara and for supply and sale of cement within Balod District, Nuvoco Vistas Corp. Ltd. has engaged Carrying and Forwarding Agent (for short "C&F Agent"). The storing of cement to be supplied from the Plant is also made available and temporary godown is established at Balod District by the C & F Agent. It is for the C & F Agent to supply the cement, demanded by the Dealers from the vehicles engaged/hired by him. There was an agreement between the Nuvoco Vistas Corp. Ltd. as also the C & F Agent -12- and under Clause- D and Clause -2 of agreement, such condition is specifically mentioned. Agreement is dated 01.04.2020. He also pointed out that, as the C& F Agent is to arrange for the godown for storage of the cement to be transported on his demand at Balod, C & F Agent had initially entered into agreement with Mrs. Mamta Chopda owner of the property therein to be utilized as godown and as C & F Agent is appointed by the Nuvoco Vistas Corp. Ltd., a tripartite agreement is also executed subsequently under the head of "Tripartite Leave and Licence Agreement". The entire allegation made in the complaint/FIR is of transportation of specific quantity of cement on the vehicles which do not have the capacity to carry such quantity of cement. He also pointed out that it is the husband of complainant Proprietor who was engaged as the Sales Promoter. During investigation, his statement under Section 161 of Cr.PC. is also recorded and at later point of time supplementary statement is also recorded. In the supplementary statement he admitted that on the demand of Company, he has provided vehicles for transportation of the cement of which he has obtained orders for supply from the concerned Dealers. From the statement of Amit Kumar Jain, husband of the Proprietor/ complainant, it is clear that he also used to provide vehicles for transportation of cement from the godown at Balod known as 'Balod Transit Point Depot'. C & F Agent i.e. Durga Continental Pvt. Ltd (Accused No.4) has also paid the fare charges to Amit Kumar Jain (Sales Promoter) -13- directly in his bank account. Document in this regard is also placed on record as Annexure A-2 and part of charge sheet. Looking to the nature of job of the applicant being an employee of Nuvoco Vistas Corp. Ltd. and further the company has engaged C& F Agent for supply of cement to the Dealers, there was no role of the applicant to manage the affairs of transportation of cement from the godown at Balod. It is for the C & F Agent to transport cement from Balod Transit Point (godown at Balod) after receipt of supply orders placed by the Sales Promotion Agent. Applicant is having a prima facie good case in his favour who is an employee of Nuvoco Vistas Corp. Ltd. posted at Durg and not an employee of C & F Agent. There is no likelihood of his absconding and will participate in the proceedings before trial Court on each and every date given to him during trial. Therefore, he may be enlarged on bail. He also pointed out that there is no other criminal antecedent of the applicant.
13. Learned counsel for the State opposing the submission of learned counsel for the applicant, would submit that from the contents of the complaint as also investigation, details of the supply made to the complainant from the specified vehicles, it is appearing that some of the entries made or supply shown are not correct. During course of investigation, details of the vehicles were verified and upon verification, it revealed that all the vehicles shown by which cement is supplied are not the truck/lorry. Some of the vehicle numbers which are registered in -14- the Road Transport Office by the Registering Authority is of Two Wheeler, Four Wheeler -Car, Four Wheeler- Transporting Vehicle i.e. Tata Ace etc. by which the transportation of cement of 30 tons cannot be made. He submits that after completion of investigation, charge sheet has also been filed and in charge sheet, bank statement of account of Jay Archna Stores, Proprietor Amit Kumar Jain (husband of the complainant) , details of the vehicle used for transportation of cement, builty challan by which cement is transported and GST bills of Nuvoco Vistas Corp. Ltd. and Jay Traders i.e. complainant are available. Upon further asking as to material with respect to appointment of the accused No.4 as C&F Agent, he contended that the applicant being the Area Manager of Nuvoco Vistas Corp. Ltd., was issued notice under Section 91 of Cr.P.C on 14.07.2022 and as per material available in the case diary, it is appearing that on the same day he was arrested.
14. Learned counsel for the complainant raised an objection in grant of bail to the applicant on the ground that from the details of the vehicle collected by the prosecution, allegation of the complainant prima facie appears to be correct as thirty tons of cement has been shown to be supplied from Two Wheeler, Four Wheeler- Car, Four Wheeler -Transporting vehicle which is having the laden capacity of less than one ton. He contended that the complainant therefore has made demand of difference of the cement which is shown to be supplied and received by the complainant. However, Nuvoco Vistas Corp. Ltd. refused to -15- supply the difference of cement and have further deducted the amount of said quantity of cement from the security amount deposited by the complainant. He also contended that as difference of cement was not received by the complainant, complaint was filed.
15. I have heard learned counsel for the parties and also perused the documents annexed along with this bail application.
16. From the contents of compliant made before Chief Judicial Magistrate Balod under Section 156 (3) of Cr.P.C. based upon which FIR was registered would show that grievance of the complainant is of non-supply of 7820 bags of cement though in the document it has been shown to be supplied by the vehicle number of which is mentioned in the builty and other documents. From the answer as submitted by learned counsel for the State to the query made by this Court that on the date of issuance of notice under Section 91 of Cr.P.C. to the applicant, he was arrested it is appearing that though notice under Section 91 of Cr.P.C. is issued to the applicant for producing the relevant documents in support of his plea, however, from the facts, it is appearing that applicant is posted at Durg whereas the document for appointing C & F Agent and further the tripartite agreement in which Nuvoco Vistas Corp. Ltd. Is also one of the party may not be available in the local office at Durg. The said documents is the agreement with the M/s Durga Continental Pvt. Ltd. owned by Shasibhushan Shukla is a C &F Agent agreement -16- with the Nuvoco Vistas Corp. Ltd. appointing Durga Continental as C & F Agent. In the cause title of the application filed under Section 156 (3) of Cr.P,.C. which is placed before this Court by counsel for the complainant/ Objector would show that Shashibhushan Shukla the proposed accused No.4 is shown to be C & F Agent.
17. In the aforementioned facts pleaded in the complaint, it is clearly appearing that the complainant was aware of the appointment of non-applicant No.4 therein as C&F Agent and therefore if the Nuvoco Vistas Corp. Ltd. has appointed C&F Agent and Nuvoco Vistas Corp. Ltd. is a cement company having its production at District Balodabazar -Bhatapara and might have entered into agreement or document in this regard. Though such document is not available in the charge sheet filed, taking into consideration the submission made by learned counsel for the State that on the date of issuing notice under Section 91 of Cr.P.C. applicant was arrested, the documents placed before this Court by learned counsel for the applicant obtained from Nuvoco Vistas Corp. Ltd. Office situated at Balodabazar- Bhatapara district can be taken into consideration. The relevant portion of the contents of agreement is extracted below for ready reference:
"D. The Company is desirous of entering into an agreement with the CFA to avail of the said services of clearing, running trucks/lorries on hire, storing, handling, -17- forwarding, implementing sales and realization of sale proceeds of Cement at the Godown.
2. It is clearly understood that the CFA is entrusted with the job of clearing, running trucks/lorries on hire, handling, forwarding, storage, preservation, sales and realization of sale proceeds at the godown as per policies laid down by the Company from time to time. While realizing the sale proceeds from the customers and accounting for the same, the CFA will ensue that payments made by a particular customer are credited to his respective company account only. If payments made by a customer are credited to and/or adjusted against orders placed by and deliveries made to another customer, the CFA shall be solely responsible. In the event the customer making payment claims credit of the amounts not reflected in his account statement, the said amount shall be debited from the CFA's account upon the factum of payment to the Company being established. The CFA shall also be liable to indemnify the company and its employees against any claim, action or proceeding initiated by the customer making the payment, alleging misappropriation of payment made by him."
18. From perusal of Clause -D of the Agreement it is clear that party No.2 to agreement has shown his desire of entering into an agreement to avail services of clearing, running trucks/lorries on -18- hire, storing, handling, forwarding, implementing sales and realization of sale proceeds of cement at the Godown. Further in Clause 2 of the said document it is mentioned that the CFA is entrusted with the job of clearing, running trucks/lorries on hire, handling, forwarding, storage, preservation, sales and realization of sale proceeds at the Godown as per policies laid down by the Company from time to time.
19. From the aforementioned contents of the agreement it is appearing that after the supply of cement from the Plant situated at Sonadih, District, Baloda-Bazar Bhatapara it is to be stored at Balod which is transit point and after receipt of supply of cement from the Plant and reached at Balod, the entire work of managing the affairs of storing, preservation, transportation and sales and realization of the sale proceed is upon C &F Agent. It is appearing that engagement of the trucks for transportation based on the order received though Sales Promoter is upon C &F Agent and therefore if for any reason supply is made by C&F Agent showing the quantity of cement on particular vehicle, based on the document placed before this Court may not be attributed to the applicant.
20. In the aforementioned facts of the case, submission of leaned counsel for the parties as also the documents placed before this Court I am inclined to allow the application.
21. Accordingly the application is allowed. Order dated granting ad- interim bail to the applicant is made absolute. The bail -19- application is allowed. It is directed that the applicant shall be released on regular bail on his furnishing a personal bail bond in the sum of Rs.25,000/- with one surety in the like sum to the satisfaction of the Additional Registrar (Judicial) of this Court on the conditions that:-
a) Applicant shall appear before the trial Court regularly on each and every date, unless exempted from appearance.
b) Applicant shall not, in any manner, tamper with the prosecution witnesses.
22. Additional Registrar (Judicial) is directed to forward the bail papers to the concerned Court thereafter.
Certified copy as per rules.
Sd/------/---/-/---/-/-
(Parth Prateem Sahu) Judge Praveen