Himachal Pradesh High Court
Subh Karan vs State Of H.P on 6 February, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO Nos. 20, 21, 22 and 23 of 2015.
.
Date of decision: 6.2.2015.
1. Cr.MMO No. 20 of 2015.
Subh Karan ...... Petitioner
Vs.
State of H.P. ..... Respondent
2. Cr.MMO No. 21 of 2015.
Jaisi Ram ...... Petitioner
Vs.
State of H.P. ..... Respondent
3. Cr.MMO No. 22 of 2015.
Dev Raj ...... Petitioner
Vs.
State of H.P. ..... Respondent
4. Cr.MMO No. 23 of 2015.
Mangni Ram ...... Petitioner
Vs.
State of H.P. ..... Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Vacation Judge.
Whether approved for reporting? No 1
For the petitioner(s) : Mr. Vijay Chaudhary and Mr.Nimish
Gupta, Advocates vice Mr. Vinod
Thakur, Advocate (in all the petitions).
For the respondents : Mr.H.K.S.Thakur and Mr. Parmod
Thakur, Addl. Advocate Generals, for
the respondent.
Sh. Bir Bahadur, Dy. S.P.(HQ) Chamba
present alongwith records.
Tarlok Singh Chauhan, J. (Oral)
These petitions, under section 482 of the Code of Criminal Procedure read with Article 227 of the Constitution of India Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP ...2...
have been preferred against the judgement and order dated 19.1.2015 passed by the learned Sessions Judge, Chamba, whereby .
he set-aside the orders passed by the learned Judicial Magistrate Ist Class, Chamba granting bail to the petitioners and consequently the petitioners were ordered to be taken into custody forthwith.
2. All the petitioners are named accused in FIR No. 82 of 2014 registered under sections 379, 120(B) IPC, Section 33 of Indian Forest Act, Section 13(2) of Prevention of Corruption Act and section 14 of H.P. Specific Corrupt Practices (Prevention) Act on 7.12.2014 at Police Station, Bharmour, District Chamba. The petitioners moved bail applications before the learned Judicial Magistrate Ist Class, Chamba, who vide his order dated 16.1.2015 observed that since all accused persons are in judicial custody since 13.1.2015 and the recovery of 9393 scants of timber has already been effected, therefore, the accused persons ought to be released on bail and accordingly enlarged them on bail.
3. This order was set-aside by the learned Sessions Judge upon revision preferred by the State, which order has been challenged in these petitions on the ground that the impugned order is illegal and without jurisdiction as no revision was maintainable against the grant of bail. It is further claimed that learned Sessions Judge has in a hot-haste and slip shod manner decided the revision petitions without adverting to either the factual or the legal facts of the case.
I have heard the learned counsel for the parties and have also gone through the records of the case. ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP
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4. The learned counsel for the petitioners has strenuously argued that since the order passed by the learned Magistrate granting .
bail to the petitioner was only an interlocutory; therefore, no revision against the same was maintainable. No doubt, in a large variety of the cases, bail orders are interlocutory but every kindly of bail order is not interlocutory in nature. Where an order granting bail to the accused is so arbitrary, capricious and perverse, it is the bounded duty of the superior court to reverse such an order in exercise of its revisional jurisdiction.
5. It is surprising to note that learned Judicial Magistrate Ist Class, Chamba granted bail to the petitioners on the ground that they had already been in judicial custody since 13.1.2015 little realizing that within three days i.e. 16.1.2015 he was releasing the petitioners on bail that too without taking into consideration that petitioners were accused of offence of serious nature as 895 trees had been cut from Elhmi government forest and the same had been converted into 9393 scants. The tentative loss caused to the State itself was assessed at more than Rs.70,00,000/- (seventy lacs). The learned Magistrate did not care and bother to see that the petitioners had caused willful destruction to the forest wealth besides causing tremendous loss to the national wealth and depletion of green cover in the forest.
6. The investigation was at its initial stage and there was no occasion for the learned Magistrate to have granted bail to the petitioners more particularly when the allegations against the petitioners were grave and serious. It is the specific case of the respondents that petitioners are influential persons and if released on ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP ...4...
bail would influence or intimidate the witnesses acquainted with the facts of the case, which allegations ought to have been considered by .
the learned Magistrate before granting bail to the petitioner s.
7. The records reveal that learned Magistrate has failed to take into consideration the gravity and seriousness of the offence particularly when the Investigating Agencies had been crying hoarse that they are yet to visit the spot as the area is snowbound and verify the spot in presence of the petitioners and also interrogate them at later stage of investigation about the complicity of all the accused persons involved in the commission of offence. The Special Investigating Team for short (SIT) was still conducting its investigation.
8. The learned Sessions Judge has rightly and correctly held that while passing impugned order and granting bail to the petitioners, the learned Judicial Magistrate Ist Class has not applied his mind. The order on the face of it is unjustified, illegal and perverse.
9. If the order granting bail is a perverse one, or passed on irrelevant materials, it can be annulled by the superior Court. It is well settled law that grant of bail though involves exercise of discretionary powers of the Court, yet the said exercise has to be made in a judicious manner and not as a matter of course or in arbitrary, callous and whimsical manner like in the present case.
10. In Chaman Lal versus State of U.P. and another (2004) 7 SCC 525, the Hon'ble the Supreme Court while dealing with ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP ...5...
an application for bail has stated that certain factors are to be borne in mind and they are :-
.
(i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(ii) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(iii) Prima facie satisfaction of the court in support of the charge.
11. In Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, the Hon'ble Supreme Court while emphasizing on the exercise of discretionary power generally has held that strict compliance with the basic principles laid down in plethora of decisions of the Hon'ble Supreme Court has to be observed as follows:-
"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
(See: State of U.P. Vs. Amarmani Tripathi (2005) 8 SCC 21(SCC p.31,para 18), Prahlad Singh Bhati Vs. NCT, Delhi (2001) 4 SCC ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP ...6...
280; and Ram Govind Upadhyay Vs. Sudarshan Singh (2002) 3 SCC 598."
.
The aforesaid principles were reiterated in Ash Mohammad versus Shiv Raj Singh alias Lalla Babu and another (2012) 9 SCC 446.
12. In Central Bureau of Investigation versus V.Vijay Sai Reddy (2013) 7 SCC 452, it was categorically held by the Hon'ble Supreme Court that while granting the bail, the Court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of punishment, which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/State and other similar considerations. It would be profitable to refer to the following observations:-
"34. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."::: Downloaded on - 15/04/2017 17:35:28 :::HCHP
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13. At the cost of repetition, it may be observed that the aforesaid aspects have not been kept in view by the learned .
Magistrate and, therefore, the impugned order of granting of bail to the petitioners was not sustainable in the eyes of law and the learned Sessions Judge rightly set aside the same.
Accordingly, I find no merit in these petitions and the same are ordered to be dismissed. The Registry is directed to place a copy of this judgement on the files of connected matters. Liberty, however, is granted to the petitioners to move an application for grant of regular bail. Needless to say, on such application being moved, the same shall be considered on its own merits, regard being had to the parameters which have been laid down in the aforestated authorities.
14. Before parting, I may observe that while exercising statutory powers, the trial Magistrate was bound to act within the four corners of law giving due regard to the parameters of grant of bail as laid down by the Hon'ble Supreme Court time to time. Every Judicial Officer is expected to have knowledge regarding these parameters and no Judicial Officer can feign ignorance regarding the same. The Judicial Officer in this case has been recruited in service on 14.05.2008 and has, therefore, put in nearly 7 years of service and, therefore, it cannot be imagined that he was unaware of the parameters of grant of bail, more particularly, when the offence involved is so grave and serious. Indisputably, the petitioners had only been arrested on 13.01.2015 and were granted bail by the learned Magistrate on 16.01.2015 i.e. within a span of 3 days. The ::: Downloaded on - 15/04/2017 17:35:28 :::HCHP ...8...
order passed by the learned Magistrate is perverse and is tainted by impropriety and illegality and serious lapse has been committed by .
the learned Magistrate which cannot be ignored. However, before proceeding against the concerned Judicial Magistrate, he is called upon to explain why, how and under what circumstances, he granted bail to the petitioners, who were accused of having committed such a serious offence. The Registry is directed to forward a copy of this order to the concerned Magistrate, who is directed to furnish his explanation on or before 20th March, 2015 when the case shall be listed before this Court for further orders.
February 6, 2015. ( Tarlok Singh Chauhan ),
(Hem/krt) Vacation Judge.
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