Himachal Pradesh High Court
State Of Himachal Pradesh vs Kulwant Singh Katoch on 1 August, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.33 of 2019.
Reserved on : 3.7.2019.
.
Decided on: 1st August, 2019.
State of Himachal Pradesh ...Petitioner.
Versus
Kulwant Singh Katoch ...Respondent.
Coram
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes.
For the petitioner : Mr. Ashok Sharma, Advocate General, Mr. Shiv Pal Manhans, Additional Advocate General with Mr. Raju Ram Rahi, Dy. Advocate General.
Respondent in person.
Chander Bhusan Barowalia, Judge The present Criminal Revision Petition, under Section 397 read with Section 401 of the Code of Criminal Procedure, is maintained by the petitioner-revisionist for quashing and setting aside the impugned order, dated 31.10.2018, passed by the learned Chief Judicial Magistrate, Solan, District Solan, in Case No.39/22 of 2018, for an offence punishable under Sections 420, 417, 193, 218, 120-B and 467 of the Indian Penal Code.
2. The key facts, giving rise to the present petition are that Additional Superintendent of Police, Solan, has written a letter to the Station House Officer, Solan, wherein it is alleged that on 16.7.2018, a letter was received from this Registry, whereby Hon'ble 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 2High Court directed to make detailed inquiry and to submit the report to the learned Sessions Judge, Solan, on 17.8.2018 and directed the .
Additional Superintendent of Police, Solan and it appears that Bhesh Ram son of late Shri Dhani Ram, is neither indigent nor working as a labourer and the said statement given by the persons before this Court on 25.4.2018, in Criminal Revision No.140 of 2017, appears to be factually incorrect. From the perusal of order dated 20.8.2018, passed by the learned Sessions Judge, Solan, it is found that Shri Bhesh Ram and his Counsel has given wrong statement before this Court and thus, an offence punishable under Sections 420, 417, 193, 218, 120-B and 467 of the Indian Penal Code, registered at Police Station, Sadar, District Solan, came to be registered against them. Thereafter, registration of the case, accused persons were arrested and they were produced before the learned Court below for seeking judicial remand whereby, they were granted bail, vide order dated 31.10.2018.
3. Feeling aggrieved, the impugned order, dated 31.10.2018, passed by the learned Court below, State-revisionist maintained the present revision petition.
4. Reply to the petition has been filed and it has been submitted that the present criminal revision petition is not maintainable and is liable to be dismissed. It is specifically denied that the impugned order dated 31.10.2018, passed by the learned Court ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 3 below is based on surmises and conjectures. It has also been specifically denied that the learned Court below has no jurisdiction to .
grant bail to the accused persons. Grant and refusal of bail is purely discretion of the Judge and such discretion is unfettered and exercised judiciously. The learned Court below after considering the material available on record, has rightly passed the impugned order by exercising its discretion in judicial manner. As such, the present criminal revision is not maintainable and the same is liable to be dismissed.
5. Mr. Ashok Sharma, learned Advocate General has strenuously argued that wrong statement has been given by the respondent saying that Shri Bhesh Ram, was a poor person and labourer and such statement given by him before the learned Court was totally abuse of the process of law. He has argued that the learned Court below was having no jurisdiction and in these circumstances, present revision petition is required to be allowed, to meet the ends of justice for the reason that one of the offence, respondent was charged is punishable with life imprisonment i.e. Section 467 of the Indian Penal Code.
6. Mr. Kulwant Singh Katoch-respondent in person has submitted that as per the certificate given by the Tehsildar, Bhesh Ram, income was `35,000/- per annum and he was under the scheme ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 4 of "Rajiv Gandhi Ann Yojna" by Gram Panchayat, Kainthari, District Solan. He has further submitted that the present revision petition is .
not maintainable and the same deserves to be dismissed. In support of his contentions, he has also relied upon the judgment in Ram Naresh Singh vs. State of Madhya Pradesh, 1994 STPL 3896, Madhya Pradesh High Court and Gurcharan Singh and others.
vs. State (Delhi Administration), Raj Kumar Sharma and others vs. State (Delhi Administration), 1977 STPL, 3647, Supreme Court of India, to this aspect.
7. r To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail.
8. After hearing learned counsel appearing on behalf of the parties and going through the entire record in detail, this Court finds that the present case was triable by the Magistrate and the Magistrate has granted the bail. The learned Court below while passing the impugned order has considered the material facts, which have come on record and has held as under :
"It is clear from police application that after registration of the case, notice under Section 41A of Cr. P.C was given to the accused persons by the police. It is further clear from the police application that accused persons joined the investigation. It further appears from the record that the police has made recoveries of all the documents and police has itself stated that now no recovery is to be made from the accused persons and they are not required for any ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 5 interrogation. It shows that police has completed the investigation. Moreover, as per Section 41A (3) of Cr. P.C it is provided that where the person complies or continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice, unless, for reasons to be .
recorded, the police officer is of the opinion that he ought to be arrested. Here police has not assigned any reason for arresting the accused persons, whey they complied with notice under Section 41A Cr. P.C. Therefore, there is no justification to remand the accused persons in to judicial custody. Accused Kulwant Katoch is practicing lawyer at District Court, Solan and there is least chances of his abscond if he is released on bail. Accused Bhesh Ram is also a local resident of District Solan, and his relatives and property is situated within the District Solan, H.P and there is also least chances of his abscond in the event of his bail.
As far as contention of ld. APP is concerned, that accused persons Kulwant Katoch, Advocate is an influential person and can tamper with the prosecution evidence if released on bail, then, I am of the view that all the material documents have been recovered by the police and it is in their custody. Now there is no chances of any tampering with such documents. It is also submitted by ld. APP that offence under Section 467 IPC is punishable with imprisonment for life and therefore, this Court has no jurisdiction in this matter. However, I am also the view that Section 467 IPC is triable by the Judicial Magistrate 1st Class, therefore, this Court has jurisdiction to pass orders in the bail application. Thus, keeping in view aforesaid discussions and reasons on record, there is no reason to curtail the liberty of the accused persons and accused persons cannot be remanded into judicial custody. Hence, bail applications of the accused persons are considered and accused persons are ordered to be released on bail on their furnishing personal bond in the sum of `50,000/- each with one surety each in the like amount.
9. In Ram Naresh Singh vs. State of Madhya Pradesh, Hon'ble Madhya Pradesh High Court, 1994 STPL, 3896 (M.P), has held as under :
"Now there remains the question as to whether the bail granted to the non-applicants can be cancelled or not. In this regard, it must be mentioned that it is settled position that the liberty once granted to an accused cannot be curtailed by cancellation of bail, unless certain conditions are fulfilled. The Hon'ble Supreme Court in 1992 SCC 870 : 1992 Cri. LJ 3712 (SC) (Aslambabalal Desai vs. State of Maharashstra) has ruled ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 6 that bail granted under Sections 437 (1) or (2) can be cancelled under Section 437 (5) and 439 (2) where :
(1) The accused misused his liberty by indulging in similar criminal activity;
.
(2) Interferes with the course of investigation;
(3) Attempts to tamper with evidence or witnesses, (4) Threatens witnesses or indulges in similar activities which would tamper smooth investigation, (5) Attempts to make him scarce by going underground or becoming unavailable to the investigating agency; (6) Attempts to place himself beyond the reach of his surety.
The Hon'ble Supreme Court has further observed that these are the grounds which are only illustrative and non exhaustive. It has further been observed that cancellation of bail is a harsh order because it interferes with the liberty of the individual and hence it must not be lightly resorted to. I may mention here that the applicant has not raised a little finger about these grounds. Simple argument advanced by the learned counsel for the applicant is that the bail should not have been granted as the offence was serious. To my mind, it cannot be said to be a sufficient ground to cancel the bail.
10. Hon'ble Supreme Court of India in Gurcharan Singh and others vs. State of (Delhi Administration) and Raj Kumar Sharma and others vs. State (Delhi Administration). It is gainful to reproduce para-21 of the judgment (supra), which is as under :
Section 437, Cr. P.C. is concerned only with the court of Magistrate. It expressly excluded the High Court and the Court of Session. The language of S. 437 (1) may be contrasted with S. 437 (7) to which we have already made a reference. While under sub-sec (1) of S. 437, Cr. P.C the words are : "If there appear to be reasonable grounds for believing that he has been guilty".
Sub-sec. (7) says: "that there are reasonable grounds for believing that the accused is not guilty of such an offence". This difference in language occurs on account of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for grounds for believing that he has been guilty of an offence ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 7 punishable with death or imprisonment for life, whereas after submission of charge-sheet or during trial for such an offence the court has an opportunity to form somewhat what clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree .
for certainty of opinion in that behalf is more after the trial is over and judgment is deferred than at a pre-trial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law that even in case of such non-bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the courts to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the court has no other option than to commit him to custody. At that stage, the court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits."
11. The learned Court below has held Section 467 of the Indian Penal Code is triable by the learned Judicial Magistrate 1st Class, so, the learned Court below can grant the bail. Section 467 of the Indian Penal Code, the learned Magistrate has granted the bail rightly, which was triable by him. Further, the petitioner, who is practicing Advocate, always available and the facts of the case also shows that no tempering can be done in the evidence, as the case is only based upon the documentary evidence. So, this Court finds that the order of the learned Court below needs no interference, as the order is as per law, revisional powers are not required to be exercised. In Ram ::: Downloaded on - 29/09/2019 01:39:37 :::HCHP 8 Naresh Singh vs. State of Madhya Pradesh, Hon'ble Madhya Pradesh High Court, 1994 STPL, 3896, clearly held that grant of .
bail is interlocutory order, so no revision lies. Relevant para-5 of the judgment reads as under :
"I have considered the contentions raised before me. At the out set, I may mention that it cannot be disputed that the order granting bail is an interlocutory order and no revision lies against such an order in view of the provisions of Section 397 (2), Cr. P.C. This proposition was also laid down by Hon'ble the Supreme Court in case of Amarnath v. State of Haryana, 1977 CAR 273. Thus, now it is beyond doubt that an order granting bail is an interlocutory order and no revision lies, against such an order."
12. After applying the aforesaid law (supra) to the facts and circumstances of the present case, the present revision petition is not maintainable, deserves dismissal and is accordingly dismissed.
No order as to costs. Pending application(s), if any, also stands disposed of.
1st August, 2019
(Chander Bhusan Barowalia)
(CS) Judge
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