Himachal Pradesh High Court
State Of H. P. vs . Dil Bahadur on 18 September, 2024
Bench: Tarlok Singh Chauhan, Sushil Kukreja
1 State of H. P. vs. Dil Bahadur .
Cr. A. No. 59 of 2022 18.09.2024 Present: Mr. I. N. Mehta, Sr. Addl. A.G. with Ms. Sharmila Patial, Mr. Navlesh Verma, Addl. A.Gs., Mr. J. S. Guleria and Mr. Raj Negi, Dy. A.Gs., for the appellant.
Mr. Balram Sharma, Dy. S.G.I., for Union of India.
Bailable warrants issued by the Registry of this Court on 05.04.2022, through the Ministry of Home Affairs, are stated to be awaited. The communication dated 15.03.2024 from the Ministry of Home Affairs has been received through which it has been communicated that warrants have been forwarded for its execution to the Embassy of India at Kathmandu, Nepal.
2. In the given facts and circumstances, we deem it appropriate to implead the Ministry of Home Affairs through its Secretary as necessary party, for a limited purpose, as respondent No. 2.
3. Notice. Mr. Balram Sharma, learned Deputy Solicitor General of India, appears and waives service of notice on behalf of respondent No. 2. He prays for time to seek instructions.
4. This Court is confronted with the situation where the respondent has been acquitted of the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act'). The respondent-accused was made to stand trial on the allegations found to be in exclusive and conscious ::: Downloaded on - 20/09/2024 20:38:16 :::CIS 2 possession of 7 kgs. of cannabis. Yet, the learned Special .
Judge after initially directing the respondent-accused to comply with the provisions of Section 437-A Cr.P.C., however, on receipt of an application showing his inability to furnish surety bond, permitted the respondent-accused to furnish personal bond in the sum of Rs.1,00,000/- and thereafter accepted the same as is evident from order dated 14.09.2021 passed by the learned Special Judge-II, Kullu.
5. It was eventually on 23.11.2021 that the learned Special Judge, announced the judgment and acquitted the respondent and vide a separate order observed that since the respondent was unable to comply with the provisions of Section 437-A Cr.P.C. and in this regard his application to furnish personal bond has been allowed on 14.09.2021, he could not be kept behind bars only for this reasons when the Court was acquitting him of the charges framed against him.
6. It shall be apt to reproduce the order dated 23.11.2021, which reads as under:-
"In the Court of Nitin Kumar, Special Judge-II, Kullu, State of HP versus Dil Bhadur.
23.11.2021: Present: Sh. J.S. Saukta, Id. PP for the State.
Accused person namely Dil Bhadur produced in the custody of C Shivan Kumar No.215 and C Anil Kumar No. 216 of P.L. Una, HP.
Accused is represented by Sh. Ankush Slath, Id. Advocate.::: Downloaded on - 20/09/2024 20:38:16 :::CIS 3
Heard.
.
The accused is unable to comply with the provisions of Section 437-A, Cr.P.C. and in this regard, his application to furnish personal bond was allowed on 14.09.2021. In the instant case, the accused happened to be native of Nepal, but due to his inability to furnish surety bond in compliance of the above provisions of law, he cannot be kept behind bars only for this reason when this Court is acquitting him of the charges framed against him. However, it is expected that the State Govt. must r take vigil of the accused, in case they intend to prefer an appeal against the order of this Court so as to procure his presence in the appeal. Vide my separate judgment of even date placed on the file, accused person namely Dil Bhadur is acquitted of the charge under Section 20 of the ND&PS Act framed against him and as a result thereof, the accused is ordered to be released forthwith in this case, if not required in any other case. File after completion, be consigned to the record room.
Announced in the open court on 23rd day of November, 2021.
sd/-
(Nitian Kumar) Special Judge-II, Kullu, H.P."
7. Aggrieved by the judgment of acquittal passed by the learned Special Judge, the State has preferred the instant appeal, which came up for consideration on 05.04.2022 and the Court passed the following order:-
"Cr.MP(M) No. 602 of 2022Heard. Leave to appeal granted. The application stands disposed of.
Cr. Appeal No. /2022 Be registered.::: Downloaded on - 20/09/2024 20:38:16 :::CIS 4
Admit. Call for the records.
.
Bailable warrants in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the Arresting Officer be issued against the accused-
respondent, returnable within six weeks, undertaking therein to appear in this Court as and when directed and to receive any sentence which may be imposed on the conclusion of the appeal."
8. The respondent-accused is admittedly citizen and the bailable warrants had to be essentially sent to the Ministry of Home Affairs and this process in the a Nepali instant case has been continuing ever since 21.04.2022 and up till now the State has been totally unsuccessful in securing the presence of the respondent as is evident from earlier part of this order.
9. Section 437A, Cr. P.C. was introduced by Clause 40 of the Code of Criminal Procedure (Amendment) Bill, 2006. It has been enacted as Code of Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009) (the Amending Act) and enforced with effect from 21.12.2009. The same is reproduced as under:-
1. Before conclusion of the trial and before disposal of the appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months.
2. If such accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply.::: Downloaded on - 20/09/2024 20:38:16 :::CIS 5
10. The above provision mandates that before the .
conclusion of the trial and before the disposal of the appeal, the trial court or the appellate court, as the case may be, shall require the accused to execute bail bond with sureties to appear before the High Court as and when such court issues notice in respect of any appeal or petition, filed against the judgment of the respective courts and such bail bonds shall be in force for six months. The provision further envisages that the bail bond shall be in force for the period of six months. Clause 2 of Section 437A Cr.P.C. deals with the consequences where the accused fails to appear before the appellate court then, it will result in forfeiture of his bond and the procedure under Section 446 Cr.P.C. shall be followed against him. Notes on Clause 40 (by which 437A was introduced) of the Bill provides the purpose of the amendment as follows:
"to provide for the Court to require accused to execute bail bonds with sureties to appear before the higher Court as and when such Court issues notice in respect of an appeal against the judgment of the respective Court".
11. Thus, the said section was introduced by the Legislature with the solemn object that till the order of acquittal passed by the learned trial court attains finality the accused is legally bound to appear before the next appellate court.
12. Once the leave to appeal is granted to the State, such appeal acquires the same status as is conferred on ::: Downloaded on - 20/09/2024 20:38:16 :::CIS 6 the accused to challenge the order of conviction and .
sentence in terms of Section 374 Cr.P.C. The presence of the accused even though he has been acquitted by the learned trial court is imperative before the appellate court because, if after the order of acquittal, he runs away, then he will be successful in defeating and deflecting the course of justice. After the grant of leave by the appellate court it is for the accused to contest the appeal and to support the order passed by the learned trial court. It is a settled legal position that the appeal is the continuation of the trial court proceedings and order of conviction or acquittal, if it is challenged by either the accused or the State, will become final after the decision is given by the appellate court.
13. The situation which we are confronted with in the present criminal appeal and in various such other appeals preferred by the State is that invariably in all such State appeals, the State is not able to serve the respondent mainly because the respondent is not found at his last address or has shifted to some new address. After an order of acquittal is passed in favour of such an accused, whether intentionally or unintentionally, he moves out from his residence where he lastly resided or flees from the country.
To deal with this malady, the legislature had introduced Section 437A Cr.P.C. on the statute book. The provision of Section 437A Cr.P.C. is not being strictly adhered to by the Subordinate Judiciary dealing with the criminal matters.
::: Downloaded on - 20/09/2024 20:38:16 :::CIS 714. This situation is prevailing despite instructions issued .
by this Court in Circular orders of the High Court of Himachal Pradesh vide No. HHC/VIG/Misc.Instructions/93-IV-
7139, dated 18.03.2013, which read as under:-
"No.HHC/VIG/Misc. Instructions/93-IV-7139 Dated Shimla, the 18th March, 2013.
Sub: Instructions qua sections 437 A and 441 A Cr.P.C.
It has come to the notice of the High Court that the provisions of Section 437 A and 441 A of Code of Criminal Procedure, 1973 (hereinafter called the Code) are not being followed by the judicial officers in the State.
Section 437 A of the Code (inserted by sec. 31 of Act No. 5 of 2009, w.e.f. 31.12.2009) requires the accused, before conclusion of the trial and before disposal of the appeal, to execute bail bonds with sureties, to appear before the higher Court as and when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for "six" months.
Further, Section 441 A of the Code (inserted by sec. 39 of Act No. 25 of 2005, w.e.f. 23.6.2006) also requires the surety to an accused person to make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.
The above provisions are required to be complied with in letter and spirit.
AND WHEREAS the High Court of Himachal Pradesh in Criminal Appeal No. 39 of 2011, titled as Panne Lal versus State, vide order dated 30.09.2011, had issued the following directions:
"(i) Whenever an accused is produced before the Court(s), there shall be a photograph of the accused, which shall be ::: Downloaded on - 20/09/2024 20:38:16 :::CIS 8 affixed in the records Saja Slipand the photograph shall be .
attested by the Magistrate at the time of production of the accused.
(ii) As far as sureties are concerned, in their cases also, photos of the persons identified should form part of the records. In the NDPS cases, where foreign nationals are involved, as cautioned by the Apex Court, the Court(s) should be circumspect in granting bails and even if bails are to be granted also, stringent conditions should be imposed with a minimum of two solvent sureties and the bonds of the sureties should be for substantial amounts.
Though it may not be proper for this Court to give any indication as to what should be the substantial amount, in view of the changing economic conditions, we are of the view that each surety should be having solvency to the tune of rupees fifty lacs, where commercial quantity is involved, and in all other cases, except the small quantity the solvency should be of a minimum amount of rupees five lacs and in small quantity, the bond shall be for a minimum amount of rupees one lac for each surety. In order to ascertain solvency, the trial Court(s) may look into the revenue papers with respect to title, ownership or any other proof with regard to their solvency.
(iii) Wherever Unique Identity Proof Cards (Aadhar Cards) have been issued, the identification by the said UIPC shall be insisted by the Courts and police officers/officials. The learned trial Court shall insist for identification of the accused whenever they are directed to be present in Court(s)."
Further the Courts are also required to adhere to the directions given by the Supreme Court in Thana Singh versus Central Bureau of Narcotics (Cr. Appeal No. 1640 of 2010) decided on 23.01.2013 {(2013) 2 SCC 590) which can also be accessed on the website of the H.P. Judicial Academy, i.e. www.hpsja.nic.in.
::: Downloaded on - 20/09/2024 20:38:16 :::CIS 9It has been observed by the High Court time and again .
that the directions issued in Panne Lal's case (supra) are not being complied with. Against the aforesaid background, I have, therefore, been directed to impress upon all the judicial officers to comply with the provisions of Sections 437 A and 441 A of the Code as well as the above directions in Panne Lal's case (supra) and also Thana Singh versus Central Bureau of Narcotics (supra) without fail and the particulars of accused and surety taken under Section 437 A Cr. P.C be entered in the footnote of Form-B of the final judgment. Non-compliance of these directions shall be strictly viewed and may entail disciplinary action against the erring judicial officer(s) which may adversely affect his/her judicial career."
15. We really wonder how the learned Special Judge expected a foreign national accused of being in exclusive and conscious possession of 7 Kgs. cannabis to still choose to remain or reside at the place where he was apprehended for that matter even in adjoining area within the State or the country given the fact that he is a Nepali citizen by further ignoring the fact that both the countries i.e. India and Nepal do not have Extradition Treaty.
16. It is simply beyond a comprehension how the State and its agencies were expected to keep a vigil on the respondent and ensure that the respondent does not flee from the country.
17. This unfortunately is not an isolated case because in the earlier part of the day, we come across an order of identical nature passed in Cr. A. No. 123 of 2019, titled as State of H.P. vs. Prem Roqua, relating to Nepali citizens.
::: Downloaded on - 20/09/2024 20:38:16 :::CIS 1018. As observed above, a solemn object in introducing .
Section 437-A in Code of Criminal Procedure was that till the order of acquittal passed by the learned trial Court does not attain finality, the accused is legally bound to appear before the next appellate court.
19. Once the leave to appeal is granted to the State, the the r to presence of the accused even though he has been acquitted by the learned trial Court, is imperative before appellate Court because, if after the order of the acquittal, he runs away, then he will be successful in defeating and deflecting the course of justice, but passing the orders of the nature as noted above, the learned Special Judge has virtually facilitated a safe passage to the respondent to flee.
20. It is high time, the learned Judge introspects and understands the avowed and solemn object of introducing Section 437-A Cr.P.C. in the Code of Criminal Procedure and accordingly passes the orders in future.
21. Before parting, we may observe that it has been often observed by the Hon'ble Supreme Court that it would be travesty of justice if a person after being granted bail is unable to furnish local sureties and is made to languish in jail and one such order has been passed today i.e. 18.09.2024 by three-Judge Bench of the Hon'ble Supreme Court in CRLA No. 89/2021, titled as Ramchandra Thangappan Aachari vs. The State of Maharashtra, decided on 18.09.2024.
::: Downloaded on - 20/09/2024 20:38:16 :::CIS 1122. Therein the Hon'ble Supreme Court was dealing with .
a case of the petitioner who was being convicted and sentenced by the High Court and on completion of nearly five years of sentence out of 10 years imposed upon him was released on bail on the terms and conditions imposed by the learned Trial Court. Out of these conditions, one condition was that he would furnish local surety and the petitioner was unable to do so. In light of these facts, the Hon'ble Supreme Court observed as under:-
4. The justice delivery mechanism cannot be oblivious of the plight of the indigent convicts who are unable to provide local surety. For their incapacity to meet the bail terms, the applicant continues to languish in jail notwithstanding the bail order passed in his favour as far back as on 03.05.2024.
5. in the context of the 10 year sentence imposed on the applicant, Ms. Rathi would refer to the custody certificate (dated 89.11.2023) of the senior jailer of the Kolhapur Central Prison to point out that as on today, the petitioner has been in actual custody for seven years and one month.
6. It would be a travesty of justice if the petitioner is unable to secure the benefit of bail order for his inability to furnish local surety. This will infringe the rights guaranteed under Article 21 of the Constitution for the person, who continues detained despite a bail order in his favour.
7. Having considered the circumstances here, we deem it appropriate to say that the petitioner be released on bail on his personal bond without insisting on local surety, to ensure compliance with this Court's bail order dated 03.05.2024. It is ordered accordingly.::: Downloaded on - 20/09/2024 20:38:16 :::CIS 12
23. Here, as observed above, we are dealing with a .
case of foreign national, who has no roots, no relatives, no friends etc., not only in the society but in the country and is not on account of his being indigent, that he is unable to provide local surety. Rather being a foreign national no one is ready to stand surety for him given the fact that the r to respondent was found in possession of 7 Kgs. of charas.
24. Obviously, in such circumstances, the ratio laid down in the aforesaid judgment would not apply to the instant case as therein the Hon'ble Supreme Court was not dealing with a case of foreign national but dealing with a case of indigent petitioner and for this precise reason that the Hon'ble Supreme Court has made pertinent observation in para-4 of its order supra.
Let a copy of this order be sent to the concerned learned Judge.
(Tarlok Singh Chauhan) Judge (Sushil Kukreja) Judge 18th September, 2024 (sanjeev) ::: Downloaded on - 20/09/2024 20:38:16 :::CIS