Punjab-Haryana High Court
Amit Sharma vs State Of Haryana on 12 March, 2014
Crl. Misc. No.M-39258 of 2013 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Misc. No.M-39258 of 2013
Date of decision: March 12, 2014.
Amit Sharma
... Petitioner
v.
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Present: Shri Ashok Tyagi, Advocate, for the petitioner.
Shri Gurvinder S. Sandhu, Asstt. Advocate General, Haryana.
Dr. Bharat Bhushan Parsoon, J.
1. The petitioner, who is confined in District Jail, Gurgaon and facing trial in the court of Judicial Magistrate First Class, Gurgoan for commission of the offences punishable under Section 406 and 420 read with Section 120-B IPC, seeks grant of bail in FIR No.55 dated 11.2.2013, registered at Police Station Sushant Lok, Gurgaon.
2. As per the prosecution case, the petitioner had gone to the jewellery shop of the complainant in Gold Suik for purchase of 15 gold bracelets when he claimed himself to be a representative of Ansal Group. He had pleaded that such bracelets were required for celebration of anniversary of Ansal Group. The complainant sent his representative who had carried said bracelets with him with instructions from his employer that those were to be delivered to the petitioner only on payment which the petitioner had undertaken to make on approval of authorities of Ansal group. The representative of the complainant had gone along with the petitioner to the office of his employer. Making representative of the Kadyan Vinod Kumar 2014.03.13 15:50 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No.M-39258 of 2013 -: 2 :- complainant to stand outside till permission was granted for him to enter the office. The petitioner who had gone inside, came back a little later disclosing the representative of the complainant that he had not been permitted to come in the office and if he was ready to hand over the bracelets to the petitioner, he would take the same upstairs and if the sample is passed from the Madam, she would issue cheque in favour of the complainant. The representative of the complainant handed over the bracelets to the petitioner who taking those along with, went upstairs through the lift but never to return. Later, when representative of the complainant checked up for the petitioner, neither the petitioner nor any officer of Ansal group was found there.
3. Co-accused Mohammad Arshad has already been released on bail by order of 25.11.2013 in CRM No.M-33993 of 2013. Counsel for the respondent has not been able to point out any difference to deny parity with Mohammad Arshad co-accused to the petitioner.
4. In addition to claim of parity with Arshad co-accused who has already been released on bail, there is yet another circumstance which is strongly in favour of the petitioner. Trial of the case is being conducted by Judicial Magistrate First Class, Gurgaon. The petitioner has also invoked provisions of Section 437(6) Cr.P.C. (hereinafter referred to as the Code) which reads thus:-
"(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs."
5. This provision stipulates that if in a non-bailable offence tried by a Magistrate, the trial is not concluded within a period of sixty days from the first date fixed for taking evidence and the accused remains in custody Kadyan Vinod Kumar 2014.03.13 15:50 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No.M-39258 of 2013 -: 3 :- during the whole period, then he becomes entitled for release on bail though such benefit can be denied to the accused if the trial Magistrate records reasons thereof.
6. From perusal of the zimni orders reproduced in the paper book, it transpires that the charge in the case was framed on 11.7.2013, when the case was adjourned for prosecution evidence for 25.7.2013. The petitioner- accused continuied in custody. On the adjourned date, i.e., 25.7.2013 and others date, viz, 8.8.2013, 22.8.2013, 5.9.2013, 19.9.2013, 3.10.2013, 17.10.2013 and 31.10.2013, neither any witness was present nor any was examined by the prosecution. During this entire period, for no fault of the petitioner, the case was adjourned time and again. Clearly enough, time was sought by the prosecuting agency to produce the evidence.
7. The trial court vide order of 30.9.2013, declined prayer of the petitioner for the grant of bail without disclosing any explainable reasons. Denial of bail by the court below vide order dated 14.11.2013 is again without any specific reason. Merely because the petitioner is prima facie shown to be involved in the case in terms of the charge framed against him, is not a circumstance to be construed adversely to him to deny benefit of beneficial statutory provisions of Section 436(7) of the Code. Similarly, neither failure of the prosecution to examine material witnesses during the period of 60 days nor the observation that release of the petitioner-accused may affect testimony of the witnesses to be examined by the prosecution are the grounds which should be taken to deny the benefit of this benevolent statutory provision legislated in favour of the accused.
8. Similarly, benefit of yet another case against the petitioner under Sections 420, 406 and 411 IPC, is not a circumstance to deny him the concession of bail in terms of Section 437(6) of the Code particularly when the Magistrate in his order dated 30.9.2013 has nowhere given his finding that pendency of a criminal case against the petitioner may in any way has Kadyan Vinod Kumar 2014.03.13 15:50 I attest to the accuracy and integrity of this document Chandigarh Crl. Misc. No.M-39258 of 2013 -: 4 :- affected non-production of evidence by the prosecution or may have any effect on production and examination of the witnesses.
9. The court of learned Additional Sessions Judge has primarily declined the bail mentioning gravity of the offence as prime factor for the same. The reasons given by the trial court as well as by learned Additional Sessions Judge, Gurgaon are not legally sustainable.
10. For the afore-going discussion, present petition is allowed and the petitioner is ordered to be released on bail to the satisfaction of Chief Judicial Magistrate, Gurgaon.
11. Nothing expressed herein-above shall be construed as an expression of opinion on the merits of the case.
[Dr. Bharat Bhushan Parsoon] March 12, 2014. Judge kadyan Kadyan Vinod Kumar 2014.03.13 15:50 I attest to the accuracy and integrity of this document Chandigarh