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Allahabad High Court · body

1987 DIGILAW 849 (ALL)

RAM NATH SHARMA v. KHAIII KHAN

1987-08-28

S.I.JAFRI

body1987
S. I. JAFRI, J. ( 1 ) RAM Nath Sharma, Asstt. Development Officer (Panchayat) Block Simbhaoli, District Ghaziabad has filed this revision against the order dated 11-12-1986 passed by Sri Y. S. Raizada, 3rd Additional Sessions Judge, Ghaziabad, thereby setting aside the condition imposed by Chief Judicial Magistrate, Ghaziabad by his order dated 3-12-1986 directing the opposite party Khalil Khan to hand over the charge of his office within 10 days to Asstt. Development Officer (Panchayat) Ghaziabad. ( 2 ) THE facts leading to this revision are that the opposite party Khalil Khan and one Murlidhar Sharma contested the election of Pradhanship of Gaon Sabha Rajheti, Simbhaoli Block, Ghaziabad in the year 1982 in which Khalil Khan emerged successful. Murli Dhar Sharma, the rival contestant, filed an Election Petition before the Tribunal/sub/divisional Officer, Garh District Ghaziabad who allowed the election petition of Murli Dhar Sharma on 16-8-1985 and set aside the election of Khalil Khan. Khalil Khan went in revision against the aforesaid order before the Sessions Judge, Ghaziabad and the same was dismissed by 3rd Additional District and Sessions Judge, Ghaziabad on 5-10-1985. Consequently, Khalil Khan filed a Civil Misc. Writ Petition No. 15314 of 1985 before the High Court against the aforesaid orders dated 16-8-1985 and 5-10-1985. The aforesaid writ petition was admitted but the stay application filed by Khalil Khan was rejected on 30-10-85 by the High Court. ( 3 ) THE case of the applicant Ram Nath Sharma is that the respondent Khalil Khan after his election having been set aside by the Sub-Divisional Officer, Hapur, declined to hand over charge of the office of Pradhan of Gaon Sabha Rajlleti to him. He therefore, reported the matter to the District Panchayat Raj Officer who by his order dated 29-7-1986 directed for taking action against Khalil Khan under section 14-A of Panchayat Raj Act. Consequently, Ram Nath Sharma went to the village Rajheti on 11-8-1986 alongwith a copy of the aforesaid order and met Khalil Khan but he was adamant and did not hand over the charge. He misbehaved with him and also along the documents on the ground having snatched the same from him and even tried to assault him. Thus Khalil Khan had obstructed the applicant in the discharge of his lawful duties as a public servant. He misbehaved with him and also along the documents on the ground having snatched the same from him and even tried to assault him. Thus Khalil Khan had obstructed the applicant in the discharge of his lawful duties as a public servant. Consequently, Ram Nath Sharma filed a report of the occurrence at Police Station and on the basis of the aforesaid report, a case under section 14-A of Panchayat Raj Act and under section 353 I. P. C. was registered against Khalil Khan at Police Station Bahadur Garh on 14-8-1986 at Crime No. 110 of 1986. ( 4 ) AFTER registration of the above case at the Police Station Bahadur Garh, Khalil Khan appeared before the Chief Judicial Magistrate, Ghaziabad on 3-12-1986 and prayed for bail. The Chief Judicial Magistrate granted him ball by his order dated 3-12-1986 subject to his filing an undertaking before him that he would hand over charge of the office of Pradhan to the Officer concerned within 10 days and if he failed to hand over charge to the officer concerned, would be liable to pay Rs. 4000/- as penalty to the Government and consequently after executing the aforesaid undertaking, Khalil Khan was released on bail on his furnishing surety bonds as directed by the Chief Judicial Magistrate. ( 5 ) KHALIL Khan after his release on bail, filed a revision before the Sessions Judge against the condition imposed by the Magistrate. The said revision was allowed by 3rd Additional Sessions Judge, Ghaziabad on 11-12-1986 and the learned Sessions Judge had waived the condition imposed by the Chief Judicial Magistrate Ghaziabad. Thereafter, Sri Ram Nath Sharma, Asstt. Development Officer filed the present Revision against the order dated 11-12-1986 passed by 3rd Addi. Sessions Judge, Ghaziabad in the High Court. T. Ile revision was admitted on 2-1-1987 and the operation of the order dated 11-12-1986 passed by 3rd Addi. Sessions Judge, Ghaziabad was stayed. Thereafter, the Chief Judicial Magistrate had issued bailable warrants for the arrest of Khalil Khan. ( 6 ) I have heard the learned counsel for the parties at length. Sessions Judge, Ghaziabad in the High Court. T. Ile revision was admitted on 2-1-1987 and the operation of the order dated 11-12-1986 passed by 3rd Addi. Sessions Judge, Ghaziabad was stayed. Thereafter, the Chief Judicial Magistrate had issued bailable warrants for the arrest of Khalil Khan. ( 6 ) I have heard the learned counsel for the parties at length. ( 7 ) IT has been rightly contended by Sri A. B. L. Gaur, learned counsel for Khalil Khan that the condition imposed by the Chief Judicial Magistrate, is unwarranted under law and, therefore, the learned Sessions Judge had rightly waived the aforesaid condition while disposing of the revision filed by Khalil Khan opposite party against the order of Chief Judicial Magistrate, Ghaziabad directing the opposite party to hand over charge of the office of Pradhan to the Officer concerned within 10 days of the passing of the order. The learned counsel further submitted that it is open to the court to impose condition while granting bail to the accused as contained in section 437 Sub- Clause (iii) Cr. P. C. The said provision reads as below: When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVIII of the Indian Penal Code or abatement of, or conspiracy or attempt to commit any such offence is released on bail under Sub-section (i), the court may impose any condition which the court considers necessary. T (a) In order to ensure that such person shall attend in accordance with the condition of the bond executed in this chapter, or. (b) In order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected. or. (c) Otherwise in the interest of justice. ( 8 ) IT is quite obvious that the aforesaid provisions of the section only envisage that the court may impose condition on the accused while granting bail to him to the effect that the accused shall attend in accordance with the condition of the bond executed by him or in order to ensure that the accused shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected. Besides, in view of the provisions under Sub-section (c) otherwise in the interest of justice, the courts may legally impose condition on the accused that after his release, he will not threaten or influence the witnesses or interfere with the investigation or prosecution, obstruct the judicial process or otherwise misuse or abuse the bail. ( 9 ) HERE it is pointed out that sometimes, the courts while granting bail to the accused, venture out to impose a condition to the effect that the accused shall not enter the place or the locality or the village etc. where the offence is alleged to have been committed by the accused during the pendency of the trial. Such a condition is unwarranted by law and it may be violative of Article 19 (d) of the Constitution of India as it imposes a restriction on the free movement of the accused which is undoubtedly a valuable right. The condition should be such which must result in minimum interference with the personal liberty of the accused. Similarly, the condition directing the accused to report at the police station monthly or fortnightly during the period of bail is not countenanced in law and such a condition shall not be imposed on the accused while granting bail as the very purpose of the bail is defeated. ( 10 ) AS discussed above, it is abundantly clear that the condition imposed by the Chief Judicial Magistrate, Ghaziabad directing the accused to hand over charge of the office of Pradhan to the officer concerned within 10 days of his release on bail is repugnant to the intendment of section 437 (3) Cr. P. C. Further the Chief Judicial Magistrate thus again fallen inert or while obtaining undertaking from Khalik Khan that if he failed to hand over the charge of his office of Pradhan to the officer concerned within 10 days of his release, he would be liable to pay Rs. 4000/- to the Government as penalty. It was, therefore not open to the Magistrate to have compelled the accused to furnish the aforesaid undertaking. ( 11 ) HERE I may observe that grant of bail is of like a commodity to be bargained about by the court with the accused. It is clearly beyond the competence of the courts to indulge. In such bargaining while granting bail to the accused. ( 11 ) HERE I may observe that grant of bail is of like a commodity to be bargained about by the court with the accused. It is clearly beyond the competence of the courts to indulge. In such bargaining while granting bail to the accused. The accused cannot be subjected to any condition other than contemplated in section 437 (c) Cr. P. C. In this case as shown above, the condition imposed by Chief Judicial Magistrate Ghaziabad is absolutely illegal and is liable to be set aside as it is a condition undoubtedly repugnant to the intendment or provisions of section 437 (iii) Cr. P. C. Moreover, the Chief Judicial Magistrate has further fallen in error in compelling Khalik Khan opp. Party to furnish undertaking to the effect that if he failed to hand over charge of the office of Pradhan to the officer concerned, he will pay Rs. 4000/- as penalty to the Government. The courts must refrain from contracting a bargain with the accused while granting bail. A duty is cast upon courts to ensure that the condition imposed on the accused is in consonance with the intendment and provisions of section 437 Cr. P. C. ( 12 ) HAVING considered all the facts and circumstances of the case detailed above, I set aside the order dated 3-12-1986 passed by Sri J. C. S. Rawat, Chief Judicial Magistrate, Ghaziabad imposing condition on Khalil Khan to hand over the charge of the office of Pradhan to the Asstt. Development Officer or to any other officer of the said Department. Further, the undertaking furnished on 3-12-86 by opposite party Khalil Khan in the court of Chief Judicial Magistrate to the effect that in case of his failure to hand over charge of the office of Pradhan within 10 days, he would be liable to pay Rs. 4000/- to the Government is also waived. ( 13 ) IN the result, the revision is dismissed and the judgment and order dated 11-12-1986 of 3rd Addi. Sessions Judge, Ghaziabad in Criminal Revision No. 352 of 1986 is affirmed. The stay order granted by this court on 2-1-87 is vacated. .