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2006 DIGILAW 262 (CHH)

ARJUN @KHORUGOURIYA v. STATE OF C. G.

2006-04-28

S.K.SINHA

body2006
ORDER Heard. This is a matter pertaining to a show cause notice issued to the applicant who had initially filed an application for grant of regular bail U/S 439 of the Code of Criminal Procedure. The brief facts are that on 6.12.2004, an application U/S 439 of Cr.P.C. for grant of regular bail to the applicant was filed by his counsel as the applicant was in custody on the said date in connection with crime No. 188/2004 of Police Station Bhatapara (City), Distt. Raipur (C.G.) for the offences punishable under section 379 and 411 of IP.C. This matter was taken up on 8.12.2004 and this court directed for calling the case diary and posting of the case after the same is received. Thereafter, it was posted for 7. 1.2005 and 27.1.2005 and when nobody appeared on 27.1.2005 it was adjourned and ultimately when it was taken up on 24.6.2005, learned counsel for the applicant informed to this Court that the applicant was already released on bail by the court below and he prayed for withdrawal of this application. However, he prayed for time to verify as to from which court the applicant was released on bail. On 5.7.2005 the counsel furnished information that the applicant was released on bail by the 2nd A.S.J. Baloda Bazar. On this, the court directed for calling an explanation from the concerned court as to how the bail application of the applicant was considered by the said court when the same was pending in the High Court. The Court below informed that the application on behalf of the applicant was filed suppressing the fact of pendency of the bail application before the High Court and stating that no bail application either before the Sessions Court or High Court was pending. On the said material, this court had issued a notice to the applicant calling upon him to show cause within a period of two weeks from the date of receipt of copy of this order as to why the bail granted to him by the learned second A.S.J., Baloda Bazar should not be cancelled as the same was obtained by suppression of facts and why an appropriate proceedings under the Contempt of Court Act may not be initiated? On 6.10.2005 the counsel for the applicant appeared and prayed for time to file reply to the show cause. On 6.10.2005 the counsel for the applicant appeared and prayed for time to file reply to the show cause. Time was granted up to 17.10.2005 but this court directed the applicant to remain present on the said date. Since on 17.10.2005 neither the reply was filed nor the applicant caused his personal appearance, this court issued a non-bailable warrant against the applicant for his production. In pursuance of the aforesaid warrant, the applicant was arrested and was produced before this court on 22.11.2005 and ultimately it was disclosed that the applicant was having no knowledge about the directions of his personal appearance on 17.10.2005, therefore he could not personally appear on the said date and the prayer was made that since the appearance has been secured and the very purpose of warrant of arrest was fulfilled, the applicant may be released from custody and the applicant was accordingly released from custody on 23.11.2005 with a direction to file reply to the show cause by the next date of hearing. It is in this manner this matter has cropped up for hearing. The reply has been filed by the applicant. It is stated in para 4 of the reply that the applicant and his wife both are illiterate and they do not know the technicalities of law and in fact his wife had arranged a counsel at Baloda Bazar to take necessary steps for releasing the applicant on bail and due to not knowing the technicalities of law, his wife committed the mistake for which he had prayed for an excuse. The report of the Addl. Sessions Judge, Baloda Bazar would show that after filing of the charge sheet on 17.12.2004, on the instructions of the wife of the applicant Smt. Premin Bai, Advocate Sanjay Som had filed an application u/s 439 Cr.P.C. and in para 6 of the aforesaid application it was mentioned that except the said application, no other application for bail was pending before any competent court or the High Court and this information was furnished by the wife of the applicant on which the said application was filed. The bail application was filed on 17.12.2004 with the above endorsement and believing the said endorsement to be true and correct, it was entertained and the applicant was released on bail by the said court on 20.12.2004. The bail application was filed on 17.12.2004 with the above endorsement and believing the said endorsement to be true and correct, it was entertained and the applicant was released on bail by the said court on 20.12.2004. Therefore, the fact remains that due to wrong instructions furnished by the wife of the applicant, an application of the above nature was filed before the Sessions Court and the applicant was released on bail by the said Court during the pendency of this application before the High Court. The memo of appearance filed in M.Cr.C.No. 2924/2004 on 6.12.2004 bears the thumb impression of premin Bai who is shown to be the wife of the applicant in the explanation submitted by the Sessions Judge. The reply of the applicant also bears the thumb impressions of the applicant. Not only this, when the applicant was produced after his arrest before this court on 22.11.2005 and 23.11.2005 in normal way, his presence was marked by taking his thumb impression in the order sheets of the High Court. All these circumstances go to show that in fact both the applicant and his wife are illiterate persons and it appears to me that even after getting and application filed before the High Court the wife could not understand that the subsequent application cannot be entertained by the Court below and ultimately the same was filed and in general manner, the pleadings were made in the said application on the basis of the instructions of the wife of the applicant that no other application is pending before any other Court. Looking to the illiteracy of the wife of the applicant which has been pleaded in reply to the show cause supported by an affidavit of the applicant, I accept the explanation submitted by the applicant and I deem it proper to drop the proceedings at this stage as it does not appear to be a case of willful suppression of facts rather it ,appears to be a case of bona fide mistake due to illiteracy and not knowing the technicalities of law by the wife of the applicant. In the result, the matter regarding cancellation of bail and also regarding initiation of the proceedings under the Contempt of Court Act are dropped. The show cause issued by this court stands discharged. In view of the above, there is no necessity to take any further action against the applicant. In the result, the matter regarding cancellation of bail and also regarding initiation of the proceedings under the Contempt of Court Act are dropped. The show cause issued by this court stands discharged. In view of the above, there is no necessity to take any further action against the applicant. The proceedings pertaining to show cause' stands finally disposed of and M.Cr.C.No. 2924/2004 stands dismissed as withdrawn. Proceeding Dropped.