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2007 DIGILAW 1022 (PAT)

Sri Krishna Gupta v. State Of Bihar

2007-05-30

DHARNIDHAR JHA

body2007
Judgment 1. The petition has been filed by Shri Krishna Gupta who has been summoned to stand trial for offences under Sections 406, 420, 467, 468 of the Indian Penal Code in complaint case no. 967 (C)/06. 2. There is no dispute that the properties detailed in the complaint petition noted above were the joint properties of the complainant and other accused persons. It is also not disputed the there is a partition suit pending for partition of the properties at Gajipur (UP.). The allegation is that the petitioner as vendee and other accused persons as vendors, with active connivance of each other, brought into existence a forged and fabricated deed of sale transferring 3.75 1/2 acres of land out of total area of 5.63 acres as detailed in annexure. 3. The complainant alleged that he was not a party to the above noted sale deed nor did he sign the same in token of executing the sale deed and registering the same and the document was forged and fabricated. 3. The contention is that the complainant very much participated in execution of the deed and admitted the execution of the deed before the Registrar who exempted all the vendors i.e. the complainant and other accused persons from putting their L.T.Is. becuase they were personally known to the Registrar and that was admittedly recorded at the appropriate space of the sale deed. The further contention was that the signature of the complainant on the sale deed is very much of the complainant and for reasons best known to him, he has filed a false case. 4. Shri K.N. Choubey Sr. Advocate appearing for the complainant pointed out that the pendency of a civil suit and in view of other circumstances the deed could not be said to be a valid document and the complainant Praveen Kumar Gupta was never a party to it. Shri Choubey further raised the question of maintainability of the present petition by pointing out that the petitioner and other accused persons have only been summoned to appear in the court and as such they could not have any reasonable belief of being arrested on an accusation of committing a non-bailable/ cognizable offence. Shri Choubey cited A.I.R. 1980 SC 1632 Gurubaksha Singh Sibbia and Ors. Vs. Shri Choubey cited A.I.R. 1980 SC 1632 Gurubaksha Singh Sibbia and Ors. Vs. State of Punjab and (2005) 4 SCC 303 Adri Dharan Das to contend that this could not be a case for granting anticipatory bail. Sri Choubey further placed before this Court 1984 BBCJ 383 Fakira Singh Vs. The State of Bihar and contended that issuance of warrant of arrest against the accused was a sine quanon and there being no issuance of warrant of arrest the petition was not maintainable. 5. Learned counsel appearing for the petitioner cited 1997 Cr. L.J., 961 P.V. Narsimha Rao Vs. The State (C.B.I.) to submit that even if summons have been issued on a petition of complaint a petition of the present nature could very well be maintained. Sri Mahto appearing for the petitioner further placed before me 1986 P.L.J.R. 767 Bajrang Lai Agrawal Vs. The State of Bihar to contend that even if the cognizance has been taken in a case, a petition of the present nature could be entertained. 6. The objection raised by the learned counsel for the complainant being such as to oust the jurisdiction of any court empowered to entertain a petition under Section 438 Cr.P.C, it is pertinent that the same be decided first then only the question of granting anticipatory bail or not granting the same could be taken up for decision. This appears all the more necessary for the reason that if the present petition is not maintainable before this Court in the light of the submissions of Shri Choubey the senior counsel appearing for the complainant then this court could not proceed further to examine the merits of the prayer made under Sec. 438 Cr.P.C. For appreciating the petition it is pertinent to have a glance of Sec. 438 Cr.P.C. 438. Direction for grant of bail to person apprehending arrest."(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (The remaining part of the section has purposely been left out, as the point of maintainability could be decided only after considering sub-section (i) of Sec. 438 Cr.P.C.) 7. (The remaining part of the section has purposely been left out, as the point of maintainability could be decided only after considering sub-section (i) of Sec. 438 Cr.P.C.) 7. The history of formulating the above provision is too well known to the fraternity of lawyers and Judges as to be stated over and again. This much could be recapitulated that considering a trend which had developed in our society on account of enjoyment of political power or other powers of implicating adversories under false charges that a necessity was felt for providing a safeguard from an attempt to encroach upon the personal liberties of the affected persons that the provision was suggested by the Law Commission in its 41st report to be incorporated in the Cr.P.C. The Supreme Court in the case cited by Shri Choubey reported in A.I.R. 1980 S.C. 1632 Gurubaksh Singh Sibbia Vrs. The State of Punjab considered the above back ground leading to the legislation of the provision of Sec. 438 Cr.P.C. While so doing the Apex Court also considered the submission that personal freedom of citizen was a constitutionally guaranteed right and the courts must strive to for shake or curb any attempt which appears made for jeopardizing it. While considering the argument the Supreme Court went on to observe that the courts have to make all attempts to preserve and protect the personal liberty of the citizen but at the same time it has to strike a balance so as not to encroach upon the statutory duties of the police to investigate cases. The scope and ambit of the section was also considered and explained. 8. As may appear from the very opening words of the section the sine qua non for maintaining a petition under Section 438 Cr.P.C. was that a person should have "reason to believe" that he may be arrested on accusation of having committed a non-bailable offence. Thus what appears from the above is that the person must be accused of committing a non-bailable offence and that the belief must stem out of such accusation that the person shall be arrested. The meaning of the word "reason to believe" definitely eliminates faceful or unfounded apprehensions or fear which may be existing in the mind of the person. It must be based on some reasonable materials justifying the entertainment of the belief that the accused may be arrested. The meaning of the word "reason to believe" definitely eliminates faceful or unfounded apprehensions or fear which may be existing in the mind of the person. It must be based on some reasonable materials justifying the entertainment of the belief that the accused may be arrested. The offence as may appear from the section has necessarily to be a non-bailable offence. The belief, at the same time, must be of the person accused of committing the offence, not of any one else. 9. It is not denied in the present case that the petitioner has been summoned on account of being found, prima facie, to have committed offence under Sections 406, 420, 467, of the Penal Code. Schedule I appended to the Cr.P.C. indicates that all the above sections relate to offences which have been described as non-bailable. Then the question is as to could the mere issuance of summons be created as the basis for satisfying the yard stick of "reason to believe" of being arrested. Issuance of summons is as per provision of 204 of the Cr.P.C. when a proceeding is initiated on a petition of complaint. Chapter VI of the Cr.P.C. deals with the processes to compel appearance. A glance of various provisions under that Chapter may indicate that summons are to be issued to any person who is required to attend the proceedings in a court on a particular date or is required to produce anything or give evidence. Thus summons is not a process which could be issued only to an accused; the same could be issued to any person whose assistance the court may require for the disposal of a particular proceeding. Thus the submission of Shri Choubey that very issuance of summon may not give rise to reasonable belief of being arrested appears quite strong in the first instance. 10. Thus the submission of Shri Choubey that very issuance of summon may not give rise to reasonable belief of being arrested appears quite strong in the first instance. 10. However, if the procedure relating to affecting arrest of an accused as contained in Chapter V of the Cr.P.C. is considered, one could appreciate that even if a summon is not issued or is issued a person very well could be arrested by a police officer in the light of Sec. 41 of Cr.P.C. A reading of the provision of Sec. 41 may indicates that any police officer may arrest without a warrant or without any formal order from a Magistrate if the person has been "concerned" in any cognizable offence or against whom a reasonable complaint had been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned. All parts of Sec. 41 (i) (a) Cr.P.C. or other parts of the section may not be germane for the present consideration. Only one part regarding the person being concerned in any cognizable offence may be sufficient for answering the submission of Shri Choubey the learned counsel for the complainant. 11. The dictionary meaning of "concerned" as appearing in Compact Oxford Dictionary And Thesaurus Word Power Guide (2003 Ed.) is connected, implicated and involved. Thus the mere knowledge to a police officer that a person has been involved or implicated in a cognizable non-bailable offence may be sufficient to arrest that particular person. It has always to be kept in mind that the belief besides being reasonable has to be of the accused as he perceives the threat to his personal liberty and no other persons could displace the belief by his own belief or apprehension or by putting forth any other explanation so as to indicating that the belief is not reasonable if the accused feels that he has been involved in an offence of the nature as indicated by Sec. 438 Cr.P.C. If he produces the material in support of such a plea the court shall have to entertain such a petition. For discerning the reasonableness of the belief of being arrested as existing in the mind of the accused, the court has to take into account the provisions of law as regards the arrest of the accused by the police under a particular set of fact of a case or circumstances arising therefrom. The court while doing so may also take into account the seriousness of the allegation and the nature of the offence which may be constituted by allegations which may be appearing against the accused in the complaint. If the complaint contains statements and allegations of fact which, prima facie, constitute non-bailable and cognizable offence, then there could be justification for the court to accept the contention of the accused that there was all probability and, as such, the belief that either the accused may be arrested by the police without warrant or if he surrenders before the Magistrate he may be remanded to custody which shall ultimately curtail his personal liberty. The nature of the accusation as such could also be an important parameter of judging the reasonableness of the belief existing in the mind of an accused who had merely been summoned in a particular case. 12. Shri K.N. Choubey learned counsel appearing for the complainant while making his submission pointed out that the purpose of granting anticipatory bail and entertaining such a petition was to grant an immunity to the accused from his body being touched or confined while the person was being arrested. Shri Choubey contended that by mere issuance of summons there was no question of the petitioners body being touched or confined by the police officer as is required by Sec. 46 of the Cr.P.C. and, as such, the question of entertaining the present petition does not arise. I have already discussed the power of a police officer to arrest a person without warrant while noting the provision-of Section 41 of the Cr.P.C. and it has already been noticed that the fact of an accused being merely concerned with the commission of a cognizable offence may be sufficient for the accused to be arrested, detained and ultimately remanded by the court in a particular case. Not only that the court may also on appearance of the accused remand him, if it is of the opinion that the nature of the offence was such as to requiring him to be remanded. Not only that the court may also on appearance of the accused remand him, if it is of the opinion that the nature of the offence was such as to requiring him to be remanded. The accused could foresee those events in the light of the gravity of the offence which might be alleged against him in a petition of complaint and as such he could have a very well founded belief in his mind of being arrested or remanded. The accused as such could prefer anticipatory bail petition even in a case in which he merely been summoned to appear before a court. 13. Shri Choubey further submitted that since only summons has been issued, the petitioner may be directed to appear in the court below and the court below may pass an appropriate order in the light of Section 88 of the Cr.P.C. Section 88 of the Cr.P.C. does indicate that any person for whose appearance a summon or warrant of arrest has been issued by the court and if the person is present in such court, that person may be directed to execute a bond for his further appearance in such court in that particular case either before it or before any transferee court. It has already been noticed that Chapter VI of the Cr.P.C. relates to process to compel appearance and the provision of the Chapter is not only in respect of an accused that he could be summoned or directed to be arrested by issuing a warrant of arrest so as to securing his appearance before a court. Situation may arise before a court that it requires a witness to appear for giving his evidence or for producing any document or any other thing in connection with the case in which the court was desiring the person to appear and assist it. This is happening every day, almost in every proceeding and may be that a court, which has taken cognizance of an offence of the nature as in the present case, may not be acting under Section 88 of the Cr.P.C. taking it as a mandate of law to admit the accused to bail under the above situation. It may not therefore, be safer for the accused as regards his personal liberty that he could be directed to surrender in the court below in the light of Section 88 Cr.P.C. 14. It may not therefore, be safer for the accused as regards his personal liberty that he could be directed to surrender in the court below in the light of Section 88 Cr.P.C. 14. The decision in Adri Dharan Das (Supra) was not on the point as has been raised before me rather the decision speaks of the period and stage of the case till which the order of anticipatory bail could be effective by the order of the court passing the same. The Apex Court in the above case held that the process of granting anticipatory bail was to obviate any possibility of the personal liberty of the accused being encroached upon or put in danger it could not be for indefinite period and for all times to come. As soon as the investigation was completed the original court of jurisdiction, which had to her and decide the question of bail permanently, should be left with the discretion of examining the question of granting bail to the accused after close of the investigation. Similarly the decision cited by the learned counsel for the petitioner also does not appear of any relevance in the present case. In 1979 Cr.L.J. 961 same view has been taken as I have taken presently, but the reasons which have been assigned by the High Court of Delhi could not find favour with me and I chose to examine the question of maintainability from a very different angle as discussed above. So far as the decision reported in 1989 P.L.J.R. 767 is concerned, the question raised therein was that because cognizance had been taken of an offence in the case, a petition under Sec. 438 Cr.P.C. was not maintainable. It was respectfully, rightly held that the petition was very much maintainable even after submission of charge sheet or taking of cognizance of because the language employed by the Section did not permit of a narrow construction of the provision of Sec. 438 Cr.P.C. Thus, I find and hold that even in a case in which the accused person have been summoned on petition of complaint by virtue of an order of summoning passed under sec. 204 Cr.P.C, ptition of the present nature could be maintainable. 15. 204 Cr.P.C, ptition of the present nature could be maintainable. 15. Coming to the merits of the peti-* tion the dispute is that the petitioner and other accused persons created a false document by forging the signature of the complaint Praveen Kumar Gupta. The execution and registration part of the document which is annexure-3 to the present petition indicate that the complainant Praveen Kumar Gupta had very much appeared before the Registrar with other vendors to admit the execution of the document regarding the sale of the property and on account of personal acquaintance and knowledge about the complainant and other accused persons, the Registrar exempted them from putting their L.T.I.s over the document. The signature of Praveen Kumar Gupta also appears at different places of the document annexure-3 and the complainant has also signed the complaint petition both in English and Hindi. It is very difficult to say that the signature might not be there specially in the light of the official record made by the Registrar about the appearance of the complainant. Moreover the matter is to be decided during the course of trial and the offences for which the petitioner has been summoned are triable by the Magistrate of 1st class. 16. Regard being had to the above facts and circumstances let petitioner Sri Krishna Gupta be directed to be released in the event of his arrest by the police or surrender before the court below on executing bond of Rs. 10,000/ (ten thousand) with two sureties of like amount each to the satisfaction of the learned C.J.M., Buxar in connection with complaint case no. 967 (C)/06, subject to the conditions as laid down under Sec. 438(2) Cr.P.C.