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2014 DIGILAW 405 (RAJ)

Banwari Lal Kushwah v. State of Raj.

2014-02-06

KANWALJIT SINGH AHLUWALIA

body2014
JUDGMENT The present petition has been filed under Section 438 Cr.P.C. for grant of transit bail to the petitioner in a case arising out of FIR No.308/2011 registered at Police Station Thatipur Distt. Gwalior Madhya Pradesh for the offences under section 3(1)(2)(4) of the Madhya Pradesh Protection of Investors Act, 2000 and Section 420 of Indian Penal Code and Section 45 (S) of the RBI Act, 1934. Petitioner has been named as accused in above said FIR. As is evident that the above said FIR was registered in the year 2011. Counsel for the petitioner has submitted that petitioner had submitted resignation in the year 2010 as Director of the Company qua which commission of offences is alleged by submitting Form No.32 and same was received in the Office of Registrar of the Companies, Madhya Pradesh, Gwalior on 28th July, 2010. Counsel for the petitioner has submitted that once petitioner had resigned as a Director of the Company, he cannot be held liable for the alleged offences. Even otherwise, unless or until, Director is responsible for the day to day affairs of the Company, he cannot be vicariously held liable. This Court will not go into the merits of the case as whether petitioner is entitled to relief of pre-arrest bail or not, is to be decided by the Madhya Pradesh High Court which has territorial jurisdiction to entertain pre-arrest bail application of the petitioner. Before this Court, the limited prayer is, whether transit bail can be granted to the petitioner to approach the concerned High Court to obtain relief of pre-arrest bail. It is urged that during pendency of the registration of the case, petitioner contested election to Rajasthan Legislative Assembly and has been elected as Member of Legislative Assembly. It is contended that petitioner openly canvassed in the Constituency and approached the electorate by holding door to door canvassing. At that time, petitioner was not arrested but on eve of taking oath as Member of Legislative Assembly, petitioner is being hounded, as he belongs to Opposition. Counsel for the petitioner has submitted that the first Meeting of the Legislative Assembly has taken place and duly elected Members have already been sworn in. Counsel for the petitioner has submitted that due to registration of the FIR and issuance of warrants of arrest, petitioner could not attend the assembly and take the oath. Counsel for the petitioner has submitted that the first Meeting of the Legislative Assembly has taken place and duly elected Members have already been sworn in. Counsel for the petitioner has submitted that due to registration of the FIR and issuance of warrants of arrest, petitioner could not attend the assembly and take the oath. The transit bail is also sought for the reason that during the period, petitioner may take oath and save his seat to respect the mandate of the people i.e. ultimate sovereign. This Court on 05th February, 2014 had made a request to the learned Advocate General to assist this Court. Learned Advocate General in pursuance to the request made has caused appearance. It is submitted by the learned Advocate General that plea raised by the counsel for the petitioner that seat of the petitioner shall be declared vacant is misconceived. It is stated that as per Article 190(4) of the Constitution of India, if a Member for a period of sixty days remain absent then, only the House may declare seat vacant. The learned Advocate General has submitted that first Meeting of the House had taken place on 21st January, 2014 and hence, till 21st March, 2014 there is no threat to the petitioner that his seat shall be declared vacant. It is further submitted that the Article 190(4) use the word 'may' and there is neither any basis nor material to assume that the house shall declare the seat of the petitioner to be vacant. Learned Advocate General has further submitted that ultimately will of the House has to prevail and, therefore, no order can be passed which amounts to interference in the affairs of legislature and as per doctrine of separation of the powers, this Court should respect the will and mandate of the House and should refrain to pass any direction. I find merit, so far the above contention raised by the learned Advocate General is concerned. Indeed legislature is supreme, so far its affairs are concerned, they cannot be called into question by a Court of law as three separate wings; executive, judiciary and Legislature independently operate in their domain and sphere. I find merit, so far the above contention raised by the learned Advocate General is concerned. Indeed legislature is supreme, so far its affairs are concerned, they cannot be called into question by a Court of law as three separate wings; executive, judiciary and Legislature independently operate in their domain and sphere. Separation of powers and respect for the same is hallmark of our Constitution but at the same time, any decision taken by any organ of State can be subjected to judicial scrutiny as same is part of the basic structure of the Constitution. This Court need not dwell on the Constitutional issue as the only prime question before the Court is liberty of the petitioner. Counsel for the petitioner has relied upon judgment rendered by Single Judge of this Court in Mahesh Kumar Sharma Vs. State of Rajasthan passed in S.B.Criminal Misc. Bail Application No.2358/2005 decided on 05th July, 2005 wherein it was held as under:- “2. Learned counsel for the petitioner has submitted that the petitioner is a handicapped person who could not appear in the concerned Court of Tamil Nadu in compliance of the summons issued to him due to his economic and family problem; as a result of which, non-bailable warrant has been issued against him. The offence is bailable one and is triable by a Magistrate of 1st Class. In this connection, he has placed reliance on the case of Chandan Mal J. Jain v. State of Maharashtra and Anr. reported in 2001(1) RCrD 504 (Raj.), wherein it has been held by this Court in an identical case that transit bail may be granted to the accused-petitioner against whom there is a complaint for offence Under Section 138 of the Negotiable Instruments Act, 1881 and against whom non-bailable warrant has been issued. He has also referred to the case of Neela J. Shaha v. State of Gujarat : 1998 (2) Crimes 261, Ashvini Bharti Dhirajlal Bharti and Anr. v. State of Gujarat, in Criminal Misc. Application No. 187/2002 and Daya Shankar Mishra v. State, S.B. Criminal Misc. He has also referred to the case of Neela J. Shaha v. State of Gujarat : 1998 (2) Crimes 261, Ashvini Bharti Dhirajlal Bharti and Anr. v. State of Gujarat, in Criminal Misc. Application No. 187/2002 and Daya Shankar Mishra v. State, S.B. Criminal Misc. Bail Application No. 011/2004 (D) decided on 5.2.2004, wherein interpreting the sacrosant principle enshrined in the maxim "Audi alteram partem" and considering the value of liberty and pernicious effect its deprivation has on the life of an individual, it has been held in all these cases that the transitory bail can be granted to an accused who reasonably apprehends his arrest and who resides within the jurisdiction of the Court and the case against him is pending investigation in the jurisdiction of the Court and the case against him is pending investigation in the jurisdiction of another High Court to provide him immediate relief so as to enable him to approach the concerned Court having jurisdiction for his release on anticipatory bail, however, keeping in view the facts and circumstances of the case against him. 3. Learned Public Prosecutor has also no serious objection to the grant of transitory bail to the petitioner.” (emphasis supplied) The Full bench of Calcutta High Court in Mahesh Kumar Sarda @ Maheswari Vs. Union of India reported as Criminal Law Journal Volume 106 Page 2951 has also held that High Court has a jurisdiction to grant anticipatory bail (transit bail) to the limited extent even in an outstation case. Section 81 of the Code of Criminal Procedure, 1973 also recognise the concept of transit bail. There is no contrary judgment to the view taken by the Single Judge of this Court. Hence, this Court is bound by the judgment of this Court. Consequently, taking the nature of allegations, the fact that FIR pertains to the year 2011 and the judgment rendered by Single Judge of this Court in Mahesh Kumar Sharma's case (supra), prayer made by the petitioner is accepted and transit bail for a period of seven days commencing from today is granted to the petitioner to avail appropriate remedy by approaching the concerned Court at Madhya Pradesh. In the event of arrest, petitioner shall be released on bail to the satisfaction of the Arresting Officer.