Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 957 (HP)

Satinder Goel v. Shashi Diwan

2014-07-23

DHARAM CHAND CHAUDHARY

body2014
JUDGMENT Dharam Chand Chaudhary, J. (oral). Petitioner is an accused, in a complaint under Section 138 of the Negotiable Instruments Act, registered as Case No. 45-3 of 2011, pending disposal in the Court of learned Additional Chief Judicial Magistrate, Theog, District Shimla. 2. The offence, he allegedly committed, being bailable and a person, accused of a bailable offence, is entitled to be released on bail, under Section 436 Cr.P.C., pending trial, therefore, on furnishing of bail bonds he was ordered to be released on bail. He, however, failed to appear on subsequent date(s). He was even declared proclaimed offender also. On his bonds. When again violated the conditions of Bail bonds, non-bailable warrants were ordered to be issued against him. He was arrested and produced before learned trial Magistrate. The application, he filed under Section 437 Cr.P.C., with the prayer for cancellation of the warrant of arrest and the grant of bail, was dismissed by learned trial Judge after taking note of his past conduct and he having jumped over the bail time and again. He was ordered to be remanded in judicial custody vide order dated 2.7.2014, Annexure P-1. 3. The application under Section 439 of the Code of Criminal Procedure, he filed in the Sessions Court has been dismissed by learned Additional Sessions Judge-cum-Special Judge CBI, Shimla vide order Annexure P-2 on the ground that he is not entitled to be released on bail under Section 439 Cr.P.C. as in the opinion of learned Additional Sessions Judge, the exercise of such power is barred under sub-section 2 of Section 436 Cr.P.C. 4. Learned Counsel submits that another application under Section 439 Cr.P.C. registered as Cr.MP(M) No. 835 of 2014 filed in this Court was ordered to be dismissed as withdrawn with liberty reserved to the has placed on record the certified copy of the order so passed in that application. 5. As noticed at the very outset, the present is a case of commission of bailable offence by the accused petitioner. The offender, accused of a bailable offence, is entitled to be released on bail on his furnishing the bail bonds. The right to grant bail to the accused under Section 436 of the Code is absolute and indefeasible right. 5. As noticed at the very outset, the present is a case of commission of bailable offence by the accused petitioner. The offender, accused of a bailable offence, is entitled to be released on bail on his furnishing the bail bonds. The right to grant bail to the accused under Section 436 of the Code is absolute and indefeasible right. Sub-section 2 of Section 436 Cr.P.C., provides for refusal of bail to an offender, who has failed to comply with the conditions of the bail bonds so furnished by him. 6. A similar proposition came to be considered by a Constitution Bench of the apex Court in Ratilal Bhanji Mithani versus Assistant Collector of Customs Bombay & Another, AIR 1967 SC, 1639. In that case the appellant, an accused of commission of bailable offence, was ordered to be re-arrested by the High Court and committed to custody with liberty reserved to approach for his release on bail after the examination of German citizens, the witnesses in the case. The prosecution, however, failed to produce the said witnesses despite opportunity granted and so far as the accused is concerned, he remained languishing in jail approached the Hon’ble apex Court against the order so passed by the High Court. The apex Court has held as follows: “4. In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under S. 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Under S. 498 of the Code, the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody. A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under S. 496 of the Code to be released on bail. The Code makes no express provision for the cancellation of a bail granted under S. 496. The Code makes no express provision for the cancellation of a bail granted under S. 496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to absconds the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction springs from the over-riding inherent powers of exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody. For the reasons given in Talab Haji Hussain's case, 1958 SCR 1226 -( AIR 1958 SC 376 (supra), we hold that this inherent power of the High Court exists and is preserved by S. 561-A of the Code. The person committed to custody under the orders of the High Court cannot ask for his release on bail under S. 496, but the High Court may by a subsequent- order admit him to bail again. 5. xxx 6. xxx 7. xxx 8. xxx 9 xxx 10. Section 561-A of the Criminal Procedure Code declared that "nothing in this Code shall he deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order passed under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice." The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away by the Code. In terms, the section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court. ……. 11. The High Court cancelled the previous bail orders, as it found that the appellant was intimidating and tampering with certain German citizens whom the prosecution intended to by the appellant. Normally , it is not the practice of this Court to re-examine findings of fact in an appeal under Art 136 of the Constitution. ……. 11. The High Court cancelled the previous bail orders, as it found that the appellant was intimidating and tampering with certain German citizens whom the prosecution intended to by the appellant. Normally , it is not the practice of this Court to re-examine findings of fact in an appeal under Art 136 of the Constitution. Having heard full arguments, we are not inclined to interfere with the findings of the High Court The High Court reserved liberty to the appellant to move the High Court on or after June 26. l967, for a fresh order of bail. It was contemplated that within the time so fixed, the prosecution will examine the German witnesses. On March 13, 1967, the appellant surrendered to his bail and since then he is in jail custody. The prosecution has been given ample opportunity to examine the witnesses before June 26, 1967, without any interference from the appellant. From the correspondence placed before us, it appears that during the pendency of this appeal the prosecution has refrained from taking steps for the examination of the German witness. This Court did not pass any order staying the proceedings or admitting the appellant to bail. The delay in the examination of the witnesses is caused entirely by the laches of the prosecution. Even if the prosecution cannot now examine the witnesses by June 26, 1967, we see no reason why the appellant should remain in custody after that date. We direct that the appellant be released on bail on June 26, 1967, whether or not the prosecution witnesses are examined by that date. The bail will be given to the satisfaction of the Presidency Magistrate, 23rd Court, Esplanade, Bombay, before whom the case is is dismissed.” 7. In Rasiklal versus Kishore, AIR 2009 SC, 1341, the apex Court while placing reliance on the judgment in Ratilal’s case supra has held as under: “12. According to this Court a person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail if his conduct subsequent to his release is found to be prejudicial to a fair trial. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code. (See Talab Haji Hussain versus Madhukar Purushotam Mondkar, AIR 1958 SC 376 reiterated by a Constitution Bench in Ratilal Bhanji Mithani versus Assistant Collector of Customs, Bombay & Another, AIR 1967 SC, 1639). 13. It may be noticed that sub-section (2) of Section 436 of the 1973 Code empowers any court to refuse bail without prejudice to action under Section 446 where a person fails to comply with the conditions of bail bond giving effect to the view expressed by this Court in the above mentioned cases.” 8. It is seen from the law laid down by the apex Court that the power to cancel the bail granted under Section 436 Cr.P.C., is vested in the High Court and the High Court in the exercise of inherent powers may even that the accused-petitioner is habitual defaulter because he has jumped over the bail bonds, he executed, thrice. He even was declared as proclaimed offender also. In such a situation, there can not be any leniency with a person of such temperament and mentality nor the discretion to grant bail should be exercised in favour of such person. Learned counsel, however, has otherwise been able to persuade this Court to allow the accused-petitioner to furnish fresh bail bonds as according to him the accused-petitioner is now ready and willing to abide by any conditions imposed upon him. Also that now he even is prepared to compromise the matter so that the offence can be compounded by filing appropriate application. It has also been pointed out that his family is dependent upon him and on account of his detention in judicial custody his business is also ruined. 9. Therefore, though I am not inclined to quash the impugned order on the question of its legality and validity, however, in view of the submissions persuasive in nature made by learned counsel and also that the accused-petitioner from his detention in judicial custody must have learnt a lesson and may now not think of impugned order Annexure P-1 is hereby ordered to be quashed and the accused petitioner released on bail subject to his furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of learned trial Magistrate and also that he shall regularly attend the trial Court on each and every date of hearing. If prevented by any reason to do so, seek exemption from appearance by filing appropriate application. 10. It is made clear that his absence, on a particular date in the trial Court, shall result in cancellation of the liberty of bail granted to him automatically and in that event learned Magistrate shall take necessary steps to take him into custody, in accordance with law, pending disposal the proceedings under Section 138 of Negotiable Instruments Act against him. The application stands disposed of accordingly.