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2015 DIGILAW 280 (CHH)

Gofelal v. State of C. G.

2015-10-09

SANJAY K.AGRAWAL

body2015
ORDER : Sanjay K. Agrawal, J. 1. This is the second bail application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the applicants who have been arrested in connection with Crime No. 35/2015, registered at Police Station-Nevra, District-Raipur (C.G.), for offence punishable under Sections 201 and 302/34 of the IPC. First bail application of the applicants was dismissed as withdrawn with liberty to revive the same after framing of charge. 2. The applicants are facing trial for an offence under Sections 201/34 and 201 of the IPC. The trial Court by its order dated 29.6.2015 framed the charge against the present applicants only for offence under Section 201 and 201/34 of the IPC. 3. Mr. Hari Agrawal, learned counsel appearing for the applicants would submit that offence under Section 201 of the IPC is bailable offence and in the bailable offence, accused is entitled for bail as a matter of right and therefore, second bail application may be allowed and the applicants may be enlarged on bail. 4. On the other hand, learned State counsel would oppose the bail application. 5. The trial Court by its order dated 29.6.2015 framed the following charge against the applicants: ^^;g fd vkius fnukad 19-01-2015 dks LFkku&cqf<+;k [kkj vius [ksr dk esaM+] xzke y[kuk] varxZr Fkkuk&usojk] ftyk&jkiqj ¼N-x-½ {ks=kUrxZr ;g tkurs gq;s fd daqrh ikj/kh dh gR;k gqbZ gS] tks fd vkthou dkjkokl ;k e`R;qn.M ls n.Muh; vijk/k gS] ;g tkurs gq;s bZ'oj lkgw dks gR;k ds mDr oS/k n.M ls izfrPNkfnr djus ds vk'k; ls e`frdk dqarh ikj/kh ds 'ko ds iSj dks feV~Vh] >kM+h vkfn ls <+dus] Nqikus dk iz;kl dj rn~}kjk lk{; dk foyksiu dkfjr fd;kA ,slk dj vkius ;g vijk/k fd;k tks fd /kkjk & 201 Hkk-na-la- ds varxZr n.Muh; gS vkSj bl U;k;ky; ds laKku esa gSA** 6. I have heard learned counsel appearing for the parties and perused the case diary. 7. Case of the prosecution, in brief, is that, on 19.1.2015 at village Budhiyakhar, murder of Kunti Pardhi was caused and the applicants in order to escape Ishwar Sahu from legal punishment caused disappearance of dead body of deceased Kunti Pardhi and thereby committed the aforesaid offence under Section 201 of the IPC. 8. Section 201 of the IPC provides as under:-- "201. 8. Section 201 of the IPC provides as under:-- "201. Causing disappearance of evidence of offence, or giving false information to screen offender.--Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows to believes to be false; if a capital offence.--shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; if punishable with imprisonment for life.--and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; if punishable with less than ten years' imprisonment.--and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest of the imprisonment provided for the offence, or with fine, or with both." 9. Section 201 of the IPC is concerned with screening the offender or to escape the offender from legal punishment. Section 201 may be committed with reference to any offence, may be a murder or hurt or even a property offence. The offence has been made cognizable or non-cognizable according to the offence in relation to disappearance of evidence is caused. In the instant case, it is cognizable. Punishment depends on the type of the principal offence with reference to which an offence under Section 201 of the IPC has been committed. 10. In the Code of Criminal Procedure, in the first schedule, an offence under Section 201 of the IPC has been dealt with as under:-- Section Offence Punishment Cognizable or non-cognizable Bailable or non-bailable By what court triable 201 Causing disappearance of evidence of an offence committed or giving false information touching it to screen the offender, if a capital offence. In the Code of Criminal Procedure, in the first schedule, an offence under Section 201 of the IPC has been dealt with as under:-- Section Offence Punishment Cognizable or non-cognizable Bailable or non-bailable By what court triable 201 Causing disappearance of evidence of an offence committed or giving false information touching it to screen the offender, if a capital offence. Imprisonment for 7 years and fine According as the offence in relation to which disappearance of evidence is caused is cognizable or non-cognizable Bailable Court of Session. If punishable with imprisonment for life or imprisonment for 10 years Imprisonment for 3 years and fine Non-cognizable Bailable Magistrate of the first class If punishable with less than 10 years' imprisonment Imprisonment for a quarter of the longest term provided for the offence, or fine, or both. Non-cognizable Bailable Court by which the offence is triable. 11. The grant of bail to a person accused of bailable offence is provided and governed by Section 436 of the Code of Criminal Procedure. "436. In what cases bail to be taken.--(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Explanation.--Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purpose of this proviso. Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A. Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 or section 446A. (2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446." Thus, by virtue of provisions contained in Section 436 of the Code of Criminal Procedure, a person accused of bailable offence is entitled to be released on bail, if is prepared to give bail when appears or he is brought before the Court and police officer or the court, as the case may be, is duty bound to release him on bail on such reasonable terms. 12. In the matter of State of Gujrat and another Vs. Lalsingh Kishan Singh, AIR 1981 SC 368 , the question for consideration before the Supreme Court was whether a person authorised by the Commissioner of Police to arrest a person would such person has an authority to release the accused arrested by him if the offence is bailable. Before the Supreme Court, it was contended that as there were executive instructions such authorised person cannot release the accused on bail because he would have no authority, repelling the contention. Their Lordships observed as under:-- "24. Once we hold that a Commissioner of Police who is competent to direct by issuing special warrant or general order, under Section 6(1)(i), another police officer of the requisite rank to arrest persons found gambling or present in a gaming house, can also arrest personally the offender concerned, the principle enunciated by this Court in Lala's case is immediately attracted in full force and there is no escape from the conclusion that offences under Sections 4 and 5 of the Bombay Prevention of Gambling Act are cognizable. Such offences are admittedly bailable. Such offences are admittedly bailable. It follows as a necessary corollary therefrom, that the commissioner of Police or the police officer who is authorised by him to search, arrest and investigate such offences, is under a legal obligation to release the accused on bail under the provisions of Section 496 of the Code. The authority to grant bail to the person arrested in execution of such a warrant is derived by the officer arresting, from the statute and consequently, no executive instructions or administrative rules can abridge, or run counter to the statutory provisions of the Code. Since the impugned order or executive instructions are contrary to or inconsistent with the provisions of the Code and on a true construction, there is nothing in Section 6 or any other provision of the Act which takes away the right and power conferred by The Code on the police officer to grant bail to the person arrested by him for offences under Sections 4 and 5 of the Act, the impugned order was ultra vires and bad in law and had been rightly quashed by the High Court." 13. The question as to whether as person accused of a bailable offence is entitled to grant bail as a matter of right stands authoritatively concluded by the decision of the Supreme Court in the case of Rasiklal Vs. Kishore S/o. Khanchand Wadhwani, (2009) 4 SCC 446 , in which it has been clearly held that in bailable offence, the right of accused to get bail is absolute and indefeasible right and the courts have no discretion in granting bail, their Lordships held as under:-- "9......There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the Section instead of taking bail from him. In the later part of the said judgment, it has been further held that, the only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or wiling to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as a matter or right and the officer or the Court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him." 14. Thus, bearing in mind the principles of law laid down in the aforesaid Rasiklal's case (2009) 4 SCC 446 (supra) and also taking note of provisions contained in Section 436 of the Cr.P.C., it is quite apparent that in bailable offence, the right of the accused person to bail is absolute and indefeasible right and the courts have no discretion in granting bail and the accused is entitled for bail as a matter of right and the court cannot refuse to grant bail provided that they are ready and willing to offer bail or to execute personal bonds. 15. Thus, it is clear that offence under Section 201 of the IPC is made cognizable. It is made bailable, whatever might be nature of principal offence and magnitude of punishment prescribed therefore. Offence under Section 201 of the IPC is bailable offence. The applicants are in jail, they are entitled to go on bail. 16. Accordingly, second bail application filed on behalf of the applicants under Section 439 of the Cr.P.C. is allowed. 17. It is directed that applicants-Gorelal @ Bharat Sahu and Hemlal Sahu shall be released on bail on their furnishing a personal bond in the sum of Rs. 25,000/- each with one surety in the like sum to the satisfaction of the concerned trial Court, for their appearance as and when directed. Certified copy as per rules.