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2019 DIGILAW 1380 (JHR)

Jitendra Kumar Agarwala v. State Of Jharkhand

2019-08-02

ANIL KUMAR CHOUDHARY

body2019
JUDGMENT Anil Kumar Choudhary, J. -Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction under section 439(2) Cr.P.C. with a prayer to pass orders for arrest of the opposite party nos. 2 & 3 and commit them to custody. 3. The allegation against the opposite party nos. 2 and 3 in brief is that they have created forged documents, suppressed financial data and have not incorporated the same in the balance sheet from the year 2010 to 2013. There is further allegation that the opposite party nos. 2 and 3 have misappropriated 35 acres of joint family property and also transferred the shares and management of Anup Malleables Ltd. to the co-accused persons and they have also given a false declaration before the Hon''ble Calcutta High Court. 4. It is submitted by the learned counsel for the petitioner that the opposite party nos. 2 and 3 who are the accused persons of Complaint Case No. 2703 of 2014 have been granted the privilege of anticipatory bail vide order dated 21.12.2015, passed in A.B.P. No. 1879 of 2015, by the Additional Sessions Judge -II, Dhanbad. It is further submitted by the learned counsel for the petitioner that this petition has been filed challenging the said order dated 21.12.2015, passed by the Additional Sessions Judge -II, Dhanbad on the ground that the said order of anticipatory bail has been passed illegally with improper consideration of the materials placed before the court and by arbitrary exercise of the discretion. Regarding the scope of 439(2) Cr.P.C. learned counsel for the petitioner relies upon the Judgment of the Hon''ble Supreme Court of India in the case of Gurcharan Singh & Others Vs. State (Delhi Administration) and Raj Kumar Sharma & Others Vs. State (Delhi Administration), (1978) 1 SCC 118 , paragraph no.16 of which reads as under:- "16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under Section 498, Cr.P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. This was also the position under Section 498, Cr.P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move he Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-`-vis the High Court."(Emphasis Supplied) The learned counsel for the petitioner next relied upon the Judgment of Hon''ble Supreme Court of India, in the case of Lokesh Singh Vs. State of U.P. and Ors.,MANU/SC/8138/2008 wherein the Hon''ble Supreme Court has laid down the circumstances and factors which will be considered by a court before granting bail, paragraph no.8 of which reads as under:- "8. While dealing with an application for bail, there is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1. The nature of accusation and the severity of punishment in case of conviction and nature of supporting evidence; 2. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge." It is next submitted by the learned counsel for the petitioner that the opposite party nos. Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 3. Prima facie satisfaction of the Court in support of the charge." It is next submitted by the learned counsel for the petitioner that the opposite party nos. 2 and 3 earlier approached this Court vide W.P.(Cr.) No. 138 of 2015 and W.P. (Cr.) No. 239 of 2015 respectively with a prayer for quashing the entire criminal proceeding arising out of Complaint Case No. 2703 of 2014 and a coordinate Bench of this Court has inter alia observed that it is true that no forged document has been brought on record by the complainant to show that the accused persons had created forged documents and has observed that if there are prima facie materials available in the record, a petition for quashing the order cannot be entertained and the coordinate Bench of this Court was not inclined to interfere with the criminal proceeding at that stage and has dismissed the said writ petitions. It is then submitted that the learned Additional Sessions Judge -II, Dhanbad has granted anticipatory bail to the opposite party nos. 2 and 3 on extraneous grounds, hence an order be passed for arresting the opposite party nos. 2 and 3 and committing them to custody. 5. Learned Addl. P.P. and the learned counsel for the opposite party nos. 2 and 3 on the other hand defended the said order dated 21.12.2015, passed in A.B.P. No. 1879 of 2015, by the learned Additional Sessions Judge -II, Dhanbad and submitted that there is no illegality in passing the said order by the learned Additional Sessions Judge -II, Dhanbad. 6. Learned counsel for the opposite party nos. 2 and 3 relied upon the order dated 9th July, 2019, passed by the Hon''ble Supreme Court of India in the case of Kamlesh & Anr. Vs. The State of Rajasthan & Anr. 6. Learned counsel for the opposite party nos. 2 and 3 relied upon the order dated 9th July, 2019, passed by the Hon''ble Supreme Court of India in the case of Kamlesh & Anr. Vs. The State of Rajasthan & Anr. in Criminal Appeal No. 1006 of 2019 (Arising out of SLP (Crl.) No. 1530 of 2018) wherein, the Hon''ble Supreme Court of India while considering a Criminal Appeal arising out of an order of the High court rejecting the prayer of anticipatory bail only on the ground that the petitioner under section 482 of the Cr.P.C. praying for quashing of the FIR has been rejected has observed as under in the 3rd paragraph:- "We are of the view that the order of the High Court cannot be sustained. High Court ought to have considered the application on merits. The fact that petition under Section 482 Cr.P.C. was dismissed for quashing was not conclusive and could not be the reason for rejecting the application." (Emphasis Supplied) Learned counsel for the opposite party nos. 2 and 3 further submitted that the circumstances applicable for cancellation of bail and consideration for challenging the order of grant of bail under the arbitrary exercise of jurisdiction are different and in this respect, the learned counsel for the opposite party nos. 2 and 3 relied upon the Judgment of Hon''ble Supreme Court of India in the case of Bharatbhai Bhimabhai Bharwad Vs. State of Gujarat and Others dated 30th July, 2019, passed in Criminal Appeal Nos. 1162-1163 of 2019 (Arising out of SLP (Crl.) Nos. 3204-3205 of 2019), paragraph no.10 of which reads as under:- "10. It is well settled that the consideration applicable for cancellation of bail and consideration for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different. While considering the application for cancellation of bail, the Court ordinarily looks for some supervening circumstances like; tampering of evidence either during investigation or during trial, threatening of witness, the accused is likely to abscond and the trial of the case getting delayed on the count etc. Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail. Whereas, in an order challenging the grant of bail on the ground that it has been granted illegally, the consideration is whether there was improper or arbitrary exercise of discretion in grant of bail. The appellant has challenged the very grant of bail on the ground of arbitrary exercise of discretion ignoring the relevant materials to be considered in the application for bail. Since the High Court proceeded under the footing as if the appellant had filed the application only for cancellation of bail for which, the consideration is different, the impugned order is liable to be set aside and the matter is remitted to the High Court for consideration of the matter afresh." (Emphasis Supplied) It is further submitted by the learned counsel for the opposite party nos. 2 and 3 that admittedly there is no dispute that the complainant-petitioner has failed to bring on record any document allegedly forged by the opposite party nos. 2 and 3 to show that they have created any forged document nor there is any description of any specific document which has been allegedly forged by the opposite party nos. 2 and 3. It is next submitted that, it is a settled principle of law that a person claiming to be the owner of a land believing his bona fide title over the said land transfers the same to some one, such act will not amount to any offence as has been held by the Hon''ble Supreme Court of India in the case of Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751 paragraph no. 17 of which reads as under:- "17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorized by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted." And it is next submitted by the learned counsel for the opposite party nos. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted." And it is next submitted by the learned counsel for the opposite party nos. 2 and 3 that it is undisputed that there has been partition between the complainant-petitioner and the opposite party nos. 2 and 3 and the allegation regarding suppressing financial data and not incorporating the same in the balance sheet from 2010 to 2013 is also vague as it has not been mentioned in the complaint that which specific financial data has not been reflected in the balance sheet and this criminal miscellaneous petition is also vague as it has not been specifically mentioned as to on which extraneous grounds, the learned Additional Sessions Judge -II, Dhanbad has considered for passing the impugned order or how his exercise of power in granting anticipatory bail to the opposite party nos. 2 & 3 is arbitrary. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 7. Having heard the rival submissions made at the bar and after going through the record, it is pertinent to mention here that it is a settled principle of law that where order granting bail was passed by ignoring material evidence on record and without giving reasons, it would be perverse and contrary to the principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. This ground for cancellation is certainly different from the cancellation of bail on the ground that the accused misconducted himself or some new facts call for cancellation and when order of grant of bail is challenged on the ground that grant of bail itself is given contrary to principles of law, while undertaking the judicial review of such an order, it needs to be examined as to whether there was arbitrary or wrong exercise of jurisdiction by the Court granting bail. If that be so, this Court has power to correct the same, as has been held by the Hon''ble Supreme Court of India in the case of State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 in paragraph 15 and 16. Hence in this case the legality and propriety of the impugned order is to be reviewed. If that be so, this Court has power to correct the same, as has been held by the Hon''ble Supreme Court of India in the case of State of Bihar v. Rajballav Prasad, (2017) 2 SCC 178 in paragraph 15 and 16. Hence in this case the legality and propriety of the impugned order is to be reviewed. Now coming to the facts of the case, admittedly no document allegedly forged by the opposite party nos.2 and 3 has been brought on record and no specific allegation as to which document and in what manner the document concerned has been forged as has been mentioned in the complaint nor there is any material in the record which reveals the said essential particulars of the offence of forgery. There is no material in the record to suggest which particular property has been misappropriated by the opposite party nos. 2 & 3 and in what manner and so far as the allegation regarding making false declaration before the Calcutta High Court is concerned there is no material in the record to suggest that any application has been filed before the Calcutta High Court for making any complaint in respect of the said allegations. 8. As already discussed above it is a settled principle of law that mere rejection of the prayer for quashing the FIR or the entire proceedings of a case by the High Court in exercise of its power under section 482 of the Cr.P.C. is certainly not by itself a ground for refusal of anticipatory bail. 9. Under such circumstances, the exercise of the power under section 438 Cr.P.C. by the learned Additional Sessions Judge -II, Dhanbad dated 21.12.2015 in A.B.P. No. 1879 of 2015 cannot be termed as improper or arbitrary exercise of power for grant of anticipatory bail. Hence, this Court is of the considered view that this is not a fit case where the orders for cancellation of bail of the opposite party nos. 2 & 3 and their committing to custody need to be passed. 10. Accordingly, this criminal miscellaneous petition, being without any merit is rejected.