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2023 DIGILAW 196 (ALL)

Shyam Babu Sharma v. State of U. P.

2023-01-19

SAMIT GOPAL

body2023
JUDGMENT : Samit Gopal, J. 1. List revised. 2. Heard Ms. Mamta Singh, learned counsel for the applicant, Mr. Amit Daga, learned counsel for Opposite Party No.2 and Mr. B.B. Upadhyay learned AGA for the State and perused the record. 3. The name of Mr. Amit Daga, Advocate is printed in the cause-list as the learned counsel for opposite party No.2. His Vakalatnama is not on record which he states to have filed in the office on 16.01.2023. The office is directed to trace out the same and place it on record and make a note in the order sheet about it. 4. At the very outset, learned counsel for the applicant states that due to inadvertence, an order dated 19.11.2022 which was to be filed as Annexure 8 to the affidavit has been wrongly filed as the same should have been the order of the said date passed in Criminal Misc. Application U/S 482 Cr.P.C. No. 18472 / 2022 (Shyam Babu Sharma Vs. State of U.P. & another). 5. Sri Amit Daga, learned counsel for the Opposite Party No. 2 has produced before the court three orders which are taken on order and are : (i) Order dated 19.11.2022 passed in Criminal Misc. Application U/S 482 Cr.P.C. No. 11061 / 2022 (Shyam Babu Sharma & another Vs. State of U.P. & another), (ii) Order dated 25.02.2022 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1425 / 2022 (Shyam Babu Sharma Vs. State of U.P. & another); and (iii) Order dated 19.11.2022 passed in Criminal Misc. Application U/S 482 No. 18472 / 2022 (Shyam Babu Sharma Vs. State of U.P. & another). 6. The present application under Section 482 Cr.P.C. has been filed with the following prayers : "It is, therefore, most respectfully prayed that this Hon'ble Court may be pleased to allow this application and to quash the impugned order dated 07.12.2022 passed by learned court of Additional Civil Judge (Senior Division) / Additional Chief Judicial Magistrate, Court No. 2, Mathura in Case Crime No. 229/2019 (State Vs. Rameshwar) under Section 406 IPC, Police Station-Goverdhan, District Mathura. May further be pleased to stay the operation and effect of impugned order dated effect and operation of the aforesaid order dated 07.12.2022 passed by learned court of Additional Civil Judge (Senior Division) / Additional Chief Judicial Magistrate, Court No. 2, Mathura in Case Crime No. 229/2019 (State Vs. Rameshwar) under Section 406 IPC, Police Station-Goverdhan, District Mathura. May further be pleased to stay the operation and effect of impugned order dated effect and operation of the aforesaid order dated 07.12.2022 passed by learned court of Additional Civil Judge (Senior Division) / Additional Chief Judicial Magistrate, Court No. 2, Mathura in Case Crime No. 229/2019 (State Vs. Rameshwar) under Section 406 IPC, Police Station-Goverdhan, District Mathura during the pendency of the present application." 7. The dispute in the present case which crops up in the present case and is to be decided is in a narrow compass and to be crystallized is whether the filing of a bail application through lawyer is sufficient personal presence of the applicant in Court or not and the Court could proceed to hear and decide the same even though he is not physically / personally present before it in view of sub-para (e) of para 3 of the judgement in the case of Satendra Kumar Antil Vs. Central Bureau of Investigation and Anr., (2021) 10 SCC 773 . 8. The facts of the case being the prosecution case are not been dilated as the same have no relevance in the present matter. Reference are being given to only the facts which relate to the present petition for the prayers and the issue as stated above. 9. The applicant filed a Criminal Misc. Application U/S 482 Cr.P.C. 18472 / 2022 (Shyam Babu Sharma Vs. State of U.P. and another) for quashing of the order dated 13.06.2022 passed by the Additional Civil Judge (Senior Division) / Additional Chief Judicial Magistrate Court No. 2, Mathura. The said petition was heard and the learned counsel appearing on behalf of the applicant after arguing it for some time, on instructions, submitted that the applicant seeks some time to appear before the trial Court and requested that non-bailable warrant issued against him be kept in abeyance for a period of three weeks. The said petition was heard and the learned counsel appearing on behalf of the applicant after arguing it for some time, on instructions, submitted that the applicant seeks some time to appear before the trial Court and requested that non-bailable warrant issued against him be kept in abeyance for a period of three weeks. The said petition stood disposed of by a Co-ordinate Bench of this Court considering the undertaking given by the applicant directing that the non-bailable warrant issued against him be kept in abeyance for a period of three weeks as a one time measure and it was further directed that in the meanwhile, the applicant shall surrender before the trial Court and file appropriate application and the trial Court was directed to decide the same in terms of judgment and order passed by the Hon'ble Supreme Court in Satendra Kumar Antil Vs. Central Bureau of Investigation and Anr., (2021) 10 SCC 773 if there is no other legal impediment. The said order is extracted here-in-below:- "1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Hridai Narain Pandey, learned counsel for applicant, learned AGA for State and Sri Amit Daga, Advocate for Opposite Party No. 2. 2. The present application under Section 482 Cr.P.C. has been filed for quashing of order dated 13.06.2022 passed by Additional Civil Judge (Senior Division)/ Additional Chief Judicial Magistrate, Court No. 2, Mathura in Criminal Case No. 21925 of 2021 (196/21), arising out of Case Crime No. 0229 of 2019, under Sections 406, 420, 409 IPC, Police Station Govardhan, District Mathura. 3. Learned Senior Advocate appearing for applicant, after arguing for some time, on instruction, submits that applicant seek some time to appear before Trial Court and requested that non-bailable warrant issued against him be kept in abeyance for a period of three weeks from today. 4. Learned A.G.A. appearing for State and Sri Amit Daga, Advocate for Opposite Party No. 2, have no objection against the aforesaid prayer. 5. Accordingly the prayers made in this application are rejected. However, considering the undertaking given by applicant, the non-bailable warrant issued against him is kept in abeyance for a period of three weeks from today, as a one time measure. 5. Accordingly the prayers made in this application are rejected. However, considering the undertaking given by applicant, the non-bailable warrant issued against him is kept in abeyance for a period of three weeks from today, as a one time measure. Meanwhile, applicant shall surrender before Trial Court and file appropriate application and Trial Court is directed to decide the same in terms of the judgment passed by Supreme Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, (2021) 10 SCC 773 if there is no other legal impediment. In case of default, Trial Court is at liberty to execute non-bailable warrant in accordance with law. 6. With the aforesaid directions, this application is disposed of." 10. Another Criminal Misc. Application U/S 482 Cr.P.C. No. 11061 / 2022 (Shyam Babu Sharma and another Vs. State of U.P. and another) was filed which is stated to be against the charge-sheet which was dismissed as not pressed vide order dated 19.11.2022. 11. An anticipatory bail being Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1425 / 2022 (Shyam Babu Sharma Vs. State of U.P. and another) was filed before this Court which stood rejected vide order dated 25.02.2022 passed by the co-ordinate Bench of this Court. 12. Subsequently, in compliance of the order dated 19.11.2022 passed in Criminal Misc. Application U/S 482 Cr.P.C. No. 18472 / 2022, the applicant filed a bail application before the trial Court (although the copy of the same has not been annexed with the present petition) but the same stood disposed of vide order dated 07.12.2022 passed by the Additional Civil Judge (Senior Division / Chief Judicial Magistrate Court No. 2, Mathura, with the observation that the accused Shyam Babu Sharma has filed the bail application through his lawyer, he has not filed any application for surrender and neither is he present personally in the court. As per the directions of the Apex Court in the case of Satendra Kumar Antil Vs. Central Bureau of Investigation, he is directed to appear personally before the court at the time of hearing of his bail application and as such the said bail application was disposed of. Present petition under section 482 Cr.P.C. has thus been filed against the said order dated 07.12.2022 which is impugned herein. 13. Central Bureau of Investigation, he is directed to appear personally before the court at the time of hearing of his bail application and as such the said bail application was disposed of. Present petition under section 482 Cr.P.C. has thus been filed against the said order dated 07.12.2022 which is impugned herein. 13. Learned counsel for the applicant has argued that the order dated 07.12.2022 passed by the trial court is illegal and arbitrary inasmuch as the presence of the applicant was there before the said court through his lawyer who had appeared and had filed his bail application. It is argued that the compliance of the order dated 19.11.2022 of this Court passed in 482 Cr.P.C. petition was done as a bail application was filed through lawyer and as such, the same was sufficient of appearance of the applicant before the said court. Learned counsel has placed before the court judgment of the Apex Court in the case of Satendra Kumar Antil Vs. Central Bureau of Investigation and Anr., (2021) 10 SCC 773 and while placing paragraph 3 of the same argued that amongst the categories / type of offences the offence of the present matter falls in Category A which is an offence punishable with imprisonment of seven years or less and not falling under category B & D. Further while placing Category A in the said paragraph learned counsel has placed sub-para (e) of the same which reads as following:- "(e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided." It is argued that the directions of the bail applications to be decided clearly goes to show that it is mentioned therein that bail applications of such accused on appearance may be decided without the accused being taken in physical custody and in the present case accused had appeared before the trial Court as is evident from the fact that he was represented through his lawyer and as such his personal/physical presence was not needed. It is further argued while reading further in the same that even the Apex Court has held that such bail application may be decided without the accused being taken into physical custody which would go to mean that surrender is not required. 14. It is further argued while reading further in the same that even the Apex Court has held that such bail application may be decided without the accused being taken into physical custody which would go to mean that surrender is not required. 14. Learned counsel has further placed before the court the judgment of Apex Court in the case of Aman Preet Singh Vs. C.B.I. through Director, AIR 2021 SC 4154 and while placing paragraph 11 of the same has argued that it has been held in the same that it is appropriate that the accused is released on bail and the circumstances of his having not been arrested during investigation or not was produced in custody is itself sufficient to release him on bail. It is further argued while placing the same that it has been held in the said judgment that if a person has not been arrested during investigation then to suddenly direct his arrest and to be incarcerated merely because charge-sheet has been filed would be contrary to the governing principle for grant of bail and the situation in the present case is alike as the applicant has filed a bail application and is represented through lawyer before the court and, as such, his presence physically is not needed and further since he was not arrested during investigation and had co-operated in the investigation, the said directions of the Apex Court would be of help to the applicant. It is argued that the present offence is punishable with less than seven years. The presence of the applicant is not required at the time of hearing of bail application. The trial court should have decided the bail application which has been filed through counsel of the applicant without pressing for his physical/personal presence before it. Therefore, the impugned order is bad in the eye of law and as such, deserves to be set aside and appropriate directions be issued to the trial court to decide the bail application without the personal and physical presence of the applicant in the court. 15. Per contra, learned counsel for opposite party No.2 opposed the prayer made in the petition and also the arguments so advanced by the counsel for the applicant and submitted that the trial court has not committed any error in passing the impugned order. 15. Per contra, learned counsel for opposite party No.2 opposed the prayer made in the petition and also the arguments so advanced by the counsel for the applicant and submitted that the trial court has not committed any error in passing the impugned order. It has not overstepped its jurisdiction and the settled law while passing the impugned order. It is argued that the bail of an accused has to be heard necessarily in his presence before the trial Court. Personal/physical presence of the accused at the time of hearing of the bail application is a must and a pre-condition for deciding the bail of an accused by the trial court. It is argued that even in the case of Satendra Kumar Antil (supra) in paragraph 3 in Category A in sub-para (e) it is specified that bail application of such accused on appearance may be decided. This leaves with no doubt but to only a rational conclusion that the physical presence of the accused is needed, the same cannot be through his lawyer. The only rider is that the same may be decided without him being taken into physical custody but the presence of the accused at that point of time is required and is a must. It is argued that further in the order dated 19.11.2022 passed by the co-ordinate Bench of this court in Criminal Misc. Application U/S 482 Cr.P.C. No. 18472 / 2022 the undertaking of the learned counsel for the applicant was to the effect that he seeks some time to appear before the trial Court and as such the matter was disposed of on the said undertaking which has also been observed in paragraph 5 of the same. It is argued that even in the said paragraph, there is a specific direction that the applicant shall surrender before the trial court which would mean that he shall appear personally and physically before the trial Court. It is further argued that the applicant is avoiding appearance before the trial court which is evident from the fact that this is the third application under Section 482 Cr.P.C. being filed by him. In the meantime, even his anticipatory bail application stood rejected by this Court which was filed after filing of charge-sheet. It is further argued that the applicant is avoiding appearance before the trial court which is evident from the fact that this is the third application under Section 482 Cr.P.C. being filed by him. In the meantime, even his anticipatory bail application stood rejected by this Court which was filed after filing of charge-sheet. It is argued that looking to the aforesaid facts and circumstances of the case, the present application is devoid of any merit and deserves to be dismissed. 16. Learned AGA for the State has also adopted the arguments of learned counsel for the Opposite Party No. 2. 17. After hearing learned counsel for the parties, perusing the records and the law on the issues, it is evident that the Criminal Misc. Application U/S 482 Cr.P.C No. 18472 / 2022 (Shyam Babu Sharma Vs. State of U.P. and another) was disposed of by a co-ordinate bench of this Court vide order dated 19.11.2022 on the request of learned counsel for the applicant therein on his undertaking that he shall surrender before the Trial Court within three weeks from the date of the said order and file an appropriate application which shall be decided in terms of the judgement passed in the case of Satendra Kumar Antil and for a period of three weeks the non-bailable warrants issued against him were directed to be kept in abeyance. The accused - applicant then filed an application for bail through his lawyer which was disposed of by the Trial Court vide order dated 07.12.2022 on the ground that the accused has not filed any application for surrender and is not personally/physically present in Court. 18. Section 437 Cr.P.C. relates to grant of bail by courts other than High Court and a Court of Sessions whereas Section 439 Cr.P.C. applies to High Court and a Court of Session. 19. The person who is an accused of any non-bailable offence when is arrested or detained without warrant or is brought before a court, may be released on bail as per Section 437 Cr.P.C. 20. The issue involved in the present matter in no more res-integra. 21. In the case of Niranjan Singh Vs. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 it has been held that a bail application would not lie unless the accused is in custody. It has been held as follows : "6. The issue involved in the present matter in no more res-integra. 21. In the case of Niranjan Singh Vs. Prabhakar Rajaram Kharote, (1980) 2 SCC 559 it has been held that a bail application would not lie unless the accused is in custody. It has been held as follows : "6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in one view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 CrPC unless he is in custody. 7. When is a person in custody, within the meaning of Section 439 CrPC? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. 8. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. 8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court." 22. Further in the case of Sunita Devi Vs. State of Bihar : (2005) 1 SCC 608 it has again been held that a bail application would not lie unless the accused is in custody. It has been held as follows : "14. The crucial question is when is a person in custody, within the meaning of Section 439 of the Code? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. The word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. 15. Since the expression "custody" though used in various provisions of the Code, including Section 439, has not been defined in the Code, it has to be understood in the setting in which it is used and the provisions contained in Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be characterised as "in custody" in a generic sense. The expression "custody" as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the court of the Magistrate. 16. In Black's Law Dictionary by Henry Campbell Black, MA (6th Edn.), the expression "custody" has been explained in the following manner: "The term is very elastic and may mean actual imprisonment or physical detention.... Within statute requiring that petitioner be ''in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. ... Accordingly, persons on probation or parole or released on bail or on own recognizance have been held to be ''in custody' for purposes of habeas corpus proceedings."" 23. From the above authorities it is clear that for maintaining an application for bail the accused has to be in custody. The filing of a bail application through lawyer is not sufficient personal presence of the applicant in Court and the Court cannot proceed to hear and decide the same if he is not physically / personally present before it. The situation is different in case of anticipatory bail filed under Section 438 Cr.P.C. as the same lies on an apprehension of arrest. 24. Thus from the above discussion and in view of the law on the issue, no case for interference is made out. The order impugned dated 07.12.2022 is a just, proper and legal order calling for no interference. The present application under section 482 Cr.P.C. is devoid of any merit and is thus dismissed.