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| <h3 class="sr-only">Matching Fragments</h3>
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| <section class="fragment">
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| <p data-structure="Facts" id="p_12"> It is alleged by the petitioners that after the passing of the
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| order dated 24.2.2003 (Annexure P-1) by the Supreme Court, the complainant
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| got another police report (challan) filed before the learned Chief Judicial
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| Magistrate, Jhansi and also got non-<b><b>bail</b></b>able warrants of the petitioners issued
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| with some obvious motive which are reflected from the events. The petitioners
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| then apprehending their arrest because of non-<b><b>bail</b></b>able warrants being issued
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| filed Criminal Misc No. M-15001 of 2003 in this Court on 5.4.2003 for the
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| grant of pre-arrest <b><b>bail</b></b> under the amended and altered/added Sections of FIR
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|
| No.303 dated 13.11.2001 (Annexure P-3) registered at Police Station Kotwali
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|
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| Jhansi (U.P.). It was contended on behalf of the petitioners that their arrest had
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| already been stayed by this Court vide order dated 8.1.2002 in FIR No.303
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| dated 13.11.2001 (Annexure P-3) under <a href="/doc/988620/" id="a_34">Sections 406</a>, <a href="/doc/556166/" id="a_35">468</a> and <a href="/doc/1466184/" id="a_36">471</a> IPC but
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| later the offences had been changed to <a href="/doc/1326844/" id="a_37">Sections 409</a>, <a href="/doc/1985627/" id="a_38">467</a>, <a href="/doc/556166/" id="a_39">468</a> and <a href="/doc/1897847/" id="a_40">120 B </a>IPC
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| and they are again being threatened to be arrested. Notice of motion was issued
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| vide order dated 8.4.2003 for 8.7.2003 and meanwhile, the arrest of the
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| petitioners was stayed in respect of the newly added offence. The Complainant
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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| (respondent No.2) filed Criminal Misc No.20311 of 2003 in Criminal Misc
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| No.M-15001 of 2003 for vacating the interim order dated 8.4.2003 passed by
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| this Court whereby the arrest of the petitioners had been stayed. It was inter
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| alia submitted that the prayer in the said petition gave an impression as if the
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| petitioners had been earlier granted the concession of anticipatory <b><b>bail</b></b> in FIR
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| No.303 dated 13.11.2001 (Annexure P3) registered at Police Station Kotwali
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| Jhansi for the offences under <a href="/doc/988620/" id="a_41">Sections 406</a>, <a href="/doc/556166/" id="a_42">468</a> and <a href="/doc/1466184/" id="a_43">471</a> IPC and they were
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| now seeking the concession to be extended only in view of the newly added
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| Sections to the said FIR i.e. <a href="/doc/1326844/" id="a_44">Sections 409</a>, <a href="/doc/1985627/" id="a_45">467</a>, <a href="/doc/556166/" id="a_46">468</a> and <a href="/doc/1897847/" id="a_47">120-B</a> IPC. Therefore,
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| the petitioners had given false impression that they were earlier granted
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| anticipatory <b><b>bail</b></b>. Notice in Criminal Misc No.20311 of 2003 was issued to the
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| petitioners through their counsel on 13.5.2003 for the date already fixed i.e.
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| 8.7.2003. On 8.7.2003 the interim order was ordered to continue. Thereafter,
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| it was adjourned from time to time. On 22.9.2003 this Court inter alia
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| observed that stay had been granted to the petitioners in Criminal Misc No.M-
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| 823 of 2002 vide order dated 8.1.2002. The said petition was for quashing FIR
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| No.303 dated 13.11.2001 (Annexure P3) registered at Police Station Kotwali,
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| Jhansi (U.P.). Criminal Misc No. M-823 of 2002 was decided by this Court
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| vide order dated 29.5.2002. The stay of arrest granted to the petitioners on
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| 8.1.2002 it is alleged became a part and parcel of the final order.
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|
|
| </p>
|
| </section>
|
|
|
| <section class="fragment">
|
| <p data-structure="PetArg" id="p_13"> The petitioners filed Criminal Misc No. M-15001 of 2003 under
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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| <a href="/doc/1783708/" id="a_48">Section 438</a> of the <b><b>Code</b></b> of Criminal Procedure. This Court vide its order dated
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| 8.4.2003 passed an order; "meanwhile arrest of the petitioners is also stayed
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| under the newly added offences". The newly added offences in terms of order
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| dated 8.4.2003 would be <a href="/doc/1326844/" id="a_49">Sections 409</a>, <a href="/doc/1985627/" id="a_50">467</a>, <a href="/doc/556166/" id="a_51">468</a> and <a href="/doc/1897847/" id="a_52">120-B</a> IPC. <b><b>Bail</b></b> as per
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|
|
| the said order had not been granted to the petitioners under <a href="/doc/556166/" id="a_53">Sections 468</a> and
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| <a href="/doc/1466184/" id="a_54">471</a> IPC. The case was adjourned to 26.9.2003. Thereafter, it was again
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| adjourned from time to time. The case was then taken up on 20.7.2004 on
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| which date none appeared for the petitioners. It was observed that on
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| 20.2.2004 no one was present on behalf of the petitioners and even on the said
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| date i.e. 20.7.2004, no one was present on their behalf. The case was
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| adjourned to 26.7.2004. The interim order dated 8.4.2003 was, however,
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| vacated. On 26.7.2004 this Court observed that it was informed that
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| proceedings in case FIR No.303 dated 13.11.2001 (Annexure P3) had since
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| been transferred to Chandigarh vide order passed by the Supreme Court on
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| 24.2.2003 (Annexure P1). In view of the said position, notice of the petition
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| for anticipatory <b><b>bail</b></b> was issued to the Standing Counsel for UT, Chandigarh for
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| 20.8.2004. At the said stage it was submitted by Counsel for the petitioners
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| that due to his non-appearance on 20.7.2004, the interim order dated 8.4.2003
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| by which arrest of the petitioners was stayed had been vacated. He further
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|
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| contended that till then the petitioners were apprehending arrest. Therefore,
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| their arrest may be stayed. In view of the said position, the arrest of the
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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|
|
|
|
| petitioners was ordered to be stayed till the next date of hearing. On 20.8.2004
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| on the request of the learned Counsel for UT Administration, Chandigarh, the
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| case was adjourned to 1.10.2004 and interim order dated 26.7.2004 was
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| ordered to continue. On 1.10.2004 learned Counsel for the respondent-UT
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| Administration, Chandigarh submitted that case file had not been received
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| from Jhansi. Therefore, without the police file he could not properly assist this
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| Court and sought an adjournment to await the police file, which was likely to
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| be received very soon by the department. The case was adjourned to
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| 2.11.2004. On the said date, the case was adjourned to 18.1.2005 and the
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| interim order was ordered to continue. Thereafter, it was again adjourned for
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| some dates. It was then taken up on 25.2.2005. On the said date, learned
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| counsel appearing for the State of Punjab on instructions submitted that the
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| custody of the petitioners was not required for the purposes of investigation.
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| Learned counsel for the UT Administration Chandigarh also submitted that the
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| custody of the petitioners was not required for the purposes of investigation.
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|
| Learned counsel appearing for the petitioners and learned counsel appearing
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| for the Complainant were in agreement that the proceedings had been
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| transferred from the Supreme Court of India vide order dated 24.2.2003
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| (Annexure P1) and that the challan in the case had been filed. <span class="citetext" data-docid="1753926" data-sentiment="Pos" id="span_17">They were also
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| ad idem that the arrest of the petitioners was initially stayed by this Court on
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| 8.4.2003 and thereafter, it was continuing. Learned counsel for the
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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|
|
| Complainant, however, contended that the said order i.e. the order dated
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| 8.4.2003 had been obtained by misrepresentation. It was observed by this
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| Court that keeping in view the fact that the custody of the petitioners was not
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| required for the purposes of investigation, it would be just and expedient to
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| extend the period of interim <b><b>bail</b></b> for a period of one month to enable the
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| petitioners to approach the Court concerned to seek regular <b><b>bail</b></b> in terms of
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| <a href="/doc/1290514/" id="a_55">Section 439</a> CrPC in the light of the observations of the Hon'ble Supreme
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| Court in <a href="/doc/1753926/" id="a_56">Sunita Devi v. State of Bihar</a>, (2005) 1 SCC 608. The petitioners
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| were accordingly granted one month's time to apply for regular <b><b>bail</b></b> after
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| surrendering before the Court concerned. In the circumstances, no opinion on
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| the merits of the case was expressed and the Court concerned was ordered to
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| deal with the application for regular <b><b>bail</b></b> in accordance with law. The Criminal
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| Misc. petition was disposed of. In the order instead of mentioning the date as
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| 25.2.2005 it was inadvertently mentioned as 25.2.2004. Accordingly Criminal
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| Misc. No. 16218-19 of 2005 was filed for correction of the date of order on the
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| certified copy; besides, a further request was made to issue clarification
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| regarding the concerned Court in view of the facts and circumstances of the
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| case. In terms of order dated 24.3.2005, the date of the order was corrected to
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| that of 25.2.2005 instead of 25.2.2004 being a clerical mistake. The Registry
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| was asked to issue a fresh copy of the order. Besides, the petitioners were
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| granted one month's more time from the date of preparation of the copy of the
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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| order to apply for regular <b><b>bail</b></b> after surrendering before the Court concerned.
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| Insofar as the clarification regarding the Court concerned, this Court was of the
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| view that no clarification was required. Criminal Misc. Nos.16218-19 of 2005
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| were disposed of accordingly. Another Criminal Misc. No.17517-18 of 2005
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| was filed by the Complainant also for correcting the date of order, which was
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|
| also allowed on 25.4.2005.</span>
|
| </p>
|
| </section>
|
|
|
| <section class="fragment">
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| <p data-structure="Precedent" id="p_29"> As regards the conduct of the petitioners, it may be noticed that
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| they had filed Crl. Misc. petitions in pending petitions seeking stay of
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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|
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| execution of non-<b><b>bail</b></b>able warrants or for grant of pre-arrest <b><b>bail</b></b>. Filing of Crl.
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| Misc. petitions in an already disposed of matter are to be deprecated. The
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| petitioners were liable to file fresh petitions. However, in this regard the
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| petitioners by themselves cannot be faulted and it was for their counsel to take
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| legal remedies as permissible under the law. The Complainant it may be
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|
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| noticed has alleged that the petitioners deliberately filed an application for
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| regular <b><b>bail</b></b> in the Court of Sessions at Chandigarh instead of filing it in the
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| Court of Chief Judicial Magistrate, Chandigarh. The learned Counsel for the
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| Complainant has referred to the case of Ramji v. State of Punjab (Supra) to
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| contend that a Magistrate trying an offence punishable with imprisonment for
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| life is competent to grant <b><b>bail</b></b> to an accused under <a href="/doc/848468/" id="a_110">Section 437</a> CrPC. It was
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|
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| further held that Magistrate Ist Class will not, however, be competent to grant
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| <b><b>bail</b></b> in an offence which is punishable alternatively with death or imprisonment
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| for life. Learned counsel for the Complainant also referred to the case of
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| Ashireddyeari Narasimhareddy v. State of Andhra Pradesh (Supra) wherein the
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| Hon'ble Andhra Pradesh High Court has held that a Magistrate has power to
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| grant <b><b>bail</b></b> to an accused who is involved in an offence punishable with life
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| imprisonment even if the offence is exclusively triable by the Court of
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| Sessions. The prohibition it was held is where the sentence prescribed in the
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| Act is either death alternatively imprisonment for life. In the said case, the
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| accused was on anticipatory <b><b>bail</b></b> in respect of an offence under Section 307
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| Criminal Misc. No. M-71250 of 2005 (O&M) and
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|
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| <a href="/doc/1569253/" id="a_111">IPC</a> which is punishable with life imprisonment. The chargesheet was
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| submitted before the Magistrate and it was held that the Magistrate was
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| competent to grant <b><b>bail</b></b> even if the case is exclusively triable by the Court of
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| Sessions. A perusal of the said two judgments indeed show that the Magistrate
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| is competent to grant <b><b>bail</b></b> in a case which is triable by it even if the same
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| entails punishment for life imprisonment. <span class="citetext" data-docid="1046959" data-sentiment="Pos" id="span_63">However, this Court in <a href="/doc/1046959/" id="a_112">Prithvi Raj
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|
| v. State of Punjab</a>, 1998 (3) RCR (Crl.) 104 observed that it was
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| inappropriate for a Judicial Magistrate Ist Class to grant <b><b>bail</b></b> for an offence
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|
| under <a href="/doc/1326844/" id="a_113">Section 409</a> IPC punishable with imprisonment for life. The matter in
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| the said case was referred to the Inspecting Judge for considering the propriety
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| to initiate departmental action against the Judicial Magistrate who had granted
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|
|
| anticipatory <b><b>bail</b></b>.</span> <span class="citetext" data-docid="1067439" data-sentiment="Pos" id="span_64">The Hon'ble Supreme Court in <a href="/doc/1067439/" id="a_114">Prahlad Singh Bhati v.
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|
|
| NCT, Delhi and another</a>, (2001) 4 SCC 280 considered the powers of
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| Magistrate while dealing with an application for grant of <b><b>bail</b></b>. It was held that
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|
| these are regulated by the punishment prescribed for the offence in which the
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|
|
| <b><b>bail</b></b> is sought. Generally speaking if punishment prescribed for imprisonment
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|
| for life and death <b><b>penal</b></b>ty and the offences exclusively triable by the Court of
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|
| Sessions, the Magistrate has no jurisdiction to grant <b><b>bail</b></b> unless the matter is
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| covered by the proviso attached to <a href="/doc/848468/" id="a_115">Section 437</a> CrPC. Therefore, it was for the
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|
| petitioners to urge before the learned Additional Sessions Judge, Chandigarh
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|
|
| that a Chief Judicial Magistrate may not entertain an application for regular
|
| Criminal Misc. No. M-71250 of 2005 (O&M) and
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|
| <b><b>bail</b></b> as the offence under <a href="/doc/1326844/" id="a_116">Section 409</a> IPC for which the petitioners had been
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|
| challaned was punishable with imprisonment for life and the Magistrate may
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| have declined to entertain such an application. In the circumstances, it cannot
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|
| be said that the conduct of the petitioners in approaching the Sessions Judge,
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|
| Chandigarh for the grant of regular <b><b>bail</b></b> being the Court concerned for grant of
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|
| such <b><b>bail</b></b> was inappropriate. Therefore, nothing can be said as regards the
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| conduct of the appellants insofar as their approaching the Sessions Court at
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|
| Chandigarh for the grant of regular <b><b>bail</b></b> is concerned as that in fact may have
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|
|
| been the concerned Court. This aspect is not now to be gone into as the
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|
| anticipatory <b><b>bail</b></b> has been considered on merit and keeping in view the nature
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|
| of accusation the evidence that is on record and the fact that even civil
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|
|
| litigations are pending between parties for the same circumstances, it would be
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|
|
| just and expedient to grant them pre-arrest <b><b>bail</b></b>.</span> <span class="citetext" data-docid="180137109" data-sentiment="Pos" id="span_66">In <a href="/doc/180137109/" id="a_117">Manjit Singh Arora v.
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|
|
| U.T. Chandigarh</a>, 1997 (3) RCR (Crl.) 475, this Court considered a case
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|
| where allegations against the accused were that he cheated by
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|
|
| misrepresentation. A civil suit was filed by the accused for adjudication of
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| rights of the parties. It was held that filing of suit showed that the
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|
|
| complainant's rights had been challanged and anticipatory <b><b>bail</b></b> was granted.</span>
|
| </p>
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