Sanjay Chaturvedi vs State

A.K. Sikri, J.

Crl.M.A.No.10437/2006

Application stands disposed of.

Crl.M.C.No.6203/2006

Notice. Mr. Soni accepts notice for the State. I have heard the learned counsel at length.

Complaint case titled as M/s. Development Credit Bank v. M/s. Shamken Snippers Ltd. u/s 138/141 Negotiable Instruments Act, 1981 is filed in which the petitioner Sh. Sanjay Chaturd is arrayed as one of the accused persons. He was summoned for 14th July, 2006. Petitioner appeared through his counsel on that date and moved an application for exemption from his personal appearance. Finding no merit in the said application, the same was dismissed by the learned ACMM. The learned ACMM issued non-bailable warrants against the petitioner for 26th August, 2006. These NBWs could not be executed for 26th August, 2006 with the report that premises were found locked and whereabouts of petitioner could not be traced. In these circumstances, on 26th August, 2006, the learned ACMM has issued process u/s 82/83 CrPC against the petitioner and similar co-accused persons.

In this petition, the petitioner is challenging both the orders dated 14th July, 2006, issuing non-bailable warrants as well as order dated 26th August, 2006, issuing process u/s 82/83 CrPC. It is the submission of Mr. Aggarwal, learned counsel appearing for the petitioner, that since petitioner had appeared through his counsel on 14th July, 2006 and moved an application for his exemption, even if the said application was dismissed, in a case like this u/s 138 of the Negotiable Instruments Act, 1881, the learned Trial Court could not be issued the non-bailable warrants. He further submits that even on 26th August, 2006, the petitioner''s lawyer had appeared and moved an application for his personal exemption. Though in the order dated 26th August, 2006, attendance of petitioner''s lawyer is not recorded and the application for exemption has also not been dealt with. His submission is that in any case the process u/s 82/83 could not have been issued when the petitioner was not absconding and was in fact appearing through counsel. In support of the aforesaid submissions, the petitioner has relied upon the following judgments:

Praveen Juneja v. State of Delhi & Anr., 118 (2005) Del LT 28.

Bhasker Sen & Ors. v. State of Maharashtra & Ors., 2004(3) JCC(NI) 180 (Bombay High Court).

Veer Mahadev Singh Khalsa v. State through CBI, 2003(2) JCC 661.

Court on its own motion v. State through Central Bureau of Investigation, 2004(1) JCC 308.

Puneet Singh Chauhan and Another Vs. State and Another, .

In case of Court on its own motion v. State through Central Bureau of Investigation (supra), this court had issued directions for criminal courts which are as under:

Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be booked by any civilized society.

Directions for Criminal Courts:

(i) Whenever officer-in-charge of police station or investigating agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170 Cr.P.C. the Magistrate or the court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down in Section 173 Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or court shall invariably issue a process of summons and not warrant of arrest.

(ii) In case the court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while, taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated u/s 87 Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him.

(iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to non-appearance despite service of summons or absconding or failure to obey summons and the court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons.

(iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436 Cr.P.C.

(v) The Court shall on appearance of an accused in non-bailable offence who has neither been arrested by the police/Investigating agency during investigation nor produced in custody as envisaged in Section 170 Cr.P.C. call upon the accused to move a bail application: if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.

(vi) That the Court shall always keep the mandatory provisions of Section 440 Cr.P.C. in mind while fixing the amount of bail bond or surety bond which provides that the amount of bond shall never be "excessive" amount and take into consideration of the financial condition, the nature of offence and other conditions, as "excessive" amount of bond which a person is not in a position to furnish amounts to denial of bail in a non-bailable offence and conversion of bailable offence into non-bailable offence as the fundamental concept of granting bail on bond is security of appearance of the accused person to answer the charges and face the trial. Nothing more nothing less.

Principles that govern the grant of refusal of bail in other kinds of cases and shall be followed in letter and spirit are as under:

(a) Bail should not be refused unless the crime charged is of the highest magnitude and the punishment of it prescribed by law is of extreme severity;

(b) Bail may be refused when the court may reasonably presume, some evidence warranting that no amount of bail would secure the presence of the convict at the stage of judgment;

(c) Bail may be refused if the course of justice would be thwarted by the person who seeks the benignant jurisdiction of the Court to be freed for the time being.

(d) Bail may be refused if there is likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice; and

(e) Bail may be refused if the antecedents of a man who is applying for bail show a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail.

(f) Similarly, the Court shall not while releasing a person on bail put any condition, say in the form of deposit of extra amount or FDR etc. of any amount which is beyond the conditions permissible u/s 439 Cr.P.C.

Likewise in the case of Puneet Singh Chauhan & Anr. v. State & Anr. (supra), fresh directions were issued for compliance by the learned MMs and the Courts of Sessions in the following words:

In a bailable offence, the courts of Metropolitan Magistrates and Sessions Judges issuing the process of warrant of arrest u/s 89 Cr.P.C. for procuring the appearance of the accused shall either on appearance by the accused on his own or on his production by the police in execution of warrants of arrest shall release the accused on his furnishing bond with or without sureties.

In view of the aforesaid judgments laying down clear principles and procedure which is required to be followed by the learned MMs and Courts of Sessions in such cases, order dated 14.07.2006, issuing non-bailable warrants against the petitioner, could not have been passed. Likewise I do not understand why the process u/s 82/83 was initiated when the petitioner was represented through counsel and it is not a case where he is absconding and evading the court process.

In view of this and keeping the assurance given by the learned counsel for the petitioner that petitioner shall appear before the learned Trial Court on 28.09.2006, the order dated 26th August, 2006, u/s 82/83 Cr.PC against the petitioner is hereby quashed. The non-bailable warrants shall not be executed against the petitioner. The petitioner shall appear before the learned Trial Court on 28.09.2006 and seek regular bail.

The petition stands disposed of.

Dasti under the signatures of the Court Master.