Ashok Mutu Bharat Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRA No. 478 of 2024

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Ashok Mutu Bharat S/o Shri Uday Kumar Aged About 28 Years At Shankar Nagar Sector 1, Mesonet, Thana Civil Lines, Tehsil And, District : Raipur, Chhattisgarh

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---- Appellant

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Versus

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State Of Chhattisgarh Through SHO P/S Civil Lines, Raipur Chhattisgarh.

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---- Respondent

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For Appellant : Shri Vinay Nagdev, Advocate. For Respondent/State : Shri Nitansh Jaiswal, PL for the State.

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Hon'ble Shri Ramesh Sinha, CJ & Hon'ble Shri Deepak Kumar Tiwari, J

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Order On Board

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Per Deepak Kumar Tiwari, J

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24/06/2024 :

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This Appeal under Section 21 (4) of the National Investigation Agency Act, 2008 (for short ‘the Act, 2008’) has been preferred challenging the order dated 22.02.2024 passed by the Special Judge (NIA Act), Bilaspur whereby the application preferred by the appellant under Section 439 of the CrPC for grant of bail has been rejected, as the appellant has been arrested in connection with Crime No.310/2023, registered at Police Station Civil Lines, District Raipur {SPL Case (NIA) No.15/2024} for offence under Section 370 of the IPC read with Section 4, 5 & 7 of the

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Prevention of Immoral Trafficking Act.

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Prosecution case is that upon receipt of information on 24.06.2023 the concerned police team raided Blue Moon Spa Centre situated at Raipur and found that owner of the spa – present appellant along with Ashok Sahu – Manager of the spa and Vivek Sahu – Assistant Manager and Director – Kunal Rathi in the garb of running a spa hired 6-7 girls and got them engaged in the prostitution forcefully. From the said spa, incriminating articles have also been recovered. On the basis of aforesaid allegations, the accused persons have been arrested, however, Director - Kunal Rathi fled away from the spot.

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It is pertinent to mention here that the earlier bail application filed under Section 439 of the CrPC for grant of bail has been rejected by 12^th Additional Sessions Judge, Raipur in BA No.1740/2023 on 30^th June, 2023 (Annexure-A/2). Thereafter the appellant had preferred the first bail application before this Court and this Court vide order dated 21.7.2023 passed in MCRC No.4768/2023 had rejected the application on merits. Thereafter, the appellant had preferred 2^nd bail application before this Court viz. MCRC No.7296/2023 which was also rejected on 13.10.2023 and then, 3^rd bail application has been moved on behalf of the appellant viz. MCRC No.8671/2023, which was dismissed as withdrawn on 8.12.2023. After rejection of the third bail application, the appellant again moved repeat bail application before the trial Court, which was rejected on 14.12.2023. Thereafter, the appellant had preferred Cr. A. No.29/2024 before this Court, which was dismissed as

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not maintainable, as the impugned order has not been passed by the Special Court constituted under the Act, 2008. After such order, the appellant once again filed an application for grant of bail viz. MCRC No.853/2024, which was also dismissed as withdrawn on 6.2.2024, against which the present Appeal has been preferred.

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Learned counsel for the appellant would submit that the appellant is innocent and has been falsely implicated in the present case. The appellant has been implicated only for the reason that he was the owner of the premises and apart from that, there is nothing against him in the entire charge sheet, whereas the premises is actually owned by the father of the present appellant and it was his father who had rented out the premises. No incriminating article has been seized from the appellant. Main accused namely, Vivek Sahu and Akash Sahu have already been released on bail by this Court vide order dated 10.11.2023 passed in MCRC No.5486/2023. Considering the age of the appellant and the fact that he is not the owner of the premises, there is nothing on record to establish that the appellant had specific knowledge of the alleged offence, not a single witness has made statement against the appellant and the main allegations are directed against the accused Akash Sahu and Vivek Sahu, the appellant may be released on bail.

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Per contra, learned State Counsel would oppose the bail application.

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Having heard learned counsel for the parties, it is pertinent to mention that CrA No.29/2024 which was filed under Section 21 (4) of the Act, 2008 has been dismissed by this Court on 24.1.2024, as no order has

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been passed by the Special Court constituted under the Act, 2008 and, therefore, the said appeal was held to be not maintainable. The jurisdiction of the Special Court constituted under the Act, 2008 comes into operation if the schedule offence investigated by the agency is to be tried only by the Special Court. For the sake of brevity, Section 13 of the Act, 2008 reads thus:-

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“ 13. Jurisdiction of Special Courts .

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(1)Notwithstanding anything contained in the Code, every Scheduled Offence investigated by the Agency shall be tried only by the Special Court within whose local jurisdiction it was committed.

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(2)If, having regard to the exigencies of the situation prevailing in a State if,(a)it is not possible to have a fair, impartial or speedy trial; or(b)it is not feasible to have the trial without occasioning the breach of peace or grave risk to the safety of the accused, the witnesses, the Public Prosecutor or a Judge of the Special Court or any of them; or(c)it is not otherwise in the interests of justice, the Supreme Court may transfer any case pending before a Special Court to any other Special Court within that State or in any other State and the High Court may transfer any case pending before a Special Court situated in that State to any other Special Court within the State.

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(3)The Supreme Court or the High Court, as the case may be, may act under this section either on the application of the Central Government or a party interested and any such application shall be made by motion, which shall, except when the applicant is the Attorney-General for India, be supported by an affidavit or affirmation.”

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Upon being asked, learned counsel for the appellant fairly submits that

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the issue relating to jurisdiction of the Special Court has neither raised before the 12^th ASJ, Raipur where the case was initially filed nor before

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the Special Court. However, the bail application has been rejected by the Special Court by the impugned order.

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Considering that the appellant is in jail since 24.6.2023, other coaccused namely, Vivek Sahu and Akash Sahu have already been released on bail vide order dated 10.11.2023 passed in MCRC No.5486/2023, other accused namely, Kunal Rathi has been released on anticipatory bail vide order dated 11.10.2023 passed in MCRCA No.993/2023, further considering the length of pre-trial detention, and the fact that no material is available on record to show that any order has been passed by the Central Government under Section 6 (4) of the Act, 2008 that it is a fit case to be investigated by the agency, we are of the opinion that the appellant can be released on regular bail.

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Accordingly, the Appeal is allowed and the appellant is directed to be released on bail on the following conditions:-

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He shall execute a personal bond for a sum of Rs.50,000/- with one surety for the like amount to the satisfaction of the trial Court.

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He shall appear before the trial Court on each and every date given by the said Court.

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He shall shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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He shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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In case, the appellant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the appellant fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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The appellant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the appellant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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10.However, this Court hopes and trusts that the trial Court shall make an earnest endeavour to conclude the trial expeditiously, if there is no legal impediment.

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11.Office is directed to send a copy of this order to the trial Court for necessary information and compliance forthwith.

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Sd/-	Sd/-
(Deepak Kumar Tiwari)	(Ramesh Sinha)
Judge	Chief Justice

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Barve

Ashok Mutu Bharat v. State of Chhattisgarh

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Ashok Mutu Bharat v. State of Chhattisgarh

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