Dismissed

Rahul Muzaffarpuri v. the State of Bihar and Ors.

Patna HC9 Jan 2014CR. MISC./25706/2011

Case brief

AI extract

What is this about?

This petition challenged the grant of anticipatory bail and subsequent modification thereof. The court held that successive anticipatory bail petitions are maintainable if new facts emerge, and that non-notice of the complainant does not invalidate the order under Section 438 CrPC. The petition was dismissed.

What did the court decide?

The instant petition challenging the anticipatory bail order was dismissed.

Rahul Muzaffarpuri Vs the State of Bihar and Ors. — Bail and Remand | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.25706 of 2011

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====================================================== Rahul Muzaffarpuri, son of Uma Shankar Prasad Sharma, R/O Malti Priya house, Gokul Path, Patel Nagar, P.S. Shastri Nagar, Distt-Patna. .... .... Petitioner/s Versus 1. The State Of Bihar 2. Niraj Chandharyavi son of Nawal Kishore Prasad, Director M/S Chandharyavi Construction Pvt Ltd, R/O Flat No. 104, Pranav Mansion, Park Road, Kadamkuan, P.S. Kadamkuan, Distt- Patna. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Brajesh Kumar, Adv. For the Opposite Party No. 2 : Mr. Mithilesh Kumar Gupta, Adv. For the State : Mr. Sanjay Kumar Sharma, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER 6 09-01-2014 Petitioner/complainant by way of instant petition has asked for cancellation of anticipatory bail so granted by the learned Sessions Judge, Patna vide order dated 14.06.2011 passed in connection with ABP No. 2674/2011 as well as order dated 24.06.2011 (modification) allowing the privilege in favour of O.P. No.2. so prayed for.

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2. There is an allegation with regard to mistrustment, misappropriation of huge amount in deceitful manner by the O.P. No.2, a builder who had succeeded in procurement of aforesaid amount against providing a flat to the complainant, which he never fulfilled. A complaint case bearing Complaint Petition No. 2912/2008 was filed by the complainant to this effect and then thereafter, having enquiry conducted and

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completed, cognizance for an offence punishable under Sections 420, 406, 120B of the IPC was taken thereupon. It is also evident that on earlier occasion O.P. No.2 had filed anticipatory bail petition no. 2437/2011 which was disposed of with an observation directing the O.P. No.2 to surrender before the learned lower court with a prayer for bail and without having been complied with at the end of O.P. No.2, the O.P. No.2 again filed anticipatory bail petition vide ABP NO.2674/2011 which was allowed and further the aforesaid order was modified to some extent subsequently, against which the petitioner/complainant has a grievance consequent thereupon the instant petition has been filed.

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3. Learned counsel for the petitioner has submitted that the anticipatory bail petition was filed in connection with complaint case as such, complainant was a necessary party to be heard. The O.P. No.2, cunningly with an ulterior motive refrained himself from impleading the petitioner during filing of anticipatory bail petition at both occasion and in similar way, the court had also committed gross error by not noticing the complainant and on account thereof, the order was passed in absence of petitioner/complainant. It has further been submitted that once prayer for anticipatory bail was refused after considering the merit of the case then under such situation, no further

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opportunity was available before the Court to entertain the second petition for anticipatory bail without having any new material visualized during intervening period. So, relying upon full bench decision of Rajasthan High Court reported in 2005 Cr.L.J page 2086, it has been submitted that on account of lacking of new ground than that of already available at an earlier occasion, the second petition would not be held maintainable. It has further been submitted that at the first occasion, the O.P. No.2/accused had an opportunity to offer his undertaking to pay back the amount whatever retained by him through deceitful means. Concealing the same at an earlier occasion and disclosing the same at subsequent occasion to pay back is not a new cause because of the fact that the aforesaid situation was already persisting since before as well as was known to the accused/O.P. No.2 since before filing of earlier petition for anticipatory bail. Therefore, filing of subsequent bail petition after having the first one disposed of did not justify the order impugned and on account thereof, the same is fit to be set aside.

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4. Learned Addl. APP while endorsing the view submitted that having concurrent jurisdiction, the petitioner has to opt either of two option once a forum has been chosen by the petitioner and the process is exhausted, then the petitioner was bound to see

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the subsequent ladder, and not to reagitage before the same court, as it will tantamount to review or recall of its own order, which the criminal court lacks. That means to say after rejection of anticipatory bail at an earlier occasion by the learned Sessions Judge in connection with ABP No. 2437/2011, the petitioner was left with no other option but to move before the High Court than to reagitage the matter before the learned Sessions Judge.

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5. On the other hand, the learned counsel for the O.P. No.2 has submitted that a fallacious argument has been made on behalf of petitioner based upon own perception, imagination, consideration, approach because of the fact that while dealing with chapter of bail, whether it be a regular or anticipatory, no such limitation is found thereunder. It has also been submitted that there is non application of res judicata so far plea of consideration of bail is concerned because of the fact that by having a criminal case against an accused, his fundamental right is found eclipsed. After all, the right of an individual is to be protected and bail is a temporary, intermediary process by which such right is being preserved for the time being subject to finality of trial. It has also been submitted that even accepting the plea of the petitioner/ complainant that there was talk in between for providing a flat and for that, after obtaining loan from Life Insurance Corporation of

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India, the amount was paid to as well as received by the O.P. No.2/accused. But as the agreement had broken down under bona fide conduct, the O.P. no.2 had already deposited the amount whatever he received as loan amount borrowed by the petitioner/complainant through LIC. Therefore, in a changed scenario as well as having litigation at the behest of petitioner/complainant before so many forum, the allegation on its face suggests that it happens to be out and out a civil dispute whereupon the O.P. No.2/accused was at least entitled to be released on anticipatory bail and virtually, at an earlier occasion also, while disposing of anticipatory bail petition, the learned Sessions Judge opined so.

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6 . Subsequently, O.P. after giving reappraisal of the situation perceived that part of the cash amount so deposited by the petitioner/complainant still remains at his end which he did not want to keep furthermore, therefore, he made an offer by filing subsequent bail petition and the aforesaid offer was accepted by the learned Sessions Judge and accordingly, ordered so. In spite of appearance of petitioner/complainant during trial he failed to receive the amount whereupon a modification was sought for and having been allowed at the level of the learned Sessions Judge, the accused had already deposited the amount through bank draft and

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those bank drafts are under custody of the court.

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7. Payment of due amount will exonerate the accused for an offence of misappropriation is the matter of adjudication, however, at least speaks about temporary embezzlement/misappropriation. By having the aforesaid amount duly paid after institution of a case is a risk oriented step taken by O.P. No.2/accused on his own. It is immaterial whether the bank draft has been taken by the petitioner/complainant or not.

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8. The main grievances over which the learned counsel for the petitioner put much stress are (A) complainant was not impleaded and as such not heard, (B) subsequent, anticipatory bail petition was not maintainable without having new cause.

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9. So far first point is concerned, it is found itself properly answered after having a glance of Section-438 of the Cr.P.C. For better appreciation the same is quoted below:-

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438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a nonbailable offence, he may apply to the High Court or the Court of Session for direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail.

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(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including—

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(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;

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(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court;

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(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.

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(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).

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10. After going through Section 438 of the Cr.P.C., it is evident that its fulgent is not affected with category of case rather nature of case being non bailable offence and the authority, so identified whose presence at the time of hearing of anticipatory bail petition has been found mandatory, is the Public Prosecutor. Therefore, insistence of petitioner that he should have been impleaded as a party or at least should have been noticed, is found not at all convincing one in the background of mandate of Section 438 Cr.P.C. itself. It is a pre-arrest liberty given to an accused and to avail the same, the accused has to justify his plea which is to be counter meted by the learned PP who may have

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assistance of learned counsel in case there happens to be presence of complainant/informant on his own.

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11. . In the case of Siddharam Satlingappa

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Mhetre v. State of Maharashtra as reported in AIR 2011 SC 312 the following factors and parameters have been identified under paragraph-122 with regard to anticipatory bail which is as follows:-

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122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

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i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

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ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

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iii. The possibility of the applicant to flee from justice;

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iv. The possibility of the accused's likelihood to repeat similar or the other offences.

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v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

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vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

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vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

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viii. While considering the prayer for grant

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of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

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ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

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x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

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12. Now coming to the second aspect, again it would be wise to refer Section 438 of the Cr.P.C. After perusal of the same, it is evident that no barricading has been made thereunder and that is the reason behind that while deciding the issue in the case of Ganesh Raj v. State of Rajasthan as reported in 2005 Cri. L. J. 2086 so referred by the learned counsel for the petitioner at

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paragraph-25 it has been observed which is follows:-

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“25. In the ultimate analysis, placing reliance on the ratio indicated in Kalyan Chandra Sarkar's case (supra), we hold that second or subsequent bail application under Section 438 Cr. P. C. can be filed if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. Second or subsequent anticipatory bail application shall not be entertained on the ground of new circumstances, further developments, different considerations, some more details, new documents or

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illness of the accused. Under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/ Additional Sessions Judge. ”

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During consideration of aforesaid case, the Court had occasion to see Maya Rani Guin v. State West Bengal reported in 2003 Cr.L.J. 1. Apart from this, while propagating the principle as aforesaid, the Court had considered those decisions laid sown by the Hon’ble Apex Court which were relating to regular bail and not of anticipatory bail.

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13. . The aforesaid issue has again come up before the Calcutta High Court even after having the issue decided by the Full Bench of Calcutta High Court in the case of Maya Rani Guin v. State of West Bengal, 2003 Cri.L.J. 1 on account of subsequent conflicting decision, wherein 2005 Cr.L.J. 2086 was also taken into consideration in Sudip Sen v. State of West Bengal reported in 2010 Cr.L.J 4628 wherein after having critical analysis of the ambit and scope of Section 438 Cr.P.C. it has been concluded under para-31

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31. We, therefore, sum up our conclusions thus: –

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(1) Whether the applicant/accused can move second application for anticipatory bail in case his first application is rejected; if yes, in what contingencies before the same Court or to the superior Court?

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(a) A person has a right to move either the

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High Court or the Court of Session for directions under Section 438, Cr.P.C. at his option. In case a person chooses to move the Court of Sessions in the first instance and his application for grant of anticipatory bail under Section 438 is rejected, he can again move the High Court for the same reason under Section 438, Cr.P.C. itself.

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(b) whether a person chooses to straightway move the High Court in the first instance and his application is rejected on the same set of facts and circumstances, he will not be entitled to move the Court of Session for the second time, but may invoke the extraordinary powers of the Supreme Court by seeking special leave to appeal in the Supreme Court.

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(c) A person will be entitled to move the High Court or the Court of Session, as the case may be, for the second time. He can do so only on the ground of substantial charge in the facts and circumstances of the case due to subsequent events. However, he will not be entitled to move the second application on the ground that the Court on earlier occasion failed to consider any particular aspect or material on record or that any point then available to him was not agitated before the Court.

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(2) Where his first application is granted, but his application for ordinary/regular bail is rejected by the trial Court under Section 437/439, Cr.P.C.

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If a person has been directed to be released on bail in the event of his arrest under Section 438, Cr.P.C. for limited duration during which the regular Court has to be moved for bail, he shall move the trial Court in the first instance for seeking such bail and the order releasing him on anticipatory bail would come to an end, and in case his application for ordinary/regular bail is rejected, the trial Court shall remand him to police/judicial custody, as the case may be.

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14 . From perusal of Ravindra Sexena v. State of

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Rajasthan reported in AIR 2010 SC 1225 it is evident that petitioner had approached thrice before the Rajasthan High

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Court and after having been proscribed therefrom, the prayer of the petitioner for grant of anticipatory bail was entertained by the Hon’ble Apex Court. While granting the same it has been observed:-

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8. We may notice here that the provision with regard to the grant of anticipatory bail was introduced on the recommendations of the Law Commission of India in his 41^st Report dated 24.09.1969. The recommendations were considered by this Court in a Constitution Bench decision in the case of Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565. Upon consideration of the entire issue this Court laid down certain salutary principles to be followed in exercise of the power under Section 438 Cr.P.C. by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief. In our opinion, the High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented. There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C.

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10. The salutary provision contained in Section 438 Cr.P.C. was introduced to enable the Court to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities such as "the challan having been presented anticipatory bail cannot be granted". We may notice here some more observations made by this Court in

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the case of Gurbaksh Singh (supra) :

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"We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein."

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15. Thus, it is apparent from the aforesaid foregoing

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legal position that successive petition for anticipatory bail is not barred. Even in Constitutional Bench decision laid down by Hon’ble Apex Court in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 did not pre-fine the field. That means to say, having a new cause for successive prayer is not a

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condition precedent and being so, would not disyoked the court from exercising such power.

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16. Therefore, successive petition for anticipatory bail is found maintainable. With regard to other aspect is concerned, it is apparent that though allegation was there, the petitioner counter meted the same but at that very time the due amount, if any, was not perceived by him so traced out subsequently and prayed for repayment of the same enabling the court to grant bail cannot be construed a hitch in entertaining prayer and allowing the same.

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17 . Consequent thereupon, the instant petition lacks merit and is accordingly, dismissed.

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(Aditya Kumar Trivedi, J)

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Patna High Court January 9^th 2014 perwez/AFR

Rahul Muzaffarpuri v. the State of Bihar and Ors.

Case brief

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Rahul Muzaffarpuri v. the State of Bihar and Ors.

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