IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A.No. 4674 of 2012
Mahendra Kumar Ruiya. … … … … …Petitioner
State of Jharkhand through. Gautam Kumar Dubey. … … …Opp. Parties
CORAM: THE HON’BLE MR. JUSTICE D.N.UPADHYAY
For a Petitioner: Mr. Prashant Pallav, Advocate.
For a State A.P.P.
For a O.P.No.2: Onkar Nath Tiwary, Advocate.
C.A.V. on 14.06.2013: Pronounced on 27.06.2013
The benefaction focus for extend of anticipatory bail has been filed on
behalf of Mahendra Kumar Ruiya in tie with P.C.R. No.416 of 2006,
corresponding to T.R.No.991 of 2012 underneath Sections 406/420 of a Indian Penal Code,
pending in a Court of a Chief Judicial Magistrate, Deoghar.
The assign box as it appears from a censure in brief is that the
petitioner and co-accused Shiv Kumar Ruiya have been allocated as receiver by the
Calcutta High Court underneath a A.P.O.T. No. 11/1997 ( Suit No.70/1966) in honour of
trust skill of Ruiya Dharamsala Building appertaining to empty land of Mouza
Jasidih No. 118 and Jasidih Bazar tract no. 28,29, 662/716 and 665 District Deoghar. An
advertisement for sale of Ruia Dharamsala’s empty land was published whereafter the
complainant voiced his eagerness to squeeze a conspicuous skill for a valuable
consideration of Rs. 1,05,00,000/- and out of conspicuous care amount, a sum of
Rs.7,00,000/- was paid as aspiring income to a indicted persons and after that they
entered into an agreement antiquated 18.10.2003. The indicted persons had betrothed to
obtain accede from Calcutta High Court within 3 months though they did not do so
and defended a aspiring income with them. The complainant finished several proceed to
the indicted persons though they deferred a execution of sale-deed on one belligerent or the
other. Lastly a complainant finished proceed to Calcutta High Court and he could learn
that a indicted persons had not taken step for seeking accede to sell a aforesaid
property in foster of a complainant. Since a complainant felt himself cheated by the
accused persons, he lodged a censure in that knowledge was taken on 17.9.2008
and a indicted persons including a postulant were destined to face hearing under
Sections 406/420 of a Indian Penal Code. Thereafter summons were expelled though the
accused persons did not appear. They elite Cr. Revision No. 154 of 2008 before
the Sessions Court that stood discharged on 20.8.2010. When a indicted persons did
not appear, aver of detain non-bailable was expelled opposite them on 13.12.2010. Even
after distribution of aver of arrest, they did not seem and afterwards commercial under
Section 82 Cr.P.C. was systematic to be issued. The benefaction postulant afterwards elite an
application for extend of anticipatory bail vide A.B.P.No. 628 2012 before a learned
Sessions Judge that was discharged with certain regard on 16.10.2012 and the
petitioner was destined to obey before a court-below within a duration of three
weeks from a date of conspicuous sequence for seeking unchanging bail. When a postulant did not
appear in chairman before a court-below, routine underneath Section 83 Cr.P.C. was directed
to be expelled on 22.10.2012 afterward a postulant has elite benefaction focus for
grant of anticipatory bail before this Court on 17.12.2012.
It is submitted that a postulant had not sealed any request or
agreement in foster of a complainant nor he has perceived a singular farthing from him.
The sum of remuneration as staid in a agreement is Rs. 5,04000/- in income and Rs.
1,96,000/- by bank breeze in a comment of receiver of that Shiv Kumar Ruiya
and Mahendra Kumar Ruiya are corner signatory. It is staid that no such approach draft
was ever credited in a comment of receiver and therefore, a postulant could not be
fastened with any liability. So distant as income volume is concerned, he had not given any
receipt opposite a conspicuous amount. It is also forked out by referring Annexure-8 of
supplementary confirmation antiquated 9.4.2013 that a Hon’ble Calcutta High Court vide order
dated 20th February, 2003 had finished it transparent that filing of comment by Mahendra Kumar
Ruiya (petitioner) is hereby dispensed with.
Learned Counsel has submitted that purported agreement was executed on 18.2.2003 but a Complainant never approached a Calcutta High Court for seeking suitable instruction for send of a land nor he has filed any fit for specific opening of agreement rather he has filed a rapist box in a year 2006 vide P.C.R.No.416 of 2000.
- On a other palm schooled Counsel for a complainant has vehemently opposite a request for bail and referred a visualisation reported in (2012) 8 Supreme Court Case 730 “Lavesh Vrs. State (NCT of Delhi”. It was submitted that a postulant is not entitled for anticipatory bail given he has been announced admitted absconder in terms of Section 82 of a Cr.P.C. Since a indicted persons were concealing themselves and escaped their appearance, routine underneath Section 83 Cr.P.C. was also expelled opposite them. Furthermore, a postulant had concurred a execution of agreement for sale of a skill of Ruiya Dharamsala and a approach breeze for Rs.1,96,000/- was expelled in a corner name of both a receiver allocated by a Calcutta High Court.
- In respond to a justification modernized on interest of a complainant, schooled Counsel appearing for a postulant has submitted that a postulant was never announced admitted delinquent as compulsory underneath sub-section (4) of Section 82 of a Cr.P.C. The supplies contained underneath sub-section (2) (3) of Section 82 of a Cr.P.C. have not been complied with. The postulant had never been concealing himself nor escaped his entrance rather he had elite Cr. Revision opposite a sequence of knowledge antiquated 17.9.2008 and after ordering of conspicuous rider application, he elite focus for extend of anticipatory bail and afterward benefaction focus before this Court. Under such resources it could not be conspicuous that he had been concealing himself or escaped his appearance. He has also referred a visualisation of Madrash High Court antiquated 8.12.2010 vide CRL O.P.No.18861/2010 ” Anandan @ Duglas Devananda Vrs. The State by Inspector of Police.
- The opposition acquiescence has lifted a doubt possibly a person, indicted of an corruption opposite whom routine underneath Section 82 Cr.P.C. has been issued, shall be debarred from removing advantage of Section 438 Cr.P.C.?
- Before adverting any opinion, we would like to quote Section 438(1) of a Cr.P.C. that reads as under:-
” Direction for extend of bail to chairman divining arrest.-(1) Where any chairman has reason to trust that he might be arrested on indictment of carrying committed a non-bailable offence, he might request to a High Court or a Court of Session for a instruction underneath this Section that in a eventuality of such detain he shall be expelled on bail; and that justice may, after holding into consideration, inter alia, a following factors, namely-
(i) a inlet and sobriety of a accusation;
(ii) a qualifications of a applicant including a fact as to possibly he has formerly undergone seizure on self-assurance by a justice in honour of any cognizable offence;
(iii) a probability of a applicant to rush from justice; and
(iv) where a indictment has been finished with a intent of injuring or degrading a applicant by carrying him so arrested, possibly reject a focus forthwith or emanate an halt sequence for a extend of anticipatory bail:
Provided that, where a High Court or, as a box might be, a Court of Session, has not upheld any halt sequence underneath this sub- territory or has deserted a focus for extend of anticipatory bail, it shall be open to an officer in assign of a military hire to arrest, though aver a applicant on a basement of a indictment apprehended in such application.”
It creates it transparent that in a non-bailable corruption if a chairman has reason to trust that he might be arrested, he is giveaway to request to a High Court or a Court of Session praying that in a eventuality of such arrest, he shall be expelled on bail.”
- In a given contribution and circumstances, a drift for care of anticipatory bail enumerated underneath proviso (iii) of Section 438 (1) ‘the probability of a applicant to rush from justice’ appears to have been attracted. The postulant has filed whole order-sheet upheld in tie with Complaint Case being P.C.R. No. 416 of 2006. As per sequence antiquated 21.08.2012, instruction to emanate processes underneath Sections 82 83 Cr.P.C. was upheld when a postulant could not be arrested even after distribution of aver of detain non-bailable. In perspective of a sequence antiquated 21.8.2012 usually routine underneath Section 82 Cr.P.C. opposite a postulant was expelled on 28.8.2012. When a anticipatory bail focus elite by a postulant vide A.B.P.No. 628 of 2012 was likely of by a schooled Sessions Judge, a schooled Magistrate has destined to emanate routine underneath Section 83 Cr.P.C. as opposite a indicted persons including a postulant on 22.11.2012.
- Since a autocracy given to an indicted underneath Section 438 Cr.P.C. is going to be curtailed, if routine underneath Section 82 Cr.P.C. opposite him has been issued, we would like to plead a supplies and requirement contained underneath Section 82 of a Cr.P.C. that reads as under:-
” 82 Proclamation for chairman absconding.- (1) If any Court has reason to trust (whether after holding justification or not) that any chairman opposite whom a aver has been expelled by it has absconded or is concealing himself so that such aver can't be executed, such Court might tell a created commercial requiring him to seem during a specified place and during a specified time not reduction than thirty days from a date of edition such proclamation.
(2) The commercial shall be published as follows:-
(i) (a) it shall be publicly review in some celebrated partial of a city or encampment in that such chairman usually resides;
(b) it shall be merged to some celebrated partial of a chateau or birthplace in that such chairman usually resides or to some celebrated place of such city or village;
(c) a duplicate thereof shall be merged to some celebrated partial of a Court-house;
(ii) a Court might also,if it thinks fit, approach a duplicate of a commercial to be published in a daily journal benefaction in a place in that such chairman usually resides.
(3) A matter in essay by a Court arising a commercial to a outcome that a commercial was duly published on a specified day, in a demeanour specified in proviso (i) of sub-section (2), shall be decisive justification that a mandate of this territory have been complied with, and that a commercial was published on such day.
[(4) Where a commercial published underneath sub-section (1) is in honour of a chairman indicted of an corruption punishable underneath Section 302,304,364,367,382,392,393,394,395,396,397,398,399,400,402,436,449,4 59 or 460 of a Indian Penal Code ( 45 of 1860), and such chairman fails to seem during a specified place and time compulsory by a proclamation, a Court may, after creation such exploration as it thinks fit, pronounce him a admitted delinquent and make a stipulation to that effect.
(5) The supplies of sub-sections (2) and (3) shall request to a stipulation finished by a Court underneath sub-section (4) as they request to a commercial published underneath sub-section (1). ]”
- Sub-section (4) of Section 82 of a Cr.P.C. appears to be germane in honour of a chairman indicted of an corruption punishable underneath specific Sections of a Indian Penal Code indicated and a word admitted delinquent appears in a conspicuous Sub- Section (4) of Section 82 of a Cr.P.C. Some option has been given to justice to reason exploration before pronouncing any indicted as admitted delinquent underneath sub-section (4) of Section 82 of a Code. Sub-Section (5) of Section 82 Cr.P.C. indicates that sub- territory (2) and sub-section (3) shall request to stipulation finished by a Court underneath sub- territory (4) as they practical to a commercial published underneath sub-section (1). In a benefaction box we are not endangered with sub-section (4) since a postulant is not an indicted of a corruption indicated underneath conspicuous sub-section (4) of Section 82 of a Code.
Therefore, we have to see possibly supplies opposite distribution of commercial u/s 82 sub-section (1) (2) (3) have scrupulously been complied with or not. Sub-section (1) empowers a Court to emanate created commercial with certain instruction to seem during a specified place and a specified time opposite a chairman who is possibly absconded or concealing himself so that a aver expelled opposite him could not be executed. Sub-section (2) of Section 82 of a Code indicates a demeanour in that a commercial shall be published or executed. In this tie correspondence of Sub- Section (3) of Section 82 of a Code is really most important. This sub-section speaks about a biased compensation of a Court and such biased compensation of a Court contingency be reduced into essay to a outcome that a commercial was duly published on a specific date in a demeanour specified in proviso (i) of sub-section (2) and that shall be a decisive justification that requirement of this territory had been complied with and a commercial was duly published. Such matter available in essay shall be a outcome for a subsequent step for distribution of routine underneath Section 83 of a Cr.P.C., therefore, before move with sustenance contained underneath Section 83 of a Cr.P.C. a Court arising a commercial underneath Section 82 contingency record a reason in essay that even after distribution of commercial a indicted did not approve a instruction and remained absconding or concealing himself or escaped his appearance. The primary definition of a word decamp is to censor and when a chairman is stealing from a place of his chateau he is conspicuous to be absconder. A chairman might censor even in his place of chateau or divided from it and in possibly box he would be absconding when he hides himself. In that perspective of a matter, we feel that despotic correspondence of sub-section (3) of Section 82 Cr.P.C. is really most compulsory for dogmatic any indicted as absconder. we would serve like to explain that Section 82 Cr.P.C. has especially 3 parts. As per initial partial of a Section it is good staid that distribution of aver is condition fashion for distribution of routine of commercial underneath Section 82 of a Code. The Court contingency be confident that it has reason to trust that a indicted has been absconding or concealing himself so that such aver can't be executed. Second partial advise as to how commercial has to be given outcome or published to make a indicted familiarise that his entrance is compulsory in tie with sold box before a sold Court. The third partial as indicated underneath sub-section (4) of Section 82 of a Cr.P.C. gives some-more option to make exploration opposite an indicted who has committed corruption indicated underneath sub-section (4). After recording reasons a Court can announce an indicted of such corruption as admitted offender. To make a perspective some-more clear, we would like to impute Section 174 (A) I.P.C. underneath that insubordination of commercial has been finished punishable, that reads as follows:-
” 174-A. Non-appearance in response to a commercial underneath Section 82 of Act 2 of 1974.- Whoever fails to seem during a specified place and a specified time as compulsory by a commercial published underneath sub-section (1) of Section 82 of a Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with seizure for a tenure that might extend to 3 years or with excellent or with both, and where a stipulation has been finished underneath sub-section (4) of that territory pronouncing him as a admitted offender, he shall be punished with seizure for a tenure that might extend to 7 years and shall also be probable to fine.”
- This extrinsic Section 174A of a I.P.C. has dual tools ‘the initial partial of a Section relates for a punishment opposite a chairman opposite whom commercial has been expelled and published underneath sub-section (1) (2) of Section 82 of a Code and a punishment is up-to 3 years or with excellent or with both since ‘the second partial of a corruption relates to a stipulation finished underneath sub-section (4) of Section 82 underneath that a chairman has been conspicuous as admitted delinquent and a punishment is serious than a initial partial that might extend to 7 years and shall also be probable to fine’. Now we feel it fascinating to impute divide 11 12 of a visualisation “Lavesh Vrs. State (NCT of Delhi” ( supra).
- In perspective of a regard finished in para 12 of a conspicuous visualisation it appears that a chairman opposite whom commercial underneath Section 82 Cr.P.C. has been expelled is not entitled to a service of anticipatory bail though afterwards correct correspondence of Section 82 as discussed above is really most essential.
- Now entrance to a contribution of this box and a orders upheld in P.C.R. No. 416 of 2006 we find that commercial as compulsory underneath Section 82 Cr.P.C. has scrupulously not been finished and no matter as compulsory underneath sub-section (3) of Section 82 Cr.P.C. has been recorded. The distribution of routine underneath Section 83 Cr.P.C. vide sequence antiquated 22.11.2012 also do not seem to be in suitability with law since a requirement of Section 82 Cr.P.C. has not scrupulously been complied with.
- Let us come to a contribution of a box from that it is transparent that a complainant instead of filing any focus before a Hon’ble Calcutta High Court informing about a agreement executed between a complainant and a indicted persons for seeking any relief, lodged a benefaction rapist case. The complainant has unsuccessful to move on record that a postulant had perceived aspiring income in income from him. So distant as approach breeze is endangered it was submitted that a postulant had not deposited a same for a encashment.
- In a aforesaid circumstances, a postulant is destined to obey before a court-below within 3 weeks from currently and if he does so he shall be expelled on bail on furnishing bail bond of Rs. 10,000/- ( Ten thousand) with dual sureties of like volume any to a compensation of a Chief Judicial Magistrate, Deoghar in tie with P.C.R. Case No. 416 of 2006, analogous to T.R. No. 991 of 2012, theme to a conditions as laid down underneath Section 438(2) of a Code of Criminal Procedure.