State of Chhattisgarh v. Priti Choudhari and Another), whereby the bail granted under Sect
Case Details
1 2025:CGHC:15350 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 2560 of 2023 Order reserved on 06/11/2024 Order delivered on 01/04/2025 1 - Priti Choudhary D/o Mahendra Chaudhary, Aged About 32 Years R/o Impressia, House No. 702, Kamal Vihar, Sector 8a Ps. Tikrapara, District Raipur Chhattisgarh. 2 - Priya Choudhary, D/o Shri Mahendra Choudhary, Aged About 25 Years R/o Impressia, House No. 702, Kamal Vihar, Sector 8a Ps. Tikrapara, District Raipur Chhattisgarh. versus ... Petitioners 1 - State Of Chhattisgarh Through Police Station, New Rajendra Nagar, District Raipur Chhattisgarh. 2 - Devbrat Dubey S/o Chitrsen Dubey, Aged About 38 Years R/o. Urkura, Raipur, Chhattisgarh. ---- Respondents (Cause title taken from Case Information System) For Appellants For Respondent/State For Respondent No.2 : : : Mr. Pragalbha Sharma, Advocate Mr. Kishanlal Sahu, Dy. Govt. Advocate Mr. Sumit Jhanwar, Advocate VEDPRAKASH DEWANGAN Digitally signed by VEDPRAKASH DEWANGAN Date: 2025.04.01 19:51:21 +0530 2
Legal Reasoning
Hon'ble Shri Justice Ravindra Kumar Agrawal C.A.V. Order 1. The present Criminal Miscellaneous Petition under Section 482 of the CRPC has been filed by the petitioners for setting aside the order dated 26.10.2023 passed by learned Judicial Magistrate First Class, Raipur, in Crime No. 285 of 2023 (State of Chhattisgarh v. Priti Choudhari and Another), whereby the bail granted under Section 167(2) of the CRPC has been cancelled and the petitioners have taken into custody. The petitioners have prayed the following reliefs in their petition:- “It is, therefore, prayed that this Hon'ble Court be kind enough to allow this petition, and quash/set aside the impugned order dated 26.10.2023 (State us. Priti Chaudhary and Anr.) passed by J.M.F.C. Raipur (C.G.), and further be pleased to direct the Court to grant default bail to the petitioners and any other relief which this Court deems fit in interest of justice.” 2. The brief facts of the case are that the petitioners are the accused persons in the offence of Crime No. 285 of 2023, registered at Police Station New Rajendra Nagar, Raipur for the offences under Sections 420, 34, 467, 468 and 471 of IPC. Initially the FIR was registered for the offence under Section 420, 34 of IPC and during investigation the offence of Sections 467, 468 and 471 of IPC was added. As per the FIR lodged by the complainant Devbrat Dubey (respondent No.2) lodged a report to the police with the allegation that the petitioner No.1 is the Director of Nirvana Home and Choudhari Developers and 3 the petitioner No.2 is her sister. On 23.07.2022, the petitioner No.1 has entered into a contract for construction of a house over plot No. 549, area 2942 sqft including material and labour costs and total cost of work was Rs.36,50,000/- and up to 20.03.2023 he already paid Rs. 19,37,250/- in various installments for the work up to slab and lantern. Despite having advance paid to the petitioner No.1, she has not completed the work and he asked for refund of his amount, they did not refund the amount and misappropriated the same. The petitioner No.1 has transferred the entire amount from her bank account to the bank account of her mother and sister. She did the same act with various persons and the amount have not returned back to them also. Even they have not paid the material supplier and labour charges to the contractor and he made complaint that the petitioners have grabbed about Rs.50 Lakhs from him and other victims. On 19.08.2023, the FIR was registered against the accused persons. 3. On 20.08.2023, the petitioners have been arrested and produced before the jurisdictional Magistrate, from where they have been sent to judicial custody. Vide 28.02.2023, their regular bail application have been rejected by the learned trial Court considering the nature of offence and the allegations leveled against the petitioners as well as the material available in the case diary against them. Repeatedly, the police has taken remand which was ultimately fixed for 26.10.2023 and judicial remand was granted by learned Judicial Magistrate First Class, Raipur. 4 4. On 25.10.2023, an application for urgent hearing of the case was filed by the learned counsel for the petitioners, which was taken into consideration and heard the case on the same day. At the same time, an application under Section 167(2) of CRPC has also been filed by the petitioner’s side stating therein that the petitioners have been arrested on 19.08.2023 and on the same day they have been produced before the jurisdictional Magistrate, who sent them on judicial custody on the same day, but the charge sheet has not been filed within 60 days. Since, the offence is punishable with imprisonment for 07 years from the period of completion of investigation provided as 60 days, but under the prescribed time limit, the charge sheet has not been filed and therefore, the petitioners may be released on bail. 5. After hearing the learned counsel for the parties, the learned trial Court has allowed the application filed under Section 167(2) of CRPC and after considering that the petitioners have been arrested on 19.08.2023 at 17:30 PM and they have been produced before the concerned Judicial Magistrate from where they have been sent in judicial custody and since then they are in jail. From the date of their judicial custody, till date the period of 68 days is lapsed, but the charge sheet has not been filed till date. The period of 60 days is provided for completion of investigation for the offences punishable for less than 10 years of imprisonment. The said provisions are mandatory in nature and therefore, they have granted bail to the petitioners and the case was fixed for 26.10.2023 as it has already been fixed vide order dated 16.10.2023. While granting bail to the 5 petitioners, the learned trial Court had imposed conditions, which are as follows:- “1. आवेदकगुण/अभि(cid:11)यु्ሹगण ्ቚकरण के गवाहो को उत््ቚेरिरत, दबाव या धमकी नहीं देंगे। 2. आवेदकगण / अभि(cid:11)यु्ሹगण ्ቚकरण के लंबन काल के दौरान आरोपि$त vijk/k dh (cid:11)ाती अ$राध कारिरत नहीं करेंगे। 3. आवेदकगण / अभि(cid:11)यु्ሹगण ्ቚत्येक $ेशी $र यथा आदेश अ$नी उ$ቝኌ)थतित देंगे। 4. आवेदकगण / अभि(cid:11)यु्ሹगण न्यायालय ्ቛारा समय-समय $र पिदये गये पिनद.शो का $ालन करेंगे।.” 6. 7. On the same day i.e. 25.10.2023, the petitioners have furnished the bail bond and the release order have been issued by the learned Judicial Magistrate. On 26.10.2023, a judicial remand application was moved from the New Rajendra Nagar Police Station stating therein that in the case Sections 467, 468 and 471 have also been added, in which time to conclude the investigation is required and prayed for grant of judicial remand of the petitioners up to 06.11.2023. At the same time, an application under Section 437(5) of the CRPC has been filed by the prosecution stating therein that on 25.10.2023, the petitioners were granted benefit of default bail on the ground that the offence of Section 420 of IPC only was registered, but in the case, Sections 467, 468 and 471 of IPC is also added, for which the period of 90 days to conclude the investigation is provided. The petitioners are absent and they have violated the conditions of the bail granted on 25.10.2023, therefore, the bail granted to them be cancelled. 6 8. The learned trial Court has called the learned counsel appearing for the petitioners and Mr. Lalit Sahu appeared on behalf of the petitioners, but in the memo of appearance filed in the case, his name is not there, as the counsel of the petitioners nor his signature is there, therefore, the learned trial Court has not considered the presence of the petitioners in the case. 9. The learned trial Court has further considered that from perusal of the order dated 25.10.2023, the period of judicial custody has been calculated as per the remand order sheet and there was no mention about the adding of additional sections and even there is no mention in the remand requisition about the same. Today, when the record produced before the Court for its hearing, it transpires that in the attached report, there is mention of addition of Sections 467, 468 and 471 of IPC. A detailed report has also been submitted by the Investigating Officer with respect to the adding of the additional sections and after produce the xerox copy of the case diary. Further, while granting bail to the petitioners, there was a direction to appear on each and every dates, but today they are absent, therefore, there is violation of conditions of the bail. Further, during the investigation, the offences of Sections 467, 468 and 471 of IPC was added and 90 days period is provided for completion of investigation for the offences, which are punishable for not less than 10 years of imprisonment. Considering the entire facts and circumstances of the case, earlier remand applications and material produced by the prosecution and also relying upon the order dated 16.01.2023, passed in Criminal Appeal No. 37 of 2023 by the Hon’ble Supreme 7 Court in the matter of ‘CBI v. T. Gangi Reddy @ Yera Gangi Reddy’ and 1986(4) SCC 481 (Raghubir Singh and others v. State of Bihar) cancelled the bail granted to the petitioners, issued arrest warrant against them and granted judicial remand till 27.10.2023, which is under challenge in the present petition. 10. Learned counsel for the petitioners would submit that the application filed by the prosecution under Section 437(5) of CRPC was not maintainable, yet the learned trial Court considered the said application and cancelled the bail granted to the petitioners. The learned trial Court should have considered that once a bail is granted, it cannot be cancelled without any reason, which amounts to review of its own order. The bail was granted to the petitioners under the provisions of Section 167(2)(a)(ii) of CRPC vide order dated 25.10.2023 considering that the petitioners are detained in jail for 68 days and charge sheet has not been filed till that day. The learned trial Court has also considered that the offence of Sections 420, 34 of IPC was registered against the petitioners and no other sections were added on that day. It is only to cover their lacuna, the prosecution subsequently came with the stand that the offence of Sections 467, 468 and 471 of IPC were added prior to the date of remand, which permitting the police to conclude the investigation within 90 days. He would further submit that the condition imposed by the learned trial Court was too harsh that on 25.10.2023, a default bail was granted and date of their appearance was fixed as 26.10.2023 i.e. just the next day and when the counsel for the petitioners were appeared, his presence was not marked for want of 8 necessary authorization to the memo of appearance. He would also submit that no opportunity of hearing was granted to the petitioners on application filed by the prosecution under Section 437(5) of the CRPC and order of default bail is cancelled. It is also submitted by him that on the first half of the day, the bail cancellation order has been passed and no time of passing of the order is mentioned in the order sheet and the petitioners were having the time of up to 5:00 PM to appear before the learned trial Court, therefore, the impugned order is passed under the fragrant violation of law and the same is liable to be set aside and the order dated 25.10.2023 may be upheld. 11. On the other hand, learned counsel for the State opposes and has submitted that although the FIR has been registered for the offence under Sections 420, 34 of IPC, but on 16.10.2023 itself Sections 467, 468 and 471 of IPC was added and remand up to 26.10.2023 was granted by the learned Judicial Magistrate First Class, Raipur, which is available in the case diary that prior to 25.10.2023 said offences of Sections 467, 468 and 471 of IPC was already added, for which the period of 90 days to conclude the investigation is prescribed. It may be a clerical mistake that considering that earlier remand was granted for the offence under Sections 420, 34 of IPC, the subsequent remand on 16.10.2023 was also granted up to 26.10.2023, however, in the remand requisition form dated 16.10.2023 and 26.10.2023, the offences of sections 420, 467, 468, 471 and 34 of IPC are mentioned. The addition of additional offence is also mentioned in the daily diary maintained by the Investigating 9 Officer and it is not the case that on 25.10.2023, the offence of Sections 420, 34 only is there against the petitioners. 12. When the prosecution came into know about the fact of grant of 13. 14. default bail to the petitioners, on the next day itself, they moved an application under Section 437(5) of CRPC for cancellation of default bail granted to the petitioners and after considering the entire facts and circumstances of the case and perusal of the case diary and also considering that the petitioners have violated the conditions of the bail and remained absent in the proceedings and further considering the law laid down by the Hon'ble Supreme Court, the learned trial Court has allowed the application and cancelled the bail granted to the petitioners, which needs no interference. I have heard learned counsel for the parties, perused the case diary and the material available in the petition. In view of the controversy between the parties and to come out the conclusion, on 01.05.2024, this Court has directed the State counsel to call the case diary of the case for its perusal. In compliance of the order dated 01.05.2024, the State counsel has produced the case diary and from its perusal, it transpires that in the judicial remand requisition form dated 16.10.2023, the police authorities have prayed for judicial remand of the petitioners up to 26.10.2023, in which the offences are mentioned as 420, 467, 468, 471, 34 of IPC. The daily diary entry made by the Investigating Officer dated 25.10.2023 also reflects that in the remand requisition form dated 16.10.2023, the next remand up to 26.10.2023 was granted and Sections 467, 468 10 and 471 was added. The judicial remand form dated 16.10.2023 and 26.10.2023 are available in the case diary, by which the judicial remand up to 26.10.2023 and 27.10.2023 respectively was granted to the police by the learned Judicial Magistrate First Class, Raipur. 15. Sections 467 and 471 of IPC provided for imprisonment of more than 10 years and as per section 167(2)(a)(i) of CRPC, the period of 90 days is prescribed, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of less than 10 years. Therefore, the offence of Sections 467, 468 and 471 was already added prior to 25.10.2023 and the period for completion of investigation and filing of charge sheet was 90 days and not the 60 days. 16. There may be a clerical mistake because of the reason that initially the offence has been registered under sections 420, 34 of IPC and earlier the judicial remand form, the judicial remand was granted on the basis of the offence under sections 420, 34 of IPC. However, from 16.10.2023 the judicial remand of the petitioners were granted for the offence under sections 420, 467, 468, 471, 34 of IPC and considering that the default bail has wrongly been granted to the petitioners, the prosecution moved the application for cancellation of their default bail. 17. The learned trial Court has further considered that the petitioners have violated the conditions of bail as they have remain absent in the proceedings of the case, which was the conditions of the bail order passed on 25.10.2023. The condition No.3 was very specific that the 11 petitioners should have appeared on each and every date of the hearing and when they have been released from jail, the next date of 26.10.2023 was already fixed at the time of granting judicial remand to them, on which they are required to appear in the proceedings. Although Mr. Lalit Sahu, Advocate appeared on their behalf, but in absence of any authorization from the petitioners, his appearance cannot be marked on behalf of the petitioners and no application were filed for condonation of their non-appearance on that day. 18. In the matter of ‘T. Gangi Reddy’ (supra) (reported in 2023 (4) SCC 253) the Hon'ble Supreme Court in Para 28 has held that:- “28. Therefore, there is no absolute bar as observed and held by the High Court in the impugned judgment and order¹ that once a person is released on default bail under Section 167(2) CrPC, his bail cannot be cancelled on merits and his bail can be cancelled on other general grounds like tampering with the evidence/witnesses; not cooperating with the investigating agency and/or not cooperating with the trial court concerned, etc.” 19. In the present case, though the offences under Sections 420, 467, 468, 471, 34 of IPC was registered prior to 25.10.2023, but by mistake default bail was granted to the petitioners considering that the offence only under Sections 420, 34 of IPC was registered for which the period of limitation for conclusion of investigation is 60 days and the petitioners are in jail for about 68 days and charge sheet has not been filed till that day. As has been held by the Hon'ble Supreme Court in ‘T. Gangi Reddy’ case (supra) that there is no 12 absolute bar that once the default bail is granted, it cannot be cancelled, the learned trial Court has cancelled the default bail granted to the petitioners under the peculiar facts and circumstances of the case. 20. Further, in the matter of ‘Raghubir Singh’ (supra) the Hon'ble Supreme Court in Para 20 of its judgement held that:- “20. The effect of the new proviso is to entitle an accused person to be released on bail if the investigating agency fails to complete the investigation within 60 days. A person released on bail under the proviso to s. 167(2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to s. 167(2) itself. This means, first, the provisions relating to bonds and sureties are attracted. S. 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds is s. 445 which enables the court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties. If the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by s. 442(1) to issue an order of release to the officer in charge of the jail in which such accused person is incarcerated. Sections 441 and 442, to borrow the language of the Civil Procedure Code, are in the nature of provisions 13 for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which the bond may be executed after the order for release on bail is made. Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused persons. It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an event. The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away. Orders for release on bail are effective until an order is made under s. 437(5) or s. 439(2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to s. 167(2) is deemed to be release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to s. 167(2) is also subject to the provisions of s. 437(5) and 439(2) and may be extinguished by an order under either of these provisions. It may happen that a person who has been accepted as a surety may later desire not to continue as a surety. Section 444 enables such a person, at any time, to apply to a Magistrate to discharge a bond 14 either wholly or so far as it relates to the surety. On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him. On the appearance of such person or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as it relates to the surety, and shall call upon such person to find other sufficient surety and if he fails to do so, he may commit him to jail. (sec. 444). On the discharge of the bond, the responsibility of the surety ceases and the accused person is put back in the position where he was immediately before the execution of the bond. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the learned counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody under s. 309(2) of the Code of Criminal Procedure. There is no substance whatever in this submission. Section 309(2) merely enables the Court to 'remand the accused if in custody.' It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to 'cancel bail' as it were. That can only be done under s. 437(5) and s. 439(2). When an accused person is granted bail, whether under the proviso to s. 167(2) or under the provisions of Chapter XXXIII the only way 15 the bail may be cancelled is to proceed under s. 437(5) or s. 439(2).” 21. From considering the entire facts and circumstances of the case, after gone through the case diary and the aforesaid law laid down by the Hon'ble Supreme Court, I am of the considered opinion that the order passed by the learned trial Court does not suffer from any perversity or illegality, which warrants interference by this Court. 22.
Decision
In the result, the petition fails and is hereby dismissed. ved Sd/- (Ravindra Kumar Agrawal) Judge