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Phoolchand and anr. Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Misc. Application No. 70/1983
Judge
Reported in1983WLN161
AppellantPhoolchand and anr.
RespondentState of Rajasthan
DispositionApplication dismissed
Cases ReferredMadhu Limaya v. State of Maharashtra
Excerpt:
.....stated, they were arrested by the police on june 4, 1982, and ordered to be released on interim bail, on june 10, 1982, as per their own seeking, for two months.;(b) criminal procedure code - section 482--inherent powers--specified provision in code--held, inherent powers cannot be invoked.;one of the principles which governs the exercise of the inherent power of the high court under section 482 cr.p.c., as stated by the supreme court in the cited case, is that such power is not be to resorted to if there is a specific provision in the code for the redress of the grievance of the aggrieved party.;application dismissed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir &..........of corruption act 1947. the petitioners were arrested by the police on may 28, 1982. their bail application under section 437 cr.p.c was dismissed by the learned special judge, c.b.t. cases, jaipur, on june 4, 1982. thereafter, they filed an application for bail under section 439 cr.p.c. in this court on june 8, 1982. the said application was heard by this court on june 10, 1982.4. during the course of arguments on june 10, 1982, mr. dave, learned counsel for the petitioners stated on their behalf that if they were granted interim bail for two months they would be able to arrange the entire payment to the state bank of india and that this court might make a conditional order to the effect that if the amount would not have been paid as undertaken, the interim bail would stand.....
Judgment:

K.S. Sidhu, J.

1. This application under Section 482 of the Code of Criminal Procedure, 1973 (No. 2 of 1974), here in after to be shortly referred to as the Cr PC, has been moved on behalf of two brothers, namely, Phool Chand Sharma and Gopal Prasad Sharma, in the following circumstances.

2. It is alleged that these two brothers, during the period, June to September 1980, made cheques to each other as payees, drawn on the New Bank of India, Sinsini, that these cheques were delivered by them to the Manager, State Bank of India, Bharatpur Branch, for collection, that the said Manager credited the amount of these cheques in their respective accounts immediately without waiting for the necessary advice from the drawee bank & that when these cheques were sent to the then Manager of the drawee bank at Sinsini for clearance, the latter, instead of immediately dishonoring them and sending the necessary advice in that behalf to the State Bank of India, Bharatpur Bianch, sat over them, for an unreasonably long time with the intention of casuing wrongful gain to the petitioners. Eventually, all the cheques were dishonoured. The case of the prosecution in a nut-shell is that these two brothers in conspiracy with the then Manager of the New Bank of India, Sinsini Branch, and the Manager of the State Bank of India, Bharatpur Branch cheated the State Bank of India of an amount of over one million rupees.

3. On investigation, the Central Buauro of Investigation filed two, separate charge sheet against the petitioners and the Managers afore mentioned under Section 420, 120 IPC and Sections 5(1)(d), Prevention of Corruption Act 1947. The petitioners were arrested by the police on May 28, 1982. Their bail application under Section 437 Cr.P.C was dismissed by the learned Special Judge, C.B.T. cases, Jaipur, on June 4, 1982. Thereafter, they filed an application for bail under Section 439 Cr.P.C. in this Court on June 8, 1982. The said application was heard by this Court on June 10, 1982.

4. During the course of arguments on June 10, 1982, Mr. Dave, learned Counsel for the petitioners stated on their behalf that if they were granted interim bail for two months they would be able to arrange the entire payment to the State Bank of India and that this Court might make a conditional order to the effect that if the amount would not have been paid as undertaken, the interim bail would stand automatically cancelled. Acting on this undertaking, this Court allowed bail to the petitioners, vide order dated June 10, 1982. It will be useful here to reproduce the last paragraph of that order. It reads:

I would accordingly direct that Phool Chand Sharma and Gopal Prasad Sharma may be released on bail till August 16,1982 on each of them furnishing a personal bond in the amount of Rs. 50,000/- with two sureties in the amount of Rs. 25,000/- each to the satisfaction of the trial court for their appearance before the trial court on June 18, 1982 or on any other date which may be fixed by the trial court from time to time during this period. If the petitioners do not arrange the payment of the entire amount of Rs. 10,25,000/-to the State Bank of India, Bharatpur Branch, on or before August 10, 1982, they shall surrender themselves before the trial court on August 11, 1982 and their bail bonds shall in that event stand cancelled. If the money is deposited by them as under taken they will be entitled to remain at large on bail provided they execute fresh bail bonds as mentioned above to the satisfaction of the trial court.

5. The petitioners seems to have given the solemn undertaking to the Court and obtained bail not only on terms of their own choosing, but also r, with ideas of their own. Instead of paying the amount to the State Bank of India by August 10, 1982 and, failing that, surrendering to the trial court on August 11, 1982, they approached the Supreme Court on July 29, 1982, with a petition for special leave to appeal from the order of this Court reproduced above and with a writ petition for some relief which remains undisclosed in the present record. By its order of July 29, the Supreme Court directed issue of notice of motion to the State of Rajasthan and further ordered interim bail to continue without the condition in' the meantime. But on March 4, 1983, the Supreme Court dismissed the Special Leave Petition as well as the writ petition, observing that as their Lordships put it, 'it will be open to the petitioner to move the High Court for waiving the condition that has been imposed by it'. Their Lordships granted time to the petitioners upto March 8, 1983, to move this Court This means that the interim bail granted without condition, as granted by their Lordships, expired by efflux of time on March 8, 1983.

6. On March 8, 1983, i.e. on the last date when their interim bail, as granted by the Supreme Court, was expiring, the petitioners, through their counsel presented this application under Section 482 Cr.P.C. for relief, as they put it, 'your Lordships be pleased to accept this application and waive the conditions imposed in the order dated 10th June, 1982 and permit the petitioners to continue on bail till the final disposal of the case....'

7. I may straight-away refer to this Court's order dated, June 10, and point out that no condition was ''imposed' by this Court while granting bail to the petitioners. On the other hand, what this Court did was, as the said order would speak for itself, to grant bail to the petitioners till August 16, 1982, as prayed on their behalf, to enable them to deliver on their suo moto undertaking to make arrangements for payment to the State Bank of India of the entire amount which is the subject matter of alleged cheating, As already stated, the petitioners did not comply with their own undertaking, and instead filed a petition in the Supreme Court for special leave to appeal from the order of this Court The said petition has since been dismissed by the Supreme Court. The Supreme Court has not issued any direction to this Court in the matter of waiving the condition said to have been imposed by it.' On the other hand, it dismissed the Special Leave petition with the observations that 'it will be open to the petitioners to move the High Court for waiving the condition that has been imposed by it'. Now that the instant application, under Section 482 Cr. P.C. has been made, this Court must proceed to decide it on its merits.

8. As on March 11, 1983, when this application was heard, the petitioners' interim bail, as extended by the Supreme Court, had already expired on March 8, 1983. They must therefore be treated as outlaws with effect from March 9, 1983, for they have neither surrendered before the trial court nor before this Court till' date. They have not moved this Court for bail under Section 439 Cr P.C. deliberately, so it seems, for they appear to be aware too well of the law laid down by the Supreme Court in Niranjan Singh and Anr. v. Prabhaker Rajaram Kharota and Ors. A I.R. 1980 S.C. 785 holding that, as their Lordships put it, 'no person accused of an offence can move the Court for bail under Section 439 Cr. P.C unless he is in custody'. In order to avoid surrender to judicial custody, the petitioners filed this application under the cloak of Section 482 Cr.P.C, for a relief which, in substance, is the relief of bail. They cannot be granted bail under Section 439 Cr.P.C. unless, as explained above, they surrender before the Court and submit to its directions. They cannot invoke the aid of Section 438 Cr.P.C. either, because as already stated, they were arrested by the police on June 4, 1982, and ordered to be released on interim bail, on June 10, 1982, as per their own seeking for two months. The law is well settled (see, for example, Gurbaksh Singh v. State of Punjab : 1980CriLJ1125 that anticipatory bail can be granted so-long only as the applicant has not been arrested.

9. Turning now to Section 482 Cr.P.C., this Court cannot possibly grant any relief to the petitioners thereunder. This is because the Supreme Court has time and again cautioned the High Courts in this country that inherent powers under Section 482 do confer any arbitrary jurisdiction on the High Court to act according to whim or caprice. In Kurukshetra University v. State of Haryana : 1977CriLJ1900 , the Supreme Court ruled that the statutory power under Section 482 Cr.P.C. must be exercised sparingly and as it put it, 'in rarest of rare cases'. This is certainly rot one of 'the rarest of rare cases', which the Supreme Court had in mind, and in which this Court should allow bail under Section 482 Cr.P.C. If the petitioners have any respect for the rule of law which they are invoking in their own manner, they must surrender themselves to custody and apply for bail under Section 439 Cr.P.C. as required by law.

10. Section 482 Cr.P.C. stands ruled out, in the facts of this case, even more decisively on the strength of another ruling reported in Madhu Limaya v. State of Maharashtra : 1978CriLJ165 . One of the principle which governs the exercise of the inherent powers of the High Court under Section 482 Cr.P.C, as stated by the Supreme Court in the cited case, is that such power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party, it has been explained above that it is always open to the petitioners to seek bail under Section 439 Cr.P.C. by surrendering themselves to custody. If they surrender themselves to custody, they will not only be paving the way for filing an application under Section 439 Cr.P.C. but would also be complying, though belatedly with their suo moto and solemn undertaking on the basis of which they had obtained interim bail.

11. In view of the findings above to the effect that this application is not maintainable under Section 482 Cr.P.C, nor under Section 438 and 439 Cr.P.C, I am refraining from expressing any opinion on the merits or demerits of the petitioners' prayer for extension of bail beyond March 8,1983. For the reasons given above, this application fails arjd is dismissed.


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