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CHHATTISGARH HIGH COURT
Sanjay K. Agrawal, J.
Lala @ Daneshwar —Petitioner
versus
State of Chhattisgarh —Respondent
Criminal Misc. Petition No.65 of 2015
Decided on 4.1.2021
(A) Criminal Procedure Code, 1973—Sections 437 and 482—Bail petition—FIR registered against petitioner under Sections 509 of IPC, Sections 4 and 6 of Indecent Representation of Women (Prohibition) Act, 1986 read with Sections 66(3), 67 and 72 of Information Technology Act, 2000—Petitioner has emphatically stated that he was not informed about filing of charge-sheet before concerned Court by which non-bailable warrant of arrest has been issued, and State has not controverted fact that he was not informed / intimated about filing of charge-sheet—When accused has been released on personal bond on bailable offences, it was duty on part of concerned investigating officer to inform accused well in advance for securing his appearance before Judicial Magistrate for accepting charge-sheet and submitting himself to jurisdiction of that court for prosecution—Such a lapse on part of Station House Officer is clearly unacceptable—Investigating officer or officer filing charge-sheet was obliged to intimate accused about filing of charge-sheet which he has failed to observe in present case—Power and jurisdiction of Criminal Court to issue appropriate warrant of arrest has to be exercised judiciously and sparingly with utmost circumspection striking a proper balance between personal liberty guaranteed under Article 21 of Constitution of India and societal interest and in order to secure attendance of person accused, Court should first issue summon simplicitor or bailable warrant to accused and only thereafter, if he does not appear after service, as a last resort, non-bailable warrant should be issued to secure presence of accused person—In bailable offence, right of accused to get bail is absolute and indefeasible right and courts have no discretion in granting bail—If any additional offence is made out against accused / petitioner, trial Magistrate could have directed to consider the same at appropriate stage at stage of framing charges and meanwhile, he could have released accused / petitioner on bail—Impugned order rejecting bail petition set aside. (Paras 10, 16, 17, 19, 22 and 25)
(B) Criminal Procedure Code, 1973—Sections 437 and 439—Bail petition—Disposal of— Whenever charge-sheet is to be filed and accused is already bailed out, concerned investigating officer will ensure that intimation to accused is given in legally permissible mode about date and place of filing charge-sheet and file proof to Court along with charge-sheet—On production of charge-sheet, concerned court shall verify about intimation to accused, date etc., about filing of charge-sheet has been given or not and depending upon that satisfaction, court shall ensure presence of accused—Criminal Courts should consider bail applications particularly in respect of offences which are bailable on same day itself without any delay and should not unnecessarily postpone hearing of bail application for next day sending accused to jail—Such a practice should be followed strictly by all criminal courts. (Para 26)
Result: Criminal Misc. Petition disposed of with observations and directions.
ORDER (CAV)
Sanjay K. Agrawal, J.—The petitioner herein calls in question legality, validity and correctness of the impugned order dated 7-10-2014 passed by the Additional Sessions Judge (FTC), Bilaspur in Criminal Revision No.119/2014, by which his revision petition has been dismissed affirming the order dated 11-4-2014 passed by the Judicial Magistrate First Class, Takhatpur in Criminal Case No.60/2014, whereby the petitioner’s application for grant of bail under Section 437 of the CrPC has been rejected by the learned trial Magistrate.
2. The above-stated challenge has been made on the following factual backdrop: -
3. The Police Station: Takhatpur registered first information report against the petitioner under Sections 509 of the IPC, 4 and 6 of the Indecent Representation of Women (Prohibition) Act, 1986 read with Sections 66(3), 67 and 72 of the Information Technology Act, 2000 (for short, ‘the IT Act’) on 18-1-2013 and since all the offences registered against him were bailable offences, he was released on personal bond on 19-1-2013 by concerned police officer. It is the case of the petitioner that he was not intimated by the jurisdictional police about the filing of charge-sheet before the jurisdictional criminal court, but ultimately, without intimation to him, charge-sheet was filed on 28-3-2014 in his absence before the said Court and the said Court straightway registered criminal case and issued non-bailable warrant of arrest on which he was arrested and produced before the Magistrate on 10-4-2014 and he was straightway sent to the Central Jail, Bilaspur and his application filed under Section 437 of the CrPC on 10-4-2014 was placed for consideration on the next date i.e. 11-4-2014 and on 11-4-2014, it was rejected holding that the offences which he has been charged are bailable, yet prima facie, offence under Section 67A of the IT Act is also made out which is non-bailable offence, therefore, his application was rejected and revision preferred against that order has also been said to be dismissed by the impugned order.
4. This petition under Section 482 of the CrPC has been preferred stating inter alia that non-consideration of bail application in respect of the bailable offences by the learned trial Magistrate on the same day was clearly unwarranted and it is violation of his personal liberty and further, on the material placed before the Court on the date of producing his application for grant of bail only bailable offences were charged against him and therefore rejection without even directing for addition of charge under Section 67A of the IT Act is clearly unwarranted and it amounts to denial of personal liberty of the accused and unnecessarily he was required to remain in jail, and also on the ground that the accused was already released on personal bond on 19-1-2013 by the police station finding the offences are bailable and without intimation, charge-sheet was filed on 28-3-2014 and straightway non-bailable warrant of arrest was issued in bailable offences for prosecution of the petitioner in bailable offences which is clearly unsustainable and contrary to law, as such, the impugned order as well as the revisional order deserve to be set aside.
5. The State / respondent has filed return opposing the petition holding that the judicial order has rightly been passed which requires no interference.
6. Mr. Mirza Hafeez Baig, learned counsel appearing for the petitioner, would submit as under: -
1. On the date of filing of challan, the petitioner was already on bail released by concerned police officer as all the offences were bailable offences, therefore, on the production of charge-sheet, intimation about filing of charge-sheet ought to have been issued by the jurisdictional police to the petitioner so that he could have appeared before the jurisdictional Magistrate for accepting the charge-sheet; even in absence of that, the learned Judicial Magistrate could not have issued warrant of arrest straight
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