Back
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Sanjay K. Agrawal, J.
Padum Lal Sahu - Appellants
Vs.
State of C.G. – Respondent
Misc. Criminal Case No. 2168/2015
Decided On: 05.05.2015
Code of Criminal Procedure, 1973 - Section 439 – Jurisdiction - No discretion – Claim of compensation - He would further submit that punishment prescribed for commission of aforesaid offence is only fine of ` 20,000/- and he has no criminal antecedent and as such, offences are and officer arresting the applicant, the Trial Magistrate as well as learned Sessions Judge have committed grave legal error in rejecting his application for grant of bail in the offence as in such offence bail is a matter of right leaving no discretion with them to deny bail and denial of bail to the applicant in a offence is absolutely illegal as he is ready and willing to furnish bail bonds as and when directed, as such application for bail be allowed and he be released on bail – Held, From the narration of the aforesaid facts, it is quite vivid that the Trial Magistrate as well as Court of Sessions rejected the bail application filed by appellant without taking into consideration that the offences allegedly committed by the applicant under Section3, read with Section 12 of Adhiniyam, 2010 is offence, punishable with fine only as Section 12-B of Act is not applicable and if the offence is bail has to be granted to the applicant/accused person as a matter of right. Section 436 of is imperative and mandatory and bail application could not have been rejected by both the Courts, as such, the Trial Magistrate as well as Additional Sessions Judge have committed grave legal error in not granting the bail to the applicant in such a offence. Taking into consideration, the totality of the circumstances and provisions contained in Section 436 of application filed by the applicant deserves to be allowed - While parting with the matter, I am deeply distressed to note that Trial, Magistrate as well as Additional Sessions Judge have not been able to maintain fine balance between personal liberty of individual and societal interest while considering the application for grant of bail and rejected the application filed by applicant for bail in offence in teeth of express provision contained in Section 436 of the Code of Criminal Procedure and binding judgment of the Supreme Court in the matter of (supra) and in consequence thereof applicant, who is Doctor by profession is in jail for more than a month in a offence, which is punishable only with fine. Let the matter be placed before the Chief Justice in administrative side for considering the appropriate order/action against the Judicial Magistrate and Additional Sessions Judge Urgent certified copy on usual charges - Thus, bearing in mind the principles of law laid down in aforesaid and also taking note of provisions contained in Section 436 of it is quite apparent that in offence, the right of the accused person to bail is absolute and indefeasible right and the Courts have no discretion in granting bail and the accused is entitled for bail as a matter of right and the Court cannot refuse to grant bail provided that they are ready and willing to offer bail or to execute personal bonds – Appeal allowed
Sanjay K. Agrawal, J.
1. Invoking jurisdiction of this Court under Section 439 of the Code of Criminal Procedure, 1973, the applicant has filed this application for grant of regular bail stating inter alia that he has been arrested on 5-4-2015 in connection with Crime No. 70/2015, registered at Police Station, Kusmunda District Korba (Chhattisgarh), for the offence punishable under Sections 3, 12 of Chhattisgarh Rajya Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010 (henceforth "Adhiniyam, 2010"). Case of the prosecution, in brief, is that, the applicant (Doctor) having a medical degree of BAMS was found practicing in Allopathy system of medicine and running Clinical Establishment/Nursing Home without having valid license under the Adhiniyam, 2010, which is an offence punishable under Section 3 read with Section 12 of the Adhiniyam, 2010 and thereby committed aforesaid offence.
2. Mr. Vipin Tiwari, learned Counsel for the applicant would submit that applicant is qualified medical practitioner having degree of Bachelor of Ayurvedic Medicine & Surgery and duly registered with Chhattisgarh Ayurvedic Tatha Unani Paddhati Avam Prakritik Chikitsa Board, Raipur being registration No. CG-00971/Ayurved and his application for registration under the Adhiniyam, 2010 is pending consideration before the Competent Authority and as such, applicant has been arrested on 5-4-2015 and charge-sheet has been filed against the applicant only for offence punishable under Section 3 read with Section 12 of the Adhiniyam, 2010. He would further submit that punishment prescribed for commission of aforesaid offence is only fine of ` 20,000/- and he has no criminal antecedent and as such, offences are bailable and officer arresting the applicant, the Trial Magistrate as well as learned Sessions Judge have committed grave legal error in rejecting his application for grant of bail in the bailable offence as in such offence bail is a matter of right leaving no discretion with them to deny bail and denial of bail to the applicant in a bailable offence is absolutely illegal as he is ready and willing to furnish bail bonds as and when directed, as such application for bail be allowed and he be released on bail.
3. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer for the non-applicant/State would oppose the bail application.
4. I have heard learned Counsel appearing for the parties and perused the case diary of Crime No. 70/2015, Police Station, Kusmunda District Korba with utmost circumspection.
5. At this stage, it would be appropriate to notice, relevant provisions contained in Adhiniyam, 2010 and Code of Criminal Procedure, 1973:--
"4. Penalty for failure to obtain licence.-Whoever runs a nursing home or a clinical establishment as defined in this Act without obtaining a licence shall be punishable with a fine of ` 20,000.
*** *** ***
12. Penalties and Fine.--(A)(1) Whoever contravenes the provision made with regard to licensing under this Act or any rules made thereunder, shall be punishable with a fine of ` 20,000.
(2) If a nursing home or a clinical establishment does not fulfil the eligibility norms as prescribed in this Act or rules made thereunder, it shall be punishable with a fine of ` 20,000.
(3) If a nursing home or a clinical establishment fails to submit records or information, which are lawfully required to be submitted under this Act or rules made thereunder, it shall be punishable with a fine of ` 5000, for each offence.
(B) Conviction for offence under this Act.--If a nursing home or a clinical establishment commits an offence under Section 12(A), shall be punishable with prescribed fine only for the first offence :
Provided further that, if a nursing home or a clinical establishment is convicted of an offence under Section 12(A) for the second time, it shall be liable for the imprisonment up to three yeas, or with fine of `50,000, or with both."
6. In order to ascertain, the nature of offence, it is proper to loo
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
