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2003 Supreme(P&H) 1519
PUNJAB & HARYANA HIGH COURT
M.M.Kumar, J.
Surinder Joshi
Versus
State Of Punjab
Criminal Miscellaneous No. 34740M of 2003,
Decided On : NOVEMBER 7, 2003
The court balanced the prosecution's right to ensure the accused's presence at trial with the personal liberty of the accused, considering the ongoing investigation and the length of time the accused had been in custody.
Headnote:
Bail - Criminal Procedure - S. 439 of Cr. P.C. - Ss. 419, 420, 465, 471, 409, I.P.C. - S. 167(2), Cr. P.C. - S. 173(8), Cr. P.C. - S. 173(1) and (2), Cr. P.C. - S. 175(1) and (2), Cr. P.C.
Fact of the Case:
Accused-petitioners were alleged to have taken court files to their house, made false promises, and charged hefty amounts from the public. They were found in possession of forged certificates and official documents without authority. The police presented a supplementary challan after the accused had been in custody for several months.
Finding of the Court:
The court found that the accused-petitioners deserved to be released on bail, considering the ongoing investigation and the length of time the accused had been in custody.
Issues: The issues revolved around the legality of the accused's custody, the presentation of a supplementary challan, and the balance between the prosecution's right to ensure the accused's presence at trial and the personal liberty of the accused.
Ratio Decidendi: The court emphasized that the investigation was not completed at the time of the accused's custody and that the initial report could not be considered supplementary. It balanced the prosecution's rights with the personal liberty of the accused and granted bail.
Final Decision: The petitions succeeded, and the accused-petitioners were directed to be released on bail by the Chief Judicial Magistrate/Duty Magistrate, Jalandhar.
1. This order shall dispose of Criminal Miscellaneous Nos. 34740-M and 37147-M of 2003 as both the accused-petitioners have sought bail under S. 439 of the Code of Criminal Procedure, 1973 (for brevity, Cr. P.C.) in case FIR No. 77 dated 26-4-2003 under Ss. 419, 420, 465, 471 and 409, I.P.C. registered at Police Station Division No. 8, Jalandhar.
2. The allegations in the First Information Report are that the Deputy Superintendent of Police, Special Staff (Crime Wing) Jalandhar received a secret information that the accused-petitioners-Surinder Joshi and Jatinder Parshad Tiwari along with his brother Shiv Parshad Tiwari used to take Court files to their house. They used to hold out that they had been close to judicial officers/other officers and they could get the work done from them. For the promise to work, they used to charge from the members of public hefty amount. As a matter of fact Shiv Parshad Tiwari was neither working as a Reader or Steno with any judicial officer and used to cheat people by using the names of Bureaucrats and judicial officers. Because the information received was credible, a case under Ss. 419, 420, 465, 468, 471, I.P.C. was registered. Petitioner - Jatinder Parshad Tiwari and his brother Shiv Parshad Tiwari had one residential house. The police party raided the house of accused-petitioners and found certain forged certificates, identity cards and many papers relating to the vehicles. Accused-petitioner - Jatinder Parshad Tiwari in the connected petition was arrested on 26-4-2003, whereas Surinder Joshi accused-petitioner in present petition appears to have been arrested on 5-6-2003 and he was not named in the First Information Report.
3. On the statement made by one Raj Kumar under S. 161, Cr. P.C., it was alleged that on 2-7-1994, the FIR Register and bundle of First Information Reports from 1988 to 2-7-1994 were handed over by him to Surinder Kumar Joshi, Ahlmad of the Court of Shri Bhajna Ram. In the statement under S. 161, Cr. P.C. made by Varinder Mohan on 4-6-2003, the name of Surinder Joshi had also been disclosed alleging that he had given the FIRs Register in which entries of 1995 were there along with copies of the FIRs. The challan has been presented.
4. Both the accused-petitioners filed regular bail applications before the Additional Sessions Judge, Jalandhar and the same have been dismissed on the ground that the accused-petitioner-Jatinder Parshad Tiwari has kept in his custody the official documents without any authority and official seals to fabricate and use various false documents to be genuine. Recovery of 551 FIRs has been made from joint possession of Jatinder Parshad Tiwari accused-petitioner and his brother.
5. Mr. R. S. Cheema and Mr. H. S. Gill, learned senior counsel have argued that the offences alleged against the petitioners are triable by a Magistrate. According to the learned counsel, there is allegation of using the material in order to deceive anybody and no charge could be levelled despite registration of the case since 26-4-2003. Reliance has also been placed on sub-section (6) of S. 437 read with S. 167(2), Cr. P.C. to submit that legislative guidance is available that in case of Magisterial trial if the challan is not presented within 60 days, then the accused becomes entitled to be released on bail as a matter of right. According to the learned counsel in order to circumvent these provisions, partial challan has been presented but the investigation is still in progress. In support of their submission, the learned counsel have placed reliance on a judgment of Bombay High Court in the case of Sunil Vasantrao Phulbande V/s. State of Maharashtra, 2003 (2) Rec Cri R 171.
6. Mr. Gurpartap Singh Gill, learned Assistant Advocate General, Punjab has argued that under S. 173(8), Cr. P.C., the police is always free to submit a supplementary challan. According to the learned counsel, no benefit can be derived by the accused- petitioners as the challan has been pre
