1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No. 641/2010 Arunpal Singh s/o Pralhad Singh Behal vs. State of Maharashtra, through the Secretary, Ministry of Home, Mantralaya, Mumbai 32 and others. ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. Mr. G.L.Bajaj, Advocate for petitioner. Mr. T.A.Mirza, APP for R-1 and 2. CORAM : MRS. V.K.TAHILRAMANI & M.L.TAHALIYANI, JJ DATE : 30.3.2011 Heard the learned counsel for the petitioner – accused and learned APP for the State. 2. The case of the petitioner is that he was arrested in the evening of 2.10.2009 pursuant to the First Information Report No. 3192/2009 registered at Police Station, Ram Nagar, District: Chandrapur on the information given by one Mr.Amit Aneja. The grievance of the petitioner is that though all the offences were bailable, he was not immediately released on bail and he was released on bail only on 5.10.2009, hence, he has prayed for compensation of Rs.20 Lakhs for being kept illegally in custody. 2` 3. The learned counsel for the petitioner submitted that the said F.I.R. is under sections 294 and 506 of the Indian Penal Code and under sections 66(A) and 67 of the Information Technology Act, 2000 (hereinafter referred to as the Act). According to the learned counsel for the petitioner all the offences were bailable in nature, yet on 3.10.2009 when the petitioner preferred an application for bail, his application for bail came to be rejected stating that the offence under section 67 of the Act is punishable with imprisonment up to five years and as such not bailable and on this ground his application for bail came to be rejected on 3.10.2009. 4. The learned counsel for the petitioner pointed out that thereafter on 5.10.2009 another application for bail came to be preferred by the petitioner and it was brought to the notice of the court that section 67 of the Act has been amended and it provides for punishment for the first offence up to three years and for the subsequent offence punishment is up to five years. As it is nobody's case that it is the second offence in which the petitioner is involved, the offence would be punishable up to maximum three years. Mr. Bajaj further pointed out that section 77 B of the Act deals with offence punishable up to three years and it specifically states that the offences punishable up to three years imprisonment are bailable. Thus, he 3` submitted that on 3.10.2009 when the bail application was preferred by the petitioner, as the offences were bailable in nature, the petitioner ought to have been released on bail. 5. Mr. Bajaj further submitted that in fact the police ought to have released the petitioner on bail as the offences against the petitioner were bailable in nature. Thus, the grievance is that firstly the police did not release the petitioner in the case though the offences were bailable in nature and thereafter though all the offences were bailable in nature the petitioner was not released on bail on 3.10.2009 by the Court. In view of this fact, the prayer of the petitioner is that all the respondents be directed to pay jointly and severally an amount of Rs. 20 lacs to the petitioner for the acts of omission and commission committed by the respondents. 6. It is the categorical case of the petitioner that he was arrested on 2.10.2009 in the evening. It is an admitted fact that when the order dated 3.10.2009 was passed by the court rejecting his application for bail, at that time, the petitioner was already in hospital as he had complained of stomach problem. Thereafter, till 5.10.2009 when he was released on bail, he continued to remain in the hospital. 4` 7. On 3.10.2009, the learned Magistrate rejected the application for bail by observing that offence is punishable up to five years and it is not disputed that it is not bailable offence. At that time, the learned Advocate for the petitioner did not point out that the offence is bailable, hence, the petitioner should be released on bail. The learned Advocate for the petitioner did not have the Act with him at the time of arguments and he did not produce it for the perusal of the court. Learned Advocate for accused filed an application for bail on 5.10.2009 and brought it to the notice of the learned Magistrate that the Information Technology Act, 2000 is amended by the Amendment Act, 2008. Section 66A of Information Technology Act is punishable up to three years and offence punishable under Section 67 of the Information Technology Act, 2000 is amended and it provides the punishment for the first offence which may extend to three years. By way of the bail application on 5.10.2009 it was brought to notice of the learned Magistrate that Section 77B of Information Technology Act which has been inserted by the Amendment Act, 2008 provides that the offence punishable with imprisonment for three years shall be bailable. Admittedly, this amendment was not brought to the notice of the Magistrate on 3.10.2009. The learned counsel for the petitioner submitted that even if the counsel for the petitioner did not point out this amendment the learned APP ought to have pointed it 5` out to the learned Magistrate. It is the bounden duty of the Advocate for the accused to place all relevant facts including relevant case law before the Court. The onus is on him, the burden cannot be shifted on the APP or the Court. The Court can only evaluate the material placed before it for consideration. If material is placed before the Court and yet it does not consider the material, we can find some fault with the Judge but if nothing is brought to the notice of the Judge, no fault can be found with the Judge. A judge cannot be expected to know all the Acts and amendments by heart. The sad situation is that in many mofussil areas, even the bare Acts of new enactments are not available in the Court. The Judges also do not have access to the latest amendments. Therefore, the Judges cannot be blamed. Same is the situation in case of prosecutors conducting the matter. If the learned advocate for the petitioner could not point out relevant facts to the Court, the blame cannot be placed on the Court or the APP conducting the matter, as the blame squarely lies on the Advocate for the accused. 8. We have carefully perused the FIR. In the FIR the offences under sections 294 and 506 of the Indian Penal Code and under sections 66 (A) and 67 of the Act are mentioned. The case of the first informant is that the informant had hired some trucks from the petitioner. Thereafter, there was some dispute 6` regarding the payment to be made by the petitioner to the informant towards charges to be paid to the driver and supervisor. On account of the dispute from 28th July, 2009 the petitioner started giving abuses in obscene language and threatening the informant on his mobile phone. In the FIR it is stated that on 8.8.2009 at 6.53 p.m. the petitioner sent a SMS to the informant giving abuses in obscene language and also threatened him that he should book his place in the crematorium. In the FIR it is clearly stated that the petitioner had threatened the informant to kill him and his family members. On a plain reading of the FIR, we find that the incident dated 8.8.2009, wherein the petitioner sent a SMS to informant Mr. Arun Aneja threatening the informant to kill him and his family members, would clearly fall under section 506 (II) of the Indian Penal Code. Section 506 of the Indian Penal Code reads as under: “506. Punishment for criminal intimidation-- Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc—And if the threat be to cause death or grievous hurt, or to cause the destruction of 7` any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” Section 506 (II) clearly states that if threat is to cause death the offence is punishable with imprisonment for a term which may extend to seven years. 9. It appears that it was lost sight of that Section 506 (II) by Criminal Law Amendment Act (23 of 1932) has been made cognizable and non bailable by Notification dated 20.4.1964. It reads as under: “Criminal Law Amendment Act (23 of 1932), S. 10-- Notfn. No. SBI/NLA. 1061/27115, D/- 20.4.64-- In supersession of the former Government of the Central Provinces and Berar, Political and Military Department, Nos. 795-562-Con., dated the 9th August 1942 and 796-562-Con., dated the 9th August 1942, the government of Maharashtra has declared that the offence 8` of criminal intimidation punishable under section 506 of the Indian Penal Code (XLV of 1860), where the threat is to cause death or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, when committed in any of the areas specified in the Schedule hereto shall, notwithstanding anything contained in the Code of Criminal Procedure (V of 1898) be congnizable and non bailable.” 10. This Criminal Law Amendment Act is applicable to Central Provinces and Berar. It is not disputed that Chandrapur where the SMS was received by the informant fell within the Central Provinces and Berar. No doubt the Criminal Law Amendment is of the year 1964 i.e. prior to the new Cr.P.C.1973. In this connection we would like to quote section 484 (b) of the Code of Criminal Procedure, 1973 which reads as under - “484(b):- all notifications published, proclamations issued, powers conferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and 9` appointments, not being appointments as Special Magistrate, made under the old Code and which are in force immediately before the commencement of this Code, shall be deemed, respectively, to have been published, issued conferred, prescribed, defined, passed or made under the corresponding provisions of this Code.” Section 484(b) makes it clear that all notifications published, made under the old Code and which are in force immediately before the commencement of the 1973 Code, shall be deemed to have been made under the 1973 Code. Thus, it is clear that when notification of 1964 was published though at that time the old Code of 1898 was in force but in view of S.484(d) of the 1973 Code, the Notification continues to apply to cases after 1973. 11. In this view of the matter, it is clear that Section 506(II) was not bailable and hence in any event the petitioner could not have been released on bail on the ground that all the offences against him were bailable in nature. It is clear that offence under section 506 II is not bailable, hence there is no question of the petitioner being kept in custody illegally. As in any event the petitioner could not have been released on bail, on the ground that the offences were bailable in 10` nature, there is no question of granting the petitioner any compensation. Hence, the petition is rejected. JUDGE JUDGE patle