CRM-M-28628-2011 [ 1 ] ::::::::: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-28628-2011 Date of Decision:14.12.2011 Rajinder Kumar ...Petitioner Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Preetinder S. Ahluwalia, Advocate, for the petitioner. Mr. Sagar Deswal, AAG, Haryana. **** Rakesh Kumar Jain, J. This is a petition for grant of regular bail in a pending trial case registered vide FIR No.369 dated 14.07.2011, under Sections 205, 419, 420, 466, 468, 471 of IPC at Police Station City, Jagadhri, District Yamuna Nagar. The aforesaid FIR was registered on the complaint of the learned Additional Sessions Judge, Yamuna Nagar at Jagadhri. The brief background of the case is that one FIR No.50 dated 26.02.2008, under Sections 279, 336, 427, 307, 109 IPC, 4-B/8 of the Punjab Prohibition of Cows Slaughter Act, 1955 and Section 11 of The Prevention of Cruelty to Animals Act, 1960 was registered against Murtaza son of Anis and Shehzad son of Budhan at Police Station Sadar, Yamuna Nagar. On 18.06.2008, both the accused were produced before the Duty/Chief Judicial Magistrate. They CRM-M-28628-2011 [ 2 ] ::::::::: were remanded to judicial custody with a direction to be produced on 02.07.2008. In the meanwhile, both the accused had filed application for bail which was allowed on 27.06.2008. Consequently, an application was moved by them on 28.06.2008 for the purpose of furnishing requisite bail bonds/surety bonds. In view thereof, following order was passed on 28.06.2008 by the Duty/Chief Judicial Magistrate: “File taken up on the application for accepting and attesting the bail bond/surety bond of applicant/accused. In pursuance to the order dated 27.06.2008 passed by the learned Addl. Sessions Judge, Yamuna Nagar at Jagadhri, both the accused are admitted to bail on furnishing of bail bond in the sum of Rs.30,000/- each with one surety in the like amount. Requisite bonds furnished. Surety bonds are accepted and attested whereas personal bonds are accepted subject to the attestation by the jail authority. Release warrant of both the accused be issued in the name of Superintendent, concerned jail with the direction to release both the accused immediately, if not required in any other case. Now to come up on 02.07.2008, the date already fixed in this case.” A bail bond/muchalka was executed on the printed form by both Shehzad (accused) and Rajesh Kumar (surety) in the sum of Rs.30,000/-. The surety also submitted copy of jamabandi for the year 1999-2000 and sworn an affidavit that he had never given any surety except in the case in hand. Similarly, another bond/muchalka was executed by both Murtaza (accused) and Om Parkash (surety). Om Parkash (surety) submitted copy of the jamabandi for the year 2002-03 with regard to his land in lieu of Rs.30,000/- and had also sworn an affidavit that he had never given any surety in any Court except in the case in hand. Accordingly, both the accused, Murtaza and Shehzad, were released from the judicial custody. CRM-M-28628-2011 [ 3 ] ::::::::: The case was committed to the Court of Sessions on 16.03.2009 and the charge was framed on 05.10.2009. On 19.04.2010, following order was passed by the learned Trial Court: “Four prosecution witnesses have come present but cannot be examined today as one of the accused namely Murtaza has not come present and is absent. An application has been moved on behalf of the accused Murtaza, seeking exemption from the personal appearance of the said accused, pleading therein that the accused Murtaza is suffering from fever and loose motion and is unable to attend the court today. The said application is not supported by any medical certificate of any doctor and hence the application seeking exemption from the personal appearance of the accused Murtaza stands dismissed. Bail bonds surety bonds of accused Murtaza stands cancelled and forfeited to the State. He be now summoned through non-bailable warrants for 06.05.2010. His surety be also summoned for date fixed.” On 06.05.2010, the following order was passed by the learned Trial Court: “Warrant issued against accused Murtaza not received back. Fresh warrant of arrest against accused Murtaza be issued for 02.07.2010. Bailable warrant in the sum of Rs.5,000/- of his surety be also issued for the date fixed.” On 02.07.2010, the following order was passed by the learned Trial Court: “Warrant of arrest issued against accused Murtaza has been received back with the report of the serving constable that he had gone at the CRM-M-28628-2011 [ 4 ] ::::::::: residence of accused Murtaza but did not get any clue of his whereabout. Now accused Murtaza be summoned through proclamation under Section 82 Cr.P.C. for 27.08.2010. Proclamation be issued at once. An application seeking personal exemption of accused Shehzad has been moved. Heard. Keeping in view the facts and circumstances, as mentioned in the application, the personal appearance of the accused Shehzad is exempted for today only. Notice issued to the surety of accused Murtaza has also been received back with the report that surety Om Parkash had already been died. Now death report of said surety-Om Parkash be called from the S.H.O. of the concerned area alongwith the death certificate/or the date of death of Om Parkash. Notice to identifier/Kashmiri Lal Nambardar of surety Om Parkash, be also issued for the date fixed.” On 27.08.2010, following order was passed by the learned Trial Court: “File put up before me today, as the learned Presiding Officer (Shri D.K.Mittal) is not holding court as per order passed by the Hon'ble High Court. Proclamation under Section 82 Cr.P.C. issued against accused Murtaza received back duly executed. The statement of serving police official recorded, wherein, he has proved report under Section 82 Cr.P.C. as Ex.PA. Perusal of report Ex.PA clearly reveals that necessary proclamation under Section 82 Cr.P.C. was effected on CRM-M-28628-2011 [ 5 ] ::::::::: 25.07.2010. A clear period of 30 days has elapsed since 25.07.2010. Accused Murtaza has not appeared despite several calls since morning. It is 3.50 PM. No more wait is justified. Accordingly, accused Murtaza is declared as a proclaimed offender. Death report of surety Om Parkash for accused Murtaza received and the same shows that he expired on 03.10.2006. According to record, Om Parkash furnished surety bond before the learned Chief Judicial Magistrate, Yamuna Nagar at Jagadhri, on 28.06.2008, who was identified by Kashmiri Lal, Lambardar, village Parwalo, District Yamuna Nagar. At the same time, affidavit of surety Om Parkash was attested by Shri P. Shakkarwal, Advocate (Oath Commissioner), Jagadhri, District Yamuna Nagar. Infact, surety Om Parkash was not alive on 28.06.2008 and, therefore, some other person personated him before the learned Chief Judicial Magistrate, Yamuna Nagar at Jagadhri, who was identified by Kashmiri Lal, Lamberdar, village Parwalo, District Yamuna Nagar. Accordingly, a copy of present order be sent to SHO, Police Station City, Jagadhri, District Yamuna Nagar, with a direction to register FIR and investigate the matter. The other accused Shehzad is absent without any intimation. Accordingly, bail of accused Shehzad is cancelled and bonds forfeited to State. Let presence of accused Shehzad be secured through warrant of arrest for 15.10.2010 and notice to his surety be also issued.” CRM-M-28628-2011 [ 6 ] ::::::::: In terms of the aforesaid order, the present FIR came into being and Kashmiri Lal Nambardar and Rajinder Kumar (petitioner herein) were arrested on 01.08.2011. The bail application of the petitioner was dismissed on 03.09.2011 by the Additional Sessions Judge, Yamuna Nagar at Jagadhri, but the bail application of Kashmiri Lal Namberdar was allowed on 12.11.2011. The petitioner has, thus, approached this Court for regular bail through the aforesaid bail application in which notice was issued on 20.10.2011 and the entire record of the Court below was summoned on 26.11.2011 which was received on 02.12.2011. Learned counsel for the petitioner has submitted that Murtaza was arrested in case FIR No.50 dated 26.02.2008 in which he was released on bail and surety was given by Om Parkash who was identified by Kashmiri Lal Namberdar. As per the case of the prosecution, Om Parkash was not alive when the surety was given on 28.06.2008 as he had already expired on 03.10.2006. It is further submitted that the petitioner is the son- in-law of said Om Parkash who is in custody since 01.08.2011. It is further argued that the present FIR has been registered under Sections 205, 419, 420, 466, 468, 471 of IPC, out of which Section 205 IPC relates to an offence of false personation for purpose of act or proceeding in suit or prosecution. Section 205 IPC is reproduced as under: “205. False personation for purpose of act or proceeding in suit or prosecution. - Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” According to the counsel for the petitioner, in case of commission of an offence under Section 205 IPC, the cognizance cannot be CRM-M-28628-2011 [ 7 ] ::::::::: taken by a Court except on the complaint in writing by that Court or by such officer of the Court as that Court may authorize in writing in this behalf, or of some other Court to which that Court is subordinate. In this regard, he has referred to Section 195 of the Code of Criminal Procedure, 1973 [for short “Cr.P.C.”], which reads as under: “195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence. - (1) No Court shall take cognizance- (a)(i) of any offence punishable under sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or (ii) of any abetment of, or attempt to commit, such offence, or (iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate; (b)(i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or (ii) of any offence described in section 463, or punishable under section 471, section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or CRM-M-28628-2011 [ 8 ] ::::::::: (iii) of any criminal conspiracy to commit, or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii), [except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which that Court is subordinate.] (2) Where a complaint has been made by a public servant under clause (a) of sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint: Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded. (3) In clause (b) of sub-section (1), the term “Court” means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section (4) For the purposes of clause (b) of sub- section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate: Provided that - CRM-M-28628-2011 [ 9 ] ::::::::: (a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate; (b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed.” He has further referred to the definition of “complaint” which reads as under: “2. Definitions. - In this Code, unless the context otherwise requires, - (a) to (c) xxx xxx xxx (d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;” Learned counsel for the petitioner has further submitted that the complaint does not include a police report, whereas the cognizance has been taken by the Court in this case on the basis of a police report filed under Section 173 Cr.P.C. He has further argued that besides Section 205 IPC, there are other provisions of the IPC in which the petitioner has been challaned which are conspicuous by its absence in Section 195 Cr.P.C. but if CRM-M-28628-2011 [ 10 ] ::::::::: the alleged offence under Section 205 IPC and other offences are alleged to have been committed in the course of same transaction and if it is not possible to split the said transaction, then the bar envisaged under Section 195 Cr.P.C. would also cover the other offences of the IPC. In support of his submissions, he has relied upon a Division Bench judgment of this Court in the case of Jiwan Kumar v. State of Punjab and others, 2009(1) R.C.R. (Criminal) 415 (DB), a Single Bench Judgment of this Court in the case of Rajinder Kumar Chhibbar v. Aseem Bakshi, 2006(3) R.C.R. (Criminal) 586 (SB) and a judgment of the Supreme Court in the case of C. Muniappan and others v. State of Tamil Nadu, 2010(4) R.C.R. (Criminal) 268. He has further argued that all the offences are triable by Magistrate, the case is based upon documentary evidence and co-accused Kashmiri Lal Nambardar has already been granted bail by the learned Court below. Learned State Counsel has submitted that the FIR is registered on the written complaint of the Court and the allegation against the petitioner is that he had not only sworn the affidavit by personating as Om Parkash (deceased) but had also tendered his documents/jamabandi. He has further submitted that it appears that the petitioner is a stock surety who has been working as such in the Courts and has no similarity with Kashmiri Lal Nambardar who has already been granted bail. I have heard both the learned counsel for the parties and have perused the record with their able assistance. The facts of this case are not much in dispute that two persons, namely, Shehzad and Murtaza were arrested in the FIR No.50 dated 26.02.2008 and were released on bail on their furnishing bail bonds and surety bonds. Om Parkash is alleged to have furnished surety for accused Murtaza at the time of his furnishing bail bonds but at that time the said Om Parkash was not alive and was allegedly personated by the present petitioner, who is allegedly the son-in-law of the said Om Parkash (deceased). CRM-M-28628-2011 [ 11 ] ::::::::: Learned counsel for the petitioner has referred to various provisions of the law to contend that though the FIR was registered on the complaint of the Court, yet the cognizance has been taken on the police report for the offence under Section 205 IPC and the related offences which are alleged to have been committed by the petitioner in the same transaction. In C. Muniappan and others' case (supra), there was a dispute with regard to violation of Section 188 of the IPC, i.e. disobedience to order duly promulgated by a public servant. In that case, it was held that the Magistrate can take cognizance on the written complaint of the concerned public servant but cannot take cognizance on the police report and since the trial was conducted on the basis of police report, the conviction was found to be without jurisdiction ab initio and was set aside. In the said case, it was held that Section 195 Cr.P.C. is mandatory and its non-compliance would vitiate the prosecution and all other orders. In Jiwan Kumar's case (supra), it was held by the Division Bench of this Court that “Section 195 (1) of the Code restrains the Court from taking cognizance ofany offence punishable under Section 188 I.P.C. Unless a complaint in writing is made to it by the public servant concerned. In other words, no FIR can be registered by the police. It would not be open to the police to register a case against the offender for offence under Section 188 I.P.C. And then to submit a report under Section 173 of the Code to the concerned Court”. In Rajinder Kumar Chhibbar's case (supra), the case was registered under Section 182, 420, 511 of IPC and the question before the Court was that for an offence committed under Section 182 IPC, the complaint under Section 195 Cr.P.C. is to be filed but would that apply to Section 420 IPC also which does not find mentioned in Section 195 IPC. It was held that if all the offence are committed in the course of same transaction, i.e. filing of affidavit, surety bond etc., and it is not possible to split the same, then the bar envisaged under Section 195 Cr.P.C. would cover all the offences committed in the same transactions. Learned counsel for the petitioner has also relied upon a decision of the Supreme Court in the case of Sanjay CRM-M-28628-2011 [ 12 ] ::::::::: Chandra v. CBI, 2011(6) Recent Apex Judgment 191 to contend that since the challan has already been presented, the petitioner can be released on bail. After hearing both the learned counsel for the parties and keeping in view the facts and circumstances of this case, but without making any observation on the merits, the present petition is allowed and the petitioner is ordered to be released on bail on his furnishing bail bonds to the satisfaction of the learned Trial Court. The Registry is directed to return the summoned record forthwith through Special Messenger. Before parting, it would be relevant to add that the Court should make all endeavour to check furnishing of bogus sureties and surety bonds by the stock sureties. In this regard, certain provisions of law of the Cr.P.C. and the High Court Rules and Orders need special mention, which reads as under: Section 441 & 441-A of the Cr.P.C. “441. Bond of accused and sureties. -- (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of CRM-M-28628-2011 [ 13 ] ::::::::: Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. [441-A. Declaration by sureties. -- Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars.]” Rules 9 & 9A of Chapter 10, Volume 3 of the Rules and Orders of the Punjab and Haryana High Court “9. Inquiry about sufficiency of bonds.- Considerable diversity of practice exists in carrying out the provisions of the law in regard to the taking of bonds from accused persons and their sureties, and the result of the diversity is not only to cause Police Officers to be employed in needless inquiries, but also to keep the accused person in custody pending the result of the inquiry into the sufficiency or otherwise of the bail offered. Sub-section (3) of Section 449 now enables the court to accept affidavits for the purpose of determining whether the sureties are sufficient or not. At the same time, however, it is the duty of Magistrate to satisfy themselves that the sureties are, in point of CRM-M-28628-2011 [ 14 ] ::::::::: substance, persons of whom it may reasonably be presumed that they can, if necessary, satisfy the terms of the bail bond. [9A. To avoid abscondence of accused due to furnishing of bogus surety or surety bond by a stock surety, the surety, in all cases under the NDPS Act, the cases in which offence is serious and sentence provided is of more than 10 years imprisonment or the cases under the special enactment like POTA etc. shall furnish two copies of his latest passport size photograph, which is not older than six months before the date of submission, of which one copy shall be retained in the Court record and one copy to be retained by the concerned police station, along with one of the following documents:- 1. Passport. 2. Identity Card issued by the Election Commission of India. 3. Permanent Account Number Card, i.e. PAN Card issued by the Income Tax Department. 4. ATM/Debit Credit Card issued by any Nationalized or Private Bank of Standing at the National Level, having photograph of the holder thereon. 5. Identity Card issued by the Government Authorities or the Public Statutory Corporations. 6. Any such document, which is ordinarily issued by an Authority after due verification of the Identity of the person and his address, which the Judge or the Magistrate may think just and proper, in the interest of justice, by recording CRM-M-28628-2011 [ 15 ] ::::::::: specific reasons. 7. If surety is not in possession or unable to produce any document referred to in Clauses 1 to 5 above or documents demanded by Judge/Magistrate under Clause 6, his identity and address be got verified from Police Station within whose jurisdiction such surety resides or works.” It is pertinent to mention that Section 441-A Cr.P.C. is inserted by Act 25 of 2005 w.e.f. 23.06.2006 and Rule 9A of Chapter 10, Volume 3 of the Rules and Orders of the Punjab and Haryana High Court [for short “Rules & Orders] is added by correction slip dated 11.09.2007. Section 441-A Cr.P.C. was aimed to curb the tendency