HIGH COURT OF CHATTISGARH AT BILASPUR
Misc Criminal Case No.1168 of 2004
Shri Narayan Chauhan
...Petitioners
Versus
State of Chhattisgarh
...Respondents
{Application under Section 439 of the Code of Criminal
Procedure, 1973}
! Mr. Ashutosh Shrivastava, counsel for the applicant
^ Mr. Sameer Behar, Panel Lawyer for the State
Mr. Vipin Tiwari, counsel for co-accused Manjeet Sharma
Honble Mr. T.P. Sharma, J
Dated:24/02/2009
: Judgment
ORDER
(Passed on 24th February, 2009)
1. Applicant Shri Narayan Chauhan has filed this
application under Section 439 of the Cr.P.C. for grant of
regular bail, as he is in custody in connection with Crime
No.43/2004, registered at Police Station Supela, Bhilai,
Distt. Durg, for offence punishable under Section 394 read
with Section 34 of the I.P.C.
2. Trial of offence punishable under Sections 394 & 341 of
the I.P.C. is pending against the present applicant namely
Shri Narayan Chauhan @ Chotu @ Raju, Chotu @ Santosh &
Manjeet Sharma before the Court of Judicial Magistrate First
Class, Durg in Criminal Case No.426/2008. The present
application for bail was filed on behalf of the present
applicant Shri Narayan Chauhan @ Chotu @ Raju. During the
course of hearing, learned counsel for the applicant informed
this Court on 25-6-2004 that another co-accused has been
granted bail by the Court below on which a report was called
from the Sessions Judge, Durg. On 13-5-2005, it was informed
by learned counsel for the State that the present applicant
has also been released on bail by the Additional Chief
Judicial Magistrate, Durg and this application has become
infructuous. Again a report was called from the Chief
Judicial Magistrate, Durg.
3. Vide memo dated 20-7-2004, the Sessions Judge, Durg
informed that co-accused Chotu @ Santosh has been admitted to
bail on 3-6-2004. The present accused/applicant Chotu @ Raju
@ Shri Narayan Chauhan has also applied for bail before the
Court below and the same has been allowed on 15-6-2004. It
has also been informed by the Sessions Judge that at the time
of filing bail application on behalf of the present applicant
before the Court below the applicant has concealed the fact
that bail application M.Cr.C.No.1168/2004 is pending before
this Court and informed the Court below that same has been
dismissed as not pressed. On the basis of the said
information, the Additional Chief Judicial Magistrate, Durg
has released the present accused/applicant & other co-accused
on bail on 15-6-2004.
4. Record of the Court of Additional Chief Judicial
Magistrate, Durg, reveals that on 3-6-2004, an application
under Section 437 (6) of the Cr.P.C. was filed on behalf of
co-accused Chotu @ Santosh, the same has been allowed and
Chotu @ Sanotsh was released on bail. On 8-6-2004, an
application for urgent hearing was filed on behalf of the
present applicant namely Chotu @ Raju @ Shri Narayan Chauhan
and on the same day, an application for release on bail under
Section 437 (6) of the Cr.P.C. was also filed on behalf of
the present applicant in which it has been specifically
mentioned that the application for bail pending before the
High Court was dismissed as withdrawn after release of main
accused on bail by the Court of Additional Chief Judicial
Magistrate, Durg. The application for release on bail filed
on behalf of the present applicant under Section 437 (6) of
the Cr.P.C. was supported by an affidavit of Sankesa Devi,
mother of the applicant. Another application supported by
the affidavit of father of the present applicant has also
been filed before the Court below in which it has been
specifically alleged that no application for bail has been
filed before the High Court or pending before the High Court
or dismissed by the High Court. On the basis of the
aforesaid applications the present applicant was released on
bail vide order dated 15-6-2004.
5. It appears from the record of the trial Court and record
of this Court that on 15-6-2004, the application for bail
filed on behalf of present applicant Shri Narayan Chauhan was
pending before this Court and the application for bail was
filed before the A.C.J.M., Durg on the ground that no bail
application is pending before this Court and the same has
been dismissed as withdrawn. The affidavits filed by mother
& father of the present applicant were self-contradictory
relating to filing, pendency and dismissal of the bail
application. In the application for grant of bail dated 8-6-
2004 it has been mentioned that the bail application pending
before the High Court has been dismissed as withdrawn. This
application was supported by the affidavit of Sankesa Devi,
mother of the applicant. Another application was also filed
on behalf of the present applicant on 15-6-2004 which was
supported by the affidavit of Ramesh Chauhan, father of the
present applicant, stating that no application has been filed
before the High Court or is pending or has been dismissed by
the Court, which was patently incorrect and wrong. On the
basis of the application for bail supported by affidavits of
mother & father of the applicant concealing the fact of
pendency of bail application before this Court, the applicant
could succeed in getting bail by misrepresentation. On 12-6-
2004 co-accused Manjeet Sharma has also filed an application
for bail under Section 437 (6) of the Cr.P.C. and he was
released on bail vide order dated 15-6-2004 by the A.C.J.M.,
Durg,
6. Show cause notice has been issued to the applicant and
co-accused Manjeet Sharma. Another co-accused Chotu @
Santosh is still absconding.
7. The present applicant has replied the show cause notice
vide his reply dated 30-10-2006. He admitted the fact that
on the date of filing of bail application and order on the
bail application before the Court below, the present
application was pending before this Court. He stated that
the mistake was bona fide on behalf of his father.
8. I have heard learned counsel for the parties.
9. Learned counsel for the applicant submits that father of
the applicant is an illiterate person and he has bona fidely
filed an affidavit under the belief that the application
pending before this Court i.e. the present application was
dismissed as withdrawn. The applicant is appearing before
the Court below regularly and he has not misused the order of
bail.
10. Mr. Vipin Tiwari, learned counsel appearing on behalf of
co-accused Manjeet Sharma, submits that Manjeet Sharma was on
bail. Mr. Vipin Tiwari further submits that co-accused
Manjeet Sharma has not misrepresented or concealed the truth
and he has applied for bail on the ground of his detention
for more than 60 days after the commencement of trial.
11. On the other hand, learned counsel appearing on behalf
of the State submits that the present applicant has concealed
the fact of pendency of this application and he has obtained
bail order from the Court below by misrepresentation.
12. On 8-6-2004 & 15-6-2004 the present application filed on
behalf of the applicant was pending for consideration before
this Court, but during the pendency of this bail application
before this Court, applications for bail on behalf of Shri
Narayan Chauhan (the applicant herein) were filed before the
Court below, supported by affidavits of his mother Sankesa
Devi & father Ramesh Chauhan. The bail application dated 8-6-
2004 filed on behalf of the present applicant supported by
the affidavit of his mother Sankesa Devi & second bail
application dated 15-6-2004 supported by the affidavit of his
father Ramesh Chauhan show that the bail application pending
before this Court was dismissed as withdrawn and also that no
application for bail was filed before the High Court or
pending before the High Court or dismissed by the High Court.
This shows that contents of both the bail applications &
affidavits were self-contradictory. At the time of
consideration of the two bail applications filed on behalf of
the present applicant, the Court below has not considered the
contradictory allegations & affidavits. The Courts are
required to be vigilant in discharge of their judicial
functions. The applicant has obtained bail from the trial
Court by concealing truth and by misrepresentation.
13. During the pendency of this bail application, co-accused
Chotu @ Santosh & Manjeet Sharma were released on bail by the
Court below. Co-accused Chotu @ Santosh is absconding, but
Chotu @ Santosh & Manjeet Sharma have not obtained bail by
misrepresentation or concealment of facts. The present
applicant has succeeded in getting bail by misrepresentation
and concealment of facts. Any interference or
misrepresentation in the administration of justice should be
viewed seriously. No person should be permitted to take
benefit by misrepresentation or concealment of facts with the
Court. Such order of bail obtained by misrepresentation and
concealment of facts should not continue.
14. Consequently, the order granting bail to the present
applicant Shri Narayan Chauhan by the A.C.J.M., Durg vide
order dated 15-6-2004 is hereby cancelled. Applicant Shri
Narayan Chauhan is directed to surrender himself before the
Court concerned i.e. the Judicial Magistrate First Class,
Durg, in Criminal Case No.426/2008 within seven days from
today. The Judicial Magistrate First Class, Durg, is
directed to take appropriate steps for taking suitable action
against the person who misrepresented and concealed the facts
before the Court, in accordance with law.
JUDGE