Arjun Singh &Others Vs State of Chhattisgarh

Chhatisgarh High Court (Single Judge)

ACQA->ACQUITTAL APPEAL [ APPEAL U/S 378 ], 774 of 2015 of 2015, Judgment Date: Feb 20, 2015

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HIGH COURT OF CHHATTISGARH AT BILASPUR
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SINGLE BENCH:HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
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M.Cr.C No. 774 of 2015
APPLICANTS : Arjun Singh &Others
VERSUS
NON-APPLICANT : State of Chhattisgarh
APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL
PROCEDURE, 1973
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Present :
Shri Dilman Rati Minj, counsel for the applicants.
Shri D.K. Gwalre, Govt. Advocate and Shri S.K. Mishra,
Panel Lawyer for the non-applicant/State.
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ORAL ORDER
(Passed on 20.02.2015)
1. Invoking jurisdiction of this court under Section 439 of the
Cr.P.C., the applicants have filed this application for grant of
regular bail stating inter alia that they have been arrested in
connection with POR No. 8837/18, Forest Ranger, Duldula,
Jashpur, Police Station Tapkara, District Jashpur, for the
offence punishable under Section 9 of the Wild Life
(Protection) Act, 1972 (for short, the Act, 1972) and under
Section 26(i) of the Indian Forest Act, 1927 (for short, the Act,
1927).
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2. Case of the prosecution, in brief, is that the applicants
haunted Barking Deer which is a animal specified in
Schedule-III of the Act of 1972, and concealed the meat of
such animal in the forest which is an offence punishable
under Section 26(1)(i) of the Act, 1927.
3. Shri Dilman Rati Minj, learned counsel for the applicants
would submit that for commission of offence under Section 9
of Act of 1952, punishment is prescribed under Section 51(1)
of Act of 1972, and shall, on conviction, be punishable with
imprisonment for a term which may be extend to three years
or fine with Rs.25,000/- or with both, and proviso to Section
51(1) of Act, 1972 is not applicable because the barking Deer
which is allegedly killed by the applicants is neither schedule-I
or Schedule-II animal for which imprisonment may extend to
seven years and a such offence which the applicants are
charged is bailable one and offence under Section 26(1)(i)of
Act 1927 is also bailable offence as punishment prescribed in
only six months or with fine and therefore, both the courts
below have committed an legal error in not granting to them
bail in the bailable offence.
4. On the other hand, Shri D.K. Gwalre, learned counsel for the
non-applicant/State would submit that offence committed by
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the applicants are bailable offence and bail ought to have
been granted by the court below.
5. I have heard the counsel appearing for the parties and
perused the case diary with utmost circumspection.
6. At this stage it would be appropriate to notice, relevant
provisions contained in Act of 1972 as well Act of 1927 and
Code of Criminal Procedure ,1973.
“ 51 . Penalties .- (1) Any person who
[contravenes any provision of this Act (except
Chapter VA and Section 38J)] or any rule or order
made thereunder or who commits a breach of any
of the conditions of any licence or permit granted
under this Act, shall be guilty of an offence against
this Act, and shall, on conviction, be punishable
with imprisonment for a term which may extend to
[three years] or with fine which may extend to
[twenty-five thousand rupees] or with both;
[Provided that where the offence committed
is in relation to any animal specified in Schedule I
or Part II of Schedule II or meat of any such
animal or animal article, trophy or uncured trophy
derived from such animal or where the offence
relates to hunting in a sanctuary or a National Park
or altering the boundaries of a sanctuary or a
National Park, such offence shall be punishable
with imprisonment for a term which shall not be
less than three years but may extend to seven
years and also with fine which shall not be less
than ten thousand rupees:
Provided further that in the case of second
or subsequent offence of the nature mentioned in
this sub-section, the term of imprisonment shall
not be less than three years but may extend to
seven years and also with fine which shall not be
less than twenty-five thousand rupees.]”
*****
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“SCHEDULE III
(See sections 2, 8, 9 [***] 11 and 61)
[***]
[1. ***]
2. Barking deer or muntjac (Muntiacus muntjak)”
*****
“The Indian Forest Act, 1927
26. Acts prohibited in such forests.-(1) Any
person who-
(a)........
(b)........
(c)........
(d)........
(e)........
(f)........
(g)........
(h)........
(i) in contravention of any rules made in this
behalf by the [State Government] hunts, shoots,
fishes, poisons water or sets traps or snares; or”
*****
THE FIRST SCHEDULE
CLASSIFICATION OF OFFENCES
...........
II – CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS
Offence Cognizable or Bailable or By What
non-cognizable non-bailable court
triable
________________________________________
1. 2. 3. 4.
________________________________________
*** *** *** ***
*** *** *** ***
If punishable Non-cognizable Bailable Any Magistrate
with imprisoment
for less
than 3 years
or with fine
only.
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7. In a decision reported in Om Prakash and Another v.Union
of India & Another the Supreme Court has held that if the
offence is punishable imprisonment for less than three years
or with fine only, such offence would be bailable, and held as
under:-
“38. The expression "bailable offence" has been
defined in Section 2(a) of the Code and set out
hereinabove in paragraph 3 of the judgment, to
mean an offence which is either shown to be
bailable in the First Schedule to the Code or which
is made bailable by any other law for the time
being in force. As noticed earlier, the First
Schedule to the Code consists of Part 1 and Part
2. While Part 1 deals with offences under the
Indian Penal Code, Part 2 deals with offences
under other laws. Accordingly, if the provisions of
Part 2 of the First Schedule are to be applied, an
offence in order to be cognizable and bailable
would have to be an offence which is punishable
with imprisonment for less than three years or with
fine only, being the third item under the category of
offences indicated in the said Part. An offence
punishable with imprisonment 31for three years
and upwards, but not more than seven years, has
been shown to be cognizable and nonbailable......”
8. From the careful and closed perusal of the aforesaid statutory
provision it would appear that the Barking Deer which is a
animal listed at serial No.2 in Schedule-3 of the Act of 1972
and for haunting animal of Schedule-3, punishment
prescribed under Section 51(1) of the Act, 1972 is up to three
years or fine of Rs.25,000/-, or with both, and by virtue of
para-2 of schedule-1 annexed with Cr.P.C. which prescribes
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the classification of offences against other law, if the offence
are punishable with imprisonment for less than three years or
with fine only, the nature of offence would be non-cognizable
and bailable and it would be triable by the magistrate.
9. The grant of bail to a person accused of bailable offence is
provided and governed by Section 436 of the Code of
Criminal Procedure.
“436. In what cases bail to be taken.- (1) When
any person other than a person accused of a nonbailable
offence is arrested or detained without
warrant by an officer in charge of a police station,.
Or appears or is brought before a Court, and is
prepared at any time while in the custody of such
officer or at any stage of the proceeding before
such Court to give bail, such person shall be
released on bail:
Provided that such officer or Court, if he or it
thinks fit, [may, and shall, if such person is
indigent and is unable to furnish surety, instead of
taking bail] from such person, discharge him on
his executing a bond without sureties for his
appearance as hereinafter provided:
[Explanation.- Where a person is unable to
give bail within a week of the date of his arrest, it
shall be a sufficient ground for the officer or the
Court to presume that he is an indigent person for
the purposes of this proviso.]
Provided further that nothing in this section
shall be deemed to affect the provisions of subsection
(3) of Section 116 [or section 446A].
(2) Notwithstanding anything contained in subsection(
1), where a person has failed to comply
with the conditions of the bail-bond as regards the
time and place of attendance, the Court may
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refuse to release him on bail, when on a
subsequent occasion in the same case he
appears before the Court or is brought in custody
and any such refusal shall be without prejudice to
the powers of the Court to call upon any person
bound by such bond to pay the penalty thereof
under Section 446.”
Thus, by virtue of provisions contained in Section 436 of
the Code of Criminal Procedure, a person accused of bailable
offence is entitled to be released on bail, if is prepared to give
bail when appears or his brought before the court and the
police officer or the court is duty bound to release him on bail
on such unreasonable terms.
10. The question as to whether a person accused of a bailable
offence is entitled to grant bail as a matter of right stands
authoritatively concluded by the decision of Supreme Court in
case of Rasiklal v. Kishore S/o Khanchand Wadhwani, in
which it has been clearly held that in bailable offence, the
right of accused to get bail is absolute and indefeasible right
and the courts have no discretion in granting bail, their
Lordships held as under:
“9..........There is no doubt that under Section 436
of the Code of Criminal Procedure a person
accused of a bailable offence is entitled to be
released on bail pending his trial. As soon as it
appears that the accused person is prepared to
give bail, the police officer or the court before
whom he offers to give bail, is bound to release
him on such terms as to bail as may appear to the
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officer or the court to be reasonable. It would even
be open to the officer or the court to discharge
such person on his executing a bond as provided
in the Section instead of taking bail from him.”
In the later part of said judgment, it has been further
held that, the only choice available to the officer or the court
is as between taking a simple recognizance of the accused
and demanding security with surety. The persons
contemplated by Section 436 cannot be taken into custody
unless they are unable or willing to offer bail or to execute
personal bonds. There is no manner of doubt that bail in a
bailable offence can be claimed by accused as of right and
the officer or the court, as the case may be, is bound to
release the accused on bail if he is willing to abide by
reasonable conditions which may be imposed on him.
11. Thus, bearing in mind the principles of law laid down in
aforesaid Rasiklal (supra) and also considering the
provisions contained in Section 436 of Cr.P.C., it is quite
apparent that in bailable 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.
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12. If the facts of present case is examined in the light of
aforesaid proposition of law it quite vivid that the trial
magistrate as well as court of Sessions rejected the bail
applications of applicants without taking into consideration
that both the offences allegedly committed by them are
bailable offences as held hereinabove, and therefore, the
applicants are entitled to be released on bail as a matter of
right. Thus, in the considered opinion of this court, this is a fit
case in which the applicants should be enlarged on regular
bail.
13. Accordingly, the bail application filed under Section 439 of the
Cr.P.C. is allowed. It is directed that each of the applicants
namely Arjun Singh, Adhar Singh, Khirodhar Singh, Premsai,
Bhardwaj Singh, Keshwar Sai and Vijay Ram shall be
released on bail on each of them furnishing a personal bond
in the sum of Rs.25,000/- with one surety in the like sum to
the satisfaction of the concerned Court for appearance as
and when directed.
14. Certified copy as per rules.
Judge
inder
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Head Note
(English)
In bailable offence bail is absolute right of accused person
(fgUnh)
tekurh; vijk/kksa esa tekur vijk/kh dk iw.kZ vf/kdkj gSA
(Indrajeet Sahu)
P.S. to Hon’ble Shri
Justice Sanjay K. Agrawal