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$-45 HIGH COURT OF DELHI
JUDGMENT
dated: f' October, 2016 CRL.REV.P. 631/2OT6, Crl.M.(B) No.1699/2016 and
Crl.M.A.No.14860/2016 RAM NIWAS CHOWDHURY Petitioner
Through: Mr.Arup Banerjeeand Mr.Anil Kumar Maharaj, Advocates.
Crl.M.A.No.14860/2016 RAM NIWAS CHOWDHURY Petitioner
Through: Mr.Arup Banerjeeand Mr.Anil Kumar Maharaj, Advocates.
versus
CBI
Respondent
Through; Ms.Rajdipa Behura, Spl. PP for CBI with Ms.Garima Singh Yadav, Advocate.
Respondent
Through; Ms.Rajdipa Behura, Spl. PP for CBI with Ms.Garima Singh Yadav, Advocate.
CORAM:
HON^BLE MR. JUSTICE I.S.MEHTA I.S.MEHTA. J (ORAL)
The present revision petition has been filed onbehalfof the petitioner under Section 397 read with Section 401 Cr.P.C. against the order dated
26.08.2016 passed by the learned Special Judge, P.C. Act, CBI, East Delhi in Criminal Appeal No.272/2016.
Learned counsel for the petitioner submits that the present petition may be disposed of with the direction to the Court below to decide the matter in a time-bound manner. He further submits that the Court below has not appreciated the material evidence on record whilepassingthe impugned order. He further submits that there is a likelihood of taking some time in final disposal of the appeal before the Court below and the petitioner is in
2016:DHC:9235 judicial custody since 26.08.2016. Counsel further submits that before passing ofthejudgment and order on sentence, the petitioner was on regular bail and he never misused the liberty granted to him. It is further submitted by counsel for the petitioner that the impugned order dated 26.08.2016 may be set aside and the consequential relief may be granted in favour of the petitioner.
Status report has been filed by the respondent/CBL Nominal roll of thepetitioner has also been received,from the concerned Jail authorities.
The learned Special P.P. vehemently opposes the petition on the ground that the petitioner has already availed the benefit of Section 389
Cr.P.C. before the Appellate Court, and, therefore, he cannot invoke the same provisions again before this Court.
Heard learned counsel for the parties and perused the record. Section
389(2) Cr.P.C being relevant isreproduced hereunder:
"389. Suspension ofsentence pending the appeal; release ofappellant on bail. m :
The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case ofan appeal bv a convicted person to a Court subordinate thereto".
(emphasis supplied)
It is the admitted position that the petitioner has been convicted and presently serving sentence in jail since 26.08.2016 and the appeal filed by him before the Appellate Court is likely to take some time. It is also an admitted fact that the petitioner was earlier on regular bail and he never misused the liberty granted to him.
Looking into the facts and circumstances of the case and the fact that n the appeal of the petitioner is pending before the Appellate Court and evidence ofPW-29, which isreproduced hereunder:
"PW-29 Sandeep Chaudhary, DSP, CBI, Delhi office at C.G.O.
Complex, Lodhi Road, wherein he has stated that "It is correct that the department wanted to make Sh.R.N.Chowdhury an approver in the present case. It is also correct that an application was moved in the departmentfor the same purpose. I was present in the court at the time of recording of statement u/s 164 Cr.P.C. ofaccusedR.NChowdhury andI had identifiedhim on that day. Statement of any other accused in the present case u/s 164
Cr.P.C. was not recorded except Sh. R.N.Chowdhury. It is also correct that
Sh. R.N.Chowdhury was not in judicial custody at any point oftime during investigation. He did not go to the custody (police or judicial) at all. As regards other accused persons, Sh. Mritunjay Ghoshai was in custody however. I cannot jqy how long he was in custody andSh. D.K. Chakraborty had taken anticipatory bail. Sh. R.N.Chodhury was not arrested because we wanted to make him an approver. It is also correct that no search was conducted either at residence or anywhere else belonging to Sh.
R.'N.Chowdhury whereas search was conducted at residence or at office of other accused persons. It is also correct that 1 did not find any evidence against Sh. R.N.Chowdhurypertaining to stealing ofthe cheque in thepresent case. Itis also correct that there was no documentary evidencefoundsofaras opening ofaccount or deposition ofcheque in question or withdrawal of moneyfrom the account is concerned against the accused R.N.Chowdhury.
The Department wanted to make R.N.Chowdhury as approver because no documentary evidence asaforesaidwasfound", is yet to be appreciated by the Appellate Court, consequently, Iset aside the impugned order dated 26.08.2016 and the petitioner is admitted to bail, on
^ his furnishing bail bond in the sum ofRs.25,000/- with one surety ofthe like amount, to the satisfaction of the concerned Trial Court/CMM, Karkardooma Court, Delhi. The Appellate Court below is directed to proceed further in the matter in accordance with law.
The revision petition and the applications stand disposed of in the above terms.
A copy of this orderbe given dasti to counsel for the petitioner under the signatures ofthe CourtMaster, as prayed.
OCTOBER 07, 2016 'dc' kSnSIEHTA (JUDGE)
The present revision petition has been filed onbehalfof the petitioner under Section 397 read with Section 401 Cr.P.C. against the order dated
26.08.2016 passed by the learned Special Judge, P.C. Act, CBI, East Delhi in Criminal Appeal No.272/2016.
Learned counsel for the petitioner submits that the present petition may be disposed of with the direction to the Court below to decide the matter in a time-bound manner. He further submits that the Court below has not appreciated the material evidence on record whilepassingthe impugned order. He further submits that there is a likelihood of taking some time in final disposal of the appeal before the Court below and the petitioner is in
2016:DHC:9235 judicial custody since 26.08.2016. Counsel further submits that before passing ofthejudgment and order on sentence, the petitioner was on regular bail and he never misused the liberty granted to him. It is further submitted by counsel for the petitioner that the impugned order dated 26.08.2016 may be set aside and the consequential relief may be granted in favour of the petitioner.
Status report has been filed by the respondent/CBL Nominal roll of thepetitioner has also been received,from the concerned Jail authorities.
The learned Special P.P. vehemently opposes the petition on the ground that the petitioner has already availed the benefit of Section 389
Cr.P.C. before the Appellate Court, and, therefore, he cannot invoke the same provisions again before this Court.
Heard learned counsel for the parties and perused the record. Section
389(2) Cr.P.C being relevant isreproduced hereunder:
"389. Suspension ofsentence pending the appeal; release ofappellant on bail. m :
The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case ofan appeal bv a convicted person to a Court subordinate thereto".
(emphasis supplied)
It is the admitted position that the petitioner has been convicted and presently serving sentence in jail since 26.08.2016 and the appeal filed by him before the Appellate Court is likely to take some time. It is also an admitted fact that the petitioner was earlier on regular bail and he never misused the liberty granted to him.
Looking into the facts and circumstances of the case and the fact that n the appeal of the petitioner is pending before the Appellate Court and evidence ofPW-29, which isreproduced hereunder:
"PW-29 Sandeep Chaudhary, DSP, CBI, Delhi office at C.G.O.
Complex, Lodhi Road, wherein he has stated that "It is correct that the department wanted to make Sh.R.N.Chowdhury an approver in the present case. It is also correct that an application was moved in the departmentfor the same purpose. I was present in the court at the time of recording of statement u/s 164 Cr.P.C. ofaccusedR.NChowdhury andI had identifiedhim on that day. Statement of any other accused in the present case u/s 164
Cr.P.C. was not recorded except Sh. R.N.Chowdhury. It is also correct that
Sh. R.N.Chowdhury was not in judicial custody at any point oftime during investigation. He did not go to the custody (police or judicial) at all. As regards other accused persons, Sh. Mritunjay Ghoshai was in custody however. I cannot jqy how long he was in custody andSh. D.K. Chakraborty had taken anticipatory bail. Sh. R.N.Chodhury was not arrested because we wanted to make him an approver. It is also correct that no search was conducted either at residence or anywhere else belonging to Sh.
R.'N.Chowdhury whereas search was conducted at residence or at office of other accused persons. It is also correct that 1 did not find any evidence against Sh. R.N.Chowdhurypertaining to stealing ofthe cheque in thepresent case. Itis also correct that there was no documentary evidencefoundsofaras opening ofaccount or deposition ofcheque in question or withdrawal of moneyfrom the account is concerned against the accused R.N.Chowdhury.
The Department wanted to make R.N.Chowdhury as approver because no documentary evidence asaforesaidwasfound", is yet to be appreciated by the Appellate Court, consequently, Iset aside the impugned order dated 26.08.2016 and the petitioner is admitted to bail, on
^ his furnishing bail bond in the sum ofRs.25,000/- with one surety ofthe like amount, to the satisfaction of the concerned Trial Court/CMM, Karkardooma Court, Delhi. The Appellate Court below is directed to proceed further in the matter in accordance with law.
The revision petition and the applications stand disposed of in the above terms.
A copy of this orderbe given dasti to counsel for the petitioner under the signatures ofthe CourtMaster, as prayed.
OCTOBER 07, 2016 'dc' kSnSIEHTA (JUDGE)