Rajasthan High Court - Jodhpur

Kamal Bhati vs State Of Rajasthan (2023:Rj-Jd:41003) on 23 November, 2023

Author: Farjand Ali

Bench: Farjand Ali

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          HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                           JODHPUR
     S.B. Criminal Miscellaneous Bail Application No. 13721/2023

Kamal Bhati S/o Late Laduram Bhati, Aged About 28 Years, R/o
Akatala Bera Bhati Krishi Farm Chowkha Ps Rajiv Gandhi Nagar
Presently R/o At 221 Shriram Nagar Behind Rto Office Ps Mata
Ka Than Jodhpur East Raj. At Present Lodged In Central Jail
Jodhpur
                                                                         ----Petitioner
                                      Versus
1.          State Of Rajasthan, Through Pp
2.          M/s R.b.l. Bank Limited, Reserve Bank Of India Having
            Branch At Plot No. 21 Sector E, Masuriya Colony Section 4
            Shashtri Nagar Jodhpur Raj. Through Its Authorised
            Singnatory Nikhil Purohit S/o Late Kailash Kumar Pareek
            Assistant Deputy Manager R/o Plot No. A-57A Major
            Shaitan Singh Colony Shashtri Nagar Jaipur Raj.
                                                                   ----Respondents


For Petitioner(s)           :     Mr. Vinod Kumar Sharma
For Respondent(s)           :     Mr. S.K. Bhati, P.P.



                 HON'BLE MR. JUSTICE FARJAND ALI

Order

23/11/2023

1. Despite service, no one has appeared on behalf of the

respondent.

2. The jurisdiction of this court has been invoked by way of

filing an application under Section 439 CrPC at the instance of

accused-petitioner. The requisite details of the matter are

tabulated herein below:

S.No.                           Particulars of the Case

     2.     Concerned Police Station                        Cyber Police Station


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     3.     District                                        Deputy Commissioner
                                                            (Crime)
                                                            Commissionerate,
                                                            Jodhpur
     4.     Offences alleged in the FIR                     S. 420, 406 & 120-B
                                                            of IPC and S. 66C &
                                                            66D of IT Act
     5.     Offences added, if any                           -

6. Date of passing of impugned order 18.10.2023

3. The concise facts of the case as alleged in the FIR lodged on

behalf of the bank are that some of the credit card holders

cheated the bank with the help of a few businessmen. They

executed online transactions using their credit cards; the amount

of which went beyond the set limits prescribed for their respective

credit cards by manipulating the maximum limit of their cards.

They intentionally messed with the bank software with the

intention of benefiting themselves and causing loss to the bank.

upon asked to pay up the amount that they had spent, they

refused to pay the amount that went beyond the credit limit

applicable on their respective cards. Hence, the present FIR came

to be lodged.

4. It is contended on behalf of the accused-petitioner that no

case for the alleged offences is made out against him and his

incarceration is not warranted. The petitioner has no connection

with the offences alleged in the FIR. He had used his credit card

for personal shopping and his fault is limited to the extent of

defaulting in repayment of the amount spent but he is not

involved in the cyber crime. It is further submitted that the bank

could have blocked the card of the petitioner's mother who was

the applicant but instead, they waited for the debt to pile up in

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order to gain from the same. There are no factors at play in the

case at hand that may work against grant of bail to the accused-

petitioner and he has been made an accused based on conjectures

and surmises.

5. Contrary to the submissions of learned counsel for the

petitioner, learned Public Prosecutor opposes the bail application

and submits that the present case is not fit for enlargement of

accused on bail.

6. Have considered the submissions made by the parties and

have perused the material available on record. The offences under

Sections 420, 406 and 120-B of IPC are triable by Magistrate and

a detailed order dated 07.10.2023 discussing the reasoning and

jurisprudence for grant of bail under Section 439 CrPC in cases

involving offences triable by Magistrate has been passed in S.B.

Criminal Miscellaneous Bail Application No. 11452/2023 titled

Dharmendra Vs. State of Rajasthan. The relevant excerpts

from the same are reproduced as under:

"13. In the garb of these qualifications and riders contained under Section 437, the Magistrates have been equipped with well-defined authorizations to grant bail. If the discretion to grant bail has been so clearly vested in Magisterial Court with specific restraints/curtailments on such power as well as specific exceptions to such restraints/curtailments, then it is writ large that the legislature intended to vest the discretion to grant bail to a person accused of or suspected of commission of a non- bailable offence in the Court of Magistrate. Such widely contoured and meticulously formulated discretion vested in Courts of Magistrate cannot be usurped by any Court just by virtue of being higher in the hierarchy of courts of the nation."

"24. At this juncture, it would be worthwhile to mention that almost in all penal statutes where an offence is triable by Magistrate, convicting court has been

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given an absolute discretion. For instance, for commission of offence of cheating and dishonestly inducing delivery of property, Section 420 of IPC prescribes that such a person "shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"; for commission of offence under Section 386 of CrPC, such a person "shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine"; for commission of offence of extortion, Section 384 prescribes that such a person "shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both". The discretionary bracket given to a convicting court makes it abundantly clear that post conviction and hearing on the point of sentence, the court of law may pass minimum sentence which may be for a shortest term of 'till rising of the court' or by imposition of fine only and this is an absolute discretion vested in the convicting court. Before reaching on this stage, even the trial judge cannot speculate that what kind of punishment would be inflicted upon the accused whom he is trying and this is due to two reasons, namely that the guilt of the accused had not been proved till that moment in time and that maybe for administrative exigency or for any other reason, he may not preside to hear the accused on the point of sentence and he may not even remain the convicting judge. Of course, the order of sentence can be challenged in appeal or revision along with conviction but this stage has not come on the day when the bail application of the accused pending trial is heard meaning thereby when even the order of sentence has not been passed or has not been challenged, whether any order affecting the sentence can be passed or not and whether doing so during trial would be unreasonable and premature. To my mind, keeping a person detained during trial in a case exclusively triable by court of magistrate would necessarily mean elongating the period of sentence whilst even at this stage, conviction has not been made leave aside the point of sentence. Thus, keeping an accused of the offence of above nature for a longer period during investigation and trial would mean enhancement of the period of sentence before actually passing the order of sentence.

25. After pondering over the legal provisions made in the code of Criminal Procedure, the law enunciated

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by Hon'ble the Supreme Court through plethora of judicial pronouncements and upon deliberation of bail jurisprudence, it is understood that the only thing which a court of law is to ascertain while entertaining a bail plea is whether the accused should be allowed to come to the court to attend the judicial proceeding from his home and he may be allowed to remain with his family and within the society on the specific condition that on the stipulated date of the hearing of the case, he will willfully attend the court proceeding or he is such a person that even in the pending trial, he should be detained, should not be allowed to visit his family and should be lodged at a specified place of detention so that on the day of hearing, he may be brought to the court from the jail. In other words, it is to be decided whether he may be allowed to eat, sleep and live with his family like a man ordinarily does or he may be allowed to eat, sleep and live in the jail. It all boils down to this that whether the Court wishes to allow the accused to come to the court to attend the proceedings from his home upon furnishing his bonds and surety of independent person(s)s or the court thinks that he cannot be allowed to roam free and therefore, he should be detained so that he may be brought before the court on the day fixed for the hearing. This Court is of the considered view that this is the only thing which is to be thought over and to be ascertained while entertaining a bail plea. It is a judicially noticeable fact in the present era that due to high volume of pending cases, culmination of trial takes considerable time and in my view, keeping the accused behind the bars during the pendency of the case would serve no purpose except in exceptional circumstances.

26. The entire gamut of bail jurisprudence revolves around the conduct of the accused. Release of a person having bad conduct or a history of bad conduct may be a peril to the society. It is his conduct which brings into the mind of a judicial officer to make an idea that if the accused is released on bail, he may commit the offence again/ repeat the offence again and as such, the same will not be in societal interest. Here, it is to be made clear that such kind of speculation should not be made on vague and bald pleas and aspersions rather there must be some solid material to reach on the above conclusion which means that the speculation should not be vague but should be well-founded.

27. The Sessions Judge or this Court is not permitted by the law to usurp the discretion vested in the

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Court of Magistrate to pass an order of sentence. The discretionary bracket/spectrum of passing an order of term of imprisonment amounting to one day or the maximum shall always lie with the convicting Magistrate. It is apropos to state that until an order or judgment is actually passed and attains finality, it does not become assailable which forces this Court to wonder that when something has not become eligible for challenge before the Court, how can the Court assume/ speculate/ form an idea as to what term of sentence or imposition of punishment will the Magistrate pass. And, if such an assumption/speculation/idea cannot be formed, then where from the higher courts get authority that enables them to not grant bail to an accused facing allegations regarding commission of offences triable by Magistrate. How do the courts decide what sentence a Magistrate may pass, more so when the spectrum of discretion vested in the Magistrate ranges from fine and imprisonment till rising of the court to imprisonment for a period of seven years. This Court is of the considered view that long detention of an accused of the cases triable by magistrate during trial would necessarily result in elongation of sentence and by doing so, the upper courts are actually snatching away the discretion exclusively vested in the magistrate."

7. It is apparent from the voluminous record of the case that

there are many witnesses and thus, the trial is likely to progress

at a slow pace and take longer to culminate. In view of the above-

referred judgment as well as the fact that the trial is likely to take

considerable amount of time to reach its conclusion, the present is

a fit case for grant of bail though the genuineness of the

allegations shall be adjudged after appreciation of evidence during

trial. In light of these facts and circumstances, it is deemed

suitable to grant the benefit of bail to the appellant in the present

matter. Needless to say, none of the observations made herein

under shall affect the rights of either of the parties during trial and

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