Uttarakhand High Court
CRLA/86/2021 on 7 December, 2021
Office Notes,
reports, orders or
SL. proceedings or
Date COURT'S OR JUDGES'S ORDERS
No directions and
Registrar's order
with Signatures
CRLA No.86 of 2021
With
Bail Appl. No.2 of 2021
Along with connected matters.
Hon'ble R.C. Khulbe, J.
Mr. S.K. Mandal, learned counsel for the
appellant.
Mr. Pankaj Joshi, learned B.H. for the State.
Heard.
This is the second bail application moved on
behalf of the appellant - Dharmendra Kumar @
Sameer Malik, who has been convicted under
sections 395 and 397 IPC and has been sentenced to
seven years' rigorous imprisonment with fine of Rs.
10,000/- under section 395 IPC and also sentenced
to ten years' rigorous imprisonment under section
397 IPC with fine of Rs. 15,000/- with default
stipulation.
It is argued by the learned counsel for the
appellant that after the arrest the appellant was
regularly produced before the concerned Court for
granting remand but without baparda; the
informant, who is the resident of Khatima was
regularly putting his appearance before the
concerned Court; the TIP was conducted after 33
days; since there was only four persons convicted
by the trial Court, accordingly, the appellant cannot
be convicted under section 395 and 397 IPC
because there must be five or more persons; since,
he has been acquitted under section 412 IPC, hence
he cannot be convicted under section 395 and 397
IPC; there is no other evidence against him except
the TIP; accordingly, the appellant cannot be
convicted under section 395 and 397 IPC as per the
judgment of Hon'ble Apex Court in the case of
Iqbal and another Vs. State of Uttar Pradesh
(2015) 6 SCC 623; Sia Ram Vs. State of U.P. (Crl
Appeal No.2680 of 1980) (2000) 40 Allbd.
Criminal Cases 703; Umesh Chandra Vs. State
of Uttarakhand (Crl. Appeal No.801 of 2021) and
also as per the judgment of Hon'ble Apex Court in
Satrughana @ Satrughana Parida and others Vs.
State of Orissa (1994) SCC 1924.
Per contra, learned counsel for the State
opposed for bail.
As regards to the TIP is concerned, the
Hon'ble Apex Court, in Satrughana @
Satrughana Parida and others Vs. State of
Orissa (supra), clearly stated that accused are
required to be produced within 15 days of the arrest
before the concerned Court but the Hon'ble Apex
Court did not lay down the law regarding time of
conducting TIP. It is not held that the TIP must be
held within 15 days from the date of arrest. As per
Section 57 of the Cr.P.C., no police officer shall
detain in custody a person arrested without warrant
for a longer period than under all the circumstances
of the case is reasonable, and such period shall not,
in the absence of a special order of a Magistrate
under Section 167, exceed twenty-four hours
exclusive of the time necessary for the journey from
the place of arrest to the Magistrate's Court.
As per Section 167 of Cr.P.C. it is clear that
when the investigation cannot be completed within
the period of twenty-four hours fixed by Section 57,
and he will produce the accused before the nearest
Judicial Magistrate. As per Sub-section 2 of Section
167, the concerned Magistrate, who has or has not
jurisdiction to try the case can authorize the
detention of the accused for a period not exceeding
fifteen days in the whole.
Section 9 of the Indian Evidence Act relates
to TIP but there is no time limit prescribed.
As regards to the conviction under section
395 and 397 IPC is concerned, although the convict
has been acquitted under section 312 IPC but any
person can be convicted under section 395 and 397
IPC if there is a credible evidence. The offence
under section 412 IPC is regarding dishonestly
receiving property stolen in the commission of a
dacoity while offence under section 397 and 397 are
different. It is true that for committing an offence
which falls under dacoity there must be five or more
persons but less than five persons can be convicted
under section 397 IPC.
As regards to baparda is concerned, since, the
Court is hearing the bail application, hence, it
cannot assess the entire evidence at this stage. Apart
from that, from the remand sheet, it is not clear that
the accused were produced by the police and the jail
authority without baparda. As per the evidence, the
TIP was conducted after arrest of the accused. The
accused was identified by one of the persons who
came before the witness box.
During the investigation, one country-made
pistol was also recovered from the convict and he
was convicted under section 25 Arms Act. The first
bail was rejected after hearing learned counsel for
the accused as well as the learned counsel for the
State. There is no fresh ground mentioned in the
second bail application. Accordingly, the second
bail application is also liable to be dismissed.
Accordingly, the second bail application is
dismissed.
Since, it is submitted by learned counsel for
the appellants that the appellants are down-trodden
persons and they are unable to afford the fee of the
advocate also, accordingly, the Registry is directed
to submit translated copy of the FIR, statements of
the witness in English.
List thereafter along with connected matters.
(R.C. Khulbe, J.)
07.12.2021
Sukhbant
