IN THE HIGH COURT OF JUDICATURE AT PATNA

(CRIMINAL MISCELLANEOUS JURISDICTION CASES)

Cr Misc. NO. ___________ of 2017 (Quashing)

In the matter of an

Application under Section

482 of the Code of Criminal

Procedure, 1973.

AND

In the matter of:-

Chandan Kumar Singh, son of- Santosh Kumar Singh, Proprietor of

Maa Anupurna Mini Rice Mill, Resident of Village-Bajergona, P.S.-

Kundra, Dist.-Kaimur (Bhabhua).

……….PETITIONER

Versus

1. The State of Bihar

2. The District Manager, Bihar State Food and Civil Supplies

Corporation, Kaimur.

…….RESPONDENT
 To,

The Hon’ble Mr. Justice Rajendra Menon, The Hon’ble

Chief Justice of the High of Judicature at Patna and his

companion of Justices of the said Hon’ble Court.

The humble Petition

on behalf of the above

named Petitioner/s.

MOST RESPECTIVELY SHEWETH:-

1. That the present application is being filed for quashing the order

dated 31.05.2017 (Annexure-7 to the application)passed by the

Learned Chief Judicial Magistrate , Kaimur(Bhabhau) in Connection

with Kudra P.S. Case No-95 of 2015, Gr. Case No-785 of 2015, Reg.

No-1217 of 2015 by which the learned C.J.M, Kaimur has been

pleased to cancel the bail bond of the petitioner and also issued Non-

Bailable warrant against the petitioner, the petition filed by the

B.S.F.C(O.P.No-2) not maintainable before the learned Magistrate,

the power has been given by the Apex Court in S..L.P(Cri) No-1779

of 2016 to the High Court/ Trial Court in the fact and circumstances

of each case, the order passed is non-reasoned, non speaking , the

NBW has been issued which is violative of fundamental right of the

Constitution of India thus the order passed by the learned CJM is

 without application of judicial mind and without any reason and

moreover it is unreasonable, thus warrants the interference of this

Hon’ble Court.

2. That the Petitioner has not moved earlier before this Hon’ble Court

against the Impugned Order in this matter nor any application is

pending in this matter.

3. That it is also relevant to point out that the petitioner is having one

case bearing Kudra P.S. Case No. 268 of 2015 dated 25.10.15

registered under section 147,148, 149, 323, 332,333, 326, 324, 307, 337,

435,436, 353, 427, 153(2), 295, 295(A), 298, 504, 506, 120(B) of IPC in

which the petitioner is on bail.

4. That it is respectfully submitted that on 16.04.2015, an F.I.R. has been

registered bearing Kudra P.S. Case No. 95 of 2015 by the District

Manager, BSFC, Kaimur, Bhabhua in which it has been alleged that

the petitioner has been supplied paddy for the procurement year

2012-13 total 5000 quintals. The petitioner has returned certain

quintals of rice and fails to return 2810 quintals of C.M.R. of amount

to Rs.60,85,223.60 /-. In this way the petitioner has defalcated and

misappropriated the above mentioned amount.

A True/Type copy of the Kudra

P.S. Case No. 95 of 2015 registered

under section 409, 420 of the I.P.C.

 is attached herewith and marked

as ANNEXURE – 1 to this

petition.

5. That it is respectfully submitted that the petitioner and the BSFC

has entered into an agreement for the procurement year 2012-13

in which at clause no. 2 and 3 talks about bank guarantee and

also talks about pledging of immovable property in the form of

mortgage for the rest of the amount for the entire values of paddy

which the petitioner takes for milling. The agreement between the

petitioner and B.S.F.C has been entered on 21.02.2013./25.2.2013

A True/Type copy of the

agreement dated

21.02.2013./25.2.2013 in between

the petitioner and the BSFC is

attached herewith and marked as

ANNEXURE – 2 to this petition.

6. That it is respectfully submitted that the petitioner has also

pledge the immovable property of Rs. 88,30,000/- to the District

Manager, Kaimur (Bhabhua). The deed of pledge has been given

by the petitioner to the District Manager, Kaimur, Bhabhua on

21.02.2013.The property belong to the family member of the

petitioner and it has been given through the registered deed.

 A True/Type copy of the deed of

pledge given by the petitioner

dated 21.02.2013 is attached

herewith and marked as

ANNEXURE – 3 to this petition.

7. That it is respectfully submitted that pursuant to the registration

of the F.I.R., the petitioner has approached vide A.B.P.No-452 of

2015 before the learned Sessions Judge, Kaimur at Bhabhua for

seeking Anticipatory Bail which has been allowed on the

condition that the petitioner will be depositing Rs.10,00,000/ each

month.

A True/Type copy of the order

dated 14.5.2015 passed in

A.B.P.No-452 of 2015 is attached

herewith and marked as

ANNEXURE – 4 to this petition.

8. That it is respectfully submitted that the petitioner could not

deposit the money on time and during the pendency of the

compliance of the order passed by the learned Sessions Judge, the

B.S.F.C has gone to the Hon’ble Supreme Court against other rice

millers.
9. That it is humbly submitted and stated that the State of Bihar/

Bihar State Food and Civil Supplies Corporation Ltd. had moved

against the orders granting anticipatory bail/bail in the facts and

circumstances of the identical cases, before the Hon’ble Supreme

Court of India vide SLP (Cri) No.- 1779 of 2016 and other similar

application. In the said case, final order has been passed by the

Hon’ble Supreme Court of India in which the Hon’ble Court did

not interfere with the order passed by this Hon’ble High Court

and did not cancel the bail bond. The S.L.P. has been filed by the

B.S.F.C in all the matters were almost similar and identical

questions of law was involved and there was minor difference in

the factual position of the S.L.P. The petitioner is bringing on

record, one of the S.LP. of the rice miller which has filed by the

B.S.F.C/State before the Hon’ble Supreme Court.

A copy of one of the S.L.P filed by the

B.S.F.C/State before the Hon’ble

Supreme Court and the Web Copy of the

order dated 28.02.2017 vide SLP (Cri)

No.- 1779 of 2016 is annexed hereto and

marked as ANNEXURE- 5 and 5-A to

this petition.
10. That it is further to state that from the bare perusal of the order

dated 28.02.2017 passed by the Apex Court (Vide Annexure-5-A

to the present application), Clause 3 of the Deed of the

Agreement for the year 2012-13 has been quoted by the Hon’ble

Supreme Court, which thereof provides for furnishing of Bank

guarantee for the value of paddy, which is taken for milling, or

for Pledging of the immovable property of the value of paddy,

has been brought before the kind perusal before the Apex Court

and also Clause 12 of the Deed of Agreement has also been

highlighted which states that in case of default of terms of

agreement the bank guarantee can be forfeited and legal actions

initiated for the recovery of the amount from the mortgaged

immovable property has been brought to notice of the Apex

Court to determine the case identical in facts and circumstances.

Clause 3 of the Deed of Agreement incorporates as follows:

“The Second Party is at liberty to take paddy for milling as much

as the quantity he desires during the said procurement season in

accordance with his monthly milling capacity but, he has to

furnish Bank Guarantee for the value of Paddy, which he taken

for milling or in case, he is not able of furnishing Bank

Guarantee, he has to Pledge immovable Property in the Form of

Mortgage bond for the rest amount or he can pledge immovable

 property for the entire value of the paddy which he takes for

milling. The property details so mortgage must be certified to be

in his own name by the competent authorities either by Circle

Officer of the Block or SDO of the concerned sub-division so that

in case of default of second party or any deviation of paddy may

be recovered.”

Clause 12 of the Deed of Agreement incorporates as follows:

“In case of any deviation from above agreed terms and

conditions/ any default on the part of the second party, Bank

Guarantee submitted by the second party will be forfeited by the

first party and legal action against the second party shall be taken

including recovery of amount from the mortgaged immovable

property by way of attachment and sale.

11. That further it is to state that on the basis of the aforementioned

submissions, the Hon’ble Supreme Court of India had opined that

the High Court has passed an order for the deposit of 10 to 20 per

cent of the amount, alleged to be involved in different cases for

grant of bail/anticipatory bail, the Apex court had been pleased

to not cancel the Anticipatory bail/bail but had been pleased to

modify the order of granting bail/anticipatory bail.

12. That it is humbly submitted and stated that from the bare perusal

of the order dated 28.02.2017 (Vide Annexure-5-A to the present

application) passed by the Apex Court, following conditions has

been incorporated by the Apex Court:-

1. The accused in all the FIR(S), will ensure that bank

guarantee, if not furnished, is furnished and if lapsed, is

renewed within a period of one month from today failing

which the anticipatory bail/bail granted will stand

cancelled.

2. The accused will cooperate with investigation/trail and

their failure to appear, when required, will be a ground for

cancellation of anticipatory bail/bail. An order of

cancellation will be passed by the trial court on being

satisfied about such failure.

3. The investigation will be completed within a period of

three months.

4. All the accused will be tried only at five places viz. Patna,

Gaya, Chhapra, Darbhanga and Purnia by officers of the

appropriate rank determined by the High Court within

one week from today. The High Court may specify the

area of jurisdiction of the said five courts by a public order.

If required by the High Court, the State Government may

sanction extra strength of officers with requisite

infrastructure so that normal work of courts is not

 disturbed on account of the special arrangement for these

cases.

5. The officers posted will deal with these cases exclusively. If

free from their work, any other work may be assigned to

the said officers.

6. The concerned authorities will be at liberty to encash the

bank guarantee(s) after holding that there is a breach of

terms of the agreement which decision will be subject to

appropriate remedies of the parties.

7. If not otherwise encashed, the bank guarantee will be kept

alive till the trial is over. However, deposits/furnishing of

bank guarantees will be abide by further orders of the trail

court, interim or final.

8. If any amount is deposited by the accused, the said

amount will be adjusted in the amount of the bank

guarantee, which is to be furnished by the accused.

9. The accused will surrender their passports to the

respective courts within a period of four weeks from today

and will not leave the country without prior permission

from the concerned court.

13. That it is submitted and stated that a letter has been by the

District Manager, Bihar State Food and Civil Supplies

 Corporation, Ltd, District- Kaimur(Bhabhua) to the petitioner on

18.3.2017 with respect to the deposition of the bank guarantee of

the remaining amount of the alleged due amount. Further it has

been stated that in the light of the order dated 28.02.2017 (Vide

Annexure- 5 to the present application) passed by the Hon’ble

Supreme Court of India and also w.r.t. the letter bearing Memo

No.- 2486 dated 16.03.2017 issued by the Managing Director,

B.S.F.C., Patna due against the petitioner and hence the petitioner

been directed to deposit the bank guarantee of the respective due

amount in favor of the Bihar State Food and Civil Supplies

Corporation Ltd. The petitioner has given the reply to the

District Manager, BSFC along with the property mortgaged

which has been given at the time of agreement.

14. That it is humbly submitted that the contents of the order of the

S.L.P. does not stipulates any conditions w.r.t. giving of the bank

guarantee with regard to the C.M.R. value of the entire dues .

15. That it is respectfully submitted that the case of the petitioner has

not travel to the Hon’ble Supreme Court and the petitioner was

not party to the case which has been filed before the Hon’ble

Supreme Court.

10. That it is humbly submitted that there was no petition filed by the

informant of the present case or by the prosecution for

 cancellation of the bail of the petitioner in the light of S.L.P.

(Criminal) No. 1779 of 2016.

16. That it is respectfully submitted that the petitioner was never

noticed by the Learned Court Below, hence the petitioner ifso

facto does not filed the rejoinder in the present case.

17. That suddenly on 05.06.2017 , an order has been passed by which

bail bond of the petitioner has cancelled and non bailable warrant

has been issued against the petitioner(Impugned Order).

A True/Type copy of the order

dated 05.06.2017 passed by the

Learned CJM Kaimur, Bhabhua is

attached herewith and marked as

ANNEXURE – 6 to this petition.

18. That it is respectfully submitted that the present order has been

passed without giving opportunity of hearing to the petitioner

and the learned CJM, Kaimur, Bhabhua has decided the matter

and simply directing that order passed in SLP (Criminal) No.

1779 of 2016 has been followed. There is a incorrect finding given

by the learned Court below with regard to the statement that the

petition has been filed by the petitioner with regard to bank

guarantee or application filed by the prosecution/informant.

19. That it is humbly submitted that the Hon’ble Apex Court while

passing the order in Criminal SLP No. 1779 of 2016 dated

28.02.2017 has given a clear finding that bank guarantee is to be

given and if lapsed, the same is to be given. In the present case,

the DD is of Rs. 50,000 has been given and it is with the B.S.F.C

and has not lapsed. The learned Magistrate without issuing notice

to the petitioner and without giving opportunity of hearing and

without passing the reasoned order has cancelled the bail bond of

the petitioner which is incorrect and untenable in the eye of law.

20. That it is respectfully submitted that the anticipatory bail of the

petitioner has been granted by the learned Sessions Judge, the

Trial court ought not to have cancelled the bail bond of the

petitioner under section 437 (5) of the Code of Criminal

Procedure. The prosecution ought to have moved before the

Hon’ble Patna High Court as the power is vested with the High

Court since the bail has been granted. Further, the Hon’ble

Supreme Court has also given power to the High Court/ Trial

Court to cancel or modify the order as per the facts and

circumstances of the case.

21. That it is respectfully submitted that the prosecution ought to

have moved to cancel of bail application before the Hon’ble Patna

High Court and not before the Trial Court and if it is moved, the
 said petition ought to have been rejected on the ground of

maintainability but, the learned Magistrate has cancelled the bail

bond which is nothing but exceeding the Jurisdiction.

22. That it is respectfully submitted that the action of the learned

magistrate is non exercise of the power given by the Hon’ble

Apex Court as there is a specific direction to the Hon’ble Court/

Trial court to consider each of the case on its own merit. In the

present case, the clause of the agreement describes something else

in such circumstances, the bail granted to the petitioner ought not

to have been cancelled by the Learned Magistrate, Kaimur.

23. That it is respectfully submitted that the learned Magistrate has

fail to appreciate that the prosecution has not filed the petition for

cancellation of the bail bond of the petitioner.

24. That it is respectfully submitted that the learned Magistrate has

not given opportunity of hearing, non reasoned order and on this

ground alone, the order passed by the learned Magistrate be set

aside.

25. That it is respectfully submitted that the petitioner was on bail as

per the direction of the Sessions Judge, Kaimur although has not

completely complied with the order of the Sessions Jugde and has

furnished bail bond before the learned Magistrate who has been

duly accepted the bail bond. The Learned Trail Court without
 summoning the petitioner has directly issued the NBW (Non

Bailable Warrant) which is untenable and unsustainable in the

eye of law and also amounts to violation of Article 21 of the

Constitution of India.

26. That it is respectfully submitted that the petitioner ought to have

been summoned and if the petitioner would be failed to appear

before the learned court below then bailable warrant should have

been issued, thereafter only Non-Bailable warrant could have

been issued by the learned Court. The present action of the

Learned Magistrate is to usurp the fundamental rights of the

Constitution of India.

27. That it is respectfully submitted that the petitioner has committed

no offence as alleged in the F.I.R and has falsely been implicated

in the present case by the informant in order to save their own

skin.

28. That it is further submitted and stated that the Respondent

Authorities had misconstrued the order dated 28.02.2017 passed

by the Apex Court vide which in the light of the clauses vide

Clause 3 and 12 of the Deed of an Agreement brought before the

Apex Court, the Hon’ble Bench had opined with respect to the

Bank Guarantee that if such had not been furnished then be

furnished and in case if such had been lapsed then the same be
 renewed within the period as prescribed by the Hon’ble Apex

Court and it has also been opined further that the Trial

Court/High Court will be at liberty to pass any further order

which it considers appropriate(emphasis by me), having regard

to the individual fact situation or modify the above directions in

exigencies of the situation.

29. That it is humbly submitted that Deed of the Agreement is not

considered and only the application of the part of it tends to

change the fundamental nature of the contract, as all the essential

parts of it are taken together and can be enforced. Hence the same

shall be construed as a whole and all the parts of it are to be read

and construe together.

30. That the powers under Section-482 of the CrP.C of India is not

attributed to the supervisory jurisdiction but also to meet the end

of justice. The power under Section-482 is inherent power of the

Court and it can be used to meet the ends of justice.

31. That the power under Section-482 of the CrP.C can be invoked to

secure the ends of justice (ii) the High Court may make such

orders as may be necessary to give effect to any order under the

Code; (iii) to prevent abuse of the process of any court. In the

present case, there is a requirement for the discretionary power to

 be exercised to meet the ends of justice as the order passed is

illegal and impermissible in the eye of law.

32. That it is humbly submitted that the order impugned is otherwise

bad in law not sustainable in the eye of law.

33. That if the order impugned are allowed to stand it would

occasion of failure of justice.

34. That the order impugned is bad in the eye of Law as well as on

facts and is fit to be quashed.

It is, therefore prayed that your

Lordships may graciously be please to

admit this application, issue notice to

the Opposite Parties, call for the records

of the case and after hearing the parties

be further pleased to set aside the order

dated 31.05.2017 passed by the learned

Chief Judicial Magistrate,

Kaimur(Bhabhau) in Connection with

Kudra P.S. Case No-95 of 2015, Gr. Case

No-785 of 2015, Reg. No-1217 of 2015

AND / OR
 Pass such other order or orders as your

Lordships may deem fit and proper in

the facts and circumstances of this case.

AND

During pendency of this application

further proceeding of order dated

05.06.2017 passed by the learned Chief

Judicial Magistrate in Connection with

Kudra P.S. Case No-95 of 2015, Gr. Case

No-785 of 2015, Reg. No-1217 of 2015

may kindly be stayed and the entire

record of the said case be called before

this Hon’ble Court.

And for this petitioner shall ever pray.

AFFIDAVIT
I, Vimlesh Singh aged about- …. years son of Late -Saudagar

Singh, Resident of Village - Bajarkona, P.S.- Kudra, Dist.-Kaimur

(Bhabhua) , do hereby solemnly affirm and state as follows:-

1. That I am Cousin Brother of Petitioner in this case and as such

am acquainted with the facts and circumstances of this case.

2. That the contents of this petition have been read and

explained to me in Hindi Over and which have been well

understood the same and they are true to the best of my

Knowledge.

3. That the Annexures are True/ photocopies of its originals.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS JURISDICTION
 Cr Misc. No. _____________ of 2017 ( QUASHING)

CHANDAN KUMAR SINGH ….. PETITIONER/s

VERSUS

The State of Bihar and Another …..OPPOSITE PARTY/s

SUB: QUASHING APLICATION-Group-VIII-Others

INDEX

Sl. No. Particulars Page No.

1. An application under section 482 of the Cr. P.C.
along with Affidavit.
2. ANNEXURE-1: A True/Type copy of the Kudra
P.S. Case No. 785 of 2015 registered under section
409, 420 of the I.P.C.
3. ANNEXURE-2: A True/Type copy of the
agreement dated 21.02.2013 in between the
petitioner and the BSFC
4. ANNEXURE-3: A True/Type copy of the deed
of pledge given by the petitioner dated
21.02.2013
5. ANNEXURE-4: A True/Type copy of the order
dated 14.5.2015 passed in A.B.P.No-452 of 2015
6. ANNEXURE-5 and 5/A: A copy of one of the
S.L.P filed by the B.S.F.C/State before the
Hon’ble Supreme Court and the Web Copy of
the order dated 28.02.2017 vide SLP (Cri) No.-
1779 of 2016
7. ANNEXURE-6: A True/Type copy of the order
dated 05.06.2017 passed by the Learned CJM
Kaimur, Bhabhua
8. VAKALATNAMA
 IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS JURISDICTION

Cr Misc. No. _____________ of 2017 ( Quashing )

CHANDAN KUMAR SINGH ….. PETITIONER/s

VERSUS

The State of Bihar and Another …..OPPOSITE PARTY/s

SUB: QUASHING APLICATION-GROUP-VIII-OTHERS