IMPORTANT POINT
In bailable offence there is no question of discretion in granting bail

Alok Singh, J.— On being asked, Ms. Bhavna Gupta, Deputy Advocate General, Punjab, has received notice and has assisted the Court effectively.

2. Present petition is moved seeking regular bail in complaint No.506/2 dated 12.10.2010 under Section 138 of the Negotiable Instruments Act.

3. Brief facts of the present case are that petitioner/accused having received summons from the Court has been appearing before the learned Magistrate in the complaint. In fact, two complaints were filed against the petitioner under Section 138 of the Negotiable Instruments Act by the same complainant for two different cheques and in both the cases petitioner was on bail and has been appearing. As per the petitioner, Clerk of his earlier counsel, Sh. Kulwant Singh Arora, had informed the petitioner that complaint had been dismissed in default due to the non-appearance of the complainant, hence petitioner stood discharged, therefore, he need not to appear; Clerk of earlier counsel was also paid expenses by the petitioner for getting the certified copy of the order; in fact, complaint was not dismissed, however, petitioner could not attend the Court due to the wrong information supplied by the Clerk of the counsel; petitioner was declared proclaimed offender vide Court’s order dated 14.5.2010. Petitioner is in judicial custody w.e.f. 23.10.2010 and his bail application was dismissed by the learned Magistrate on the ground that earlier petitioner was declared proclaimed offender, hence there is no justification to enlarge him on bail. Learned counsel for the petitioner has vehemently argued that since petitioner was earlier enlarged on bail in a bailable offence under Section 138 of the Act and his non-appearance was because of wrong information given by the Clerk of the counsel, therefore, he is entitled to be enlarged on bail.

4. Ms. Bhavna Gupta, learned Deputy Advocate General, Punjab, has vehemently argued that since petitioner has jumped the bail, therefore, petitioner is not entitled to be enlarged on bail in view of Section 436(2) of the Code of Criminal Procedure (for short ‘the Code’). She has further argued that petitioner did not appear before the Court on the date fixed even after issuance of warrants and proclamation, hence petitioner has also committed an offence under Section 174 of the Indian Penal Code, which is punishable for six months, therefore, he is not entitled to be enlarged on bail.

Section 436 of the Code reads as under:

“436. In what cases bail to be taken—(1) When any person other than a person accused of a non-bailable 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, instead of taking bail from such person, discharge him on his executing a bond without, sureties for his appearance as hereinafter provided:

Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446A.

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.

(2) Notwithstanding anything contained in sub-section (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 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.”

5. Now, it is no more res integra that if an accused for