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2006 Supreme(All) 456
[2006(2) ADJ 593 (All)]
ALLAHABAD HIGH COURT
BEFORE : VINOD PRASAD, J.
BIJENDRA @ VIRENDRA AND OTHERS ...Applicants
Versus
STATE OF U.P. AND ANOTHER ....Respondents
(Criminal Misc. Application No. 1058 of 2006,
decided on 14th February, 2006)
Counsel :
Sunil Kumar for the Applicants; A.G.A. for the Respondents.
Headnote:(A) Bail—Bail bonds—Question whether an accused, can be allowed to remain on same Bail bonds, or furnish only fresh Bail bonds, for offence triable by Court of Sessions, if he was earlier granted bail, for offences triable by a Magistrate, in same crime number—Section 437, Cr. P.C., 1973, relates with bail in cases of non-bailable offences by Magistrate—As regards contention of applicants, that because bail has been granted in same crime number, and therefore, by mere change of section, accused cannot be sent to jail, it is to be noted that case crime number was nowhere mentioned in Section 437, Cr. P.C., which was number of police for identification of case and was a procedural number of police station—Crime number has no relation with bail under Cr. P.C.—Further contention of applicants that there was no bar for High Court, to direct Magistrate to accept fresh bail bonds, for newly added offence, triable by Court of Sessions, it is to be noted, that that direction will amount to asking Magistrate to do something dehors law—Section 437, relates to an offence, therefore, on addition of a new offence, accused is required to appear before Court and seek bail—His bail bonds, cannot be considered, unless and until he surrenders, and is in custody in that offence—Any accused, who is not in custody, in an offence, cannot be granted bail—Custody is sine qua non for consideration of bail prayer—Thus, prayer for applicants, for allowing them to furnish them fresh bail bonds under Sections 308/325, I.P.C., 1860, cannot be accepted—However, High Court is not powerless to direct Magistrate and Sessions Judge to consider and dispose off, bail applications of applicants, in newly added offences under Sections 308/325, I.P.C., as expeditiously as possible, and if possible on same day—Hence, ordered accordingly—And applications liable to be dismissed. [Criminal Procedure Code, 1973—Sections 436, 437, 438, 439 and 482—Penal Code, 1860—Sections 308, 325, 147, 148, 452, 323, 324, 506 and 452].
[Paras 22, 25, 26, 32, 33, 34 and 35]
(B) Bail—Bail bonds—Accused guilty of an added offence, and is not on bail, he cannot be allowed to furnish bonds, without being in custody in that offence—For getting bail in newly added offence, accused has to surrender in that offence—Thus, asking Magistrate to accept fresh bail bonds, no newly added offence, will mean granting of bail to accused in newly added offences, without he being taken into custody for said offence, and that is not permissible under law—Consequently, allowing accused to furnish fresh bail bonds only, in newly added offences, which is punishable with 7 years' imprisonment, will amount to non-observance of Section 437(4), Cr. P.C. and will be an illegal exercise of power.
[Paras 26 and 27]
(C) Bail—Bail bonds—Bail in one offence, cannot be taken to be bail in another offence—And so, filing of fresh bail bonds, which is a subsequent stage after grant of bail, cannot be allowed, when bail itself is not granted—Therefore, contention of applicants that High Court under Section 482, Cr.P.C., 1973, can pass an order for fresh bail bonds, for newly added offence under Sections 308/325, I.P.C., 1860, will be against enacted provisions of law, i.e. IVth Proviso to Section 437(1) and Section 437(4) and Chapter XXXIII thereof, and therefore, cannot be accepted and is rejected. [Criminal Procedure Code, 1973—Sections 482, 436 and 437].
[Paras 28 and 30]
(D) Bail—Appropriate course for an accused, who is guilty of an offence, triable by Court of Sessions, would be to seek bail, from Court of Sessions—And, therefore, in such matters, Magistrate should lay its hands off, in granting bail, for such offences. [Para 31]
Honble Vinod Prasad, J.—Can an accused be allowed to remain on the same bail bonds or furnish only fresh bail bonds, for the offences triable by the Court of Sessions, if he was earlier granted bail, for offences triable by the Magistrate, in the same crime number, is the question, which has been mooted in the present application for consideration by the applicants. As this question has burdened this Court regularly, therefore, it requires determination. But before adverting to the aforesaid question a resume of the facts.
2. The informant Manoj Kumar lodged a FIR on 6-10-2005 at 10.40 a.m. at the police station Pahasu, district Bulandshahr, in respect of an incident alleged to have taken place on 6-10-2005 at 7.00 a.m. as crime No. 256 of 2005 under Sections 147, 148, 452, 323, 324, IPC. Two sets of siblings were arrayed as accused. Rohit alias Chhotu and Gaurav are the sons of Shyam Lal and Veerendra, Kalyan Singh and Shyam Lal are the sons of Mukundi Lal and all were said to be armed with pharsa, katta, hockey and lathi. It is alleged that on the date and time of incident Amar S/o. Shyam Lal called the informant on the pretest of removing his car standard over his plot. There the accused persons started belabouring the informant. Shyam Lal fired from a country made pistol. When the informant took to his heels the accused chased him, entered into his house and bet his two Bhabhis Smt. Rajwati and Smt. Durgesh, his father Gopal Singh and his younger sister Hem Lata. The motive of assault was non payment of credited amount of Rs. 1,70,000/- (Rs. One Lakh Seventy Thousand) towards the assailants which they never wanted to pay inspite of repeated demand by the informant. The injured were go medically examined through constable and their injuries indicate that at least two of them had received lacerated wounds on right side parietal skull and left side parietal skull and rest of the injuries were contusions and abrasions on other parts of body. It is noted here that the injury reports of women folk-Rajwati, Smt. Durgesh and Km. Hem Lata have not been appended in this application.
3. The three accused applicants Bijendra alias Virendra, Kalyan alias Kalicharan and Rohit alias Chotu surrendered before the Court of Civil Judge/Judicial Magistrate, Khurja, district Bulandshahar, in the aforesaid crime number and were granted bail on 10-10-2005 for the offences under Sections 147, 148, 323, 324, 506, 452, IPC by the Magistrate vide Annexure 6 to the affidavit, filed in support of this application. Subsequently charge-sheet, Annexure 7 was filed against them under Sections 308 and 325, IPC as well.
4. Being apprehensive of arrest in the newly added offence this application under Section 482, Cr. P.C. invoking the inherent jurisdiction of this Court with the prayer to “direct to the Court below to accept the fresh bail bond from the applicants in newly added Sections 308 and 325 IPC in case crime No. 256 of 2005 under Sections 147, 148, 452, 323, 324, 325 and 308, IPC Police Station Pahasu district Bulandshahr, as the applicants are already been on bail in the present case which was granted to them by Civil Judge (Junior division)/Judicial magistrate, Khurja, Bulandshahr on 10-10-2005 under Sections 147, 148, 323, 324, 504, 452, IPC.” The ancillary prayer is that the execution of coercive process issued against the applicants be kept in abeyance till the filing of the fresh bail bonds.
5. When the matter came up for admission an objection was raised by learned AGA that since Section 308, IPC is triable by Session’s Court, therefore, the prayer that the applicants be allowed to file only fresh bail bonds, or to remain on the same bail bonds already furnished before the Magistrate in respect of offences, which were triable it cannot be granted. The learned AGA canvassed that offences, which are triable by the Court of Sessions, liberty of fresh bail bonds before the Magistrate, without seeking bail from the Court of Session’s is again
