Neutral Citation No. - 2009:AHC:59347 AFR Court No. 52 Reserved Criminal Misc. (Bail Cancellation) Application No. 18519 of 2008 Jaswant vs. State of U.P & others Hon'ble Y.K.Sangal, J.

This is an application to cancel the bail granted to the respondent nos. 2 to 4 in Case Crime Number 607A/2007 in offence converted Section 308 IPC, Police Station Garh Mukteshwar, district Ghaziabad.

Counter affidavit was filed on behalf of the respondent nos. 2 to 4.

Rejoinder affidavit of the same was also filed.

Heard learned counsel for the parties and learned AGA for the State and perused the record.

Brief facts of the case are as follows :

Cross case of case crime number 607 of 2007 as 607A was registered at P.S. Garhmukteshwar on the report lodged by Jaswant against the respondent nos. 2 to 4 and one Indrajeet at P.S. Garhmukteshwar , district Ghaziabad for the offence said committed by them. Earlier on the report non-cognizable case was entered under Section 323, 504 IPC. Later on seeing the injury reports cognizable case for the offence under Section 323, 324, 504, 325 IPC was registered at Crime number 607 A/2007. All the accused got released themselves on bail from the learned Magistrate Court. During the course of investigation I.O. found that injuries were of grievous nature reported by the Doctor and one injury was on the vital part of the body so at the time of submitting the report , under Section 173 Cr.P.C, he added in charge-sheet Section 308 IPC also and submitted the same in the Court.

In place of surrendering themselves in the court of Magistrate for the offence under Section 308 IPC accused person applied for bail. As they were not under the custody so there bail application was rejected by the learned Magistrate vide order dated 25.04.2008.

Paragraph 7 of the affidavit annexed with the bail cancellation application shows that one of the accused Indrajeet later on surrendered himself for the offence under Section 308 IPC in the court of Magistrate. And applied for bail. Application was rejected by the learned Magistrate . He applied in the session court to release him on bail. On his application vide order dated 08.05.2008 learned Sessions Judge allowed his application and ordered to release him on bail for the offence under Section 308 IPC. But other accused respondent nos. 2 to 4 without surrendering themselves applied for the bail before the session court. Without seeing that they are in custody or not for the offence under Section 308 IPC without taking into custody session judge allowed their application and permitted them to remain on the same bail and on the same bail bonds also filed by them for the offence under Section 323, 324, 325 & 504 IPC. Aggrieved by this order, this application for cancellation of their bail was moved.

Learned counsel for the respondent nos. 2 to 4 with reference of case 1988 AAC 323 Indrapal vs. State , 1998 (37) ACC page 71 Nisar vs. State and also 2003 (1) JIC 402 Devi Prasad vs. State argued that if the respondent nos. 2 to 4 were already on bail and some offence of graver nature is added later on the same facts then they need not surrendered . They may be permitted to remain on the same bail bond.

On the other hand,learned counsel for the applicant /informant argued that Section 308 IPC relates to other offence under the heading of attempt to commit culpable homicide then that offence under Section 323, 324, 504 and 325 IPC. In case of addition of new offence of serious nature accused are required to appear before the court and seek bail. They cannot be considered on bail for the offence under Section 308 IPC unless and until they are not in custody for the offence under Section 308 IPC. Learned counsel further argued that impugned order passed by the in charge session judge is misuse of the jurisdiction vested with him and is also without jurisdiction. Learned counsel cited the case law reported in 2007 (1) U.P. Cr.R 737 Hamidi vs. Rashid alias Rasheed. Facts of the case before the apex Co