Ashok vs Ashok and Others

This revision u/s 397 of the Cr. P.C. has been filed against the order dated 30-8-90 passed by Shri S. C. Gupta, Sessions Judge Bhind in Crime No. 150/88 (Misc. Cr. Case No. 1333/90).

The brief facts of the case are that the Petitioner is the complainant dothe(sic) brother of the deceased Surendra in Crime No. 150/88, P. S. Kotwali Bhind, registered u/s 302, 307/34 I.P.C. against the non-Petitioner No. 1 and two others.

By the impugned order the learned Sessions Judge has wrongly granted bail to the non-Petitioner No. 1 u/s 439 Cr. P.C. Aggrieved therewith the complainant has preferred this revision. Briefly stated, the prosecution case is that in the town of Bhind at the bus stand on 15-7-88 there took place a dispute between Jagannath, Pavan and the non-Petitioner on one side and Awadhesh on the other on as to whose bus would start earlier. Accused were armed with guns. Awadhesh directed his bus to go first whereupon Jagannath tried to assault him. The complainant and Surendra (deceased) tried to intervene. Then accused Pavan and Ashok, on the exhortation of the accused Jagannatth fired with their guns. Ashok hit Surendra who died at the spot. On complainant''s report a case u/s 302/34 I.P.C. was registred. From the date of the incident i e. 15-7-88 the non-Petitioner/ accused Ashok had been absconding. His bail application u/s 438 Cr. P.C was rejected by the High Court more than once. Suddenly he appeared in the Court of Sessions Judge Bhind on 30-8-90 and simultaneously moved an application u/s 439 Cr. P.C. for bail. The learned Sessions Judge allowed the bail application at the same time without giving any notice to the State and inspite of the objection of the Public Prosecutor. The said order has been challenged on the ground that granting of bail to the non-Petitioner is illegal and incorrect. The learned Court has acted in an unusual and improper manner in unseemly haste. The main accused is Ashok, non Petitioner No. 1. His bail application u/s 438 Cr. P.C. had been repeatedly rejected by the High Court. He remained absconding for two years and suddenly surrendered before the Session Judge on 30-8-90 and was granted bail at the same moment. The whole affair smells of some foul and tends to shake the public confidence. The action of the learned Sessions Judge in not giving the Police an opportunity to make any interrogation or to make any effort to effect recovery from the absconding accused of the gun is wholly unjustified and unreasonable. The accused person does not deserve any bail. Sessions trial was pending before the IV Additional Sessions Judge and he was seized of the cognizance when the learned Sessions Judge entertained and granted bail. A case for cancellation of the bail was made u/s 439(2) Cr. P.C. and it was prayed that the revision be allowed and the order granting bail be set aside and the accused be directed to be taken in custody.

The facts disclosed above show that the learned Sessions Judge granted bail to the accused in very suspicious circumstances The proviso added to S. 439 Cr. P.C. is not merely a formality or/and an ornamental provision. The proviso added to S. 439 Cr. P.C. says that the High Court or the Court of Session shall before granting a bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. It cannot be said that the notice to the Public Prosecutor was not practicable and if it was felt so by the Sessions Judge, then reasons were to be recorded in writing. Notice to the Public Prosecutor is not a mere formality. The State has also a right of being heard. State should not be treated so lightly. The purpose of giving notice is to allow the State to place all the facts before the Court to make up its mind for granting bail or not. Giving notice to the Assistant Public Prosecutor and granting bail the same day cannot be said to be a notice within the meaning of the proviso to S. 439 Cr. P.C. In this case, the accused was already absconding before surrendering himself before the Court and the proceedings under Sections 82 and 83 had to be initiated for securing his presence. The grant of bail, in these circumstances will shake public confidence in the system of law. The accused during the period when he was absconding had committed other offences as well. Had the Judge given reasonable time to the State, then the material facts could have been presented before the Judge. Heavens would not have fallen had the Judge given a few days time to the State. It is also significant that the Sessions trial had by that time been transferred to the Court of the Fourth Additional Sessions Judge and in such a situation the action of the Sessions Judge in calling for the record from that Court and granting bail himself was all the more objectionable. Even if the trial had not started in that Court, even then the action of the Sessions Judge was not proper. During arguments the learned Deputy Government Advocate Shri V.G. Khot said that during the period the Petitioner was absconding he had committed other offences as well. It is reported by the Police that during the period he was absconding he is said to have committed another murder (Crime No. 155/88 u/s 302 I.P.C., other offences u/s 452/34, Crime No. 181/88 and offences u/s 323/504, 352/504. Had the Sessions Judge given time to the prosecution then all these facts would have been brought to his notice but he acted in hot-haste as if time was running out and he granted bail to the accused. The action of the Sessions Judge is shocking and will shake the confidence of the public. The grant of ball without giving proper time to the Public Prosecutor is shocking, it is a fit case in which this Court should allow the revision and quash the Order of bail granted by the Sessions Judge and direct that the accused be arrested and commit him to custody.

The revision is allowed. The order granting bail to the accused is set aside. He shall be arrested. The proviso to S. 439 Cr. P.C. is not an empty formality. Reasonable time has to be given to the prosecution before granting bail to a person who is accused of an offence which is exclusively triable by the Court of Session. This order shall not be a bar for the applicant to move afresh for the grant of bail after having been arrested.