Balkrishan Choubey vs State Of Madhya Pradesh

Heard on the first bail application filed by the applicant under Section 439 of Cr.P.C. for grant of bail. IA No.5026/2019, an application for grant of

interim bail and IA No.5027/2019, an application seeking permission to surrender the applicant before this Court, are also filed.

It is submitted that the applicant was arrested in connection with Crime No. 42/2019 registered at Police Station Chinor, District Gwalior for the

offence punishable under Section 409 of IPC.

It is further submitted in the application (IA No.5027/2019), that two cases have been registered against the present applicant by Police Station Chinor

at Crime No.17/2019 and 42/2019. The applicant surrendered before the Fourth Additional Sessions Judge Dabra District Gwalior in connection with

Crime No. 17/2019 in the light of the judgment in Sandeep Kumar Bafna vs. State of Maharashtra and another [(2015) 3 SCC (Cri) 558.] The Fourth

Additional Sessions Judge Dabra District Gwalior has rejected the regular bail application of the applicant on 21.6.2019. Thereafter, the applicant was

sent to Sub-Jail Dabra. During custody in Crime No.17/2019, the applicant filed an application for regular bail in connection with Crime No.42/2019

before the Fourth Additional Sessions Judge Dabra District Gwalior, who rejected the applicant's regular bail application on 27.6.2019. Thereafter, the

applicant filed this application (MCRC. No. 27398/2019) for grant of regular bail to the applicant in Crime No.42/2019. In the meanwhile, in

connection with crime No. 17/2019, this Court has granted regular bail to the applicant by passing an order dated 1.7.2019 in MCRC No. 26184/2019

and in compliance of the said order, the applicant has been released on 3.7.2019 from Sub-Jail Dabra.

As per IA No. 5027/2019, learned counsel for the applicant submitted that the applicant is ready and willing to surrender before this Court in the light

of the judgment in Sandeep Kumar Bafna (supra) and he prays for hearing on his regular bail application filed under Section 439 of CrPC and prays

for accepting the judicial custody of the applicant-Balkrishan Choubey and to decide his regular bail application in connection with Crime No. 42/2019.

Per Contra, learned Public Prosecutor for the State opposed the prayer and prayed for rejection of IAs and application for grant of regular bail as

well, as the applicant is not in custody in this case.

Heard the counsel and perused the case diary.

On perusal of the record of the present case, it is apparent that the facts of this case are different from the facts of the Sandeep Kumar Bafna's case

cited supra, as till date the applicant is trying to mislead this Court by asserting that he was in custody in Crime No. 42/2019 till filing of the present

application under Section 439 of CrPC before this Court. In fact, at the time of filing of the present application, the applicant was not in custody in

connection with crime No. 42/2019 and therefore his deemed custody may not be presumed in the present case. From the record of the case, it is

evident that the police has not arrested the present applicant Balkrishan Choubey in connection with Crime No.42/2019, out of which this application

under Section 439 of CrPC has arisen but the applicant is seeking permission to surrender and to accept his custody before this Court, which shows

that the present applicant has not come up before this Court with bonafide intention and clean hands.

It is well settled principle that accepting or rejecting the bail to the accused is total discretion of the Court, which is an equity based relief.

Section 439 of CrPC reads as under :-

“439. Special powers of High Court or Court of Session regarding bail.--

(1) A High Court or Court of Session may direct--

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-Section (3) of section

437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-Section;

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified;

Provided that the High Court or the Court of Session shall, before granting 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.

Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-

section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code, give notice of the application for bail to the

Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.

(1A) The presence of the informant or any person authorised by him shall be obligatory at the time of hearing of the application for bail to the person

under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to

custody.â€​

From reading of the aforesaid provision, it is clear that as per Section 439(1)(a) of CrPC, the first and foremost requirement of this Section is “any

person accused an offence and in custody be released on bail.†Meaning thereby, this Section is only applicable when the accused is in custody. If

the facts of the present case are examined, it is apparent that on the date of filing of the application under Section 439 of CrPC and till date the

applicant is not in custody in Crime No. 42/2019 registered by Police Station Chinor. Therefore, such application (IA No.5027/2019) cannot be

entertained by this Court.

Resultantly, IA No.5027/2019 is hereby rejected. The applicant is directed to surrender before the concerning Magistrate positively within seven days

from today.

Consequently, the application under Section 439 of CrPC for grant of regular bail to the applicant-Balkrishan Choubey in Crime No.42/2019 and the

application (IA No.5026/2019) for grant of interim bail stand dismissed in the light of the rejection of IA No.5027/2019. However, it is made clear that

the trial Court shall not be influenced by this order while considering the bail application if filed before it by the present applicant and the application

shall be considered and decided on its own merits in accordance with law.

A copy of this order be sent to the concerning trial Court and a copy of this order be supplied to learned Public Prosecutor for keeping the same in the

record of concerned case diary.