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Judgment
Mr. D. G. Chaturvedi, learned counsel for the petitioners has contended that the petitioners have been summoned as additional accused under Section
319 Cr.P.C. by the trial court.
Learned counsel for the petitioners has relied upon Manohar Lal Saini & Ors. vs. State of Rajasthan, 2016(1) CJ(Cri.) (Raj.) 289, a judgment
rendered by Division Bench of this Court.
In the case of Manohar Lal’s case (supra), Division Bench of this Court has held as under:-
“59. If the Court, by taking cognizance against a person at the stage of invocation of power under Section 319 of the Code, decides to join him as
an accused, such person cannot approach the court to recall the order but he certainly has the reme Crlr382/2014 48/50 this Court invoking provisions
of Section 482 of the Court. He also has the remedy to apply for anticipatory bail under Section 438 of the Code. Though the court having issued
bailable warrant, would not be, in the event of appearance of the accused, without any new development in between, justified in reconsidering its
decision on the same material and sending the accused behind the bars, but at the same time we must hasten to add that the court is not powerless, if
any intervening circumstances justify sending the accused behind the bars, despite being summoned by bailable warrant and it may do so on its own or
at the instance of prosecution/complainant. We may, by way of illustration, narrate few such circumstances, namely, (i) the accused, in response to
the bailable warrant so issued, has failed to attend the proceedings of the court on given date and time or (ii) has violated any condition of the bail bond
or (iii) that the court later on comes to know that he was a habitual offender and has abused the liberty of bail by repeatedly committing offence(s) or
(iv) that he has intimidated the witnesses or tempered with evidence, or (v) there is likelihood of his feeling from justice, and so on and so forth. We
are therefore not inclined to uphold the argument that it would attract the bar of Section 362 of the Code. And we may reiterate here again that if the
court has taken a conscious decision to summon an accused by bailable warrant to appear before it on a particular date and to continue do so to attend
until otherwise directed, and if the accused, having undertaken so by furnishing bail bond and surety/sureties, has appeared on such date and continues
to appear on future dates, the court, without there being any supervening circumstance and valid reason, would not be justified in sending him behind
Crlr382/2014 49/50 the bars just because it at later point of time changes its opinion and takes another view of the matter on the same material.
Even in a case where negative final report submitted by thepolice in a case registered on the basis of complaint or FIR, is accepted by the Court,
the accused acquires some semblance of right to be heard if the order accepting such final report is challenged any further, which cannot be annulled
without providing opportunity of hearing to him. The right of an accused, who has been summoned by bailable warrant, if not at the same level, can on
that analogy at least be cited to support the contention that he has a right to be heard before he is ordered to be sent behind the bars. If therefore a
newly added accused under Section 319 of the Code is in the first instance summoned by bailable warrant, he acquires a right of substantial nature to
know the reasons from the court in its order if later he is sought to be sent behind the bars, and also the right to be heard by the court before passing
such order. If contrary view is approved, this will stultify the right of personal liberty guaranteed to a citizen, who is presumed to be an innocent until
proven guilty and would cause grave prejudice to him. Liberty of a citizen is of paramount importance and constitutional guarantee, which cannot be
incised. Doing so would also frustrate the law so developed by catena of judgments delivered by the Supreme Court to zealously safeguard the
personal liberty of citizens of the country and to see that they are not subjected to unnecessary harassment. When we say that every administrative
action should be informed of fair play, we must also observe that the courts should also follow the same principle in their functioning where
Crlr382/2014 50/50 reasonable amount of certainty as also consistency should always be exhibited in their functioning.
We for afore-discussed reasons cannot countenance thesubmission that even when the accused appears before the court in response to bailable
warrant, he has to separately apply to avail the benefit of bail. Broadly speaking, more or less, considerations, which also apply for cancellation of bail
already granted, should govern the decision of the Court if it decides to send such accused to jail. If the Court has taken cognizance against a person
at the stage of Section 319 of the Code, summoning the accused by bailable warrant would be analogous to grant of bail. If the accused has appeared
not only on the first date but also continues to appear on all subsequent dates in conformity with bail bond furnished by him and surety executed in
support thereof, the court ought to refrain from sending him to jail subsequently without there being any supervening circumstance. If the court at later
stage decides to send him to jail, it must conform to certain judicial norms. There must be some cogent and valid reasons requiring the court at a later
stage to send the accused to the jail. â€
After hearing the learned counsel for the parties, the present petition is disposed of with direction to the petitioners to appear before the trial court
within one week. The trial court is directed to decide bail application of the petitioners in the light of judgment rendered by Division Bench of this court
in Manohar Lal Saini’s case (supra).