K. Mahesh Kumar vs State

N. Ananda, J.—The petitioner has been arrayed as accused No. 3 in Spl. Case No. 53/2014 registered for offences punishable under Section 120-B r/w Sections 406, 409, 379, 411, 447 IPC and offences punishable under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act.

The learned Special Judge had issued summons for appearance of accused (petitioner) before the court below. The accused appeared before court below on 17.01.2015 and filed a memo for his release on bail under Section 88 Cr.P.C. Accused No. 3 had also filed an application under Sections 437/439 Cr.P.C. The learned Special Judge passed the following order:--

"A1 to 4 Pr.

Counsel for A.3 files Memo. Perused the memo as well as the decision relied by the counsel for A.3. Charge sheet materials reveal the complicity of A3 in commission of the offences alleged which are serious in nature. Hence, memo is rejected.

Counsel for A.3 files B/Appln. U/s. 437/439 Cr.P.C. Spl. P.P. prays time to file objs. Offences being serious in nature. CBI has to be afforded opportunity to put forth objs. Statement. Hence, A.3 is taken to JC and remanded till the adjourned date.

Re-issue SS to A. 5

Call on by 24.1.2015".

The petitioner has approached this Court under Section 482 of Cr.P.C. to quash the order of learned Special Judge extracted supra.

I have heard Sri. Hashmath Pasha, learned counsel for petitioner and Sri. C.H. Jadhav, learned senior counsel for respondent-CBI.

The following points would arise for determination:--

"(1) Whether the petitioner (accused No. 3) against whom the aforestated non-bailable offences are alleged on his appearance before the court below could be considered as a person falling under Section 88 Cr.P.C.?

(2) When the application filed by the petitioner(accused No. 3) for aforestated non-bailable offences was pending consideration he could have been remanded to judicial custody in terms of the impugned order; what is the proper course of action to be taken by the court pending consideration of the bail application?"

The first point for determination is no more res-integra in view of the judgment of Delhi High Court reported in II (2011) CCR 515 in the case of Sharad Kumar v. Central Bureau of Investigation, wherein the Delhi High Court has held:

"The person who is accused of non-bailable offences appears before the Court cannot be treated as a person falling within the purview of Section 88 of Cr.P.C." Point No. 1 is answered accordingly.

Re. Point No. 2:--

When the person accused of non-bailable offence appears before the Court pursuant to summons issued by the court, issuance of summons is not an assurance that he would be released on bail. The grant of bail depends upon the nature and magnitude of the offences and other matters to be considered while enlarging the accused on bail under Section 437 Cr.P.C.

When the person accused of non-bailable offence, appears before the court pursuant to the summons and seeks bail, for some reason if the bail application cannot be considered on the same day, the court can entertain the request of accused for grant of interim bail, pending consideration of the bail application. Such request for interim bail has to be considered depending on the facts and circumstances of each case. If the accused is not arrested during investigation and if he is not shown as an absconder in the final report, considerations that would weigh with the court for grant of bail under Section 437 Cr.P.C. are the nature of offences and magnitude of offences. If the bail is granted, the court will have to impose necessary conditions to protect the interest of prosecution during trial and also to ensure presence of accused during trial.

In my considered opinion, the petitioner (accused No. 3) who had appeared before the court in a case registered for afore-stated offences (non-bailable offences), should have requested the trial court for grant of interim bail when his bail application could not be considered on the same day.

The petition is disposed of with these observations.