Kushal Pal vs State of Uttarakhand and Another

Sudhanshu Dhulia, J.—Heard Mr. Karan Anand, Advocate for the applicant as well as Mr. Nandan Arya, learned Assistant Government Advocate for the State/respondent No. 1.

This Criminal Misc. Application u/s 482 Cr.P.C. has been filed by the applicant against chargesheet and the consequent summoning order dated 14.1.2008 issued to him by the Ist Special Magistrate, District Dehradun in Criminal Case No. 1086 of 2008 under Sections 147/148/149/307 IPC.

Brief facts of the case are that the applicant was earlier charged under Sections 147/148/149 IPC but subsequently he appeared before the Magistrate and was granted bail. Thereafter, another charge u/s 307 IPC was also added. The argument of the counsel appearing for the applicant before this Court is that since the applicant is already on bail, he is liable to be on bail on the same bail bond or on a fresh bail bond and in short he is not liable to surrender before the court below for the bail, on the new charge.

This question of law is well settled by the Apex Court in its two judgments, namely, Prahlad Singh Bhati Vs. N.C.T. Delhi and Another, and Hamida v. Rashid @ Rasheed and Ors. reported in (2008) 1 SCC 474. The ratio of the two cases would be that in a situation like presently before this Court an interference u/s 482 Cr.P.C. may not be in the interest of justice and the proper procedure would be to direct the applicant to apply for a fresh bail as he has to face a proceedings under the charge which is much severe than the one he was charged earlier. It would be handy to quote what the Apex Court had said in Hamida''s case (supra) in paragraph 10:

In the case in hand, the respondents-accused could apply for bail afresh after the offence had been converted into one u/s 304 IPC. They deliberately did not do so and filed a petition u/s 482 CrPC in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the respondents-accused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a petition u/s 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence u/s 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one u/s 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail u/s 439 CrPC, though available to the respondents-accused, having not been availed of, the exercise of power by the High Court u/s 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside.

Therefore, there seems to be no merit in the submission extended by the counsel for the applicant. The application is liable to be dismissed and is presently being dismissed.

No order as to costs.

However, under the facts and circumstances of the case as revealed from the FIR and also considering the facts that the applicant was earlier on bail, it is directed that the applicant as and when surrenders before the court below and moves a bail application the learned Magistrate shall consider and dispose of the bail application of the applicant on the same day and in case, learned Magistrate deems it fit in its wisdom to reject the bail, the applicant will be at liberty to move a bail application before the Learned Sessions Judge on the very same day, which shall be taken for consideration and will also be disposed of on the very same day. This is being done in view of the peculiar facts of the present case and in terms of the law laid down by the Full Bench of Allahabad High Court in Smt. Amarawati and Anr. v. State of U.P. 2004 (57) ALR 390.

Registry is directed to send a copy of this order to the court concerned for necessary compliance.