Raj Kumar and Others vs State of U.P.

Vijay Kumar Verma, J.—Since similar question of law is involved, hence all these cases are being decided by this common judgment.

Applications under Section 482 of the Code of Criminal Procedure (Cr.P.C. for short) have been moved in these cases with the prayer that the Court below be directed to release the applicants on bail on the same bail bonds as have already been furnished by them.

From the record, it transpires that a case under Sections 323, 324, 504 I.P.C. at P.S. Khekra, District Baghpat was registered at Crime No. 295 of 2006 against the applicants Raj Kumar and other. In pursuance of the bail order passed by the Court below, the applicants were released under above Sections on furnishing bail bonds. After investigation of the case, chargesheet under Sections 323, 504, 324, 307, 452 I.P.C. has been submitted, on which cognizance has been taken by the C.J.M., Baghpat. Similarly, a case under Sections 147, 148, 323, 504, I.P.C was registered at Crime No. 444A of 2005 at P.S. Karanda, District Ghazipur against the applicants Dwarika Yadav and others. In pursuance of the bail order passed by the learned J.M., Ghazipur, the applicants were released on their furnishing bail bonds. After investigation of the case, the chargesheet under Sections 147, 148, 329, 504, 325 and 308 I.P.C. has been submitted on which cognizance has been taken by the Magistrate concerned. In the like manner, a case was registered at crime No. 367/2003 under Section 324 I.P.C. against the applicant Asif and others, who were released under this section on furnishing bail bonds in pursuance of the bail order passed by learned Magistrate, but chargesheet has been submitted under Section 307 I.P.C. on which cognizance has been taken. A case under Sections 324, 323, 504, 506 I.P.C. at crime No. 779 of 2005 at P.S. Sungarhi, District Pilibhit was registered against the applicants Sunil Kumar Agarwal and Vikki, but the applicants moved bail application under Sections 324, 504, 506 I.P.C. which was allowed by J.M. Pilibhit on 2162005 and in pursuance of that bail order, the applicants were released on furnishing the bail bonds. After investigation of the case, chargesheet under Sections 324, 325, 326, 504, 506 I.P.C. has been submitted on which cognizance has been taken. It is prayed by the applicants in all the cases that without making surrender in the Court below, they be released on the same bail bonds under the added Sections or permitted to file fresh bonds.

I have heard learned Counsel for the applicants and learned A.G.A. for the State.

It was contended by the learned Counsel for the applicants that bail in the cases has already been granted by the Magistrate concerned and in pursuance of the bail orders, the applicants have been released, but since new Sections have been added in the chargesheet, hence the applicants should be permitted to continue, on the same bail bonds and it is not necessary for them to surrender themselves before, the Court below. It was further submitted by the learned Counsel for the applicants that direction can be issued by this Court to the Court below either to permit the applicants to continue on the same bail bonds or to accept fresh bail bonds. For these submissions, reliance has been placed on the case of Movin Ahmad v. Ist Additional Judicial Magistrate, Pratapgarh, 2001(2) JIC 452 (All) (LB) : 2001(43) ACC 1061, and orders dated 512007 and 152007 passed by Hon''ble V.K. Chaturvedi, J. in Criminal Misc. Application No. 151 of 2007 and by Hon''ble K.K. Misra, J. in Criminal Misc. Application No. 8813 of 2007 respectively.

On the contrary, it was submitted by learned A.G.A. that the applicants are not entitled to continue on the same bail bonds or to furnish fresh bail bonds without making surrender in the Court below, because unless the bail is granted by passing fresh order under added Sections, the applicants have no right to file fresh bail bonds under these Sections. Drawing my attention towards 4th proviso to Section 437(1) Cr. P.C., it was further submitted by the learned A.G.A. that the applicants cannot be released on bail under Sections 307, 308 and 326 I.P.C. without giving an opportunity of hearing to the Public Prosecutor and hence the Court below cannot be directed by this Court to accept fresh bail bonds under the newly added Sections.

Having given my anxious consideration to the rival contentions of the learned Counsel for the parties, I am of the considered view that the applicants can neither be permitted to continue on the same bail bonds nor a direction can be issued to the Court below to accept fresh bail bonds under the added Sections mentioned in the chargesheet, because passing of such order would be contrary to the mandate of 4th Proviso inserted in Section 437 (1) Cr. P.C. by Act No. 25 of 2005. Reference may be made to the case of Ram Avtar Sharma and Anr. v. State of U.P., 2006 (2) JIC 68 (All), in which bail was granted to the accused persons under Sections 325, 504, 506 I.P.C., but subsequently the case was converted under Section 304 I.P.C. An application under Section 482 Cr.P.C. was moved on behalf of the accused persons with the prayer to issue direction to the Court below to release the applicants on the same bail bonds. The prayer was declined being misconceived by Hon''ble Vinod Prasad, J. holding that no such direction can be given by this Court in exercise of powers under Section 482 Cr. P.C. It is further held that in view of the 4th Proviso added to Section 437 (1) Cr. P.C. by the Amending Act No. 25 of 2005, it cannot be directed that the applicants should be allowed to remain on the same bail bonds or to furnish fresh bail bonds. It is also held that furnishing fresh bail bonds is subsequent stage after bail has been granted and for grant of bail, custody is must and unless and until a person is not under the custody, his bail cannot be considered and unless his bail is not considered, there is no question of filing fresh bail bonds. Similar view has been taken by this Court in the case of Montu and Ors. v. State of U.P. and Anr., 2005(2) ACR 2135.

In the case of Asha Ram and Anr. v. State of U.P., 2005(1) JIC 322 (All) : 2005(51) ACC 371, bail under Section 323 was granted but in the chargesheet Section 307 I.P.C. was added. An application under Section 482 Cr. P.C. was moved for permitting the applicant to continue on the earlier bail granted to them on their furnishing fresh bail bonds. Placing reliance on the decision of Apex Court in the case of Prahlad Singh Bhati v. N.C.T., Delhi, 2001(2) JIC 50 (SC) : 2001(42) ACC 903 the prayer made by the applicants for granting permission to continue on earlier bail granted by the learned Magistrate, was declined by Hon''ble Amar Saran, J.

Recently in Criminal Appeal No. 632 of 2007, Hamida v. Rashid @ Rasheed and Ors., decided on 2742007 [since reported in 2007(2) JIC 531 (SC)] by Hon''ble Apex Court, order passed by this Court in the proceeding under Section 482 Cr. P.C. for permitting the accused to furnish fresh bail bonds in the converted Sections has been set aside. In that case, on the basis of the F.I.R. a case was registered as crime No. 792 of 2005 under Sections 324, 352, 506 I.P.C. at P.S. Kotwali, Muzaffarnagar. Since the offences punishable under these sections are bailable, hence the accused were released on bail on the day, the bail application was moved. Subsequently, the injured succumbed to injuries and consequently, the case was converted under Section 304 I.P.C. Instead of moving bail application before the C.J.M. or the Sessions Judge, Muzaffarnagar, the accused came to this Court and filed application under Section 482 Cr. P.C. seeking a direction to C.J.M., Muzaffarnagar to permit them to remain on bail even after conversion of the offence under Section 304 I.P.C. This Court accepted the prayer made on behalf of the accused and it was directed that if the applicants appear before the Court concerned and furnish their personal bond and two sureties each in the like amount to the satisfaction of the Court concerned, the same shall be accepted under Section 304 I.P.C. The order passed by this Court was challenged by the complainant Smt. Hamida in appeal before the Apex Court along with Special Leave Petition (Crl.) 4891/2005. After granting leave, the appeal was decided by the Hon''ble Apex Court vide order dated 2742007, whereby the appeal has been allowed and the order passed by this Court in the proceedings under Section 482 Cr.P.C. has been set aside. It is observed in para 10 of the judgment of the Apex Court that �the High Court committed manifest error of law in entertaining a petition under Section 482 Cr.P.C. and issuing a direction to the subordinate Court to accept the sureties and bail bonds for the offence under Section 304 I.P.C. It is further held that �the procedure laid down for grant of bail under Section 439 Cr.P.C. though available to the accused respondents, having not been availed of, the exercise of power by the High Court under Section 482 Cr.P.C. is clearly illegal and the impugned order passed by it has to be set aside.�

The Hon''ble Apex Court has concluded its judgment by making following observations in para 13 :

�Before parting with the case, we feel constrained to observe that in spite of repeated pronouncement of this Court that inherent power under Section 482 Cr.P.C. should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 Cr.P.C. the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Sections 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with Section 34 IPC. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Court are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather that entertaining petitions under Section 482 Cr.P.C. at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or the delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in given evidence, ultimately resulting in miscarriage of justice.�

In State v. Navjot Sandhu, 2003(2) JIC 862 (SC) : (2003) 6 SCC 641 (para 29), after a review of large number of earlier decisions, it was held as under :

�(29) The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be restored to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment.�

The Hon''ble Apex Court in the case of Sunita Devi v. State of Bihar and Anr., 2005(51) ACC 220, has held that for moving an application for bail under Section 439 Cr.P.C. necessary precondition is that the person (accused) should be in �custody�.

Therefore, having regard to the observations made by Hon''ble Apex Court and by this Court in the above mentioned cases and keeping in view clear mandate of 4th proviso to Section 437(1) Cr. P.C. the applicants accused have to surrender themselves before the Court concerned and they have to move applications for bail under the Sections which have been subsequently added in the chargesheet. In my considered opinion, the applicants accused in instant cases cannot be permitted to continue on the same bail bonds and this Court cannot in exercise of the power under Section 482 Cr.P.C. direct the Court below to accept fresh bonds under the added Sections.

Consequently, the prayer made by the applicants in the applications under Section 482 Cr.P.C. is hereby rejected.

However, considering the facts and the circumstances of the cases, it is directed that if the applicants surrender or are brought before the Court concerned and move applications for bail, their bail applications shall be considered and disposed of as expeditiously as possible.

With the above observations/direction, the applications in all the four cases are disposed of finally.

The Registrar general is directed to send a copy of this judgment to all the District Judges in Uttar Pradesh for circulating the same amongst the Judicial Officers for their information and guidance.