Rajendra and Another vs State of U.P. and Another

Amar Saran, J.—Heard learned Counsel for the applicants and learned Additional Government Advocate.

Learned Counsel for the applicants contends that in this case initially the F.I.R. was registered as a missing person. Thereafter on the application of the complainant the case was converted to one under Sections 364 and 120B, I.P.C. and in the said case the applicants secured bail from the Sessions Court on 21.7.2005, but by order dated 2.1.2008, the charge has been framed also u/s 302, I.P.C. and now the Special/Additional Sessions Judge/F.T.C. No. 1, Saharanpur desires that the applicants may also secure bail u/s 302, I.P.C.

Learned Counsel for the applicants has sought to distinguish the case of Hamida v. Rashid alias Rasheed and Ors. (LXVIII) 2007 ACC 577: 2007 (2) ACR 1864 , stating that in the said case the initial offence was u/s 324/352/506, I.P.C. and the applicant was granted bail on the same day treating the said offence to be of minor nature and hence when the applicant was subsequently arrested u/s 304, I.P.C. and the charge was framed u/s 304, I.P.C., they could not remain on bail on the earlier bail bonds.

I do not think that is the ratio of the decision in Hamida v. Rashid alias Rasheed and Ors. (supra). The aforesaid ruling is quite clear that in these interlocutory matters, the requirement of law is that the accused is required to surrender and then apply for bail and that procedure cannot be short-circuited and it has been specifically observed in paragraph 13 that tendency of the High Court to utilise Section 482, Cr. P.C. for all and sundry matters is undesirable and the said jurisdiction should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done.

In the aforesaid judgment, it is also pointed out that simply because the accused has been released on bail and he has not misused the privilege of bail granted to him, therefore, he should be allowed to remain on bail even after conversion to a graver offence, could not apply and the High Court''s order granting bail on that ground was set aside.

It is further observed in the said judgment as follows:

The dockets of the High Courts 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 than entertaining petitions u/s 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 to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice.

There is, therefore, no force in this application, it is accordingly rejected.

However, it is provided that if the applicants appear before the trial court within three weeks in the aforesaid case and apply for bail, their bail application shall be considered expeditiously.