Sanjeeva vs State of U.P.

Kant Tripathi, J.—Heard learned Counsel for the applicant and the learned AGA for the Respondent and perused the record.

This is a petition u/s 482, Code of Criminal Procedure for quashing the judgment and order dated 7.1.2011 rendered by the Sessions Judge, Kanpur Nagar in Criminal Revision No. 332 of 2010, Sanjeeva v. State of U.P.

It appears that the applicant is an accused in case crime No. 210 of 2001, under Sections 147, 148, 353, 336, 427, IPC and Section 7, Criminal Laws Amendment Act, P.S. Bithoor, District Kanpur Nagar and the matter is pending in the Court of the Magistrate. The applicant appeared before the Magistrate and moved an application for providing him copies of the relevant documents specified in Section 207, Code of Criminal Procedure. The learned Magistrate was of the view that the applicant had neither appeared nor granted bail, therefore, there was no question of furnishing the desired documents. The applicant moved another application u/s 88, Code of Criminal Procedure and requested that he may be permitted to furnish personal bond and bail bonds as provided in Section 88, Code of Criminal Procedure. The Petitioner''s application u/s 88, Code of Criminal Procedure was also rejected. Thereafter, the Petitioner preferred aforesaid criminal revision before the Sessions Judge, Kanpur Nagar who considered the submissions made on behalf of the Petitioner in detail and arrived at the conclusion that the Petitioner was to seek bail in terms of Section 437, Code of Criminal Procedure. The learned Sessions Judge passed the impugned order keeping in view the principles laid down by the Full Bench of this Court in the case of Dr. Vinod Narain v. U.P. State 1995 ACC 375.

According to Section 9 of the Criminal Laws Amendment Act, 1932 the offence u/s 7 of the Criminal Laws Amendment Act, 1932 is non-boilable, therefore, the provisions of Section 437, Code of Criminal Procedure are attracted in this case. As such the provisions of Section 88, Code of Criminal Procedure cannot be read in isolation in favor of the accused excluding the provisions of Section 437, Code of Criminal Procedure. In Para 24 of the judgment rendered by the Full Bench, the following observations have been made:

The provisions of Section 88 of the Code empowers the Court to take bond for appearance. Giving reference of this provision, it is contended that under this provision a person who appears before the Court, can be released on his personal bond. However, this provision will have no application to the facts of the present case as it applies only to a person who is present in the Court as witness etc. If a person appears in the Court for the purpose of bail in accordance with the provisions of Section 437(1) of the Code and surrenders, then he becomes an accused and this provision does not apply to an accused.

In Para 167 of the judgment, Full Bench has observed as under:

Therefore, the right to "appear" is available to an accused u/s 437 Code of Criminal Procedure upon which he can be entitled to move a bail application after surrendering to Court''s custody, which for all practical purposes is equivalent to his "arrest" and production before the Court for remanding him to custody----

---Law does not permit any compromise on these mandatory provisions.

In view of the aforesaid principles, the applicant has no option except to seek bail in terms of Section 437/439, Code of Criminal Procedure and cannot be permitted to seek advantage of Section 88, Code of Criminal Procedure by excluding the provisions relating to bail contained in Section 437/439, Code of Criminal Procedure.

The judgment and order passed by the Sessions Judge seems to be perfectly correct and require no interference by this Court.

So far as furnishing of documents referred to Section 207, Code of Criminal Procedure, to the applicant is concerned, the learned Magistrate is expected to make compliance thereof as and when the accused legally appears before the Court.

In my opinion, the petition has no merit and is dismissed.

However, the bail prayer of the applicant may be considered and disposed of expeditiously keeping in view the principles laid down by the Seven Judge Bench of this Court in Amrawati and Anr. v. State of U.P. 2004 (57) ALR 290, as affirmed by the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. 2009(2) Crime 4 (SC).