Shiv Prasad Prajapat vs Hukum Singh

S.K. Phaujdar, J.—Heard the learned Counsel for the applicant and the learned AGA, the opposite party, although represented by his counsel, is not here nor is the counsel present when the matter is called out.

The present opposite party was granted bail in Bail Application No. 5387 of 1995 by an order of this Court dated 18.5.1995. The notice of that bail application was given to the Government advocate on 8.5.1995. It is stated by the applicant now that Rule 18(3) of the Allababad High Court Rules in Chapter XVIII bars granting of bail before 10 days have elapsed after the giving of such notice and the hearing of such application. It is further submitted by the learned Counsel that the area in question was a dacoity affected area as notified. The offences were scheduled offences under the U.P. Dacoity Affected Areas Act, 1983 (hereinafter referred to as the Act) and Section 10 of the Act was a bar to the grant of bail before expiry of 180 days.

So far as the second contention is concerned, I may quote Section 10 of the said Act as under:

No person accused or convicted of a scheduled offence shall, if in custody, be released on bail unless the prosecution has been given an opportunity to oppose the application for bail.

There Is a proviso that a person accused of a scheduled offence who has been in custody for total period of 180 days may be granted bail. The learned Counsel proposed to interpret this Clause as a bar to the grant of bail within 180 days. I may not subscribe to this view. The bar to the grant of bail in this connection is contained in Clauses (a) and (b) to the section but the period of 180 days is mentioned in the proviso, and it must be read that if a person stays in custody for a total period of 180 days, the above bar may not be applicable. This provision is an enabling one to the grant of bail and not a disabling one to refuse bail as interpreted by the learned Counsel.

The bail order may not, therefore, be attacked as violative of Section 10 of the said Act. So far as the first contention is concerned, I find that the notice was served on the learned AGA on 8.5.1995 and the matter was heard on 18.5.1995. If we include the day of notice, then the 10th day is completed on the 17th. If we exclude the day of notice, then the 10th day is completed on 18th itself. The rules have been framed not to curb the powers of the High Court in the matter of bail. It is for giving sufficient opportunity to the State Counsel to collect materials to oppose the prayer for bail. The order-sheet dated 18.5.1995 does not indicate that the learned AGA had indicated his difficulties concerning instructions in the matter due to paucity of time. The rules are certainly to be read as having universal application but the court must not be too fussy about their interpretation and from 8th to 18th May, in the circumstances of the case; may be read as sufficient compliance with the requirement of Rule 18(3) of Chapter XVIII of the Allahabad High Court Rules. The problem may be approached from another angle. Once bail has been granted by this Court and there is no allegation of misuse of same, it would not be open or proper for this Court to cancel bail on technical ground as raised in the application. The present application for cancellation of bail stands rejected.