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2001 DIGILAW 1 (CHH)

MANOJ KUMAR YADAV v. STATE OF M. P.

2001-01-01

R.S.GARG

body2001
ORDER 1. Diary of Crime No. 37/99 registered at Police Station Basantpur for offences punishable under Sections 364, 307 and 342 IPC. perused. 2. Submissions of the learned counsel for the applicant are that as many as 7 co-accused persons have been directed to be released on bail, but the application of the present applicant has been rejected illegally mainly on the ground that his earlier petition Misc. Cr. Case No. 6656/99 was rejected by the High Court, therefore, he would not be entitled to bail. According to him, Misc. Cr. Case No. 6656/99 was a petition under Section 438 Cr. PC. and the said rejection should not have persuaded the lower court to reject the application. 3. On the other hand, the learned counsel for the State has opposed the application. Misc. Cr. Case NO. 6656/99 was filed by Vinay Yadav, Manoj Kumar and Upendra Kumar. The application was firstly allowed for all the three, but later on vide order dtd. 17-12-1999, the order was modified. The grant of the application in favour of Upendra Yadav was maintained, but the grant of relief in favour of Vinay Kumar and Manoj Kumar was recalled. It appears that Misc. Cr. Case No. 4570/99 was filed by Dadhichi Yadav, Kamaluddin and Birbal. The said petition was allowd by the High Court and all the three were directed to be released on bail. 4. In another order dtd. 17-8-2000 passed by the Sessions Judge, Vinay Kumar and Inamual were directed to be released on bail. H would be noteworthy that the earlier petition filed by said Vinay Kumar under the provision of section 438 Cr.P.C. was rejected by the High Court. Thereafter, Manoj Kumar and Vishweshar submitted the application for their released on bail under section 439 Cr. P.c. by the order dtd. 4.10. 2000 the application filed by Vishweshar was allowed while the application of the present applicant Manoj Kumar was rejected. 5. It shocks my judicial conscience to note that the learned court below without appreciating the distinction between an application filed under section 438 and under section 439 Cr. P.C. has rejected the application filed by Manoj Kumar. It appears that the court below did not care to see the order passed by the high court in Misc. Cr. Case No. 6656/99. P.C. has rejected the application filed by Manoj Kumar. It appears that the court below did not care to see the order passed by the high court in Misc. Cr. Case No. 6656/99. That order clearly recorded that it was a petition under section 438 Cr.P.C. The earlier order passed by the High Court in relation to Vinay Kumar and Manoj Kumar was recalled and the order passed in favour of Upendra Yadav was maintained. It also appears that the learned court below did not care to read the order passed by the high court in Misc. Cr. Case No. 4570/99. Under this order Dadhichi Yadav, Kamaluddin and Birbal were admitted to bail. It also appears that the learned court below did not care to see that accused Vinay Yadav, Manoj Kumar and Upendra were admitted to bail. The said Vinay Kumar was also one of the applicants in M.Cr. Case No. 6656/99. I fail to understand as to how an application filed under section 439 Cr. P.c. can be rejected simply on the ground that the application filed under section 438 Cr. P.c. was rejected on an earlier occasion. Catena of authorities show that considerations under sections 438 and 439 Cr.P.C. are always different. The applicant is required to submit before the court and satisfy the judicial conscience of the court that he is being falsely implicated or the offences are putty where his arrest is not requited, therefore, he is entitled to a protective order in his favour either from the sessions court or from the High Court. This is not applicable to the case before the sessions court or the High Court under section 439 Cr.P.C. in certain matters where the bail can be rejected by the magistrate first class, if the application for grant of anticipatory bail is rejected by the Additional Sessions Judge, then the said order would not close the gates of the court for the said person if he wants to make an application for grant of regular bail before the magistrate. The basic question would be whether in the given set of the facts, a person is entitled to bail under section 438 Cr.P.C. or not. Non-grant of bail under section 438 Cr.P.C. would never clip the jurisdiction of the magistrate or the sessions court either under section 437 or under section 439 Cr.P.C. 6. The basic question would be whether in the given set of the facts, a person is entitled to bail under section 438 Cr.P.C. or not. Non-grant of bail under section 438 Cr.P.C. would never clip the jurisdiction of the magistrate or the sessions court either under section 437 or under section 439 Cr.P.C. 6. The facts show that against whom allegations were that he was driving the jeep has been admitted to bail. The allegations against Kamaluddin were serious in nature in comparison to the allegations made against the present applicant. Not only this, grant of the application in favour of Vinay Kumar, who was also an applicant in M.Cr. C. No. 6656/99, should have persuaded the learned court below to exercise its discretion in favour of the present applicant. 7. The rejection of the bail petition filed by the present applicant neither can be approved on the legal foundation nor on the factual foundation. The case of the present applicant cannot be distinguished from the allegations made against rest of the accused persons. The application deserves to and is accordingly allowed. 8. The applicant be released on bail on his furnishing a personal bond in the sum of Rs. 10,000 with one surety in the like amount to the satisfaction of the C.J.M., Ambikapur for his appearance before the said court / committal court or the trial court. 9. Let a copy of this order be sent to the Special Judge, Ambikapur for future guidance and to keep in mind the distinction between the sections 438 and 439 Cr. P.C. 10. Certified copy as per Rules. Application Allowed