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2001 DIGILAW 111 (PAT)

Md. Jaliluddin v. State Of Bihar

2001-02-07

M.L.VISA

body2001
Judgment M.L.Visa, J. 1. Heard learned Counsel appearing on behalf of the petitioner, opposite party No. 2 and the State. 2. With the consent of the Parties this application is being disposed of at the admission stage itself. 3. This application by the petitioner has been filed for cancellation of bail granted to opposite party No. 2 by order dated 9.6.2000 passed by 4th Additional Sessions Judge, Vaishali at Hajipur in BJ?. No. 579/2000. 4. Brief facts of the case giving rise to this application are that the petitioner lodged an FIR under Sections 304-B/201/34 of the Indian Penal Code against opposite party No. 2 and others for the allegations of dowry death of his daughter. Opposite party No. 2 is said to be son-in-law of petitioner and husband of the deceased. Opposite party No. 2 prayed for bail which was heard by 3rd Additional Sessions Judge, Vaishali at Hajipur, who rejected the prayer of opposite party No. 2 for bail by order dated 15.2.2000 passed in B.P. No. 183/2000 (Annexure 3). Thereafter opposite party No. 2 again prayed for bail wrongly stating in his petition that his prayer for bail was earlier rejected by the 4th Additional Sessions Judge. His application was numbered as B.P. No. 579/2000 and it was heard by 4th Additional Sessions Judge who granted bail to opposite party No. 2 by the impugned order. 5. Learned counsel for the petitioner has submitted that opposite party No. 2 has obtained the bail order from the Court of 4th Additional Sessions Judge, Vaishali at Hajipur by suppressing the fact that his prayer for bail was earlier rejected by 3rd Additional Sessions Judge, Vaishali at Hajipur and making a false statement that his prayer for bail was earlier rejected by 4th Additional Sessions Judge, Vaishali at Hajipur. It has further been submitted that the grounds stated by the 4th Additional Sessions Judge, Vaishali at Hajipur for granting bail to opposite party No. 2 on the point of illegal remand of opposite party No. 2 to custody are misconceived and the impugned order gives a fatal blow to the course of justice. Prayer for cancellation of bail has been made on behalf of the petitioner. 6. Prayer for cancellation of bail has been made on behalf of the petitioner. 6. Opposite party No. 2 has appeared and filed show cause stating therein that he has been granted bail by the 4th Additional Sessions Judge, Vaishali at Hajipur considering the ground that he was not produced from jail custody before the Court below since 6.6.2000 and there was no further order of remand till his release from custody and he has rightly been allowed bail by the impugned order on the ground of his illegal remand to judicial custody. On the point of falsely stating in his petition that his prayer for bail was earlier rejected by the 4th Additional Sessions Judge, Vaishali at Hajipur, it has been stated that no doubt his prayer for bail was earlier rejected by 3rd Additional Sessions Judge, Vaishali at Hajipur but in his subsequent petition for bail he did not suppress this fact and clearly mentioned about it in paragraph 1 of his petition but due to typing mistake the name of Court in place of 3rd Additional Sessions Judge was typed as 4th Additional Sessions Judge but this mistake has got no relevance because on the next time he prayed for bail not on merit but on the ground of contravention of provisions of proviso (1) to sub-section (2) of Section 309 of the Code of Criminal Procedure on the point of remand to judicial custody. 7. There is no dispute on the point that prayer of opposite party No. 2 was rejected by the Court of 3rd Additional Sessions Judge on 15.2.2000 in B.P. No. 183/2000. It is also an admitted fact that in his subsequent petition for bail opposite party No. 2 in paragraph 1 of his petition (Annexure 4} stated that his prayer for bail was earlier rejected by the 4th Additional Sessions Judge. Vaishali at Hajipur which, according to the opposite party No. 2, was a typing mistake. The impugned order shows that 4th Additional Sessions Judge, Vaishali at Hajipur has granted bail to opposite party No. 2 on the ground that opposite party No. 2 was not produced before the Court below from jail custody on 16.3.2000, 23.2.2000, 4.4.2000 and period from 16.3.2000 to 4.4.2000, on calculations, comes to 19 to 20 days which is more than 15 days. He has further observed that in view of the aforesaid fact the decisions of this Court in the cases of Jitendra Mishra and others V/s. The State of Bihar, 1976 BBCJ 644 and Ashok Kumar Toppo and another V/s. State of Bihar and others, 1982 BLJ 297 are applicable to the facts of this case and opposite party No. 2 was entitled to bail and he accordingly granted bail to opposite party No. 2. 8. From the copies of the order sheets of the Court below (Annexure A to the show cause filed on behalf of opposite party No. 2) it appears that opposite party No. 2 was not produced from jail custody on 16.3.2000, 23.2.2000 and 4.4.2000. Thereafter he was produced on the next date fixed which was 18.4.2000 and again on 25.4.2000 and 9.5.2000. But he was again not produced on 22.5.2000 in compliance of order dated 9.5.2000. He has been granted bail by order dated 9.6.20000. It shows that after 9.5.2000 when opposite party No. 2 was last produced in Court he was not produced till 9.6.2000 when he was granted bail. Learned counsel appearing on behalf of the petitioner by relying upon a full bench decision of the Rajasthan High Court in the case of Mahesh Chand and others V/s. State of Rajasthan and others, 1985 Cr LJ 301 and also a decision of the Delhi High Court in the case of Noor Mohammad V/s. The State, 1980 Cr LJ NOC 27, in which the aforesaid decision of Rajasthan High Court was relied upon has submitted that even if the detention of an accused is found illegal bail is no remedy because illegality of an order of remand does not per se entitle an accused to be released on bail. He has also relied upon the decision of a Single Judge of this Court in the case of Rama Nand Dusadh V/s. The State of Bihar, 1977 (25) BLJR 347, in which correctness of the decisions of this Court in the case of Chandradeep Rai and another V/s. The State of Bihar, 1976 BBCJ 645 , as well as the decision in the case of Jitendra Mishra and others V/s. The State of Bihar, 1976 BBCJ 644 , which has been relied upon by the Court below has been doubted and has also been observed that these two decisions require reconsideration when proper occasion for that arises. Admittedly the Court below has granted bail to opposite party No. 2 after relying upon the decisions in the case of Jitendra Mishra and others (supra) and Ashok Kumar Toppo and another V/s. The State of Bihar, 1982 BLJ 297, although the decision in the case of Ashok Kumar Toppo V/s. The State of Bihar (supra) was passed in a criminal writ but then petitioner was allowed bail on the ground of detention being found without proper remand. Learned counsel for the petitioner has not been able to show that at any time the aforesaid two decisions which have been relied upon by the Court below were reconsidered by this Court and overruled. 9. On the question of making false declaration in the bail application that prayer for bail was earlier rejected by 4th Additional Sessions Judge and not giving correct position that it was, in fact, rejected by 3rd Additional Sessions Judge the case of opposite party No. 2 is that by typing mistake the name of the Court appeared as 4th Additional Sessions Judge in place of 3rd Additional Sessions Judge. It is not the case that opposite party No. 2 concealed the fact that his prayer for bail was earlier rejected. It is only a question that name of Court was wrongly typed as 4th Additional Sessions Judge in place of 3rd Additional Sessions Judge. Besides this, I do not find that this mistake has caused any prejudice because second time prayer for bail was not sought on the point of merit but on the point of law which has been considered by the Court below and relying upon the decision of this Court and Court below has granted bail. Besides this, I do not find that this mistake has caused any prejudice because second time prayer for bail was not sought on the point of merit but on the point of law which has been considered by the Court below and relying upon the decision of this Court and Court below has granted bail. I, therefore, find no ground for disturbing the order of the Court below by which opposite party No. 2 has been granted bail. 10. In the result, this application is dismissed.