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2002 DIGILAW 682 (PNJ)

Jagman Singh v. State Of Punjab

2002-07-18

G.S.SINGHVI, KIRAN ANAND LALL

body2002
Judgment 1. The petitioner is in custody in case bearing First Information Report No. 7 dated March 25, 2002 under Sections 7. 13(2)88, 8.11 (2) 88, 13(1) E.R/W 13.2.88 of the Prevention of Corruption Act, read with Section 120-B of the Indian Penal Code. Police Station Vigilance Bureau Flying Squad I, Mohali. He was applied for grant of interim bail on the ground that his wife Mrs. Jasjot Kaur is in advance stage of pregancy and there is nobody to look after her. 2. The other facts mentioned in the bail application are that on the basis of an application moved by him, Court has already allowed him to become approver under Section 306 of the Code of Criminal Procedure. His application for regular bail was dismissed by the Sessions Judge, Ropar on May 29, 2002 and another application for interim bail was dismissed on June 20, 2002. The prayer for interim bail has been opposed tooth and nail by Smt. Charu Tuli, Senior Deputy Advocate General, who appeared on behalf of the State. 3. After having heard both sides, we do not find any merit in the prayer made by the petitioner. 4. The petitioner has claimed interim bail on the ground that his wife is in advanced stage of pRegulation ncy and she would require his presence at the time of delivery. However, at the time of arguments, counsel for the petitioner was fair enough to state that the petitioners wife had already delivered child. 5. In view of this position, the prayer of the petitioner that he requires the concession of ad interim bail for being present with his wife at the time of her delivery, has become infructuous. 6. Even otherwise, pardon has been tendered to the petitioner by the Court and it has been so done under Section 306 of the Code of Criminal Procedure (for short `the Code) As per Sub-section (4) (b) thereof, every person accepting a tender of pardon made under Sub-section (1) shall, unless he is already on bail, be detained in custody until the termination of the trial. The word "shall" in Sub-section (4)(b) of Section 306 of the Code clearly indicates that the legislature has imposed a statutory and imperative obligation on the Court to detain the approver in custody until the conclusion of the trial. The word "shall" in Sub-section (4)(b) of Section 306 of the Code clearly indicates that the legislature has imposed a statutory and imperative obligation on the Court to detain the approver in custody until the conclusion of the trial. And, it is not within the competency of the Court to admit an approver to bail as Sub-section (4) declares in unambiguous language that an approver shall not be released on bail until the decision of the case. 7. Learned Senior Deputy Advocate General referred to 1994(3) R.C.R. 1 : [1994(2) All India Criminal Law Reporter 685 (SC)], Suresh Chandra Bahri v. State of Bihar, in which the Honble Supreme Court held that Clause (b) of the Sub-section (4) of Section 306 of the Code goes to show that "it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial." 8. Another authority on the point relied upon by the learned Senior Deputy Advocate General is 1984 Criminal Law Journal 1142, Dev Kishan v. State of Rajasthan, in which also it was held that "the provisions of Section 306 (4)(b) are independent. They are not ancillary or subordinate to the provisions of Section 439 of the Code. The provisions of Section 306(4)(b) are of special nature and override the general provisions or bail contained in Section 439 Cr.P.C. It is a well settled principle of law that general provisions will give way and bow before the special provisions. In other words Section 306(4)(b) acts as an exception to Section 439". 9. Learned counsel for the petitioner on the other hand, relied upon 1985(2) R.C.R. 386 (Criminal), Prem Chand v. State, wherein the Delhi High Court held the bail can be granted to approver and further that there is no reason to suppose that machinery of law and order would not be able to give protection to the approver. But this Court is bound by the law laid down by the Honble Supreme Court in the case reported as 1994(3) R.C.R. (Criminal) page 1 (supra) wherein the Honble Supreme Court made it very clear that the person who has accepted a tender of person shall, unless he is already on bail, be detained in custody until the termination of the trial. In other hands, such a person cannot be allowed bail. 10. In other hands, such a person cannot be allowed bail. 10. It may also be added that the fact that the prayer of the petitioner is for Grant of interim and not regular bail cannot change the position of law which has been discussed above. The bail application shall accordingly stand dismissed as being devoid of an merit. Bail application dismissed.