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Allahabad High Court · body

2009 DIGILAW 3624 (ALL)

Jaswant v. State of U. P.

2009-11-30

Y.K.SANGAL

body2009
JUDGMENT: Y.K.Sangal, J. This is an application to cancel the bail granted to the respondent nos. 2 to 4 in Case Crime Number 607A/2007 in offence converted Section 308 IPC, Police Station Garh Mukteshwar, district Ghaziabad. Counter affidavit was filed on behalf of the respondent nos. 2 to 4. Rejoinder affidavit of the same was also filed. Heard learned counsel for the parties and learned AGA for the State and perused the record. 2. Brief facts of the case are as follows : Cross case of case crime number 607 of 2007 as 607A was registered at P.S. Garhmukteshwar on the report lodged by Jaswant against the respondent nos. 2 to 4 and one Indrajeet at P.S. Garhmukteshwar , district Ghaziabad for the offence said committed by them. Earlier on the report non-cognizable case was entered under Section 323, 504 IPC. Later on seeing the injury reports cognizable case for the offence under Section 323, 324, 504, 325 IPC was registered at Crime number 607 A/2007. All the accused got released themselves on bail from the learned Magistrate Court. During the course of investigation I.O. found that injuries were of grievous nature reported by the Doctor and one injury was on the vital part of the body so at the time of submitting the report , under Section 173 Cr.P.C, he added in charge-sheet Section 308 IPC also and submitted the same in the Court. In place of surrendering themselves in the court of Magistrate for the offence under Section 308 IPC accused person applied for bail. As they were not under the custody so there bail application was rejected by the learned Magistrate vide order dated 25.04.2008. Paragraph 7 of the affidavit annexed with the bail cancellation application shows that one of the accused Indrajeet later on surrendered himself for the offence under Section 308 IPC in the court of Magistrate. And applied for bail. Application was rejected by the learned Magistrate . He applied in the session court to release him on bail. On his application vide order dated 08.05.2008 learned Sessions Judge allowed his application and ordered to release him on bail for the offence under Section 308 IPC. But other accused respondent nos. 2 to 4 without surrendering themselves applied for the bail before the session court. He applied in the session court to release him on bail. On his application vide order dated 08.05.2008 learned Sessions Judge allowed his application and ordered to release him on bail for the offence under Section 308 IPC. But other accused respondent nos. 2 to 4 without surrendering themselves applied for the bail before the session court. Without seeing that they are in custody or not for the offence under Section 308 IPC without taking into custody session judge allowed their application and permitted them to remain on the same bail and on the same bail bonds also filed by them for the offence under Section 323, 324, 325 & 504 IPC. Aggrieved by this order, this application for cancellation of their bail was moved. Learned counsel for the respondent nos. 2 to 4 with reference of case 1988 AAC 323 Indrapal vs. State , 1998 (37) ACC page 71 Nisar vs. State and also 2003 (1) JIC 402 Devi Prasad vs. State argued that if the respondent nos. 2 to 4 were already on bail and some offence of graver nature is added later on the same facts then they need not surrendered . They may be permitted to remain on the same bail bond. 3. On the other hand, learned counsel for the applicant /informant argued that Section 308 IPC relates to other offence under the heading of attempt to commit culpable homicide then that offence under Section 323, 324, 504 and 325 IPC. In case of addition of new offence of serious nature accused are required to appear before the court and seek bail. They cannot be considered on bail for the offence under Section 308 IPC unless and until they are not in custody for the offence under Section 308 IPC. Learned counsel further argued that impugned order passed by the in charge session judge is misuse of the jurisdiction vested with him and is also without jurisdiction. Learned counsel cited the case law reported in 2007 (1) U.P. Cr.R 737 Hamidi vs. Rashid alias Rasheed. Facts of the case before the apex Court were almost similar to the facts of the present case. In the case before the apex Court , accused were released on bail for offence under Section 324, 352 & 506 IPC and later on offence converted under Section 304 IPC . Accused have not applied for fresh bail. Facts of the case before the apex Court were almost similar to the facts of the present case. In the case before the apex Court , accused were released on bail for offence under Section 324, 352 & 506 IPC and later on offence converted under Section 304 IPC . Accused have not applied for fresh bail. They have directly moved an application under Section 482 Cr.P.C. in the High Court and High Court disposed of their application and directed the C.J.M. concerned that as they were on bail under Section 324, 352 and 506 IPC they will continue to remain on the same bail , even after offence had been converted to under section 304 IPC if they furnish the requisite personal pond and sureties before the concerned court. This order was challenged in appeal before the Apex Court and it was argued that accused respondents ought to have surrendered themselves and after taking them into custody they should have moved a fresh application for bail under Section 304 IPC. Apex court after setting aside the order of the High Court cancelled the bail granted to the accused respondent directed that they shall be taken into custody forthwith and it will be open to them to apply for bail for the offence added. In the present case also order of bail was granted to the accused respondent nos. 2 to 4 for offence under Sections 323, 324, 325 & 504 IPC which was bailable (clear from the order of the C.J.M. dated 25.04.2008 copy annexed). Later on offence was converted under Section 308 IPC which is non-bailable and exclusively triable by the court of Session . Generally it is seen that learned Magistrate never grant the bail to the accused person for the offence under Section 308 IPC. Without surrendering themselves respondent nos. 2 to 4 and Indrajeet applied for bail before the Magistrate but their this prayer was disallowed by the learned Magistrate saying that they have not surrendered themselves for the offence under Section 308 IPC. Without surrendering themselves respondent nos. 2 to 4 and Indrajeet applied for bail before the Magistrate but their this prayer was disallowed by the learned Magistrate saying that they have not surrendered themselves for the offence under Section 308 IPC. After this order one of the accused Indrajeet has surrendered himself and applied for the bail before the Magistrate which was rejected and later on his application was allowed by the session court and he was released on bail by furnishing fresh bail bond under the order of the session court but on the same date same incharge session judge without seeing that respondent nos. 2 to 4 have not surrendered themselves for the offence under Section 308 IPC and they are not under custody they were permitted to remain on the same bail and bail bonds filed by them for the bailable offence. 4. In another case ; reported in 2006 Cr.L.J. 2253 Vijendra vs. State it was held by this Court that when the accused is found guilty of an added offence and he is not on bail for that offence he cannot be allowed to furnish bond without being taken into custody in that offence. For granting bail in newly added offence the accused has to surrender for that offence. It was also held by this Court that by asking the Magistrate to accept fresh bail bonds in newly added offence will mean granting of bail to the accused in the newly added offence without he being taken into custody for the said offence and i.e. Not permissible under law. The bail in one offence cannot be taken to be bail in the another offence and so filing of fresh bail bonds which is a subsequent stage after grant of bail cannot be allowed when the bail itself has not been granted. It was further held that crime number has no relation with the bail under Cr.P.C. If there is an addition of a new offence in same crime number plea that because bail had already been granted in the same crime number by mere change of section accused cannot be send to jail is not tenable. It was further held that crime number has no relation with the bail under Cr.P.C. If there is an addition of a new offence in same crime number plea that because bail had already been granted in the same crime number by mere change of section accused cannot be send to jail is not tenable. From the observation made in paragraph 24 of this case law it reveals that this Court has specifically dealt with on this question whether the court can direct the Magistrate to accept fresh bonds or allowed the accused to remain on same bonds for offence triable by court of Session, if the applicant accused was earlier on bail for the offence which were not triable by the court of Session but were triable by the Magistrate and answer of this question was given by the Hon'ble Judge after discussing the law laid down on the point that bail in one offence cannot be taken into bail in another offence and so filing of fresh bail bonds which is subsequent stage after the grant of bail cannot be allowed when bail itself not granted. 5. Undisputedly, in the present case, respondents 2 to 4 have not surrendered themselves in the court for the offence under Section 308 IPC which was subsequently added in the charge sheet submitted by the I.O. In the competent court and the cognizance for this was taken by the court on the same. They were not under custody for this offence when in charge session judge passed the impugned order on 08.05.2008 and permitted them to remain on the same bail and bail bonds under the added section 308 IPC which were filed for the bailable offence. The same is not permissible under the law laid down by the Apex Court referred above. Order passed by the in charge Sessions Judge cannot be held appropriate exercise of jurisdiction vested. It appears form the facts of the case that two different standard were applied in the matter. The co-accused Indrajeet was taken into custody again and released on bail for the offence under Section 308 IPC while respondent nos. 2 to 4 were permitted to remain on same bail and bail bonds which cannot be said legal and proper. It appears form the facts of the case that two different standard were applied in the matter. The co-accused Indrajeet was taken into custody again and released on bail for the offence under Section 308 IPC while respondent nos. 2 to 4 were permitted to remain on same bail and bail bonds which cannot be said legal and proper. They have not even applied to release on the same bail and bail bonds, they applied to release them on fresh bail and bail bonds. It is clear from the application moved by them before the Session Court. (Copy annexed with this bail cancellation application case) that they were not under custody when this application was moved. 6. In the facts and circumstances of the case and considering the arguments of the parties counsel and learned AGA and the law laid down referred above, application to cancel the bail of respondent nos. 2 to 4 is allowed. Impugned order passed by the in charge session judge dated 08.05.2008 is hereby set aside and the bail prayer under Section 308 IPC is hereby rejected. 7. Respondent Nos. 2 to 4 shall surrender themselves before the court of learned Magistrate concerned within 15 days from the date when copy of this order is placed before him. In the meantime, no coercive steps shall be taken against the respondent nos. 2 to 4 .After surrender, if they move application for bail, their bail application shall be disposed of according to law. If they fail to surrender themselves within the aforesaid period, learned Magistrate shall be free to issue processes against them to enforce their attendance in the court according to law.