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Allahabad High Court · body

2010 DIGILAW 392 (ALL)

JEESAN v. STATE OF U. P.

2010-02-01

RAJESH CHANDRA, RAKESH TIWARI

body2010
JUDGMENT By the Court.—The appellants have filed this appeal against the judgment and order dated 10.9.2003 passed in S.T. No. 486 of 2000, State v. Jeesan and others convicting the appellants for the offences under Sections 147, 148, 307, read with Section 149, IPC and for the offence under Section 302, read with Section 149, IPC with imprisonment of one year, one and a half years, 7 years and life imprisonment respectively. The appellants have further been sentenced with a fine of Rs. 3,000/- each for the offence under Section 307/149, IPC and a fine of Rs. 6,000/- each for the offence under Section 302/149, IPC with default stipulation. The appellant Jeesan and Israr have further been convicted and sentenced with imprisonment of two years for the offences under Section 25, Arms Act. 2. In the grounds of appeal, a prayer has been made that the appellants may be released on bail and the realisation of fine may be stayed. 3. A preliminary objection has been raised by the learned AGA that the prayer made in the appeal for grant of bail cannot be treated as a separate application for bail which is to be granted on different considerations under Section 389, Cr.P.C. He submits that an application for bail filed along with the memorandum of appeal is to be treated as first bail application and any subsequent bail application has to be numbered as second, third and fourth etc. which would be in consonance with clause (4) of Rule 18 of Chapter XVIII of the High Court Rules. 4. We have heard the learned AGA and the learned counsel for the appellants and have perused the record and the relevant rules etc placed before us. We have also requested the Registry to place all the relevant record with regard to this controversy referred to later in this judgment. The question arises for consideration is whether a separate application for bail is required to be filed and marked as first bail application along with the petition of appeal in terms of Rules 8 (2) (4), 18(1), 18(3) (a), 18(3) (b) and 18 (4) of Chapter XVIII of the Allahabad High Court Rules. In this connection Rules 8 and 18 of Chapter XVIII of the Allahabad High Court Rules may be referred, which are as under : “8. In this connection Rules 8 and 18 of Chapter XVIII of the Allahabad High Court Rules may be referred, which are as under : “8. Cases to be registered and numbered.—(1) After an appeal or revision has been admitted it shall be registered and numbered. (2) The following application shall be registered and numbered after presentation as Criminal Miscellaneous cases, namely- (a) application for bail; (b) application for cancellation for bail; (c) application for transfer of a case; (d) application for withdrawal of a case from a subordinate Court; (e) [***]; (f) application under Section 96 of the Code of Criminal Procedure, 1973; (g) application for stay of operation of order of, or proceedings in, lower Court. Such application must be accompanied by the certified copy of the order assailed, including all other documents, if any, on the basis of which a particular order has been challenged; (h) application for the issue of a direction, order or writ under Article 226 of the Constitution in a criminal matter; (i) application under sub-section (1) or sub-section (2) of Section 340 of the Code of Criminal Procedure, 1973; (j) application for the taking of proceedings in contempt of Court; and (k) application under Section 378(4) of the Code of Criminal Procedure, 1973; Provided that an application for transfer of cases, shall be accompanied by a copy of the order passed by the Session Judge, if any; (3) Cases in which the Court takes proceedings under Section 340(1) or 340(2) of the Code of Criminal Procedure, 1973 or issue notice for contempts of Court otherwise than on an application and references under Section 318 of the Code of Criminal Procedure, 1973 shall also be registered and numbered as Criminal Miscellaneous Cases. (4) The application aforesaid shall set out the prayer stating clearly the exact nature of the relief sought supported by an affidavit setting out in the form of paragraphs the material facts and grounds upon which the applicant relies. 18. Application for bail.— (1) No application for bail shall be entertained unless accompanied by a copy of judgment or order appealed against or sought to be revised and a copy of order passed by the Sessions Judge on the bail application for the applicant and unless the accused has surrendered except where he has been released on bail after conviction under Section 389(3) of the Code of Criminal Procedure, 1973. Explanation.—The copy of the order refusing bail passed by the Sessions Judge shall either be a certified copy or the copy furnished by the Sessions Judge free of charge to the accused.] (2) Every application for bail in a case, which is under investigation or which is pending in a Lower Court shall state whether application for bail had or had not been previously made before the Magistrate and the Sessions Judge concerned and the result of such applications, if any. (3) Save in exceptional circumstances : (a) No order granting bail shall be made on an application unless notice thereof has been given to the Government Advocate and not less than days have elapsed between the giving of such notice and the hearing of such application. (b) If the application for bail has not been moved within two days after the expiry of the aforesaid period of ten days, the applicant or his Counsel shall give two days previous notice to the Government Advocate as to the exact date on which such application is intended to the moved. (c) Where the prayer of bail is contained in a petition of appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Along with such notice a certified copy or one attested to be true by the Counsel, of the Judgment appealed from or sought to be revised shall also be given to the Government Advocate. (4) Every application for bail shall show prominently in the first page thereof the crime number, the police station by which, and the section or sections and the Act or Rules under which the applicant is being prosecuted or has been convicted and whether such application in the first, second or any such subsequent application moved by him before this Court, and shall be accompanied by a copy of the first information report. It shall also state the following particulars, namely: (a) The date of the alleged occurrence; (b) The date of applicants arrest; [The Bench Secretary shall while entertaining a bail application for presentation to the Court Check every page thereof and shall affix a rubber stamp containing his initials on every page of the bail application and all the annexures thereto before putting it up before the Court in token of his having checked, every page of the application and he shall, thereafter, make the following endorsement on the bail application : “ Moved before Hon’ble...................J on.......................(date).” Similarly, the officials whose duty it is to received the bail application from the Court after orders, shall affix a rubber stamp containing his initials on the first page of the bail application in token of his having checked that all the pages of the bail application bear the rubber stamp for the Bench Secretary. The rubber stamps containing the initials of the Bench Secretary and the official or officials authorised to receive the fresh bail application from the Court shall be supplied to the Bench Secretaries and the officials by the Registrar of the Court. The application shall not be returned to the applicant or his counsel after the above endorsement has been made.] (5) Every page of the application and every page of the annexures thereto shall bear the full signature of the applicant or his counsel. (6) In every such application shall be stated the full particulars of the previous applicant or applications, if any, moved in this Court by same application in respect of the same crime and the date or dates on which such previous application or applications had been rejected.” 5. A perusal of clause (1) and (2) (a) of Rule 8 makes it clear that after the appeal is admitted it shall be registered and numbered and the application for bail shall be registered and numbered after presentation as Criminal Miscellaneous Case. Thus sub-clause (2) (a) requires the filing of an application for bail. Sub-clause (4) of Rule 8 lays down that : “(4) The application aforesaid shall set out the prayer stating clearly the exact nature of the relief sought supported by an affidavit setting out in the form of paragraphs the material facts and grounds upon which the applicant relies. Thus sub-clause (2) (a) requires the filing of an application for bail. Sub-clause (4) of Rule 8 lays down that : “(4) The application aforesaid shall set out the prayer stating clearly the exact nature of the relief sought supported by an affidavit setting out in the form of paragraphs the material facts and grounds upon which the applicant relies. Thus under Rule 8 not only an application for bail is required but it has to be supported by an affidavit setting out in the form of paragraphs the material facts and grounds upon which the applicant relies. Opening sentence of Rule 18 is “ No application for bail shall be entertained unless accompanied by a copy of judgment or order appealed against of sought to be revised......................” 6. The Section presupposes that there shall be an application for bail which will be entertained only when it is accompanied by a copy of judgment. Rule 18 (3) (a) provides “ No order granting bail shall be made on an application...........” Rule 18 (3) (b) provides “ if the application for bail has not been moved......” These wordings again confirm that there should be an application for bail. The above Rules then provide as to how the notice of the bail application shall be given to the Government Advocate. Again sub-clause (4) of Rule 18 says that every application for bail shall show prominently in the first page as to whether such application is first, second or any such subsequent application moved by the appellant before this Court (i.e. the High Court.) 7. Learned counsel for the appellants would submit that normally in this High Court prayer for bail in the appeal is considered as the first bail application and, therefore, in case where a prayer for bail in appeal is rejected, second or third bail application is filed without there being a separate application along with appeal as first application for bail. This argument of the learned Advocate for the appellants is wholly fallacious. We have been informed at the Bar that this practice has developed lately. An instance in this regard is of Sri P.C. Chaturvedi, Advocate who used to file bail applications along with the appeal. It appears that this practice of filing separate bail application has withered with the passage of time and now survives only in the memory lanes of the past era. An instance in this regard is of Sri P.C. Chaturvedi, Advocate who used to file bail applications along with the appeal. It appears that this practice of filing separate bail application has withered with the passage of time and now survives only in the memory lanes of the past era. The fact in reality is that the first bail application now a days is not filed separately along with the appeal in which such a prayer is made. Hence bail application can neither be numbered nor can be marked as first or second bail containing the distinct and specific grounds for bail. The general grounds mostly taken in the appeal cannot be taken aid of in place of specific grounds required to be taken by the appellant for consideration of his prayer in the application for grant of bail. 8. We would like to take notice of law at this juncture that the appeal is filed under Section 374 of the Code of Criminal Procedure whereas the bail application is considered under Section 389 of the Code. This arrangement of Sections further suggests that a separate bail application should be moved seeking indulgence of the Court under Section 389 of the Code of Criminal Procedure for grant of bail. This would also be in conformity with Rules 8 and 18 quoted above. In any case provisions of the Act would prevail over the Rules if there is any regugnancy between the two. However, there does not appear to be any such situation here. 9. If the prayer for bail is contained in the grounds of appeal and no bail application is filed with it, then there will be no first application and this will violate the provisions of Rules 8, 18(1) and 18(4) of the Allahabad High Court Rules, 1952 when second bail application is filed by the counsel on rejection of the prayer for bail in memo of appeal. 10. The Registry was requested to provide all papers/resolutions/committee reports etc. on the subject as to whether this matter is pending consideration on administrative side. We have been informed that a committee consisting of Hon’ble Justice Sunil Ambwani, Hon’ble Justice Ashok Bhushan and Hon’ble Justice Dilip Gupta is considering the feasibility of reporting of appeals and applications under Section 482, Cr.P.C. but the present matter is not before their Lordships for consideration. We have been informed that a committee consisting of Hon’ble Justice Sunil Ambwani, Hon’ble Justice Ashok Bhushan and Hon’ble Justice Dilip Gupta is considering the feasibility of reporting of appeals and applications under Section 482, Cr.P.C. but the present matter is not before their Lordships for consideration. However, the Joint Registrar (I) has reported that Rule 8 of Chapter XVIII contemplates a separate application for bail but at the same time he has also reported that in sub-clause (c) of clause (3) of Rule 18, it has been mentioned that “ Where the prayer for bail is contained in a petition of appeal”, which indicates that a prayer for bail can be made in the petition of appeal itself. 11. We have given our considered thought to this situation. Sub-clause (c) of clause (3) of Rule 18 referred to by the Registry does not deal with the question as to whether a separate application for bail has to be filed along with the appeal or not. Sub-clause (c) of clause 3 of rule 18 runs as under : “(c) Where the prayer of bail is contained in a petition of appeal or application for revision, notice thereof may be given to the Government Advocate the same day prior to the hearing of such petition or application and the fact of such previous notice having been given, shall be endorsed on such petition or application. Along with such notice a certified copy or one attested to be true by the Counsel, of the Judgment appealed from or sought to be revised shall also be given to the Government Advocate.” 12. It is thus clear that sub clause (c) deals with the requirement of giving notice to the Government Advocate etc. The availability of the words “ Where the prayer for bail is contained in a petition of appeal” cannot and does not obliterate the provisions of Rule 8, 18(1) and 18(4) of Chapter XVIII, which specifically require that there shall be an application for bail. There is no conflict between the provisions of sub clauses (3)(a), 3(b) of Rule 18 on the one hand and Rules 8, 18(1) and 18(4) of Chapter XVIII on the other. There is no conflict between the provisions of sub clauses (3)(a), 3(b) of Rule 18 on the one hand and Rules 8, 18(1) and 18(4) of Chapter XVIII on the other. A prayer for bail may be mentioned in the petition of appeal if the appellant so desires but that does not mean that the appellant is not obliged to move a bail application as required under Rules 8,18(1) and 18(4) of Chapter XVIII. The Report of the Joint Registrar (I) is misconceived. If the wordings in sub clause (c) of clause (3) of Rule 18 are interpreted to mean that a prayer for bail may be contained in a petition of appeal and no separate application is required then Rule 8 (2) (a) and Rules 18 (1), 18 (3) (a), 18 (3) (b) and 18(4) shall become redundant. Hence the interpretation of Rule 18(3) (c) vis a vis Rule 8 (2) (a), Rule 18(1), 18(3) (a), 18(3) (b) and 18(4) must be harmonious so that one is not rendered redundant. The harmonious construction can therefore be that a prayer for bail may be contained in a petition of appeal together with a prayer made in a separate bail application. In the spirit of Rule 18(1), 18 (3) (a) and 18 (3) (b), read with Rule 18(4), it is clear that an application for bail has to be moved and the same will show as to whether it is the first or second or subsequent bail application and there cannot be any second or subsequent bail application without there being a first bail application. 13. In view of the above entire discussions, we are of this opinion that a separate bail application has to be filed along with the appeal and that bail application shall also be supported with an affidavit setting out in the form of paragraphs the material facts and grounds upon which the applicant relies. 14. In view of the above, the appellants are directed to move a separate bail application within two weeks if they so desire. 15. List after two weeks. 16. Registry of the High Court shall also publish in the cause list dated 8.2.2010 for information to all concerned that separate bail application would be required along with the petition of criminal appeal even though prayer for bail is made in the grounds of appeal concerned. ————