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2023 DIGILAW 178 (BOM)

Swapnesh Kumar v. State Of Maharashtra

2023-01-13

VALMIKI SA MENEZES, VINAY JOSHI

body2023
JUDGMENT 1. Heard. 2. Unusual facts emerge before us that though the appellant / accused (Swapnesh Kumar s/o Jayprakash Jain) has applied to the Trial Court for regular bail in terms of Sec. 439 of the Code of Criminal Procedure. However, the Trial Court under assumption that it is perarrest bail under Sec. 438 of Code of Criminal Procedure has decided the application resulting into rejection. 3. The appellant was charged for the offence under Indian Penal Code as well as the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The Trial Court has considered statutory bar created under Sec. 18 and it has weighed to the Trial Court in rejecting the bail application. As a matter of fact, the statutory bar would apply for pre-arrest bail under Sec. 438 of the Code of Criminal Procedure and not for regular bail. This very foundation for considering the application was itself missed and therefore, the matter needs consideration in that regard. 4. We have perused the application for bail filed by the appellant - Swapnesh in Trial Court, which is specifically for grant of regular bail in terms of Sec. 439 of the Code of Criminal Procedure. It is brought to our notice that on the same date, co-accused Rohit has applied for pre-arrest bail and perhaps, due to simultaneous hearing of both bail applications, the Trial Court has got confused and considered this application as pre-arrest bail. 5. The consideration for grant of regular bail and pre-arrest bail are distinct having different features. The result is that the Trial Court has not considered the regular bail application of appellant on set parameters. It is informed that the appellant is in jail from 08/11/2022 and said factor needs to be considered by the Trial Court while dealing with the regular bail application. In appeal, first time, we cannot undertake the exercise that as whether the appellant is entitled for regular bail or otherwise which has not been decided before the first Forum. 6. In the fitness of things, it is desirable that the Trial Court shall deal the bail application on its own merits by keeping in mind that the appellant is behind bars and has urged for grant of regular bail in terms of Sec. 439 of the Code of Criminal Procedure. 7. In view of that, the impugned order dtd. 6. In the fitness of things, it is desirable that the Trial Court shall deal the bail application on its own merits by keeping in mind that the appellant is behind bars and has urged for grant of regular bail in terms of Sec. 439 of the Code of Criminal Procedure. 7. In view of that, the impugned order dtd. 03/12/2022 passed in Criminal Bail Application No.2772/2022 is hereby quashed and set aside. The same bail application shall be restored on its file. 8. The State as well as informant are at liberty to file additional reply, if they desire so, on the next date i.e. on 17/01/2023 and advance arguments. The Trial Court shall decide the matter within three days thereafter. 9. The Informant is personally present before us, in pursuance of our notice. She has been informed about the remand and the next date for doing the needful. 10. In view of the above, appeal stands disposed in above terms. 11. All parties shall take note that they shall appear before the Trial Court on 17/01/2023 without notice. 12. This order be communicated to the Trial Court forthwith by regular mode and additionally, by e-mail for necessary action.