Bijendra @ Virendra Son of Mukandi Lal, Vs. State of U.P. and Manoj Kumar Son of Gopal - Court Judgment

Vinod Prasad, J.

1. Can an accused be allowed to remain on the same bail bonds or furnish only fresh bail bonds for the offences triable by the court of sessions, if he was earlier granted bail for offences triable by the magistrate in the same crime number, is the question, which has been mooted in the present application for consideration by the applicants. As this question has burdened this Court regularly, therefore, it requires determination. But before adverting to the aforesaid question a resume of the facts.

2. The informant Manoj Kumar lodged a FIR on 6.10.2005 at 10.40 A.M. at the police station Pahasu, district Bulandshahr, in respect of an incident alleged to have taken place on 6.10.2005 at 7.00 AM as crime No. 256 of 2005 Under Section 147, 148, 452, 323, 324 IPC. Two sets of siblings were arrayed as accused. Rohit alias Chhotu and Gaurav are the sons of Shyam Lal and Veerendra, Kalyan Singh and Shyam Lal are the sons of Mukundi Lal and all were said to be armed with pharsa, katta, hockey and lathi. It is alleged that on the date and time of incident Amar s/o Shyam Lal called the informant on the pretest of removing his car standard over his plot. There the accused persons started be labouring the informant. Shyam Lal fired from a country made pistol. When the informant took to his heels the accused chased him, entered into his house and bet his two Bhabhis Smt. Rajwati and Smt Durgesh ,his father Gopal Singh and his younger sister Hem Lata. The motive of assault- was non payment of credited amount of Rs. 1,70,000/= (Rs. One Lakh Seventy Thousand) towards the assailants which they never wanted to pay inspite of repeated demand by the informant. The injured were got medically examined through constable and their injuries indicate that at least two of them had received lacerated wounds on right side parietal skull and left side parietal skull and rest of the injuries were contusions and abrasions on other parts of body. It is noted here that the injury reports of women folk - Smt. Rajwati, Smt. Durgesh and Km. Hem Lata have not been appended in this application.

3. The three accused applicants Bijendra alias Virendra, Kalyan alias Kalicharan and Rohit alias Chotu surrendered before the court of Civil Judge/Judicial Magistrate , Khurja, district Bulandshahar, in the aforesaid crime number and were granted bail on 10.10.2005 for the offences Under Section 147, 148, 323, 324, 506, 452 IPC by the Magistrate vide annexure 6 to the affidavit, filed in support of this application. Subsequently charge sheet, annexure 7 was filed against them under Sections 308 and 325 IPC as well.

4. Being apprehensive of arrest in the newly added offence this application Under Section 482 Cr. P. C. invoking the inherent jurisdiction of this Court with the prayer to 'direct to the court below to accept the fresh bail bond from the applicants in newly added Section 308 and 325 IPC in case crime No. 256 of 2005 Under Section 147, 148, 452, 323, 324, 325 and 308 IPC, Police Station Pahasu district Bulandshahr, as the applicants are already been on bail in the present case which was granted to them by Civil Judge (Junior division)/Judicial magistrate, Khurja, Bulandshahr on 10.10.2005 under Section 147, 148, 323, 324, 504 452 IPC' The ancillary prayer is that the execution of coercive process issued against the applicants be kept in abeyance till the filing of the fresh bail bonds.

5. When the matter came up for admission an objection was raised by learned AGA that since Section 308 IPC is triable by Session's court, therefore, the prayer that the applicants be allowed to file only fresh bail bonds or to remain on the same bail bonds already furnished before the magistrate in respect of offences which were triable it can not be granted. The learned AGA canvassed that offences, which are triable by the court of Sessions, liberty of fresh bail bonds before the Magistrate without seeking bail from the court of session's is against the provisions of law for bail as is contained under chapter XXXIII Cr.P.C. Therefore, the present application is devoid of merit and should be rejected.

6. Sri Sunil Kumar, counsel for the applicants on the other hand submitted that since in the same crime number the applicants had already been released on bail for offences Under Section 147, 147, 323, 324, 504 and 452 IPC, (all offences triable by magistrate) therefore, they should be allowed to furnish only fresh bail bond.

7. I have heard both the learned Counsel at a very great length and have gone through the material on record.

8. Before adverting to the facts of the case a glimpse of law.

Bail or jail has invited the attention of the courts innumerable number of times as it is directly related with personal liberty of a person of which the bar claims to be the champions. This branch of law, historically, was bracketed, originally under chapter XXXIX titled 'OF BAIL' of code of criminal procedure 1898 ( Act V of 1898) , herein after referred to as the old code, with five sub sections from Section 496 to Section 502. Section 496 dealt with offence in which bail could have been granted which is akin to Section 436 of Code of Criminal Procedure 1973, herein after referred to as the new code. This section not being relevant for present controversy is not detailed any further. Section 497 of the old Code dealt with bail in non bailable offence by a court and was bracketed into three sub-sections -Section 497(1) to Section 497(3) By Code of, Criminal Procedure (Amendment) Act 1923 ( Act XVIII of 1923) the words' the offence of which he is accused' in Sub-section (1) of Section 497 of the old code was substituted by the words 'an offence punishable with death or transportation for life' and the proviso - 'provided that court may direct that any person Under the age of sixteen years or any woman or any sick or infirm person accused of such offence he released on bail. ' was added. In Sub-section (2) thereof, for the first time, words 'Non bailable Offence' was substituted for words 'such offences'. Sub-section (3) and Sub-section (4) was introduced in the following terms:-

Section 497(1)

(2)

(3) An officer or a court releasing any person on bail under Sub-section (1) or Sub-section (2) shall record in writing his or it's reasons for doing so.

(4) If, at any time after the conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered, the court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence , it shall release the accused, if he is in custody on the execution by him a bond without sureties for his appearance to hear judgment delivered.

9. Original Sub-section (3) was renumbered as Sub-section (5) to Section 497 Cr.P.C. By the Amendment Act of 1974 (Act No. 2 of 1974), enforced on 25.1.1974, Code of Criminal Procedure 1973 came into being, old chapter XXXIX of 1898 code regarding bail is bracketed under chapter XXXIII of new code titled as 'Provisions as to bail and bail bonds' and it encompasses 18 sections, from Section 436 to Section 450 Cr. P. C. Section 436 corresponds to Section 496 of old code relating to the bailable offence and hence is eschewed. Section 437 of new code corresponds to Section 497 of the old code with certain changes, which deals with the power of the Magistrate to grant bail in non-bailable offences. It is with this section around which the present controversy revolves around. By the said amendment of 1974 a second proviso was added in Section 437(1) Cr.P.C. in the following terms: -

provided further that the court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any special reason :

10. The said amendment of 1974 also added 437(3) Cr.P.C. in the present form. Section 437(1) Cr.P.C. was further substituted by amending Act 63 of 1980, vide Section 5 thereof ( w.e.f. 23.9.1980) and is available in the present form.

11. Section 437(1)(ii), further, was amended by Act 63 of 1980 by deletion of words ' a non- bailable and cognizable offence' and insertion of words' a cognizable offence punishable with imprisionment for three years or more but not less that seven years'.

12. By Code of criminal Procedure (Amendment) Act 2005 (Act No. 25 of 2005), which was inforced from 23.6.2005, vide Section 37(i)(a) of the said amending Act Section 437 Cr.P.C. was further amended and a forth proviso to Section 437(1) Cr.P.C. was added in the following words:-

Provided also that no person shall, if the offence is alleged to have been committed by him is punishable with death, imprisionment for life, or imprisionment for seven years or more be released on bail by the court under this sub section without giving an opportunity of hearing to the public prosecutor,

13. Section 437(3) Cr.P.C. was also substituted by the amending Act No. 25 of 2005 with the substitution of following words-

Section 437(1)

(2)

(3)...The court shall impose the conditions,-

(a) that such person shall attend in accordance with the conditions of the bond executed under this chapter;

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence,

and may also impose ,in the interest of justice, such other conditions as it considers necessary.

14. Thus with this legislative history of Section 437 Cr.P.C regarding bail in non bailable offence by a magistrate, that the contention of the applicants, have to be examined. A glimpse of the Section 437 Cr.P.C. presently is as follows:-

Section 437 Cr.P.C. .- When bail may be taken in case of non-bailable offence (1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court of Sessions, he may be released on bail, but

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm;

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is other wise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this Sub-section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non bailable offence, but that there are sufficient ground for further inquiry into his guilt, that accused shall, subject to provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as herein after provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII or the Indian Penal Code (45 of 1960) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1), the Court may impose any condition which the Court considers necessary--

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

and may also imposed, in the interests of justice, such other conditions as it considers necessary.

(4) An officer or a Court releasing any person on bail under Sub-section (1), or Sub-section (2), shall record in writing his or its [reasons or special reasons] for so doing.

(5) Any court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accuse, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.

15. Section 437(1) provides that when a person is an accused of or suspected of, the commission of any non bailable offence is arrested or detained without warrant by an officer in-charge of police station or appears or is brought before the court other than a High Court or Court of Sessions, he may be released on bail, but (i) such person shall not be so released if he is guilty of an offence punishable with death imprisonment or for life; (ii) That such person is guilty of an offence which is cognizable and previously he has been convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years more but not less than seven years.

16. The first proviso of Section 437 provides that two conditions mentioned in 437(1)(i) and (ii), will not be a bar for granting bail, by a magistrate, to a person under the age of 16 years or is a woman or is sick or infirm.

17. Second proviso to Section 437(1) provides that a person referred to under Section 437(1)(ii) may be released on bail if the magistrate is satisfied that it is just and proper so to do for any other special reason.

18. The third proviso provides that the requirement of identification of the accused by the witness will not be a ground for refusing the bail to him if he is other wise entitled to be released on bail and gives an under taking that he will comply with the direction as may be given to him by the court.

19. The forth proviso to Section 437(1) provides that the Magistrate will not release the accused if the offence alleged against him is punishable with death, or imprisonment for life or imprisonment for seven years or more without 2ivins opportunity of hearing to the public prosecutor

(Emphasis Supplied).

20. This IV proviso has been inserted by Code of Criminal Procedure (Amendment) Act No. 25 of 2005 vide Section 37 (i) (b) thereof w.e.f 23.6.2005.

21. Section 437(2) provides that at the stage of investigation, inquiry or trial, if there are no reasonable ground for believing that the accused had committed a non bailable offence and a further inquiry is required into his guilt then the accused shall be released on bail subject to the provisions of Section 446A and pending such inquiry at the discretion of such an officer or court, on executing a bond by him without sureties for his appearance. Section 437(3) provides that if a person is an accused or suspected of the commission of an offence punishable with imprisonment, which may extend to seven years or more or of an offence punishable under Chapter VI Section 121 to 130 IPC (offence against the State), Chapter XVI, Section 299 to Section 377 IPC (of offences affecting the human body) ; or Chapter XVII, Section 378 to 462 IPC (Of offences against property) IPC, or abatement of, or conspiracy or attempt to commit such an offence, is released on bail Under Section 437(1) the court shall impose the condition provided there under (a), (b) and (c) thereof as is mentioned above-(a) that such person shall attend in accordance with the condition of the bond executed under this Chapter (b), that such person shall not commit an offence similar to the offence of which he is accused or suspected, of the commission of which he is suspected and (c) that such person shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. These conditions are in addition to the conditions, which the court can impose while admitting a person on bail. Section 437(4) provides that an officer or a Court releasing any person on bail under Sub-section (1) and (2) shall record its reasons or special reason for such release (Emphasis Supplied). Section 437(5) deals with cancellation of bail granted to the accused under this section. Section 437(6) provides that if a case is triable by a Magistrate, and the trial of the accused who is guilty of non bailable offence is not concluded within sixty days from the first date fixed for taking evidence in the said case, then the court will release him on bail if such person is in custody during the whole of the said period from the date of his arrest unless he records his reasons for not doing so. Section 437(7) provides that before delivery of judgment, if Court is of the opinion that the accused who was tried for non bailable offence is not guilty of such offence, it shall release the accused on bail, on execution by him of a bond without sureties, for his appearance to hear the judgment to be delivered. Section 438 Cr. P. C. deals with the anticipatory bail, which has been omitted in Uttar Pradesh by U. P. Act No. 16 of 1976 vide Section 9 thereof and is besides the scope of the present application. Section 439 Cr. P.C which deals with the power of High Court or Court of Sessions to enlarge a person on bail. Therefore Section 438 and 439 Cr.P.C are eschewed for the present.

22. In the back drop of this position what is to be adjudicated upon is, as to whether this Court can direct the magistrate to accept fresh bail bonds or allow the accused to remain on the same bond for offence/ offences triable by court of sessions if the applicant accused was earlier on bail for the offences which were not triable by the court of Sessions but were trial by the Magistrate, in exercise of it's inherent power under Section 482 Cr.P.C.

23. Learned Counsel for the applicant submitted that the case of the Supreme Court in Prahlad Singh Bhati v. NCT Delhi and Anr. reported in 2001 ACC 903, does not apply in such cases. He further contended that Under Section 482 Cr.P.C. the High Court has got a power to direct the trial court to accept the fresh bail bonds in the newly added offences triable by the Court of Sessions and Prahlad Singh Bhati (supra) does not bar such an exercise by the High court. Counsel for the applicants further contended that because the provision of anticipatory bail is not applicable in U.P., therefore, the High Court must exercise its inherent jurisdiction in granting such relief to the accused, specially keeping in view that earlier he was let off on bail for magistrate triable offences in the same crime number , which he has not misused.

24. Learned AGA on the contrary submitted that since the offence is triable by the court of sessions and it has been held by the apex court in the aforesaid judgment of Prahlad Singh Bhati (supra) that it would be proper and appropriate that in such case the Magistrate directs the accused persons to approach court of sessions for purposes of getting relief of bail is the law laid down by the Supreme Court and therefore, anything contrary to it will be illegal.

25. After hearing the learned Counsels for the both sides at a great length and after analyzing Section 437 Cr. P. C. it transpires that Section 437 relates with bail in cases of non-bailable offence by the magistrate. So far as the first contention which the learned Counsel for the applicants advanced, that because the bail has been granted in the same crime number and therefore by mere change of section accused cannot be sent to jail is concerned it is to be noted that case crime number is nowhere mentioned in the aforesaid section, which is the number of police for identification of the case and is a procedural number of the police station. Crime number has no relation with bail under Cr. P. C. In this view of the matter the contention of learned Counsel for the applicant cannot be accepted and is therefore rejected.

Coming to the second contention of the learned Counsel for the applicant that there is no bar for this Court to direct the Magistrate to accept fresh bail bonds for the newly added offence triable by Court of Session's it is noted that this direction will amount to asking the Magistrate to do something de-hors the law. The contention is devoid of merit. Section 437 Cr.P.C. relates to an offence, therefore, on addition of a new offence, the accused is required to appear before the court and seek bail. His bail cannot be considered unless and until he surrenders and is in custody in that offence. Any accused who is not in custody in an offence can not be granted bail. Custody is sine qua non for consideration of bail prayer. Consequently when the accused is guilty of an added offence and is not on bail, he cannot be allowed to furnish bond without being in custody in that offence. For getting bail in newly added offences the accused has to surrendered in that offence. Thus asking the Magistrate to accept fresh bail bonds in newly added offence will mean granting of bail to the accused in the newly added offences without he being taken into custody for the said offence and that is not permissible under the Moreover there is another difficulty, which cannot be alleviated by the counsel for the applicants. Under the IV proviso to Section 437(1), which has been Inserted by the Code of Criminal Procedure (Amendment ) Act No. 25 of 2005. the offence of under Section 325 and 308 IPC are punishable with seven years of imprisonment and consequently without giving an opportunity of hearing to the public prosecutor they cannot be allowed to furnish fresh bail bonds. The IV proviso, which has been inserted in the year 2005 now mandates that if a person is guilty of an offence punishable with imprisonment of seven years or more then, Public Prosecutor must be given an opportunity of being heard. If this Court, in exercise of its inherent jurisdiction Under Section 482 Cr. P. C. allows, to the accused to file fresh bail bonds for the offences punishable with seven years and triable by session's court then it takes away the right of the public prosecutor to oppose the bail, and the said order will be against the provisions of law.

26. More over under Section 437(4) Cr.P.C. reasons or special reasons are required to be penned down while granting bail to an accused under Sub-section (1) or (2) of Section 437 Cr.P.C. Consequently allowing the accused to furnish fresh bail bonds only in the newly added offences which is punishable with 7 years imprisonment will amount to non observance of this Sub-section (4) and will be an illegal exercise of power.

(Emphasis Supplied).

29. More over there is yet another difficulty in the way of the applicants, Section 437 Cr.P.C. talks of 'An offence'. Plurality of words has been intentionally eschewed by the legislature in the format of the said section and rightly so because each offence is to be tried separately and joinder of charges is an exception to this general rule. This is perceptible from reading of chapter XVII Cr.P.C. Sections 211 to 224 thereof. Thus bail in one offence can not be taken to be bail in another offence and so filing of fresh bail bonds , which is a subsequent stage after grant of hail, can not be allowed when the bail itself is not granted.

(Emphasis Supplied.)

30. Under Section 482 Cr. P.C. high court is to get law observed and not to get it flouted away.

31. In what has been held herein before the contention of the learned Counsel for the applicant, that this Court Under Section 482 Cr. P. C, can pass an order for fresh bail bonds Under Section 308/325 IPC, will be against the enacted provisions of law -- IV proviso Section 437(1) Cr. P.C. and Section 437(4) Cr.P.C. and chapter XXXIII thereof and therefore can not be accepted and is rejected.

32. The next contention of the learned Counsel for the applicants is that the case of Prahlad Singh Bhati (supra) is not applicable to the facts of the present case, is also not acceptable. Supreme Court has observed in that case that appropriate course for an accused, who is guilty of an offence, triable by court of sessions would be to seek bail from the court sessions and, therefore, what the apex court has laid down that in such matter the Magistrate should lay it's hands off in granting bail for such offences.

33. On the above consideration, all the contentions of the learned Counsel for the applicants does not impress me ,as being contrary to the provision of law, and is therefore repelled. Thus the prayer for the applicants for allowing them to furnish them fresh bail bonds Under Section 308/325 IPC in crime number 256 of 2005 PS Pahasu District Bulandshahar cannot be accepted.

34. However under the facts of the case this Court is not powerless to direct the Magistrate as well as learned Sessions Judge to consider and dispose off the bail application of the applicant in the newly added offences Under Section 308/325 IPC as expeditiously as possible and if possible on the same day keeping in mind that they have not misused the liberty granted to them earlier. The change of section no doubt does not entitle the accused not to surrender and to seek fresh bail but certainly their conduct without any material change in the factual matrix of the incident and evidences entitles them to get their bail application considered without any unreasonable and unnecessary delay and if possible on the same day.

35. Thus while dismissing this application for the prayer for fresh bail bonds I hereby direct that if the applicants surrender or appear before the trial court and makes an application for bail, the trial court will consider and dispose off their bail application as expeditiously ,as possible preferably on the same day after giving opportunity of hearing to the public prosecutor. Magistrate will entertain the bail application of the applicants during the first half of the day. If the bail application of the applicants is rejected by the Magistrate, then Magistrate is directed to provide the certified copy of the rejection order to the applicant so that the applicants may move their bail application before the Sessions court the same day. The Sessions Judge is directed to decide the bail application of the applicants on the same day, if possible, after giving opportunity of hearing to the public prosecutor. This direction is given keeping in view the fact that the bail before the magistrate in offences triable by court of session's is a mere a procedural requirement as I have held that he can not grant bail in such cases and since the charge sheet is already laid in court and all the material against the accused is available with the court/ public prosecutor and that the accused has not betrayed the trust reposed by the trial court in him earlier. Expeditious disposal of bail application of the accused by the courts is a part of speedy trial cherished under Article 14 and 21 of The Constitution of India. I must remind that so long a person is not convicted, though technically he is appellated as accused but in fact is not - acquittal can be the out come of his trial.

36. With the aforesaid direction the application is dismissed.