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The Indian Penal Code, 1860
The Code Of Criminal Procedure, 1973
Md. Jamil Khan vs State Of West Bengal And Anr. on 22 January, 1974
Subhash vs State Of Haryana on 21 August, 2007
Section 3 in The Indian Penal Code, 1860

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Uttaranchal High Court
Babu Khan & 5 Others vs State Of Uttarakhand & Another on 3 February, 2012

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL MISCELLANEOUS APPLICATION No. 61/2012 (Under Section 482 of the CrPC)

With

Urgency Application No. 412/2012

Babu Khan & 5 Others .......Applicants Versus

State of Uttarakhand & Another ......Respondents

Mr.Rajendra Singh, Advocate, for the accused applicants. Mr. S.S. Adhikari, AGA, for the State.

3rd February, 2012

Hon'ble Servesh Kumar Gupta, J.

Having heard learned Counsel for the applicants petitioners on the urgency application, the same is allowed.

2. By way of filing this petition under Section 482 CrPC, the applicants petitioners have sought direction from this Court to the learned Magistrate, Roorkee to grant them bail for the added offence of Section 308 IPC on the same bail bonds and sureties, which they furnished in the court earlier at the time of releasing them on bail for the offences under Section 147, 148, 149, 323, 324, 325, 504 & 506 IPC in Crime No. 127/2011 pertaining to Police Station Bhagwanpur, District Haridwar. The prayer has also been made to quash the chargesheet and to stay the further proceedings before the court below till the adjudication of this petition by this Court.

3. Briefly stated facts of the case are that an FIR was lodged against the accused applicants on 12.6.2011 for the offences punishable under Section 147, 148, 149, 323, 452, 504 & 506 IPC. They were granted bail vide 2

order dated 28.6.2011 by the Judicial Magistrate, Roorkee for the said offences on furnishing two sureties and bail bond of like amount i.e. rupees fifteen thousand by each one of them. But after investigation and taking note of the serious injuries caused to the victims, the Investigation Officer submitted the chargesheet against all these applicants/accused persons also for the offence punishable Section 308 IPC, in addition to the above offences. Thereafter the applicants neither surrendered themselves nor moved any fresh bail application, rather they filed an application through their Advocate without putting their personal appearance, much less surrender, before the court below seeking that their personal bonds and sureties should also be accepted for the added offence of Section 308 IPC. The court below rejected the application of the accused applicants vide the impugned order dated 17.1.2012. Hence, this petition has been filed with the prayers stated above.

4. It has been vociferously contended by the learned Counsel for the accused applicants that once the bail has been granted to the accused under whatever sections, indicating the offences even if bailable in nature, then after submission of the chargesheet by the Investigation Officer under a graver offence does not require the accused applicants to seek further bail for such an added offence. Learned Counsel has relied upon a precedent of this Court rendered by a learned Single Judge in Jamil v. State of Uttaranchal, reported in 2005 (3) U.C. 1698. In the said case, the learned Single Judge was of the view that once an accused has been granted bail in a criminal case, he need not to file fresh bail application for grant of bail in another added section 3

which though seems to be graver than the offence under which he was granted bail earlier and, accordingly, the learned Judge directed the court concerned to permit the applicants to furnish fresh surety bond without requiring them to file fresh bail application.

5. Learned Counsel has also relied upon following three precedents rendered by learned Single Judge of this Court:

(i) Subhash & Others v. State of Uttarakhand & Another, 2010 (1) N.C.C. 621.

(ii) Vijendra & Another v. State of Uttarakhand & Another, Criminal Writ Petition No. 937 of 2009, order passed on 8.12.2009.

(iii) Mustaqeem & Others v. State of Uttarakhand & Another, Criminal Writ Petition No. 924 of 2009, decided on 3.12.2009.

6. In all these three precedents almost similar view has been expressed by the same learned Single Judge of this Court except that the Magistrate has no jurisdiction to grant bail where the offence is punishable with life imprisonment or death penalty saving the exception as enunciated under Section 437 (Provisos) of the CrPC.

7. Having regard to the views expressed by learned Single Judges of this Court in different cases, it is pertinent to mention the observation of Hon'ble Apex Court made in case of Prahlad Singh Bhati v. NCT, Delhi, reported in 2001 (4) SCC 280. In that case, it was observed that "even though there is no legal bar for a Magistrate to consider application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Sessions yet it would be proper and appropriate 4

that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail." Besides, the Hon'ble Apex Court in case of Hamida v. Rashid @ Rasheed & Others, reported in 2007 AIR SCW 3123, has held that exercise of inherent powers by the High Court under Section 482 CrPC is improper when there is a specific provision under Section 439 CrPC governing the subject. In that case, bail was granted to the accused for offences under Section 324, 352 & 506 IPC and, the direction by the High Court to continue bail after conversion of offences under Section 304 IPC instead of directing the accused to apply for bail afresh under Section 439 CrPC was held to be illegal. The Hon'ble Apex Court, further elaborating the above ratio, has held as under:

"In spite of repeated pronouncement of Supreme Court that inherent power under

Section 482 Cr.P.C. should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 Cr.P.C., the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Sections 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with Section 34 IPC. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet they got the privilege of bail under the 5

aforesaid offences by virtue of the order passed by the High Court. The High Court committed manifest error of law in entertaining a petition under Section 482 Cr.P.C. and issuing a

direction to the subordinate Court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any Court examining the case on

merits, as it stood after conversion of the offence."

8. A careful reading of the ratio laid down by this Court in Jamil v. State of Uttaranchal (supra) reveals that this Court too did not lay down that the accused persons should be enlarged on the same bail bonds and sureties for any graver offence whatsoever it may be, but the Court was cautious enough to use the words "which though seems to be graver....". The right interpretation of this phrase ought to be that if an added offence seems to be graver, then the lower court should not ask the accused person for fresh bail application and, if the offence is certainly graver and triable by the Court of Sessions, then this observation of the Court made in Jamil v. State of Uttaranchal should not be taken by the courts below as a mandate to grant bail to the accused persons on the same bail bonds and sureties which they furnished earlier. 6

9. If the logic that a person once released on bail need not surrender any further to seek fresh bail for the added offence is accepted for every eventuality, then it will create total anarchy in the society. If this logic is allowed to prevail, it might be possible that the influential persons, at the strength of their might and influence, will manage not to get the case registered at the police station against them as per the real nature of the incident and will seek the bail promptly in all the bailable sections from the court of Magistrate and, immediately after obtaining the bail in all the bailable sections from the court of Magistrate, they will let loose the Investigation Officer or the Magistrate to convert the case as per the real nature of the incident. By doing so, they will manage not to see the face of the lockup even for a moment in disregard of the heinousness of the crime.

10. In the instant controversy, serious injuries were caused to the victims, so the chargesheet was submitted for the offence of Section 308 Part II of the IPC, which is triable by the Court of Sessions. In such a circumstance, the accused applicants cannot be permitted to enjoy the liberty compelling the court of Magistrate to accept the same bail bonds and sureties for added offence (which would have been mentioned initially in the FIR) even without putting in their appearance, much less surrender before the Court, as is divulged from the impugned order of the Magistrate passed on 17.1.2012. Fortiori, in the light of the observations of the Hon'ble Apex Court in both the aforementioned precedents, such a prayer should not be accepted.

11. Learned Counsel for the applicants has relied upon a short order of this Court passed on 9.11.2011 in 7

Criminal Miscellaneous Application No. 1013 of 2011, moved under Section 482 CrPC, whereby the Magistrate was directed to follow the law laid down by this Court in case of Jamil v. State of Uttaranchal. But at that time, the legal proposition propounded by the Apex Court, as aforestated, was not brought to the notice of this Court and, now, when it has come to the knowledge of this Court, then entertaining such a petition under Section 482 CrPC and issuing the direction thereupon to the Magistrate concerned will not be in consonance of the principles enunciated by the Apex Court.

12. It is noteworthy that in the instant case, the FIR was registered under Sections 147, 148, 149, 323, 324, 504 & 506, but the accused applicants was granted bail for the offence under Section 325 IPC also by the court below vide order dated 28.6.2011. It appears that the accused applicants fraudulently obtained the bail for the offence under Section 325 IPC by mentioning this Section in their bail application as the incident they allegedly committed also attracted the offence under Section 325 IPC. It could have also been done with the intention to take the plea later on that the accused applicants have already been granted bail for the offence under Section 325 IPC and, hence, bail for the offence under Section 308 IPC be also granted to them as the maximum punishment of imprisonment prescribed under both these sections are seven years. Significantly, after investigation, the chargesheet was submitted also under Section 325 and 308 IPC in addition to Section 147, 148, 149, 323, 324, 504 & 506 IPC. The above act of accused applicants reflects the fraudulent mischief with the court below. 8

13. For the reasons recorded above, this petition is meritless and is liable to be dismissed at the very threshold. The petition is, accordingly, dismissed. The accused applicants are directed to surrender before the court concerned and seek bail for the added offence of Section 308 IPC. If any such application is moved, the learned Magistrate will dispose of the same on merits and in accordance with law propounded by the Hon'ble Apex Court. The accused applicants are also directed to enclose certified copy of this judgment and order along with their said application. If the applicants obtain any order of bail for the offence under Section 308 IPC on the basis of the Jamil v. State precedent either during the pendency of this petition or without producing the certified copy of this order before the court of Magistrate by keeping the court below in murk, then the order so obtained by them will be deemed to be otiose and non-est.

14. This Court feels that a lot of confusion is prevailing in the entire State in regard to these controversies. Hence, the Registrar General is directed to circulate a copy of this judgment and order to all the District Judges of the State for brining it to the notice of all judicial officers in the next monthly meeting. This Court also feels it necessary that henceforth, if any petition involving similar controversy is filed, the same may be placed before the Division Bench after procuring the necessary orders from the Hon'ble Chief Justice so that more explicit ratio can be laid down in regard to these controversies.

15. A copy of this judgment and order be sent to the court concerned forthwith.

(Servesh Kumar Gupta, J.)

3.2.2012

Prabodh