MOOL CHAND Vs. STATE OF U P

JUDGEMENT

(1.) Heard. Mool Chandra and Shilpi alias Shilp Kumar, who are being prosecuted for committing the offences under Sections 114, 147, 148,327,308, 302 and 364 IPC P.S. Hapur District Ghaziabad, have directly applied for bail in this Court after their bail application was rejected by the A.C.J.M. Hapur, Ghaziabad. It is alleged that the Courts at Ghaziabad were closed and no one was allowed to enter the Court campus. Prayer has been made to waive the provisions of rule 18 of Chapter XVIII of the Allahabad High Court Rules, 1982. The above rule provides that no application for bail shall be entertained unless accompanied by a copy of judgment or order passed by the Sessions Judge on the bail application of the applicant and unless the accused has surrendered except where he has been released on bail after conviction under Section 369 (3) of the Code of Criminal procedure. Rule 18 (3) provides that save in exceptional circumstances no order granting bail shall be made on an application unless notice thereof has been given to the Government Advocate and not less than ten days have elapsed between the giving of such notice and the hearing of such application.

(2.) Reliance from the side of the applicants has been placed upon the case of Onkar Nath Agarwal v. State1 and the case of Ramesh Chandra Kapil v. Hon ble High Court of Judicature at Allahabad and another2.

(3.) In Onkar Nath Agarwals case, a Full Bench of this Court has held that the Courts have unfettered discretion in the matter of bail under Section 438 Cr.P.C. to be exercised according to exigencies of such case. Thus, a bail under Section 438 Cr.P.C. may be moved in the High Court without the applicant taking recourse to the Court of Sessions. If an accused can move an application directly to the High Court under Section 438 Cr.P.C. without taking recourse to the Court of Session, he can also, in special Circumstances move this court directly for bail under section 439 Cr.P.C.