ZILEY SINGH Vs. STATE OF U P

JUDGEMENT

(1.) U. K. Varma, J. This is an application for cancellation of the bail of the respondents 2 to 15 on the ground that the 1 Additional Session Judge was incompetent to consider their bail application under Section 307 I. P. C. when they had admittedly not surrendered before the Magistrate concerned before whom an application under Section 307 I. P. C. for grant of bail should first have been given. The Counsel for the applicant argued that the bail application under Section 307 of the Indian Penal Code have been considered if the repondents had been in custody under that section under the orders of the Magistrate and in support of it cited the case of Ram Krishna Misra v. State of Uttar Pradesh, 1986 ACC Vol. 23 at page 29. He further referred to the decision of Kripa Shanker v. State of U. P. , 1984 (21) ACC 173 wherein it had been held that bail application could not be moved through a Counsel claiming appearance for accused as the insistance under Sections 437 and 439 of the Cr. P. C. is on actual surrender by appearance or otherwise of the accused. To make out the point that the High Court can review the propriety of bail granted by the Sessions Judge even if no new circumstance existed, he invited my attention to the law laid down in Virendra Singh v. Avdesh Kumar and Anr. , 1984 U. P. Cr. Report at page 36 = 1984 (21) ACC 47 (Sum ). He cited in this connection yet another decision in Smt. Poonam Lata v. M. L. Wadhawa and others, 1987 Cr. Reporter S. C. at page 253 wherein it had been held that remaining on parole meaning thereby on bail was not the samething as if under detention i. e. under custody.

(2.) THE Counsel for the respondents 2 to 15 argued that the Counsel for Ziley Singh the applicant was wrong in assuming that the respondents 2 to 15 had not put in ap pearance before the Sessions Judge. He invited my attention to the law laid down by the Supreme Court in Niranjan Singh and Anr. v. Prabhakar Raja Ram, AIR 1980 SC 785 = 1980 (17) ACC 75 (S. C.) (Sum.) wherein it had been held that appearance of the accused before the Court could be taken to be in his custody when it could be presumed that there had been a submission. To his jurisdiction. He disputed this proposition of law enunciated by the Counsel for the complainant that the Sessions judge did not acquire jurisdiction to entertain the bail application unless the custody of the person applying for bail was under the orders of the Magistrate within whose jurisdiction the offence had been committed or who was competent to take him in custody. THE facts of Ram Krishna Mishra 's case cited by the Counsel for the complainant, according to him, were not applicable at all to the facts of the instant case as Hon'ble B. L. Yadav, J. did not find that surrender could be presumed even within the meaning given to it in Niranjan Singh's case by the Supreme Court. He took me through the decision of Hon'ble Palok Basu J. in Indrapal Singh and others v. State of U. P. wherein under identical circumstances on charge sheet being filed subsequently under Section 307 I. P. C. there was his direction that the bail granted to accused should not be interfered with and the maximum that was to be done was to call for fresh bail bonds particularly when he showed no reason for the taking of the accused into custody in view of their having not abused or misused bail. THE accused in the instant case also had been released on bail in respect of all the alleged offences excepting Section 307 for which charge sheet had been submitted later. THE Sessions Judge required them to furnish fresh personal and surety bonds which they did. THE respondents 2 to 15 thus did submit to the jurisdiction of the Sessions Judge. THE mere fact that there was the direction also in that case that the accused had first to appear before the Magistrate and after the rejection of bail, the Addl. Sessions Judge was required to consider the application the same day, it would not imply that custody under the order of the Magistrate and rejection of the bail application by him only could give jurisdiction to the Sessions Judge and the Sessions Judge in no circumstance could hear the bail application without there being the process ing of the bail application through the court of the Magistrate. If such an insistance was made and discretion of the superior courts was taken away without there being a bar even in appropriate cases, it may work hardship and defeat that cause of work hardship and defeat that cause of justice. In Taj All and others v. State of U. P. , U. P. Criminal Rulings 1989 at page 394 the Hon'ble Girdhar Malviya J. presiding over a Bench in Lucknow in a matter under Section 482 wherein too the case subsequently was converted to one under Section 307 gave this direction to the Sessions Judge that if the applicants moved applica tion for bail he was to refix the amount of sureties to be filed before the Magistrate concerned and that the accused was not to be arrested in respect of that crime in the even of their filing the surety bonds. My attention had also been invited to the orders of this Court in the bail application No. 1297 of 1982 disposed of by Hon'ble M. M. Gupta J. on 2. 3. 82 and No. 1601 of 1984 disposed of by Honble B. N. Sapru J. on 16. 2. 84 wherein this Hon'ble Court finding the circumstances to be just had permitted surrender in the High Court and granted bail. THE Supreme Court decision in Niranjan Singh's case is specific on the point that if an accused surrender before the Sessions Judge, he would have jurisdic tion to consider the bail application and it is not at all necessary that the police had first to arrest and produce him before a Magistrate for presuming him to be in custody to be entitled to apply for bail. I have already pointed above that there is nothing to doubt that the respondents 2 to 15 were in the custody of the Sessions Judge when he granted them bail under Section 307 I. P. C. THEre is thus no good ground to set aside the order of the I Additional Sessions Judge dated 31. 12. 90. THE application for cancellation of their bail is rejected. Bail rejected. .