MANISHA Vs. STATE OF U P

JUDGEMENT

(1.) This transfer application has been filed by Km. Manisha complainant of the case under Section 407 Cr.P.C. to transfer Crl. Misc. Bail Application No. 1412 of 2012 made by Chandra Pratap Singh accused in case crime no. 381 of 2012 under Section 376(G), 342, 344, 347, 323, 504, 506, 120B IPC and 3(2) V of SC/ST Act pending before the Court of learned Special Judge SC/ST Act District Etah to some other Court or some other district for disposal according to law. I have heard learned counsel for the parties including learned A.G.A. and learned counsel for the opposite party No. 2 (accused Chandra Pratap Singh).

(2.) The grounds of transfer as mentioned in the accompanying affidavit is that opposite party no. 2 Chandra Pratap Singh is an accused in the aforesaid case crime. He surrendered before the Court of learned Magistrate who took him into custody and rejected his bail. Thereafter the applicant applied for bail before the learned Special Judge SC/ST Act the same day. Learned A.D.G.C. (Crl.) sought time to produce the case diary and therefore, in the light of the case law Amrawati Devi and others v. State of U.P., 2004 57 AllLR 290 and Lal Kamlendra Pratap Singh v. State of U.P., 2009 3 ADJ 322, Supreme Court, the applicant who is said to be the M.L.C. in Uttar Pradesh was granted interim bail in the aforesaid heinous offence vide order dated 18.12.2012 upto 9.1.2013. The sureties filed their bail bonds and the applicant was released on the interim bail with a direction to surrender on 9.1.2013. On 9.1.2013 he did not appear in the Court and therefore, he was not taken into custody rather his learned counsel applied for adjournment on the ground that the applicant accused is under medical treatment of Dr. Rajiv Agrawal and therefore, prayer was made to extend the interim bail. Prosecution opposed as mentioned in the order dated 9.1.2013 itself, still without taking the applicant into custody and without his appearance in the Court the learned Presiding Officer, extended the interim bail upto 17.1.2013. On 17.1.2013 learned counsel for the applicant again adopted the same modus operandi and the learned Presiding Officer extended the interim bail of the applicant upto 22.1.2013 with the direction that the applicant shall remain on interim bail on the same bonds already filed. On 22.1.2013 applicant did not surrender before the Court as is mentioned in the order passed on that date by the learned Presiding Officer, and again he was enlarged on interim bail upto 11.2.2013 inspite of objection made by learned A.D.G.C. (Crl.). On 11.2.2013 the learned Presiding Officer, again allowed interim bail upto 26.2.2013, although the applicant did not surrender on that date in the Court. In the same fashion he allowed interim bail on 26.2.2013 upto 8.3.2013 on the same bond already filed although the applicant did not appear or surrender in the Court. Prior to one day of the date fixed i.e. on 7.3.2013 the applicant for the reasons best known to him made an application 32-B to summon the case diary for the date fixed. This appears to be over doing in view of the fact that there was no need to make application prior to the date fixed i.e. 8.3.2013. However, on 8.3.2013 the applicant again made application 33B mentioning therein that the case diary is not available hence some other date for argument be fixed. On that date i.e. on 8.3.2013, learned counsel for the complainant made an application 35B with the request not to dispose of the regular bail application as he intends to move transfer application against the learned Presiding Officer. The said application was allowed and again without any prayer of extension of interim bail the learned Presiding Officer extended the interim bail to the applicant upto 16.3.2013. On 16.3.2013, 36B application was made on behalf of the accused Chandra Pratap Singh to adjourn the hearing of the bail application as Advocate at Etah Bar Association were on strike. No prayer for extension of interim bail was made on behalf of the accused applicant but still the learned Presiding Officer extended the interim bail to the applicant upto 30.3.2013. On 30.3.2013 learned Magistrate reported to the district Judge through application 37 B that accused Chandra Pratap Singh has now surrendered in Court and has been taken in custody. On that date prosecution made adjournment application 38B and case diary was not produced on that date. The said adjournment application was allowed and again applicant Chandra Pratap Singh was extended interim bail till 18.4.2013.

(3.) Learned counsel for the applicant has made his submissions that in view of all the aforesaid developments arbitrary and illegal orders passed by learned Special Judge SC/ST Act, Etah, the complainant applicant lost the confidence in the aforesaid learned Presiding Officer and there are reasonable grounds to apprehend that she would not get justice by the aforesaid Presiding Officer. He further stressed that notion of release on bail regular or interim connotes an idea of custody and unless the person accused of any offence is in custody he cannot be released on bail. Bail bonds are nothing but an agreement entered into in between the Court and the sureties for a particular period and after expiry of that period sureties cannot be held liable in any way on account of failure of accused to appear in Court even if the accused is extended interim bail time to time because no such undertaking was ever given by the sureties to stand sureties even for the extended period. Admittedly, the earlier bail granted by Incharge learned Special Judge SC/ST Act Etah vide order dated 18.12.2012 the applicant was released on interim bail upto 9.1.2013 and if on 9.1.2013 the applicant did not surrender before the Court then notice to the sureties must have been issued with the follow up action, but the learned Presiding Officer did nothing and he continued to extend the interim bail to the accused applicant who is MLC. The grounds pressed upon by the learned counsel for the applicant as stated above is supported by uncontroverted affidavit.