KEDAR NATH TIWARI Vs. STATE OF UTTR PRADESH

JUDGEMENT

(1.) This is an application under section 436 of the Criminal Procedure Code (hereinafter referred as the Code) filed by the applicant Kedar Nath Tiwari son of Manohar Lal Tiwari, resident of Deepak Talkies, police station Karvi, district Banda.

(2.) The facts giving rise to this application are that the applicant is Manager of Deepak Talkies situate at Karvi, Banda, and belongs to a very respectable family. It has been alleged that the local police used to see pictures in the Cinema of the applicant without purchasing tickets and the said practice was resisted by him and because of the resistance the local police developed ill will and the relations between him and the local became very strained. It has been further stated that at the instance of the local police he has been named in a case under sections 342, 323 and 504 I.P.C. in Case Crime No. 538 of 1986, police station Karvi, district Banda The police after investigation submitted charge sheet dated 21-12-1986, a photostat copy of which has been filed along-with the affidavit. A perusal or the charge sheet indicates that the charge sheet has been submitted against the applicant under sections 342 and 323 I.P.C. only. There is further averment in the application to the effect that co-accused Ghanshyam against whom also charge-sheet has been submitted under sections 342 and 323 I.P.C. surrendered before the Special Judge (DAA), Banda, on 4-12-1996 and though the offence against him was bailable yet his application was not disposed of for a couple of days and he was ordered to he released on bail by order dated 23-12- 1986, a copy of the said order has also been annexed as Annexure T7T to the affidavit. It has been further alleged that the applicant apprehends that if he appears before the Special Judge in the instant case though the offence is bailable, he will not be released on bail in as much as co-accused Ghanshyam, who is also wanted in a bailable offence was released on bail by the learned Special Judge (DAA), Banda, after a couple of days and because of this apprehension he has approached this Court under section 436 of the Code and prayed that he may be released on bail. Since the applicant wanted to invoke the jurisdiction of this Court under section 436 of the Code, which is normally not exercised, I wanted to hear the learned Government Advocate on this application. Mr. Girdhar Malvlya, learned Additional Government Advocate, has appeared before me. A counter affidavit has also been filed by Shesh Mani Dubey, Sub-Inspector, Police Station Karvi, District Banda.

(3.) I have heard Shri Jagdish Singh Sengar, learned counsel for the applicant, and Shri Girdhar Malviya, AddI. Govt. Advocate, for the State at considerable length. At the very outset it is convenient to refer to the provisions of section 436(1) of the Code which reads: When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail. Learned counsel for the applicant submitted that since the offence in which the applicant is wanted is bailable, this Court should exercise its power in view of the special facts of the case. Learned Additional Government Advocate did not dispute the proposition that under section 436 of the Code this Court can admit a person on bail if the offence is bailable. After a careful perusal of the language of the provisions of section 436 of the Code I am of definite view that this Court has power to admit a person on bail if the offence is bailable, but in my opinion this power should be exercised sparingly and in very exceptional cases and the instant Case is not one of the those and the tendency of approaching this Court under this provision should be deprecated and as such I am not inclined to allow this application but to direct the applicant to appear before the Special Judge (DAA), Banda, and move an application for bail before him.