RAM KUMARI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Mr. Vivek Singh, learned counsel for the petitioner and the learned A. G. A. Mr. R. P. Shukla and Mr. Rajendra Kumar Dwivedi as well as Mr. Anand Pal Singh Vishen, learned counsel for the opposite party no. 2. The petitioner has challenged the order dated 5. 12. 08 passed by the Chief Judicial Magistrate, Gonda, whereby he rejected the petitioner's application for accepting her bail on the bonds and sureties submitted before the police officer on the ground that bonds and sureties executed by the petitioner have been forwarded to the court concerned upon which she is entitled for bail by the court also. In support of her contentions, the learned counsel appearing for her cited the following case:- Smt. Radha Devi Vs. State of U. P. and others , 2002 (1) JIC 21 (All) (LB), in which it has been held as under:- "the Magistrate should not direct an accused who was released on bail by the police in the course of, investigation or after the charge-sheet he should not be asked to apply for bail. He may at the most be asked to furnish a fresh bail bond for his appearance on future dates by the court. " On the other hand, learned A. G. A. vehemently urged that the power of the High Court under Section 482 Cr. P. C cannot be exercised for releasing accused on bail. In support of his contentions, he cited the following cases:- Maulana Abid Hasan Vs. State of U. P. and another 2008 (60) ACC 786, in which the Hon'ble Single Judge has held as under:- "the applicant accused cannot be permitted to continue on the same bail bonds furnished by him before the police and this Court cannot in exercise of the power under section 482 Cr. P. C. direct the court below to accept fresh bail bonds. " Rekha Patel Vs. Pankaj Verma and others 2008 AIR SCW 1891, in which the Hon'ble Supreme Court has held as under:- "in view of the clear language of section 439 and in view of he decision of this court in Niaranjan Singh and Anr. V. Prabhakar Rajaram Karote and Ors. (AIR 1980 SC 785), there cannot be any doubt that unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. " State of West Bengal VS. Pranab Ranjan Roy (1998), 3 SCC 209 in which the Hon'ble Supre Court has held as under:- "the appearance mentioned in sections 436 and 437 Cr. P. C can only mean physical appearance of the accused and not appearance by counsel because the very notion of bail presupposes restraint of the accused and hence the person who wishes to be relased on bail is to appear and surrender before the court. A person who is not under any sort of restraint does not required to be released on bail. " Niranjan Singh and another Vs. Prabhakar Rajaram Kharote and others AIR 1980 Supreme Court, the facts of this case are that the police officers applied for bail before a Magistrate, who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. The Hon'ble Supreme Court held that this direction of the Magistrate, was wholly irregular and may be, enabled the accused persons to circumvent the principle of S. 439 Cr. P. C. The relevant para 7 of the said case is reproduced hereinunder:- " When is a person in custody, within the meaning of S. 439 Cr. P. C? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor presidential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of S. 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Thus, in the light of the aforesaid dictum of the Hon'ble Supreme Court as well as of this Court as have been reproduced hereinabove, the learned A. G. A. submitted that the petitioner is under obligation to surrender before the court below alongwith application for cancellation of warrant bail, which may be considered by the court below in accordance with law. Further I would like to refer the judgment of the Hon'ble Supreme Court given in the casse of Smt. Panful Ness Vs. Md. Miraj Ali and others 2008 AIR SCW 5615), in which the Hon'ble Supreme court held that the jurisdiction under Section 482 of the Code can not be extended to grant of bail. In another case of Hamida Vs. Rashid Alias Rasheed and others (2008) 1 SCC 474, the Hon'ble Supreme Court considered the scope of section 482 of the Code and observed as under :- para "13- Before parting with the case, we feel constrained to observe that in spite of repeated pronouncements of this 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 aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Courts are full and there is a long pendency of murder appeals in the High court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 Cr. P. C. at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice. " After going through sections 436 and 437 Cr. P. C. as well as the law down by the Hon'ble Supreme Court on the point I am of the view that the bail granted to the petitioner by the police operates only during the investigation and its effect comes to an end after forwarding the bonds and sureties given by her to the learned Magistrate/sessions judge before whom she has to surrender after filing the charge-sheet and apply for regular bail as also that has to be considered by the learned Magistrate/sessions Judge under Sections 436 and 437 Cr. P. C. , as the case may be, therefore, rejecting the petitioner's application for releasing her on bail on the same bonds executed by her by the police, the learned Magistrate has not committed error. Indisputedly, the petitioner has submitted application for recalling the bailable warrant without surrendering before the court below with the prayer for grant of bail on the same bonds and sureties which were submitted before the police officer, which is not permissible, as has been held in the case of State of West Bengal (Supra), therefore, I do not find illegality in rejecting the petitioner's application for accepting his bail on the same bonds and sureties executed by her before the police for grant of regular bail. The petition is dismissed. .