KANHAIYA Vs. STATE OF U.P.

JUDGEMENT

(1.) A second bail application brought by the applicant, Kanhaiya in Case Crime No. 1007 of 2016, under Sections 498A, 304B, 201 IPC and Section 3/4 DP Act, PS Kotwali, District Farrukhabad confronted this Court with certain questions affecting the exercise of jurisdiction under Section 439 CrPC1 in relation to accused of unsound mind who has unsuccessfully invoked the jurisdiction of the Magistrate or the Sessions Judge under Section 330 of the Code.

(2.) It would be profitable to better appreciation of the questions about jurisdiction that have confronted this Court if a short survey of facts leading to those issues is made.

(3.) The applicant Kanhaiya filed Criminal Misc. Bail Application No. 2513 of 2017 in case crime last referred under Section 439 of the Code after failing before the learned Sessions Judge, also under Section 439 of the Code, to secure bail. The bail application last referred which was a first before this Court on behalf of the applicant Kanhaiya came up for orders before Hon'ble Pratyush Kumar,J. on 26.07.2017. His Lordship was of opinion that the said application by the applicant who had claimed to be a person of unsound mind would not be maintainable under Section 439 of the Code at all and the applicant would have to invoke the provisions of Section 330 of the Code to seek his release on bail pending investigation or trial.