CHHOTELAL RAI Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS order shall dispose of application filed under Section 439 of Code of Criminal Procedure, 1973 (in short 'the Code') in connection with Crime No. 74/05 registered at Police Station Jabera, District Damoh, for an offence punishable under Section 306 of the Indian Penal Code. Short facts of the case for disposal of this application are as follows : A report was lodged on 18.3.2005 at P.S. Jabera, District Damoh by Durga Bai in which it was stated that on 13.3.2005 the applicant Chhotelal Rai came in the house of Durga Bai and condemned her mother and said that she should die as her daughter had fled away with Milan Chamar. On his instigation, Mira Bai poured kerosene oil on herself and ignited herself, as a result of which she died. The case was registered under Section 306 of I.P.C. The applicant had filed an application under Section 438 of the Code for grant of anticipatory bail and that was allowed by this Court vide order dated 5.7.05 passed in M. Cr. C. No. 3889/05 with the following conditions : This order shall remain in force for a period of 60 days. During this period, if the applicant so desires, may move an application for regular bail before the competent Court, which shall be considered by that Court in accordance with law. This applicant shall further abide by the conditions enumerated in sub -section 2 of Section 438 of Cr.P.C.

(2.) ACCORDINGLY , the applicant filed an application under Section 439 of the Code in the Court of Sessions, but the same was rejected by the learned Sessions Judge on 2.9.05 on two grounds - firstly, there is sufficient evidence against the applicant and secondly, the offence is serious. After rejection of bail application in the Sessions Court, this application has been filed. The application for anticipatory bail was decided by this Court on 5.7.05 after considering various aspects of the case. On perusal of case diary, I found that after passing of this order on anticipatory bail application, the applicant was arrested and enlarged on bail by the Investigating Officer on 10.7.05 and thereafter, the investigation with regard to seizure of burnt clothes was completed and the articles were sent to F.S.L. Sagar. It is very much clear from the case diary dated 12.8.05 that the investigation was over on that day. Therefore, it is very much apparent that after passing of the order dated 5.7.05 by this Court, there was no material change in the circumstances and no incriminating evidence with regard to offence was collected by the Investigating Officer during the investigation against the applicant even then, the learned Sessions Judge passed the order of rejection of bail application on 2.9.05 only on two above mentioned grounds, whereas, this Court had considered all the facts and circumstances of the case and then passed the order of grant of anticipatory bail. Where an application filed under Section 438 of the Code is allowed by a higher Court and thereafter, the application U/s 439 of the Code is filed, then it is essential for the lower Court, while rejecting the bail application, to pass a speaking order showing some incriminating facts which are available in the case diary on the basis of further investigation done after the order passed on anticipatory bail application by a higher Court. Only writing such type of facts that there is sufficient evidence against the applicant and the offence is serious, the bail application cannot be allowed' neither sufficient grounds for rejecting the bail application, nor this can be termed as speaking order. Nodoubt, every Court has its own discretion to allow or disallow the bail application, but regular Court has to deal with the matter on an appreciation of evidence place before it, as held in : A.I.R. 2005 SC 498 Sunita Devi Vs. State of Bihar and another, that -

(3.) IT is, therefore, necessary that such anticipatory bail orders should be of a limited duration only and ordinarily on the expiry of that duration or extended duration the Court granting anticipatory bail should leave it to the regular Court to deal with the matter on an appreciation of evidence placed before it after the investigation has made progress or the charge sheet is submitted. Here, the words 'to deal with the matter on an appreciation of evidence placed before it', are very important. This shows that it is desirable for the regular Court to appreciate the evidence available in the case diary or the charge sheet against the applicant who filed the bail application. Here, I must repeat that no doubt, the regular Court has discretion to decide the bail application either way, irrespective of the order of higher Court passed on anticipatory bail application, but where, considering the nature of offence and having regard to other facts and circumstances, if the anticipatory bail application is allowed by a higher Court, then it is necessary for the regular Court to pass a speaking order showing that there is something more on which the application for regular bail cannot be allowed. In such circumstances, it is not sufficient to say that the offence is of serious nature and sufficient evidence is available against the applicant, therefore, the application cannot be allowed. It is necessary for the lower Court to lay down emphasis, while rejecting the regular bail application on that evidence also which was collected after the date of order passed on anticipatory bail application by higher Court. Since the learned Sessions Judge has totally failed to appreciate the evidence for the limited purpose of granting or rejecting the bail application even after the anticipatory bail order passed by this Court and no speaking order was passed, this Court is of opinion that the learned Sessions Judge as failed to apply judicial discretion properly, while rejecting the regular bail application.