RAJUL RAJENDRANATH DUBEY Vs. STATE OF M P

JUDGEMENT

(1.) THIS application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for grant of regular bail in connection with Crime No. 358/05 registered with Police Station Madan Mahal, Jabalpur for the offences under Sections 420, 467 and 468 of the Indian Penal Code.

(2.) THE applicant had filed an application under Section 438 of the Code for grant of anticipatory bail and that application was allowed by this Court vide order dated 15-2-2006 passed in M. Cr. C. No. 346/06 and it was directed that the order will be operative for 60 days and in the meanwhile, the applicant is free to move regular bail application before the Competent Court. Thereafter, the applicant moved an application before the Sessions Court under Section 439 of the Code and the same was rejected by Tenth Additional Sessions Judge, Jabalpur vide order dated 20-3-2006. While rejecting this bail application, the learned Additional Sessions Judge observed as follows : Applicant is not present in the Court. Learned Counsel for the applicant has informed, that he is unable to keep applicant present in the Court. However, he has contended, that presence of applicant is not a must to decide an application under Section 439, Cr. PC. He has placed his reliance on in order dated 10-3-06 passed in M. Cr. C. No. 2313/06 by Hon'ble High Court. I have gone through the order and I have also gone through the provisions of the Section 439, Cr. PC, an application under Section 439, Cr. PC can be considered only, when \applicant, who is on anticipatory bail is either in custody or present in the Court. Because, if, application under Section 439, Cr. PC is rejected, then applicant would be required to be taken into custody. Applicant is not present before this Court. Therefore, an application under Section 439, Cr. PC cannot be considered. Therefore, this application for grant of regular bail, in absence of applicant is rejected.

(3.) THE learned Counsel for the applicant vehemently argued that the order of the learned Additional Sessions Judge is misconceived and totally against the legal provisions of bail. It has been further submitted that the learned Additional Sessions Judge failed to follow the principles of law as enumerated by this Court in M. Cr. C. No. 2313/06, Smt. Nisha Singh v. State of M. P. It was not at all necessary for the applicant to remain in custody or present before the Court at the time of consideration of his application of regular bail because he was on anticipatory bail and his application under Section 439 of the Code was not rejected. He can avail the umbrella granted by the High Court under Section 438 of the Code till the disposal of application filed for regular bail.