HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- APPLICATION U/S 482 No. - 16803 of 2015 Applicant :- Abhay Kumar Bajpai Opposite Party :- C.B.I. Counsel for Applicant :- Sushil Shukla Counsel for Opposite Party :- N.I. Jafri Hon'ble Amreshwar Pratap Sahi,J.
This application under Section 482 Cr.P.C. has been filed contending that the applicant cannot be compelled to seek a fresh bail under the substantive offences punishable under Sections 409, 420 IPC and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of the Prevention of Corruption Act, 1988 inasmuch as the applicant is already on bail pursuant to the orders passed by the trial court on 10.9.2012 in terms of Section 167 (2) Cr.P.C. for the alleged commission of offences as defined under Section 120-B IPC read with Section 409, 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
For this Sri Shukla, learned counsel for the applicant, has invited the attention of the Court to the contents of the FIR to urge that the FIR specifically mentions the alleged involvement of the applicant in the offences which are substantive offences as well and, therefore, it should be presumed that the order which was passed on 10.9.2012 is also in relation to the substantive offences as well for which he does not require any separate order on altering of the offences as substantive offences at the post charge stage. He further contends that Section 13(1)(c) is not a penal provision and is only a definition clause, therefore, no bail is required in the aforesaid section. The prayer made is to direct the learned Special Judge, Anti Corruption, C.B.I., Ghaziabad to continue to give effect to the bail order dated 10.9.2012 and not to insist for any further bail in connection with the substantive offences.
He further submits that post framing of charges does not change the situation and the prevalent practice before the court concerned of calling upon the accused to get bails under the substantive offences separately should be discontinued. For this, learned counsel has also relied on the Supreme Court judgment in the case of Hamida Vs. Rashid @ Rasheed and others, 2008 (1) SCC Page 474 paragraph 10 in particular.
He has further supplied a compilation of the case laws and a brief note of submissions contending as to whether an accused already on bail is required to obtain bail again afresh for the offences for which he is charged after the charges are framed. His contention is that neither the court of trial is altered nor the offences for which the maximum punishment is provided gets altered on account of the addition of the substantive offences. He further submits that there is a statutory presumption of grant of bail in the substantive offences as well.
Sri Jafri, on the other hand, relies on the same judgment in the case of Hamida (supra) and contends that in this case charge sheet has already been filed then it is the offences mentioned in the charge sheet where the applicant is required to be released on bail.
It is urged by Sri Shukla, learned counsel for the applicant that this would cause further delay in trial with no corresponding judicial gain and hence such a direction be issued.
In the application the applicant has indicated the passing of the orders in relation to other accused and has urged that the accused persons are being time and again sent to jail and taken in judicial custody merely on the ground of framing of charges of substantive offences in addition to the offences of criminal conspiracy which amounts to an abuse of the process of the court.
The argument advanced by Sri Shukla has to be judged on the facts of this case where it is evident that the applicant was on bail in an order passed by the trial court at the pre-charge sheet stage under Section 167(2) Cr.P.C. The contention of the learned counsel for the applicant is that at that stage also the words "substantive offences" had been mentioned in the FIR and, therefore, the presumption is that the applicant is on bail under the substantive offences as well. He further submits that the order of bail under Section 167 Cr.P.C. is a complete order on bail as understood under Section 437 Cr.P.C. and therefore the applicant is not required under law to move a separate bail application for the substantive offences for which he has been charged.
In my opinion, the arguments of the learned counsel for the C.B.I. has force inasmuch as the applicant has been subsequently charge sheeted and it is the offences thereunder in which he has been formally charged and has therefore to seek bail. There cannot be a presumption in relation to the charges at the stage of Section 167 Cr.P.C. The charges are framed only after completion of investigation and the filing of the charge sheet. It is quite possible in any case that the allegations if not made out, such a charge should be dropped while filing of the charge sheet. In view of this the arguments of the learned counsel for the applicant cannot be accepted as such a presumption cannot come to the aid of the applicant at the stage of Section 167 Cr.P.C.
Thus, the charge sheet having been subsequently filed the applicant has to have regular bail in respect of the substantive offences in respect whereof the charge sheet has been filed. The tenor of the proceedings gets altered after the charge sheet is filed and consequently once a formal charge is altered and offences are added then the accused has to get himself bailed out under the said section.
This issue was somewhat dealt with by the High Court in the same scam in the case of Ram Prasad Jaiswal Vs. CBI, Crl. Misc. Recall Application No. 368619 of 2013 In Criminal Misc. Correction Application No. 365038 of 2013 In Crl. Misc. Bail Application No. - 4314 of 2013 decided on 16.1.2014.
The contentions which have been raised by Sri Shukla keeping in view the provisions of Section 167 Cr.P.C. were dealt with in detail by a division bench of the Gauhati High Court in the case of Sri Jibangshu Paul Vs. National Investigation Agency, Criminal Appeal No.29 of 2011 decided on 27.7.2011. The said judgment is exhaustive and runs into 163 paragraphs. The Court discussed the case at hand while analysing the scheme of the N.D.P.S. Act and other special acts and the Court's power to release an accused on bail as discussed in the case of Union of India Vs. Thamissharasi and others reported in 1955 (4) SCC Page 190 para 12 and then proceeded to give its own opinion in paragraph 103 onwards including paragraph 108 of the judgment pointing out that Section 167(2) comes into play during pre-cognizance stage while remanding the accused to custody. The Court further went on to discuss the impact of the judgment in the case of Hamida (supra) in paragraph 113 of the said judgment and then finally concluded in paragraphs 118 and 119 which are extracted hereinunder :-
"118. From the case of Hamida (supra), what cannot be ignored and must be treated as the law of the land is that bail is granted in respect of ''an offence''. Consequently, when an offence is one in respect whereof, the accused had never gone on bail, the accused must apply for bail irrespective of the fact as to whether the offence is bailable or non-bailable. If the offence is bailable, the accused would, as a matter of right, demand bail. If the offence is non-bailable, the parameters for consideration for granting of bail would be governed by Section 437 if the Court is a Court of Magistrate or a Court other than the Court of Sessions or the High Court, such as, the Special Court, NIA.
119. Consequently, in the present case too, when the offences under Sections 16, 17, 18, 19 and 20 of the UA (P) Act, 1967 and Section 25(1)(d) Arms Act, were added in the charge-sheet filed against the accused-appellant, the accused-appellant ought to have, in the light of what has been laid down in Hamida (supra), applied for bail, on his appearance in the learned Special Court. In fact, the accused-appellant appears to have accepted this position of law inasmuch as he did apply to the learned Special Court, as already indicated above, for being allowed to go on previous bail. By legal fiction, the application, so made by the accused-appellant, amounted to the accused-appellant surrendering to the jurisdiction of the learned Special Court seeking bail in respect of the additional offences and once he had surrendered to the jurisdiction of the Special Court, (which the Special Court, indeed, had), the Special Court was bound to consider as to whether the accused shall or shall not, in the facts and attending circumstances of the case, be allowed to go on bail treating the accused-appellant to have come into its custody, for, the question of granting of bail would not arise without the accused having been fallen into the custody of the Court concerned. In a case of present nature, what consideration would prevail upon a Special Court would depend upon the penal provisions and also the facts and attending circumstances of the case. Nevertheless, the accused-appellant would be treated in the custody of the Court and it is, then, for the Court to decide on the basis of the penal provisions and the facts and attending circumstances of the case as to whether the accused-appellant deserves to be allowed to go on bail or not."
In the case at hand the allegations are under the Prevention of Corruption Act, 1988 where the trial has to be held by a Special Court where a Special Judge is appointed under the 1988 Act to try such offences. In such circumstances an application for bail has to be considered by the Special Court and orders passed on the allegations alleged and for offences that are mentioned additionally with the filing of the charge sheet. This is necessary inasmuch as unless the learned Special Judge proceeds to pass any orders on the allegations of offences as contained in the charge sheet, it will not be possible to treat an accused to be deemed on bail as per the order under Section 167(2) Cr.P.C. which is only in relation to the offences during the period of remand and not in relation to any charges added in the charge sheet.
Consequently for the reasons given hereinabove, no case for interference is made out. Rejected.
Order Date :- 10.7.2015 Anand Sri./-