Keshav Ram Shukla And Others vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 5196 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Case :- APPLICATION U/S 482 No. - 3696 of 2022

Applicant :- Keshav Ram Shukla And Others

Opposite Party :- State Of U.P. Thru. Prin. Secy. Home And Another

Counsel for Applicant :- Dadu Ram Shukla (D.R. Shukla )

Counsel for Opposite Party :- G.A.

Hon'ble Mohd. Aslam,

Heard Sri D.R. Shukla, learner counsel for the applicants and learned A.G.A. for the State on the point of maintainability of the instant application under Section 482 Cr.P.C.

The instant application under Section 482 Cr.P.C. has been moved on behalf of the applicants- Keshav Ram Shukla, Anil Kumar and Shyam Babbu with a payer to set-aside the impugned order dated 19.05.2022 passed by learned Civil Judge (Junior Division)/Fast Tract Court, New, District Gonda in Bail Application No. 3189 of 2022 (State vs Keshav Ram and others), arising out of Case Crime No. 06 of 2021, under Sections 147, 323, 504, 506, 325 and 308 I.P.C., Police Station- Kauria, District- Gonda, whereby the bail application of the applicants has been rejected on the ground that accused-applicants were not taken in custody physically.

The brief facts necessary for deciding the maintainability of the instant application under Section 482 Cr.P.C. are that the first bail application moved on behalf of the applicants was rejected by learned court below vide order dated 18.01.2022 on the ground of absence of the accused-applicants. Thereafter, summons and bailable warrants were issued to accused-applicants which was served upon them. Meanwhile, accused-applicants filed Application U/S 482 No. 2370 of 2022 before this Court which was disposed of vide order dated 06.05.2022 by observing that in case the accused-applicants appear before the trial court within fifteen days from that day and apply for bail, the same should be decided expeditiously, in view of law laid down by Hon'ble Supreme Court in "Satender Kumar Antil vs. Central Bureau of Investigation and another, Special Leave to Appeal (Cri) No. 5191 of 2021". In compliance thereof, the second Bail Application No. 3189 of 2022 on behalf of accused-applicants was moved before the court of Civil Judge (Junior Division)/Fast Tract Court, New, Gonda, which was disposed of vide impugned order dated 19.05.2022 by the court below on the ground that the accused-applicants were neither in judicial custody nor any surrender application was presented by them nor the accused-applicants were present before the court, to ensure the identify of the accused-applicants and to exercise the discretion of the court to take or not to take the accused-applicants into physical custody.

It has been submitted by learned counsel for the accused-applicants that the maximum sentence under Sections 147, 323, 504, 506, 325, 308 I.P.C. is below seven years. In view of the law laid down by Hon'ble Supreme Court in the case of Satender Kumar Antil (supra), this case falls within the Category-A as classified by the Hon'ble Supreme Court, therefore, the bail application of the accused-applicants may be decided without taking them in physical custody by the court below. Therefore, the impugned order is liable to be quashed.

Learned A.G.A. has opposed the application and submitted that in this case the accused-applicants have not appeared before the court below in compliance of order of this Court dated 06.05.2022 and only bail application was moved on their behalf, therefore, the conditions of law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil (supra) are not complied with. Hence, the bail application was rightly disposed of by the court below.

I have gone through the record and perused the judgment of Hon'ble Apex Court in the case of Satender Kumar Antil (supra). There relevant portion of the judgment is as follows:-

"?.... We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the Courts below. The guidelines are as under :

"Categories/Types of Offences

A) Offences punishable with imprisonment of 7 years or less not falling in category B & D.

B) Offences punishable with death, imprisonment for life, or imprisonment for more than 7 years.

C) Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.

D) Economic offences not covered by Special Acts.

REQUISITE CONDITIONS

1) Not arrested during investigation.

2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called.

(No need to forward such an accused along with the chargesheet (Siddharth Vs. State of UP, 2021 SCC online SC 615)

CATEGORY A

After filing of chargesheet/complaint taking of cognizance

a) Ordinary summons at the 1st instance/including permitting appearance through Lawyer.

b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued.

c) NBW on failure to failure to appear despite issuance of Bailable Warrant.

d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing.

e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided."

Now the question arises when the accused appears and his bail application is heard without being taken him into physical custody will amount to pre-arrest bail or not?

In the case of "State of Uttar Pradesh Vs. Kailash, AIR 1955 All 98" by this Court and in the case of "Abdul Karim Khan Vs. State of Madhya Padesh, AIR 1960 MP 54" by the Hon'ble High Court of Madhya Pradesh, it has held that when a person appears in court, his very physical presence results in his placing himself in the custody of the court and that such a person can be released on bail and he shall be deemed to be in the notional custody of the court. Therefore, when the accused appears before the court below and applies for bail he shall be deemed to be in legal custody and in the light of law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil (supra) that in cases which fall within Category-A if an accused appears before the court and applies for bail on the same day, his bail application may be decided on the same day without the accused being taken in physical custody or if the bail application is not decided on the same day, in above circumstances, he may be released on interim bail till the bail application is decided. Therefore, it cannot be said that without the accused being taken in physical custody on his appearance before the court below, he will not be deemed to be in the notional custody of the court and his bail application may be decided without the accused being taken in physical custody. Therefore, it will not amount to the pre-arrest bail.

In the present case, the accused-applicants moved bail application on 19.05.2022 and they were not present in the court, therefore, learned lower court below has rightly dismissed the bail application on the ground of absence of the accused-applicants.

In view of above, the prayer for quashing the impugned order dated 19.05.2022 passed by learned Civil Judge (Junior Division)/Fast Tract Court, New, District Gonda in Bail Application No. 3189 of 2022 (State vs Keshav Ram and others), arising out of Case Crime No. 06 of 2021, under Sections 147, 323, 504, 506, 325 and 308 I.P.C., Police Station- Kauria, District- Gonda, is hereby, refused.

The bail application of accused-applicants has not been decided on merits. However, in case the accused-applicants appear before the court below within a period of 25 days and apply for bail, their bail application shall be considered and decided by the court below in the light of law laid down by Hon'ble Apex Court in the case of Satender Kumar Antil (supra).

With the aforesaid observations/directions, the present application under Section 482 Cr.P.C. is, accordingly, disposed off.

Order Date :- 15.6.2022

Vikas/-