Ram Prem And 5 Others vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 17815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:46557
 
RESERVED                                                                                   AFR
 
		Judgment Reserved On:05.07.2023
 
		Judgment Pronounce On: 18.07.2023
 
Court No. - 16
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12441 of 2022 
 
Applicant :- Ram Prem And 5 Others 
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. 
 
Counsel for Applicant :- Ranjeet Kumar,Desh Mitra Anand 
 
Counsel for Opposite Party :- G.A. 
 
Hon'ble Subhash Vidyarthi J. 
 
    1. Heard Sri. Desh Mitra Anand Advocate, assisted by Sri. Utkarsh Anand Advocate, the learned Counsel for the applicants, Sri. Kuldeep Pati Tripathi, the learned Additional Advocate General, who is assisted by Sri. Rao Narendra Singh, the learned A.G.A.-I and Sri. Chinmay Shukla for the State. 
 
    2. By means of the present application, the applicants have prayed for grant of bail to them in Case Crime No. 105/2021 under Sections 147, 148, 149, 308, 323, 325, 427, 452, 504 and 506 I.P.C., Police Station Nagram, District Lucknow. 
 
    3. The F.I.R. was lodged by the informant Rajaram at 14:04 on 05.05.2021 against four persons - (1) Ram Pal, (2) Sandeep, (3) Shyamlal and (4) Shyamdeo alleging that at about 7 a.m. on the aforesaid date, the aforesaid four named persons had abused and beaten up the informant with sticks and when his wife ran to save him, she was also beaten with a stick causing an injury on her head. The accused persons thrown away the goods of the informant shop and they had beaten up some other persons also.
 
    4. In the statement of the informant recorded under Section 161 Cr.P.C., he reiterated the F.I.R. version that the incident was caused by the four persons named in the F.I.R. All the four named accused persons were arrested at 3:20 on 06.05.2021. 
 
    5. The Investigating Officer recorded in the case diary on 09.05.2021 that eight persons, including the informant, had received injuries in the incident. The investigating officer recorded statements of all the injured persons and all of them stated that the four persons named in the F.I.R. had beaten them. After recording their statements, the investigating officer added Section 308 IPC.
 
    6. On 10.05.2021, the investigating officer recorded statements of two persons, who claimed to be eyewitnesses of the incident and they stated that besides the four named persons, all the applicants and one Satguru, where also involved in causing the incident and they stated that police force from the police station and 112 had reached the spot of the incident.
 
    7. Thereafter the investigating officer recorded additional statement of the informant wherein he also implicated the applicants and Satguru, besides the named accused persons.
 
    8. In the affidavit filed in support of the bail application it has been stated that the applicants were not served with any notice under Section 41 A Cr.P.C. and they were not arrested during trial.
 
    9. The applicants had filed application under Section 482 Cr.P.C. No. 1735 of 2022 for quashing of the proceedings. While dismissing the aforesaid application, this Court observed that in case the applicants move an application for discharge within a period of 15 days, the same shall be considered and disposed of expeditiously in accordance with the law. Liberty was granted to the applicants to file an application under Section 205 Cr.P.C. for exemption from appearance.
 
    10. The Application under Section 205 Cr.P.C. filed by the applicants was rejected by the Magistrate on the ground that the offences alleged are triable by the Sessions Court and the Magistrate is not empowered to decide the plea of discharge and to frame charges. The Magistrate rejected another application filed by the applicants for accepting their undertaking in terms of the direction of the Hon'ble Supreme Court in the case of Satendra Kumar Antil Versus Central Bureau of Investigation, (2021) 10 SCC 773, on the ground that the Hon'ble Supreme Court has conferred a discretion to be exercised in respect of the persons who are intending to participate in the trial of the case whereas the applicants are not appearing before the trial Court and they are not co-operating with the trial.
 
    11. The applicant challenged the aforesaid order passed by the Magistrate by filing another Application under Section 482 No. 3564 of 2022, which was disposed off by means of an order dated 08.06.2022 by issuing a direction to the Magistrate that if any regular bail application is moved by the applicants within 15 days, the Magistrate shall be under an obligation to dispose off the same after providing an opportunity of hearing to the parties, strictly in accordance with the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil (supra), specially the procedure provided in the above case for offences described under Category 'A' without fail. This Court further noted that: -
 
"It is recalled that when the applicants were litigating bonafidely by filing an application under Section 482 Cr.P.C. before this Court and has also moved certain applications before the Magistrate concerned under the orders of this Court, the Magistrate concerned should not be in a hurry to issue coercive process against them. Thus this Court hope and trust that the Magistrate concerned or the trial Court as the case may be shall act strictly in accordance with the law laid down by Hon'ble Supreme Court in Satender Kumar Antil (supra)"
 
    12. The applicants filed an application under Section 437 Cr.P.C. seeking their release on bail in the aforesaid case. The application bears the thumb impressions of the applicants. The application was rejected by the Additional Chief Judicial Magistrate IV, Court No. 28, Lucknow, by means of an order dated 16.06.2022 after recording that the applicants were not present before the Court. The non-bailable warrants issued against the applicants have been returned by the police with a report that the same could not be served upon the applicants are evading service. The applicants are charged with commission of cognizable, non-bailable, non-compoundable offence which is triable by the Session Court. 
 
    13. On 21.06.2022 the applicants filed an application under Section 439 Cr.P.C. before the Session Court for their release on bail. This application also bears the thumb impressions of the applicants. This application too has been rejected by means of an order dated 12.07.2022 passed by the Additional District and Session Judge, Court No. 3, Lucknow. Thereafter the applicants have filed the instant Application for grant of bail under Section 439 Cr.P.C.
 
    14. Sri. Kuldeep Pati Tripathi, the learned Additional Advocate General, has raised a primary objection against the application stating that the instant application has been filed under Section 439 Cr.P.C., which empowers the Court to direct release of a person on bail who is accused of an offence and in custody. The applicants are not in custody and, therefore, their application under Section 439 Cr.P.C. is not maintainable. Shri Tripathi has submitted that although the word custody has been interpreted in a broad sense, still, at least physical presence of the accused in the Court is necessary for consideration of an application under Section 439 Cr.P.C. Sri. Tripathi has further submitted that in case an accused person has the liberty to seek bail under Section 439 Cr.P.C. without even his physical presence in the Court, there will be no distinction between a bail application under Section 439 Cr.P.C. and application for anticipatory bail under Section 438 Cr.P.C. and the purpose of regular bail under Section 439 Cr.P.C. would be frustrated.
 
    15. Per contra, the learned counsel for the applicant has submitted that the applicants were present in the Court of the Magistrate at the time of submission of the bail application, which fact is evident from the fact that the applicants have put their thumb impressions on the application. He has submitted that the applicants were present at the time of the hearing on the application. Relying upon the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil supra, the learned Counsel for the Applicants has submitted that there is no need for the applicants been taken into custody and their physical presence in the Court was sufficient for consideration of their bail application.
 
    16. Section 437 of the Cr.P.C., which provides for grant of bail in non-bailable offences, provides that "When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail"
 
    17. Thus mere appearance or being brought before the Court is necessary for his request for being released on bail being considered and the Section does not lay down any further mandatory condition. 
 
    18. The applicants claim that they were present in the Court of the Magistrate at the time of submission of the bail application but what is relevant is that the applicants must appear before the Magistrate at the time when the application under Section is being considered. The mere fact that the applicants have put their thumb impressions on the application does not prove that the applicants were present before the Magistrate at the time of consideration of their bail application.
 
    19. The Magistrate has specifically recorded in this order that the applicants were not present before the Court at the time of consideration of the bail application. The learned Counsel for the applicant has disputed the correctness of this fact recorded by the Magistrate in his order.
 
    20. In State of Maharashtra v. Ramdas Shrinivas Nayak, (1982) 2 SCC 463, the High Court had recorded that the Counsel had made a concession before the Court, which fact was disputed by the Counsel before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that: - 
 
"4. ...We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." [ Per Lord Atkinson in Somasundaram Chetty v. Subramanian Chetty, AIR 1926 PC 136 : 99 IC 742] We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. [ Per Lord Buckmaster in Madhu Sudan Chowdhri v. Chandrabati Chowdhrain, AIR 1917 PC 30 : 42 IC 527] That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment."
 
    21. The aforesaid decision has been followed in Bhavnagar University versus Palitana Sugar Mills Pvt. Ltd. and another, (2003) 2 SCC 111.
 
    22. Therefore, the fact recorded by the Magistrate in his Order that the applicants were not present before the Court at the time of consideration of the bail application, cannot be disputed and it has to be accepted that the applicants had not appeared before the Magistrate at the time of consideration of their application under Section 437. 
 
    23. However, when the Magistrate found that the applicants were not present before him and their application could not be considered for this reason, the Magistrate ought not have discussed the merits of the applications and he ought to have rejected the application in limine on this ground alone. While recording the reasons for rejection of the application, the Magistrate has stated that the application was being rejected for the reason that the applicants did not fulfill the conditions laid down by the Hon'ble Supreme Court in Satender Kumar Antil, the offences are cognizable, non-bailable, non-compoundable and triable by a Session Judge and the applicants were not present at the time of submission of the application. Therefore, the Magistrate has considered the merits of the bail application also and the application has not been rejected for the sole reason of non-appearance of the applicants. It was not proper for the Magistrate to have discussed the merits of the application after he found that the application could not be entertained due to non-appearance of the accused persons.
 
    24. The offence being non-bailable, is no ground to reject an application for grant of bail, as Section 437 has been enacted for the purpose of granting bail in non-bailable offences only. The offence is triable by a Session Court is also not a valid ground to reject an application under Section 437 Cr.P.C., which provides that: -
 
"437.When bail may be taken in case of non-bailable offence.--(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but--
 
            (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
 
            (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:
 
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
 
Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
 
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
 
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-Section without giving an opportunity of hearing to the Public Prosecutor.
 
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
 
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Penal Code, 1860 or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-Section (1), the Court shall impose the conditions--
 
                (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
 
                (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
 
                (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence,
 
        b. and may also impose, in the interests of justice, such other conditions as it considers necessary.
 
(4) An officer or a Court releasing any person on bail under sub-Section (1) or sub-Section (2), shall record in writing his or its reasons or special reasons for so doing.
 
(5) Any Court which has released a person on bail under sub-Section (1) or sub-Section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
 
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
 
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered."
 
    25. The Magistrate cannot grant bail under Section 437 of the Cr.P.C. only if there are reasonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life. In the present case there is not even an allegation that the applicants have committed offences punishable with death or imprisonment for life, and there is no occasion for a reasonable ground for believing that the applicants have committed such an offence. The Section does not provide that a Magistrate cannot grant bail in case of an offence triable by a Session Court. Thus a Magistrate has the jurisdiction to decide applications for grant of bail in cases involving allegation of commission of offences which are triable by Session Court.
 
    26. Now I proceed to consider the objection that the application Section 439 of the Cr.P.C. is liable to be rejected as the applicants are not in custody. Section 439 (1) (a) Cr.P.C. provides as follows: -
 
"439. Special powers of High Court or Court of Session regarding bail.--(1) A High Court or Court of Session may direct--
 
                (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-Section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-Section;"
 
    27. The term 'custody' has been explained by the Hon'ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559, the Hon'ble Supreme Court explained the phrase "in custody" in the following words:--
 
"6. Here the respondents were accused of offences but were not in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the Courts below. We agree that, in one view, an outlaw cannot ask for the benefit of law and he who flees justice cannot claim justice. But here the position is different. The accused were not absconding but had appeared and surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the process of the Court to be enlarged. We agree that no person accused of an offence can move the Court for bail under Section 439 Cr.P.C. unless he is in custody.

7. When is a person in custody, within the meaning of Section 439 Cr.P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the Court having been remanded by judicial order, or having offered himself to the Court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in Court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court.

9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions."

(Emphasis supplied)

28. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, the applicant, who was not in custody, had moved an application under Section 439 Cr.P.C. in the High Court for grant of bail and it was requested that the applicant be allowed to surrender before the High Court itself. The High Court rejected the application on the preliminary objection that the accused has to surrender before the Magistrate. Reversing the order of the High Court in Appeal, the Hon'ble Supreme Court held that: -

"3. While accepting the preliminary objection, the dialectic articulated in the impugned order [Sundeep Kumar Bafna v. State of Maharashtra, Criminal Bail Application No. 206 of 2014, order dated 6-2-2014 (Bom)] is that the law postulates that a person seeking regular bail must perforce languish in the custody of the Magistrate concerned under Section 167 Cr.P.C.. The petitioner had not responded to the notices/summons issued by the Magistrate concerned leading to the issuance of non-bailable warrants against him, and when even these steps proved ineffectual in bringing him before the Court, measures were set in motion for declaring him as a proclaimed offender under Section 82 Cr.P.C.. Since this was not the position obtaining in the case i.e. it was assumed by the High Court that the petitioner was not in custody, the application for bail under Section 439 Cr.P.C. was held to be not maintainable. This conclusion was reached even though the petitioner was present in the Court and had pleaded in writing that he be permitted to surrender to the jurisdiction of the High Court.

* * *

8. Some poignant particulars of Section 437 Cr.P.C. may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] , there is no provision in the Cr.P.C. dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Court of Session and High Court are bereft of this jurisdiction or if they were so empowered under the old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] , as perforce it must. The scheme of the Cr.P.C. plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. Cr.P.C. severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 Cr.P.C.. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that Cr.P.C. has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in Cr.P.C. or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim viz. "where there is a right there is a remedy". The universal right of personal liberty emblazoned by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well-established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Sessions Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word "custody" the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of "committal of cases to the Court of Session" because of a possible hiatus created by Cr.P.C.

* * *

24. In this analysis, the opinion in the impugned judgment [Sundeep Kumar Bafna v. State of Maharashtra, Criminal Bail Application No. 206 of 2014, order dated 6-2-2014 (Bom)] incorrectly concludes that the High Court is bereft or devoid of power to jurisdiction upon a petition which firstly pleads surrender and, thereafter, prays for bail. The High Court could have perfunctorily taken the appellant into its custody and then proceeded with the perusal of the prayer for bail; in the event of its coming to the conclusion that sufficient grounds had not been disclosed for enlargement on bail, necessary orders for judicial or police custody could have been ordained. A Judge is expected to perform his onerous calling impervious of any public pressure that may be brought to bear on him.

(Emphasis supplied)

29. Therefore, the application under Section 439 Cr.P.C. cannot be entertained for the reason that the applicants are not in custody.

30. The application under Section 439 of Cr.P.C. could have been entertained in case the applicants had surrendered before this Court, but it has not been done by them. Therefore, the applicants may appear before the Magistrate concerned and file a fresh bail application.

31. However, the Court cannot lose sight of the facts that while deciding the earlier bail application under Section 437 Cr.P.C., although the Magistrate has taken into consideration the merits of the application, he has not adverted to certain material facts and circumstances of the case. The F.I.R. of the incident that took place at 07:00 a.m. on 05.05.2021 was lodged by one of the victims himself, after 7 hours since the incident, categorically stating that 4 persons named in the F.I.R., viz. (1) Ram Pal, (2) Sandeep, (3) Shyamlal and (4) Shyamdeo, had caused the incident. In their statements recorded under Section 161 Cr.P.C., all the 8 injured persons, including the informant himself, have reiterated the F.I.R. version stating that the aforesaid 4 named persons had beaten them. The F.I.R. or the statements of any of the injured persons recorded under Section 161 Cr.P.C. do not mention the presence of any eye-witness at the time of the incident. All the 4 named persons were arrested on 06.05.2021 and the arrest memo mentions that upon seeing the police team, they tried to escape. Upon being asked about the reason for making the attempt to escape, they told that they had entered into a quarrel with the family members of the informant Raja Ram. The Investigating Officer has recorded that on 10.05.2021, two persons, namely, Parashuram son of Bhogai and Smt. Ponam wife of Umesh told that they had witnessed the incident and besides the 4 persons named in the F.I.R., (1) Ram Prem son of Ramaasrey, (2) Shatrohan son of Gurudeen, (3) Ram Kumar son of Gurudeen, (4) Ajay Kumar son of Nanhey Ram, (5) Ayodhya Prasad son of Sripal and (6) Sant Ram son of Bhogai (the applicants) and one Satguru son of Ram Shankar, were also involved in committing the offence. Thereafter the Investigating Officer recorded the additional statement of the informant, in which he added the names of 6 persons, but even in his additional statement, the informant did not mention the name of Sant Ram son of Bhogai (the applicant no. 6).

32. In Satender Kumar Antil v. CBI, (2021) 10 SCC 773, the Hon'ble Supreme Court laid down the following guidelines for grant of bail to persons accused of various category of cases, and the present case falls within Category A, regarding which the following guidelines have been made: -

"Categories/Types of Offences

(A) Offences punishable with imprisonment of 7 years or less not falling in Categories 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 (Section 37), PMLA (Section 45), UAPA [Section 43-D(5)], Companies Act, [Section 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 charge-sheet (Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676 : (2022) 1 SCC (Cri) 423] )

CATEGORY A

After filing of charge-sheet/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 appear despite issuance of bailable warrant.

(d) NBW may be cancelled or converted into a bailable warrant/summons without insisting physical appearance of the 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 without the accused being taken in physical custody or by granting interim bail till the bail application is decided."

33. Thus the Hon'ble Supreme Court has merely reiterated the law which was already settled, that the bail application may be decided without the accused being taken in physical custody.

34. However, it came to light that several of the Courts, including to a large extent the Courts in Uttar Pradesh, are not following the law laid down in Satender Kumar Antil (Supra). Therefore, the Hon'ble Supreme Court issued the some further directions in Satender Kumar Antil Versus Central Bureau of Investigation and Another, 2023 SCC OnLine SC 452, which are as follows: -

"4. Counsels have produced before us a bunch of orders passed in breach of the judgment in the case of Satender Kumar Antil v. CBI only as samples to show how at the ground level despite almost 10 months passing, there are a number of aberrations. It is not as if these judgments have not been brought to the notice of the trial Courts and in fact have even been noted, yet orders are being passed which have a dual ramification i.e., sending people to custody where they are not required to be so sent and creating further litigation by requiring the aggrieved parties to move further. This is something which cannot be countenanced and in our view, it is the duty of the High Courts to ensure that the subordinate judiciary under their supervision follows the law of the land. If such orders are being passed by some Magistrates, it may even require judicial work to be withdrawn and those Magistrates to be sent to the judicial academies for upgradation of their skills for some time.

5. Amongst the illustrative orders, very large number of them happens to be from Uttar Pradesh and we are informed that orders passed specially in Hathras, Ghaziabad and Lucknow Courts seem to be in ignorance of this law. We call upon the counsel for the High Court of Allahabad to bring this to the notice of the Hon'ble the Acting Chief Justice so that necessary directions are issued to ensure that such episodes don't occur, including some of the suggestions made by us above."

35. Yet again, in Satender Kumar Antil Versus Central Bureau of Investigation and Another, 2023 SCC OnLine SC 758, the Hon'ble Supreme Court had to reiterate that: -

"5. The judgment of this Court including the one in Satender Kumar Antil's case (supra) is the law of the land. There is no question of anyone violating the principles laid down. Suffice for us to say that wherever this judgment is applicable, it's principles must be followed.

6. We may note that apparently there are large number of cases arising especially in Uttar Pradesh and other States where the grievance made is that the judgment is not being followed. We consider appropriate that this order should be placed before the Chief Justice of the Allahabad High Court to ensure there is sufficient dissemination of information about this judgment."

36. Therefore, the applicants are granted liberty to appear before the Magistrate and file a fresh application under Section 437 Cr.P.C. within a period of 7 days from today. In case such an application is filed within the aforesaid period, the same shall be decided on its merit in accordance with the law, without being influenced by the any observation made in the order dated 16.06.2022 passed by the Additional Chief Judicial Magistrate IV, Court No. 28, Lucknow, or in the order dated 12.07.2022 passed by the Additional Session Judge, Court No. 3, Lucknow and the Magistrate shall decide the application keeping in view the observations made in this order, more specifically, the observations made in paragraphs 24, 25 and 31. The Magistrate shall take into consideration the mandate of the Hon'ble Supreme Court in referred to in paras 32, 34 and 35 above.

37. The application stands disposed off with the aforesaid observations,

(Subhash Vidyarthi, J.)

Order Date - 18.07.2023

A. Nigam