Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Earlier Bail Allowed, Unless Canceled, Moving Fresh Bail & It's Rejection Is Unwarranted As Absconding Accused In Custody May Move U/s 446 A CrPC
JUDGEMENT TITLE : Mahendra Vs. State Of U.P. On 28/08/2009 By Allahabad High Court
CASE NO : CRIMINAL MISC. BAIL APPLICATION NO. 16446 OF 2009
CORAM : Hon'ble Virendra Singh,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. 19 
Crl. Misc. Bail Application No. 16446 Of 2009. 
Mahendra-------------------------------------------- Applicant. 
VS. 
State Of U.P------------------------------------------Respondent. 
Hon. Virendra Singh, J. 
By Means Of Present Application, The Applicant Has Prayed For Releasing The Applicant In Case Crime No. 156of 1995, S.T. No. 1555 Of 1996, Under Sections 147,148,149 And 302 I.P.C, Police Station Kanker Khera, District Meerut. 
Heard Learned Counsel For The Applicant, Learned A.G.A And Perused The Record. 
A Perusal Of The Record Shows That Due To Absence Of The Accused- Applicant, Non-bailable Warrant Was Issued. The Accused Was Arrested And He Is In Jail Since 27.3.2009. He Had Applied For Bail Before The Sessions Judge, Meerut Which Was Rejected By The Learned Sessions Judge On 29.5.2009. 
The Contention On Behalf Of Applicant Is That The Accused Is Liable To Be Released On Bail In The Aforesaid Session Trial As The Applicant Did Not Abscond In The Present Case Deliberately And He Could Not Appear Due To Illness And Suffering From Jaundice And Could Not Attend The Court On 4.5.2006, Nor Could Contact His Counsel In District Court For Moving The Exemption Application. It Is Also Contended That The Allegations Of The Prosecution Case Are Falls Against Him And He Was Not Committed The Offence Alleged In The Prosecution Case. 
It Is Not Disputed Rather Is Admitted Case Of Both The Parties That Accused/ Applicant Was Earlier Enlarged On Bail In The Aforesaid Case. There Is No Case Of Any Of The Party That Any Point Of Time The Bail Granted Earlier To The Accused/ Applicant Was Cancelled Either By The Trial Court Or By The High Court. In Such Circumstances The Rejection Of Fresh Bail Application By The Learned Lower Court Is Unwarranted Because Neither The Accused/ Applicant Was Supposed To Move Any Bail Application Before The Learned Trial Court Nor The Trial Court Was Supposed To Hear The Bail Application Of The Accused/ Applicant, Due To The Fact On Record That The Earlier Bail Granted To The Accused Was Never Cancelled. So The The Facts Remain On Record That The Accused/ Applicant Is On Bail As Was Earlier Ordered To Be Released On Bail. So Far As The Question Of Arrest Of The Accused/ Applicant Is Concerned, Since The Accused/ Applicant Remained Absconder At The Time Of Trial Before The Learned Lower Court, His Arrest Is Justified Due To Forfeiting The Bail Bonds On Breach Of Conditions Of The Bonds. Merely His Arrest Does Not Give Him A Right To Move For Fresh Bail Order To Be Passed For Him. Had There Been The Case Against The Accused/ Applicant Of Cancellation Of His Bail Or Bail Was Cancelled, Certainly The Accused Was Entitled For Moving The Bail Application Afresh. 
In This Regard The Provisions Of Section 446-A Of Criminal Procedure Code Are Very Much Relevant Which Are Quoted Below. 
" Without Prejudice To The Provisions Of Sections 446, Where A Bond Under This Code Is For Appearance Of A Person In A Case And It Is Forfeited For Breach Of A Condition - 
(a) The Bond Executed By Such Person As Well As The Bond, If Any, Executed By One Or More Of His Sureties In That Case Shall Stand Cancelled; And 
(b) Thereafter No Such Person Shall Be Released Only On His Own Bond In That Case, If The Police Officer Or The Court, As The Case May Be For Appearance Before Whom The Bond Was Executed, Is Satisfied That There Was No Sufficient Cause For The Failure Of The Person Bound By The Bond To Comply With Its Condition."

Provided That Subject To Any Other Provision Of This Code He May Be Released In That Case Upon The Execution Of A Fresh Personal Bond For Such Sum Of Money And Bond By One Or More Of Such Sureties As The Police Officer Or The Court, As The Case May Be, Thinks Sufficient " 

The Aforesaid Provision Of Law Shows That Without Prejudice To The Provision Of Section 446, Cr.P.C I.e Forfeiting The Bond And Imposing The Penalty And Recovery Of Such Penalty, No Such Person Shall Be Released Only On His Own Bond, In Such Case, If The Court Before Whom The Bond Was Executed, Was Satisfied That There Was No Sufficient Cause For The Failure Of The Accused Bound By The Bond To Comply With Its Condition. The Proviso Provided In The Aforesaid Section Very Well Provides That Subject To Any Other Provision Of The Criminal Procedure Code, The Accused May Be Released In That Case Upon The Execution Of Fresh Personal Bond For Such Sum Of Money And Bond By One Or More Of Such Sureties As The Court Thinks Sufficient. It Clearly Shows That Whenever Any Accused Failed To Appear Because Of Some Reasons The Bond, If Any, Executed By Him In That Case Shall Stand Cancelled And Forfeited For Breach Of Condition Of Appearance And He May Not Be Released Only On His Own Bond, If The Court Is Satisfied That There Is No Sufficient Cause For Failure Of The Accused To Comply With The Condition Of The Bond . No Doubt In Such Cases Accused May Not Be Released On His Own Bond But The Proviso To The Aforesaid Section Empowers The Court To Release The Accused Upon The Execution Of A Fresh Personal Bond For Such Sum Of Money And Bond By One Or More Of Such Sureties As The Court Thinks Sufficient. 
In These State Of Affair Of Facts And The Provisions Of Law On This Point, I Am Of This View That This Bail Application Does Not Deserve To Be Allowed Being It Infructuous And Unwarranted As The Accused Is Already On Bail And His Earlier Bail Is Not Yet Cancelled. 
However, The Accused/ Applicant Is At Liberty To Move A Fresh Application Before The Learned Trial Court For The Prayer Of Releasing Him Upon The Execution Of Fresh Personal Bond For Such Some Of Money And Bond By One Or More Of Such Sureties As The Trial Court Concerned Thinks Sufficient, In The Light Of Earlier Bail Granted To The Accused Which Is Never Cancelled Nor Found To Be Cancelled By Virtue Of Any Provision Of Law Unless It Is Specifically Cancelled. 

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