Court No. - 54 Case :- APPLICATION U/S 482 No. - 3096 of 2010 Petitioner :- Brijendra @ Badey Lala Respondent :- State Of U.P. And Another Petitioner Counsel :- B.N. Singh Respondent Counsel :- Govt. Advocateh Hon'ble Ravindra Singh,J.
Heard learned counsel for the applicant and learned A.G.A.
This application has been filed with a prayer to quash the order dated
6.8.2009 passed by learned C.J.M. Kanpur Dehat in complaint case
crime No.128 of 2008 whereby the applicants have been summoned to
face the trial for the offences punishable under sections 379, 504, 506,
376 I.P.C.and 3(1) 10 SC/ST Act.
From the perusal of the record it appears that in this case, the final
report has been submitted, the same was protested, the application has
been treated as complaint, thereafter the statements under sections 200
and 202 Cr.P.C. were recorded , thereafter the learned Magistrate has
rejected the final report and summoned the applicant to face the trial.
There is no illegality or irregularity in the impugned order dated
6.8.2009,, therefore, the prayer for quashing the order is refused.
However, considering the facts, it is directed that in case applicant
appears before the court concerned within 30 days from today and
applies for bail, the same shall be heard and disposed of in view of Smt.
Amrawati and another Vs. State of U.P. 2005 Cr.L.J. 755.
The Full Bench of this court has held in the aforementioned case;
1. Even if a cognizable offence is disclosed in the FIR or complaint
the arrest of the accused is not a must, rather the police officer
should be guided by the the decision of the Supreme Court in
Joginder Kumar Vs. State of U.P. 1994 Cr.L.J. 1981, before
deciding whether to make an arrest or not.
2. The High Court should ordinarily not direct any Subordinate
Court to decide the bail application the same day, as that would
be interfering with the judicial discretion of the court hearing the
bail application. However, as stated above, when the bail
application is under section 437 Cr.P.C. ordinarily the
Magistrate should himself decide the bail application the same
day, and if he decides in a rare and exceptional case not to
decide it on the same day, he must record his reasons in writing.
As regards the application under section 439 Cr.P.C. it is in the
discretion of the learned Sessions Judge, considering the facts
and circumstances whether to decide the bail application the
same day or not, and it is also in his discretion to grant interim
bail the same day subject to the final decision on the bail
application later.
The above view has been approved by the Hon’ble Apex Court in Lal
Kamlendra Pratap Singh Versus State of U.P. on 23.3.2009 in Criminal
Appeal No. 538 of 2009.
With this direction, this application is finally disposed.
Order Date :- 2.2.2010
Su