Court No.22
Crl. Misc. Bail Application No. 31264 of 2009.
Chandra Kumar------------------------------------------- Applicant.
VS.
State of U.P------------------------------------------Respondent.
Hon. Virendra Singh, J.
By means of present application, the applicant has prayed for
releasing the applicant on bail, in Case Crime No. 91 of 2005, S.T.
No. 117-A of 2006, under sections 148,149 and 307 I.P.C, Police Station
Khakheru, District Fatehpur.
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, the accused is in jail since 22.9.2008. He had
applied for bail before the Sessions Judge, Fatehpur which was
rejected by the learned Sessions Judge on 23.3.2009.
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 being a poor person and was doing some job in
some other city and therefore could not attend the court on 10.1.
2008, 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
has 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 facts remained on record that the accused/ applicant is on
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bail as was earlier ordered to be released on bail. So far as the
question of arrest and custody of the accused/ applicant is
concerned, since the accused/ applicant remained absconder at the
time of trial before the learned lower court, his arrest and custody
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 ”
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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 sum of
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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 have been
cancelled by virtue of any provision of law unless it is specifically
cancelled.
Dt. 4.2.2010.
G.S(9)(31264-2009)