Court No. - 43 Case :- APPLICATION U/S 482 No. - 28519 of 2008 Petitioner :- Sudhir Kumar And Others Respondent :- State Of U.P.And Others Petitioner Counsel :- Ram Raj Pandey Respondent Counsel :- Govt. Advocate Hon'ble Ravindra Singh,J.
Heard learned counsel for the applicants and learned A.G.A.
This application has been filed with a prayer to quash the order dated
11.6.2010 passed by learned C.J.M. Baghpat in Criminal case No. 6589 of
2008 under section 420 IPC whereby the discharge application filed by the
applicants has been dismissed.
From the perusal of the record it appears that this court has passed the order
dated 6.11.2008 in Criminal Misc. Application No. 28519 of 2008 whereby it
was directed that in case the applicants move discharge application through
their counsel within 30 days, the same shall be heard and disposed of under
the provisions of law. Till the disposal of discharge application the N.B.W.
issued against the applicants shall be kept in abeyance. But in pursuance of
the order dated 6.11.2008 the discharge application was not filed within 30
days, it was filed thereafter. On this ground, learned C.J.M. had rejected the
application because it has not been filed within time as prescribed by this
court. The learned C.J.M. Baghpat has not committed any error in dismissing
such application vide order dated 11.6.2010, the prayer for quashing the same
is refused.
However, it is directed that in case the applicants appear before the court
concerned within 20 days from today and apply 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 same 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 of.
Order Date :- 22.7.2010
RPD