Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2004 (10) TMI 635 - ALLAHABAD HIGH COURTPower of high court to grant bail application - Whether the arrest of the accused is a must if a cognizable offence is disclosed in the FIR or complaint - Whether the High Court can direct Subordinate Courts to decide the bail application on the same day it is filed - HELD THAT:- We make it clear that the learned Sessions Judge in his discretion can hear and decide the bail application u/s 439 on the same day of its filing provided notice is given to the Public Prosecutor, or he may not choose to do so. This is entirely a matter in the discretion of the learned Sessions Judge. There may also be cases where the learned Sessions Judge on the material available before him may decide to grant interim bail as he may feel that while he has sufficient material for giving interim bail he requires further material for grant of final bail. In such cases also he can in his discretion, grant interim bail and he can hear the bail application finally after a few days. All these are matters which should ordinarily be left to his discretion. As regards power to grant interim bail we agree with the view of the Hon'ble B.M. Lal, J in Dr. Vinod Narain's case [1995 (2) TMI 480 - ALLAHABAD HIGH COURT - LB] that such power is implicit in the power to grant bail, and we disagree with the view expressed by Hon'ble Palok Basu, J. in the aforesaid decision. The view we are taking would make the provisions for grant of bail in the CrPC in conformity with Article 21 of the Constitution, particularly since the provision for granting anticipatory bail has been deleted in U.P. Thus, we answer the questions referred to the Full Bench as follows : (1) Even if 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 decision of the Supreme Court in Joginder Kumar v. State of U.P.[1994 (4) TMI 385 - SUPREME COURT] 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 u/s 437. CrPC 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 u/s 439, CrPC 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. (3) The decision in Dr. Vinod Narain v. State of UP. [1995 (2) TMI 480 - ALLAHABAD HIGH COURT - LB] is incorrect and is substituted accordingly by this judgment.
|