TMI Blog2013 (9) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... and 27 of the Arms Act alleging that the Appellant along with one Abhishek Hada and two unknown persons had come to the market place where an altercation ensued between them and the informant and others. It was alleged in the FIR that two of these four persons were carrying weapons and they fired at the informant, Respondent No. 3 herein, and one Dilip Singh. After the injured succumbed to the injuries, Section 302 Indian Penal Code was added. The Appellant apprehending arrest filed an application under Section 438 of the Code of Criminal Procedure (Code of Criminal Procedure) before the first Additional Sessions Judge, Guna, who vide order dated 14.9.2012 rejected the same. Being unsuccessful in obtaining an anticipatory bail the Appellant filed M.Cr.C. No. 8023 of 2012 which was dismissed as withdrawn. 4. As the facts would further uncertain, after a gap of sometime the Appellant preferred the second application for grant of anticipatory bail and the learned single Judge in M.Cr.C. No. 701 of 2013, by order dated 1.2.2013, took note of the fact that the Petitioner therein was an accused in crime No. 376/12 registered for commission of offences punishable under Sections 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said application as expeditiously as possible. 8. The Division Bench, while dealing with the application for modification, i.e., M.Cr.C. No. 971 of 2013, vide order dated 15.3.2013, reproduced the order passed in M.Cr.C. No. 701 of 2013 and ascribing certain reasons modified the order and set aside the order dated 6.2.2013 granting regular bail by the learned Additional Sessions Judge to the accused. 9. Grieved by the aforesaid order, the Appellant preferred Special Leave Petition (Crl.) No. 2826 of 2013. This Court on 4.4.2013, while dealing with the legal substantiality of the said order, opined thus: Having heard learned Counsel for the parties, we are of the view that no useful SLP (Crl.) 2826/13 purpose will be served in keeping this matter pending here in view of the fact that the Code of Criminal Procedure does not provide for any review against an order passed in criminal proceedings. The proceedings before the Division Bench was entirely misconceived. In the event the order of the learned Single Judge of the High Court was misconstrued by the learned trial Court while granting bail to the Petitioner, the remedy of the complainant w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he FIR, the proceedings before the High Court and this Court, import of the order passed in M.Cr.C. No. 701 of 2013 and thereafter stated thus: In the instant case, as pointed hereinabove, the learned First ASJ has not taken pain to consider the aforesaid aspects. When this Court has expressly given the direction that Respondent No. 1 shall surrender before the Competent Court and shall apply for regular bail and the same shall be considered, it was the bounden duty of the learned First ASJ to consider whether Respondent No. 1 is entitled for the benefit of bail or not. It is unfortunate that despite the objection raised on behalf of the Petitioners that this Court has not granted the bail, the learned First ASJ, Guna, did not think it fit to seek the clarification from this Court. Instead of doing so, the learned First ASJ has granted the benefit of bail to Respondent No. 1. 13. Thereafter, the learned single Judge referred to the criminal antecedents of the accused and, ultimately, passed the following order: In view of the aforesaid analysis, considering that learned First ASJ, Guna, while granting bail, misread the order of this Court passed in M.Cr.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Sessions Judge was kept alive by this Court and, accordingly, application was filed before the High Court which has been dealt with by the learned single Judge by the impugned order. 16. The thrust of the matter is whether the learned trial Judge has actually misconstrued the order and granted bail or has really considered the necessary facets as required to be considered while entertaining an application under Section 439 Code of Criminal Procedure. We have bestowed our anxious consideration and carefully scrutinized the order dated 6.2.2013 passed by the learned Additional Sessions Judge, Guna. It is manifest that the learned trial Judge accepted the application for surrender and thereafter referring to the order passed in M.Cr.C. No. 701 of 2013 has opined thus: In the aforementioned case the Hon'ble High Court vide its order dated 01.02.2013 passed the orders with the directions that the applicant will surrender himself before the Competent Court and he will submit his application for regular bail, and the said concerned court will accept the said application after furnishing of bail bonds. Therefore, the Hon'ble High Court has issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.C.R.C. No. 701/13, the Hon'ble High Court has passed the orders for furnishing necessary bail bonds, hence, the application filed by the applicant Under Section 439 Code of Criminal Procedure is justified and found proper, therefore, the application of the applicant is accepted and he may be enlarged on bail on furnishing two bail bonds of sureties of ₹ 75,000-75,000 each and personal bail bond of ₹ 1,50,000/- to the satisfaction of Chief Judicial Magistrate, Guna. 19. We have reproduced the said order in extenso to appreciate whether as a matter of fact the learned Additional Sessions Judge has misconstrued the import of the order or decided the application under Section 439 Code of Criminal Procedure regard being had to the considerations that are to be kept in mind while dealing with such an application. As is evincible, there has been no deliberation with regard to the requirements under Section 439 Code of Criminal Procedure. The order read in entirety clearly reflects that the learned Additional Sessions Judge had an erroneous perception and fallacious understanding of the order passed by the High Court and it is clear as day that the regular bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court, has observed as follows: 9...among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behavior, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 23. The said principles have been reiterated in Ash Mohammad v. Shiv Raj Singh alias Lalla Babu and Anr. (2012) 9 SCC 446. 24. In this context, we may refer with profit to the recent pronouncement in Central Bureau of Investigation v. V. Vijay Sai Reddy 2013 (7) SCALE 15 wherein the learned Judges have expressed thus: 28. While granting bail, the court has to keep in mind the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id so as we have set aside the order admitting the Appellant to bail as it is illegal and unjustified being solely based on the observation made by the High Court in its order passed in M.Cr.C. No. 701 of 2013. We may further add that proper opportunity shall be afforded to the Public Prosecutor to put forth his stand and stance at the time of consideration of the application preferred by the accused for grant of bail. 27. After saying so we would have proceeded to record our formal conclusion. But, something more is required to be stated. We are absolutely conscious that this Court on earlier occasion in Special Leave Petition (Crl.) No. 2055 of 2013 had clearly stated that the order under challenge merely directed the Respondent-accused to surrender and pray for regular bail. The said clarification was made by this Court. Prior to that, the learned trial Judge misconstruing the order had enlarged the accused on bail. 28. This Court in Rashmi Rekha Thatoi and Anr. v. State of Orissa and Ors. (2012) 5 SCC 690 has dealt with an order of the High Court whereby the learned single Judge, while not granting anticipatory bail to some accused persons, had directed that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise of power of judicial review. This has been so stated in Bay Berry Apartments (P) Ltd. v. Shobha (2006) 13 SCC 737 and U.P. State Brassware Corporation Ltd. v. Uday Narain Pandey (2006) 1 SCC 479. 29. In the case at hand, though such an order was not passed by the learned single Judge, yet the order passed by him was potent enough to create enormous confusion. And it has so happened. It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. We are of the convinced opinion that the observations made by the learned single Judge while dealing with second application under Section 438 Code of Criminal Procedure was not at all warranted under any circumstance as it was neither in consonance with the language employed in Section 438 Code of Criminal Procedure nor in accord with the established principles of law relating to grant of anticipatory bail. We may reiterate that the said order has been interpreted by this Court as an order only issuing a direction to the accused to surrender, but as we find, it has really created colossal dilemma in the mind of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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