Allahabad High Court
Dhirendra @ Dheeraj Tyagi vs State Of U.P. on 13 January, 2020
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 71 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29639 of 2018 Applicant :- Dhirendra @ Dheeraj Tyagi Opposite Party :- State of U.P. Counsel for Applicant :- Ajay Kumar rivastava, R.P.Singh, Sushil Kumar Pandey Counsel for Opposite Party :- G.A.,Ashish Kumar Singh,Inder Pal Singh Tomar Hon'ble Saumitra Dayal Singh,J.
1. Counter affidavit filed by the State. Taken on record.
2. Heard Sri R.P. Singh and Sri Vivek Dhaka, learned counsel for the applicant; Sri Inder Pal Singh Tomar, learned counsel for the informant as well as Sri Nagendra Kumar Srivastava, Sri Manoj Kumar Dwivedi and Sri Ankit Shrivastav, learned AGA for the State and perused the material placed on record.
3. The instant bail application has been filed on behalf of the applicant - Dhirendra @ Dheeraj Tyagi with a prayer to release him on bail in Case Crime No. - 226 of 2018, under Sections - 147, 354, 307, 323, 302 I.P.C., Police Station - Babugarh, District - Hapur, during pendency of trial.
4. The present bail application came to be filed on behalf of the applicant upon rejection of his bail application by the learned Sessions Judge, Hapur, vide order dated 10.07.2018. Its copy has been annexed with the present bail application.
5. In short, initially, in the FIR lodged by the informant - Naresh @ Titu, the applicant and five others, namely, Anand, Kuldeep Tyagi, Nitin, Pankaj and Pradeep @ Bhuru were accused of offence of attempt to commit murder. Later, during investigation, names of certain other accused persons had also surfaced. Briefly, the allegation is that the applicant and the co-accused assaulted the deceased Satish Tyagi with 'lathi danda', rod and knife, wherein he received fatal injuries, to which he succumbed at the hospital. However, no specific role has been assigned to the applicant. It is also a fact that a cross-version of the incident does exist though the accusations made therein are lesser/lighter.
6. In any case, the the applicant surrendered on 25.05.2018 and remained in remand since then. Upon filing of the present bail application, vide order dated 24.09.2019, the applicant was enlarged on interim-bail and the matter was directed to be listed on 04.11.2019. Learned counsel for the parties are in agreement that on account of lawyers of this Court having abstained from work under some resolution of the High Court Bar Association, no order came to be passed on 04.11.201. Thus, the final bail matter remained pending. Thereafter, the final bail matter came to be listed on 16.12.2019, when it had to be adjourned to honour the illness slip of learned counsel for the informant. It was then directed to be listed peremptorily on 06.01.2020, on which date, again upon request made by learned counsel for the informant, it was directed to be listed today. In the meanwhile, it was provided that no coercive measures may be adopted against the applicant.
7. Today, learned counsel for the applicant would submit that the applicant who has been enlarged on interim bail has fully abided by the terms of that order. Also, the co-accused Pradeep @ Bhuru has been enlarged on regular bail in Criminal Misc. Bail Application No. 43403 of 2019, vide order dated 19.10.2019. In any case, it has been submitted, that the applicant does not have a criminal history; general allegations have been made against all the accused persons i.e. no role specification has been made as may lead to rejection of the bail application of the applicant; there is a cross version of the same incident which shows that a quarrel had taken place wherein both sides sustained injuries and therefore it cannot be said either that the assault on the deceased was pre-meditated or motivated and; charge-sheet has already been submitted. Therefore, it has been prayed that the applicant is entitled for regular bail, at this stage.
8. Learned counsel for the informant and Sri Nagendra Kumar Srivastava, learned AGA vehemently opposed the bail application. They would submit, other things apart, the present bail application is liable to be rejected inasmuch as 45 days time period granted by this Court by order dated 24.09.2019 expired on or about 09.11.2019. Since the applicant did not surrender thereafter, he is not on remand, today. Therefore, he cannot be enlarged on bail in the present proceedings. Reference has been made to the language of Section 439(1)(a) of Cr.P.C., 1973 in that regard. Also, it has been submitted that in any case, by virtue of Section 439(2) of Cr.P.C., the Court is empowered to enforce a remand on the present applicant for having not surrendered after expiry of 45 days.
9. In that context, learned counsel for the informant has heavily relied on the decision of the Supreme Court in Nirmal Jeet Kaur Vs State of M.P. & Another, (2004) 7 SCC 558 and Sunita Devi Vs State of Bihar & Another, (2005) 1 SCC 608.
10. Sri Ankit Shrivastav, learned AGA has also referred to the decision of the Supreme Court in Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Others, (1980) 2 SCC 559, to bring on record the correct position in law, in this regard.
11. Learned counsel for the applicant would also refer to a decision of a Division Bench of this Court in Haji Peer Bux Vs State of Uttar Pradesh, 1993 Cr.L.J. 3574, wherein the decision of the Supreme Court in Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Others (supra) had been followed.
12. Having heard learned counsel for the parties and having perused the record, in the first place, there can be no dispute to the fact that the present application when filed did not suffer from any defect of Section 439(1) Cr.P.C., inasmuch as, the applicant was in actual physical custody of law, at that time. Upon the order directing his release on interim bail by this Court vide order dated 24.09.2019, he was first released from the prison premises, under orders of this Court after fulfilling the directions issued by this Court, in that order. He also claims to have continuously fulfilled those directions since then.
13. A question then arises whether the applicant was required to necessarily go back in actual physical custody of the State before the present application could be dealt with, finally.
14. Obviously, this Court cannot pass bail order and thus cannot release an accused person on bail unless he has first been taken into custody or unless he is first shown to be under judicial custody. Inasmuch as it is an undisputed case between the parties that the applicant was in actual judicial custody on 24.09.2019 when the interim bail-order was passed by this Court, it can never be said that the applicant has been released on bail without having been first taken into custody. In all fairness, that is not even the objection of the informant or the State.
15. Therefore, this bail application when filed did not suffer from any defect of form or substance. The bail application, filed by the applicant under section 439 of the Cr.P.C., 1973, was wholly maintainable. On the date of filing the bail application, the applicant was in custody and he was released by this Court under specific direction contained in the order dated 24.09.2019. Since then, the law had clearly taken control over his person by making him bound to the terms and conditions of the order whereon he was permitted to be released from the jail premises i.e. subject to his furnishing adequate surety and bail bond.
16. The fact that the applicant came to be released on an interim-bail granted by this Court upon fulfillment of conditions imposed therein, would continue the status of the applicant as a person in judicial custody, though constructively. In Sunil Fulchand Shah Vs Union of India, (2000) 3 SCC 409, the Supreme Court had the occasion to discuss the difference between "bail" and "parole". In that, it was observed:-
"24. Bail and parole have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word "bail" is surety. In Halsbury's Laws of England, the following observation succinctly brings out the effect of bail:
The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.
(emphasis supplied)
17. As to the status of the accused person upon being enlarged on bail, the Supreme Court in Niranjan Singh & Another Vs. Prabhakar Rajaram Kharote & Others (supra), in paragraph nos. 7, 8 & 9, had observed as under:-
"7. When is a person in custody, within the meaning of Section 439 Cr.P.C.? When he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.
8. Custody, in the context of Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the court.
9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and maybe, enabled the accused persons to circumvent the principle of Section 439 CrPC. We might have taken a serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to overselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below."
(emphasis supplied)
18. In that case, the accused persons had not surrendered, initially, before applying for bail before the Court of Sessions, but that 'irregularity' on the part of the Sessions Court (in still entertaining the bail application) though not approved, was found to have been made up by later surrender made by the accused persons, before their bail application/s came to be considered and allowed by the court of sessions. That view has been followed by the Divison Bench of this Court in Haji Peer Bux Vs State of Uttar Pradesh (supra).
19. In so far as the decision of the Supreme Court in Nirmal Jeet Kaur Vs State of M.P. & Another (supra) is concerned, in that case the accused had been earlier granted anticipatory bail by the High Court. However, the regular bail application came to be rejected by the Judicial Magistrate. The further bail application filed before the Court of Sessions was also rejected on 05.06.2003. Still, the applicant (in that case), did not surrender. Yet, he filed a regular bail application before the High Court. It was not only entertained but in light of the earlier order dated 15.05.2003 (passed in the anticipatory bail proceedings), the High Court granted further ad-interim anticipatory bail.
20. It was that approach and order of the High Court that was specifically disapproved by the Supreme Court. In the first place, the accused was found not in custody before his bail application under Section 439 Cr.P.C. came to be considered. Then, the anticipatory bail order had come to an end, upon rejection of the regular bail application by the Judicial Magistrate. That ratio is wholly inapplicable to the facts of the present case, as in that case the accused persons never came into the control or custody of the Court, at any stage, before applying for bail. The anticipatory bail granted to them stood exhausted upon subsequent rejection of their regular bail application. Yet, they did not submit to the control of the court, at that stage.
21. In the instant case, it must be noted, there was no anticipatory bail claimed or granted. The interim-bail granted to the applicant was neither in the nature of nor it was in terms of an anticipatory bail. It was referable only to the power of this court to grant bail under section 439 Cr.P.C, 1973. Hence, as held by this Court in Issma & Ors. Vs State of U.P. & Ors., 1993 Cr.L.J 2432 and; Haji Peer Bux (supra), that nature of power was ancillary or incidental to the power to release the applicant on bail. It was not a separate power or a power separately exercised. In fact, bare perusal of the order dated 24.9.2019 brings out that the court exercised that power, as a step-in-aid to examine whether it could release the applicant on bail pending trial. Thus, pending final disposal of his bail application, the applicant was released from custody, for a short term to test and see if the applicant would abide by the terms placed on him. Also, that release was on 'bail' furnished by the applicant and subject to conditions contained in that order, all of which the applicant has complied. To that extent there is no complain.
22. As to the fact that the interim bail granted to the applicant was made time bound by 45 days, it is true that the same cannot ordinarily be treated to have been extended in absence of any specific order, however, it is also a fact that there is no order on the order sheet to cancel or curtail the interim bail or to decide the bail application finally on 04.11.2019.
23. First, undisputedly, the lawyers' of the Court had abstained from work on that date. Thus, it is difficult to prejudice the rights of the applicant solely on account of the conduct of the general body of lawyers who may have prevented hearing in the proceedings on 04.11.2019. Then it is also a fact that on the subsequent dates, the matter could not be heard on account of the adjournment sought on behalf of the informant.
24. Second, it is not possible to accept the same as the interim bail itself was granted in the present i.e. the regular bail application. The order dated 24.09.2019 was to allow the applicant to be released from jail so as to retain control over him, by releasing him against bail bonds and sureties. The proceeding or the bail application itself did not get decided or disposed by the order dated 24.09.2019. Rather it remained pending. The bail bonds and also the sureties continued to remain enforceable in view of the pendency of the present application, beyond the period of 45 days noted above. These were neither discharged nor cancelled nor forfeited nor otherwise rendered ineffective or in operative.
25. In such facts and in view of position of law as it stands, I find that notwithstanding the lapse of 45 days time period, the applicant is continuing in constructive custody and control of this Court and it would be wholly proper to condone the lapse, if any, on part of the applicant and to allow the applicant's conditional liberty to be maintained in terms of the order dated 24.09.2019 for the period 04.11.2019 till date. Also, otherwise it would lead to an absurd situation where the applicant who has been enlarged on interim-bail would have to again surrender and apply for bail afresh as this application would have been rendered infructuous upon his again being restrained upon second surrender, forced on him for no fault.
26. Last, it is also be noted, while this bail application has remained pending, the co-accused Pradeep @ Bhuru, who had been ascribed similar role, has already been enlarged on bail by this Court in Criminal Misc. Bail Application No.43403 of 2019 vide order dated 19.10.2019. In that view of the matter the applicant is also found entitled to bail.
27. In view of the above, let the applicant involved in the aforesaid crime be continued on bail, however, on his furnishing a fresh personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, within a period of two weeks from today, with the following conditions:-
(I) The applicant shall not tamper with the prosecution evidence by intimidating/pressuring the witness, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
28. In case, of breach of any of the above conditions, the bail being granted shall be cancelled.
29. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
30. Also, it is expected that the learned court below shall make all efforts to conclude the trial, as expeditiously as possible, without granting any unnecessary or long adjournments to either of the parties.
Order Date :- 13.1.2020 Abhilash/S. Chaurasia