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Judgment
This is an application u/s 438 of the Code of Criminal Procedure, seeking bail in the event of applicant''s arrest. The applicant apprehends his arrest for the offences punishable u/s 363, 364, 368, 370, 372, 373, 420 and 406 of the Indian Penal Code in Dighal Bank PS. Case No. 143/97, G.R. No. 1176/97. This bail petition was presented before this Court on 28.7.1998. However, by order dated 05.8.1998 passed by this Court case diary was sent for, but it appears that for want of case diary the case could not be listed before the Courts for orders.
It is, however, submitted that the applicant has been arrested and is in jail custody since 12.10.1998. Thus an application u/s 439 of the Code of Criminal Procedure (hereinafter to be referred to as ''the Code'') was filed berore the Chief Judicial Magistrate, Kishanganj and it was mentioned in the application that before this Court an application u/s 438 of the Code was filed which is pending. The learned Chief Judicial Magistrate by order dated 23.10.1998 directed to have an appropriate order u/s 438 of the Code by this Court, till then it was directed that the bail application made u/s 439 of the Code shall be kept with the record.
We have been informed that this is the usual practice in the State of Bihar that if a bail petition u/s 438. of the Code is filed and during the pendency of the bail petition the applicant-accused is arrested, a regular bail application u/s 439 of the Code is filed and until the application u/s 438 of the Code is withdrawn, the court concerned does not proceed with the application u/s 439 of the Code with the result the accused is required to be confined to jail custody for months together. This approach appears to be contrary to the Scheme of Chapter XXXIII of the Code. No sooner bail petition is filed, it is expected of the court concerned to dispose of the bail petition as early as possible.
Until guilt is established the under-trial prisoner is supposed to be innocent person and keeping such person indefinitely in jail amounts to punishment which is also contrary to the mandate of Article 21 of the Constitution of India. Therefore, time being the essence of liberty no sooner an application u/s 439 of the Code is made it should be disposed of as early as possible, of course, after affording reasonable opportunity of being heard to the prosecution agency and looking into and considering the case diary, etc.
The legal position must be borne in mind that no sooner an application u/s 439 of the Code is made, application made u/s 438 of the Code renders infructuous and only it is expected of the accused-applicant to mention this fact about his moving of an application either u/s 438 or even u/s 439 of the Code on earlier occasion and its result thereof. But it is not required under law that until the application u/s 438 of the Code is disposed of only thereafter the application u/s 439 of the Code shall be taken into consideration. Time being the essence of liberty, the applicant-accused cannot be deprived of being heard on his bail petition without rhyme and reason.
Thus, now it is directed that the bail petition moved u/s 439 of the Code be considered and decided on merit expeditiously.
Let a copy of this order be also communicated to all the District and Sessions Judge, including the Judicial Commissioners for apprising the same to the Additional Sessions Judge, and the learned Magistrates for furture guidance in this regard.
A copy of this order may be supplied to the Petitioner on usual charges by tomorow.