Kedar Nath Tewari vs State of U.P.

Anshnman Singh, J.—This is an application u/s 436 of Code of Criminal Procedure (hereinafter referred as the Code) filed by the applicant Kedar Nath Tiwari son of Manohar Lal Tiwari, resident of Deepak Talkies, police station Karvi, Distt. Banda.

The facts giving rise to this application are that the applicant is Manager of Deepak Talkies situate at Karvi, Banda, and belongs to a very respectable family. It has been alleged that the local police used to see pictures in the Cinema of the applicant without purchasing tickets and the said practice was resisted by him and because of the resistence the local police developed ill will and the relations between him and the local police became very strained. It has been further stated that at the instance of the local police he has been named in a case Under Sections 342, 323 and 504 IPC in case Crime No. 538 of 1986, P.S. Karvi, distt. Banda. The police after investigation submitted charge sheet dt. 21-12-86, a photostat copy of which has been filed alongwith the affidavit. A perusal of the charge sheet indicates that the charge-sheet has been submitted against the applicant under Sections 342 and 323 IPC only. There is further averment in the application to the effect that co-accused Ghanshyam against whom also charge sheet has been submitted under Sections 342 and 323 IPC surrendered before the Special Judge (DAA), Banda, on 4-12-86 and though the offence against him was bailable yet his application was not disposed of for a couple of days and he was ordered to be released on bail by order dated 23-12-86, a copy of the said order has also been annexed as Annexure ''7'' to the affidavit. It has been further alleged that the applicant apprehends that if he appears before the Special Judge in the instant case though the offence is bailable he will not be released on bail inasmuch as co-accused Ghanshyam, who is also wanted in a bailable offence was released on bail by the learned Special Judge (DAA), Banda, after a couple of days and because of this apprehension he has approached this Court u/s 436 of the Code and prayed that he may be released on bail. Since the applicant wanted to invoke the jurisdiction of this Court u/s 436 of the Code, which is normally not exercised, I wanted to hear the learned Government Advocate on this application. Mr. Girdhar Malviya, learned Additional Government Advocate, has appeared before me. A counter-affidavit has also been filed by Shesh Mani Dubey, Sub-Inspector, police station Karvi, district Banda.

1 have heard Sri Jagdish Singh Sengar, learned Counsel for the applicant, and Sri Girdhar Malviya, Additional Government Advocate, for the State at considerable length. At the very outset it is convenient to refer to the provisions of Section 436(1) of the Code which reads :

When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail.

Learned Counsel for the applicant submitted that since the offence in which the applicant is wanted is bailable, this Court should exercise its power in view of the special facts of the case. Learned Additional Government Advocate did not dispute the proposition that u/s 436 of the Code this Court can admit a person on bail if the offence is bailable. After a careful perusal of the language of the provisions of Section 436 of the Code I am of definite view that this Court has power to admit a person on bail if the offence is bailable, but in my opinion this power should be exercised sparingly and in very exceptional cases and the instant case is not one of those and the tendency of approaching this Court under this provision should be deprecated and as such I am not inclined to allow this application but to direct the applicant to appear before the Special Judge (DAA), Banda, and move an application for bail before him.

There are certain admitted facts in the case which lend some support to the apprehension expressed by the applicant but in view of the averment made by the State in the counter-affidavit\\do not consider it proper to exercise power u/s 436 of the Code. However, I would like to make certain observations which I am confident would be followed by the Special Judge (DAA), Banda. In the connter affidavit filed by Shesh Mani Dubey it is admitted that the applicant is wanted only in Crime No. 538 of 1986 Under Sections 342/323/504 IPC. It has also been admitted that the offences are bailable. A perusal of the order of the Special Judge annexure ''7'' to the affidavit also indicates that the offences against co-accused Ghanshyam and the present applicant are bailable but the fact that Ghanshyam co-accused, who was also accused in the same case which is bailable, was not enlarged on bail but kept in jail for a considerable period of ninteen days does lend support to the apprehension entertained by the applicant. Since admittedly the offences against the applicant are bailable there is no reason why the bail application when filed by the applicant should not be disposed of by the Special Judge (DAA), Banda, same day and it is expected that the bail application filed by the applicant in the instant case shall be disposed of the same very day by the Special Judge (DAA) Banda.

Learned Counsel for the applicant further urged that he has apprehension that even if the Special Judge (DAA), Banda, while disposing of the bail application the same day, may not accept the sureties and send the same for verification in order to send the applicant to jail for some time and for that he is prepared to furnish security in cash. There are no valid reasons for the said apprehension but in any case it is expected that the Special Judge instead of asking the applicant to furnish sureties may accept security in cash offered by the applicant.

Learned Counsel for the applicant further urged that the Special Judge may fix the amount of security at an exorbitant amount which apprehension is also ill founded inasmuch as the Special Judge has already released co-accused Ghanshyam on furnishing two sureties of Rs. 5000/- each and the applicant being a respectable man there appears to be no reason why the Special Judge, Banda, will adopt a different attitude in fixing the amount and it is expected that he will fix the same amount.

Lastly learned Counsel for the applicant urged that in view of the alleged strained relations with the police, the police is likely to arrest the applicant only to harass him. Mr. Girdhar Malviya, learned Additional Government Advocate has stated that the local police does not bear any ill will against the applicant.

The applicant is directed to appear before the Special Judge (DAA), Banda, on January 27, 1987, and it is expected that the Special Judge will dispose of the bail application same day and will accept the security as indicated above. Mr. Girdhar Malviya, learned Additional Government Advocate, has given an undertaking before me that the applicant shall not be arrested till January 27, 1987, for which he is directed to communicate to the authorities concerned today.

In the result the application with the observations mentioned above is rejected.

Let a copy of this order be supplied to the learned Counsel for the applicant today on payment of usual charges.