Smt. Omwati and Another vs State of U.P. and Another

R.K. Rastogi, J.—This is an application u/s 482, Cr. P.C., to quash the order dated 25.7.2005, whereby the learned Magistrate has passed the order for framing of the charges under Sections 452, 323, 504 and 506, I.P.C. against the applicants.

I have heard learned Counsel for the applicants and the learned A.G.A.

Learned Counsel for the applicant submitted before me that in Case Crime No. 341 of 2005, under Sections 452, 323, 504 and 506, I.P.C., P. S. Malpura, district Agra, the accused-applicants have already been granted bail on 10.10.2005 under Sections 323, 504 and 506, I.P.C. and the offence u/s 452, I.P.C. has been subsequently added on the basis of evidence to the effect that the marpit took place in the house of the complainant.

Learned Counsel for the applicant submitted that he was not challenging the order for framing of the charge at this stage, but when the accused-applicants had already been granted bail under Sections 323, 504 and 506, I.P.C., they should be permitted to be released on bail u/s 452, I.P.C. also on filing fresh bail bond only. This prayer was opposed by the learned A.G.A. who submitted that the offence u/s 452, I.P.C. is not bailable and so the accused-applicants should first surrender before the Court and then they should apply for bail and then suitable orders can be passed by the Magistrate on that bail application, and that a direction in respect of bail cannot be issued on an application u/s 482, Cr. P.C.

The learned Counsel for the applicant submitted in reply that in this case originally the F.I.R. was lodged under Sections 452, 504 and 506, I.P.C. as is apparent from Annexure-1, but the police after investigation submitted a charge-sheet under Sections 323, 504 and 506, I.P.C. only on 5.10.2005, and the applicants thereafter moved application for bail in respect of the above offences only which was allowed on 10.10.2005. He submitted that the offences under Sections 504 and 323, I.P.C. are bailable but the offence u/s 506, I.P.C. is not bailable and is punishable with imprisonment for seven years in case of threat to commit murder or grievous hurt. Similarly the offence u/s 452, I.P.C. is also not bailable and is punishable with imprisonment upto 7 years and under these circumstances, when the accused-applicants have already been granted bail for offences under Sections 323, 504 and 506, I.P.C. and when the punishment which is provided u/s 452, I.P.C., is equal to the punishment provided u/s 506, I.P.C., it will be in the interest of justice to avoid abuse of the process of the Court that the accused-applicants, instead of being forced to surrender u/s 452, I.P.C. and then to apply for bail and thus facing the risk of being sent to jail u/s 452, I.P.C. till disposal of the bail application, but taking these facts into consideration that they have already been granted bail for the offence u/s 506, I.P.C. which is also not bailable and involves same punishment, and that the offences under Sections 323, 452, 504 and 506, I.P.C. were not separately committed, but were allegedly committed as a part of the same transaction, should be permitted to move an application before the Magistrate for fixation of the amount of bail bonds for the offence u/s 452, I.P.C. and in compliance of the order on that application, they may be released on filing and acceptance of those fresh bail bonds by the Court.

The present application u/s 482, Cr. P.C. is, therefore, finally disposed of with the observations that if the accused-applicants appear before the Magistrate concerned and move application for fixing the amount of personal bond and surety bonds for the offence u/s 452, I.P.C., the Magistrate may pass suitable orders on that application and then they may be released on acceptance of fresh bail bonds for the offence u/s 452, I.P.C.