- (1.) Heard Sri A.B.Singh, learned counsel for the applicant. Contempt is alleged of the order dated 20.9.2011 passed in Writ Petition No. 17528 of 2011 (Sri Dinesh Tripathi v. State of U.P. and others). Learned counsel for the applicant has submitted that by the order dated 20.9.2011 passed by the Writ Court, it was clearly provided that if the petitioner moves an application for surrender before the Court concerned within three weeks, the Magistrate shall fix a date within two weeks thereafter for appearance of the petitioner and in the meantime release the petitioner on interim bail on such terms and conditions as the court concerned considers fit and proper, till the date fixed for disposal of the regular bail. The Court further provided that when the matter reaches before the Sessions Judge, it will be in the discretion of the Sessions Judge to consider granting interim bail pending consideration of the regular bail on similar terms as mentioned above, if the petitioner applies for bail before him. Further direction was given that for a period of three weeks from that date or till the petitioner appears/surrenders before the court below and applies for bail, whichever is earlier, the petitioner shall not be arrested.
(2.) Insofar as the condition of not being arrested for three weeks prior to surrender is concerned, there is no dispute nor learned counsel has argued that the petitioner was arrested in violation of that condition. The first condition relates to the stage when the petitioner moves an application for surrender before the Magistrate. The Magistrate is required to fix a date for appearance of the petitioner and in the meantime release him on interim bail. It was further provided that the Magistrate shall direct the public prosecutor to seek instructions from the Investigating Officer by the date fixed and then decide the regular bail application The said direction appears to be based on the observation made by the Full Bench in the case of Amrawati v. State of U.P.,2005 1 UPLBEC 155 which judgement has been referred to in the order of the Writ Court. In Amrawati v. State of U.P., the Full Bench had clearly provided with respect to bail application under Section 437 Cr.P.C. that if the Magistrate in a very rare and exceptional case decides to postpone the hearing of the bail application and does not decide it on the same day, he must record reasons in writing. Therefore, it was provided that in such circumstances, which have been referred by the Full Bench as rare and exceptional where the Magistrate decides to postpone the hearing of the bail application, he shall grant interim bail.
(3.) The directions of the Writ Court in the present case based on the decision of the Full Bench leaves no room for doubt that in case the petitioner moves an application for surrender and the Magistrate does not decide the bail application on the same day, he has to grant interim bail and fix a date for appearance of the applicant for consideration of his application for regular bail. The direction to grant interim bail is to be clearly read as not applicable when the Magistrate decides to pass final orders on the bail application on the day of his surrender without postponing the date for consideration of bail. In cases where the Public Prosecutor has complete instructions from the Investigating Officer no adjourned date is required to be fixed.;