Virendra Singh - (1.) BY means of present application, the applicant has prayed for releasing the applicant in Case Crime No. 156 of 1995, S. T. No. 1555 of 1996, under Sections 147, 148, 149 and 302, I.P.C., Police Station, Kanker Khera, district Meerut.
(2.) HEARD learned counsel for the applicant, learned A.G.A. and perused the record. A perusal of the record shows that due to absence of the accused-applicant, non-bailable warrant was issued. The accused was arrested and he is in jail since 27.3.2009. He had applied for bail before the Sessions Judge, Meerut which was rejected by the learned Sessions Judge on 29.5.2009. The contention on behalf of applicant is that the accused is liable to be released on bail in the aforesaid Session Trial as the applicant did not abscond in the present case deliberately and he could not appear due to illness and suffering from Jaundice and could not attend the Court on 4.5.2006, nor could contact his counsel in District Court for moving the exemption application. It is also contended that the allegations of the prosecution case are false against him and he has not committed the offence alleged in the prosecution case.
(3.) IT is not disputed rather is admitted case of both the parties that accused/applicant was earlier enlarged on bail in the aforesaid case. There is no case of any of the party that at any point of time the bail granted earlier to the accused/ applicant was cancelled either by the trial court or by the High Court. In such circumstances the rejection of fresh bail application by the learned lower court is unwarranted because neither the accused-applicant was supposed to move any bail application before the learned trial court nor the trial court was supposed to hear the bail application of the accused-applicant, due to the fact on record that the earlier bail granted to the accused was never cancelled. So the facts remain on record that the accused/applicant is on bail as was earlier ordered to be released on bail. So far as the question of arrest of the accused-applicant is concerned, since the accused-applicant remained absconded at the time of trial before the learned lower court, his arrest is justified due to forfeiting the bail bonds on breach of conditions of the bonds. Merely his arrest does not give him a right to move for fresh bail order to be passed for him. Had there been the case against the accused-applicant of cancellation of his bail or bail was cancelled, certainly the accused was entitled for moving the bail application afresh. In this regard the provisions of Section 446A of Criminal Procedure Code are very much relevant which are quoted below : "Without prejudice to the provisions of Sections 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition- (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled ; and (b) thereafter no such person shall be released only on his own bond in that case, if the police officer or the Court, as the case may be for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition : Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the police officer or the Court, as the case may be, thinks sufficient." ;