Virendra Singh - (1.) BY means of present application, the applicant has prayed for releasing the applicant in S.T. No. 258 of 2004, under Sections 147, 148, 149 and 307, I.P.C. and Section 3 (2) (v) of S.C./S.T. Act (P.A.) Act, Police Station Jaithra, District Etah.
(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 4.6.2009. He had applied for bail before the Sessions Judge, Etah which was rejected by the learned Sessions Judge on 9.6.2009. 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 had gone out side to earn his bread. It is also contended that the allegations of the prosecution case are against him stating the facts that the complainant was coming back from Jaithra on 2.12.2001. In the way he took water from India Marka Handpump. Some persons including the present applicant/accused aforesaid abused the complainant thereby using the words relating to his caste and the complainant was also assaulted by country made pistol thereby inflicting injuries on the back side of the shoulder of the complainant. The learned counsel for the accused/ applicant contended that in the aforesaid circumstances the accused/ applicant is entitled for bail. 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 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 second or a fresh bail application by the learned Special Judge (S.C./S.T.), Etah on 9.6.2009 is unwarranted. Neither the accused/applicant was supposed to moved any bail application before the learned trial court nor 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. The facts remain on record that the accused/applicant 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 absconder, his arrest is justified due to forfeiting the bonds on breach of condition of the bonds, but 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.
(3.) 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." The aforesaid provision of law shows that without prejudice to the provision of Section 446, Cr. P.C., i.e., forfeiting the bond and imposing the penalty and recovery of such penalty, no such person shall be released only on his own bond, in such case, if the Court before whom the bond was executed, was satisfied that there was no sufficient cause for the failure of the accused bound by the bond to comply with its condition. The proviso provided in the aforesaid section very well provides that subject to any other provision of the Criminal Procedure Code, the accused may be released in that case upon the execution of fresh personal bond for such sum of money and bond by one or more of such sureties as the Court thinks sufficient. It clearly shows that whenever any accused failed to appear because of some reasons, the bond, if any, executed by him in that case shall stand cancelled and forfeited for breach of condition of appearance and he may not be released only on his own bond, if the Court is satisfied that there is no sufficient cause for failure of the accused to comply with the condition of the bond. No doubt, in such cases accused may not be released on his own bond but the proviso to the aforesaid section empowers the Court to release the accused upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Court thinks sufficient.;