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 Vs. 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.
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 Vs. State of U.P. which judgement has been referred to in the order of the Writ Court.
In Amrawati Vs. 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.
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.
In the present case, the applicant made an application for surrender and bail on 17.10.2011. On this date the public prosecutor had all the relevant documents and instructions available and placed them before the Court. The Magistrate therefore, did not adjourn the matter because there was no rare and exceptional circumstance to adjourn the matter. All the records of the prosecution and instructions were available on that very date hence there was no reason for the Magistrate to adjourn the hearing of the bail application. Admittedly the prosecution did not seek any adjournment.
The order of the Magistrate clearly records that he has perused all the documents produced by the police. He has refused to grant bail by rejecting the bail application on merits on the very same day without adjourning the matter for another date. Consequently, if the Magistrate decides the bail application on the very same day, it cannot be held that he has disobeyed the directions issued by the Writ Court, which is based on the observation made by the Full Bench in the case of Amrawati (supra).
Insofar as the bail application under Section 439 Cr.P.C. is concerned that is considered by the Sessions Judge after the matter has been dealt with by the Magistrate under Section 437 Cr.P.C.. Here the Full Bench clearly held that it is the discretion of the Sessions Judge whether to decide the bail application on the same day or not and it is also his discretion to grant interim bail the same day subject to final decision of the bail application later.
On the one hand if the consideration of the bail application under Section 437 Cr.P.C. was to be adjourned the Magistrate was to grant interim bail and on the other hand if consideration of the bail application under Section 439 Cr.P.C. was to be adjourned the Sessions Judge had discretion to consider granting interim bail pending consideration of the regular bail.
The Full Bench as also the Writ Court in the order contempt whereof is alleged has used the word discretion of the Sessions Judge for the purpose of grant of interim bail. That discretion cannot be interpreted to mean that he has to grant interim bail. The discretion given is clearly a freedom to form an opinion on the facts and circumstances of each case. Discretion cannot be misinterpreted to mean that the the Sessions Judge has to grant interim bail. Such interpretation made by learned counsel cannot be accepted in view of the decision of the Full Bench in the case of Amrawati (supra) as also in view of the direction to exercise discretion by the Writ Court.
Learned counsel for the applicant has emphasized on the use of the words 'similar terms as mentioned herein above' if the petitioner prays for bail before the Sessions Judge. According to him the terms mentioned in the order of the Writ Court are clear that when the applicant makes an application for surrender, the Magistrate will fix a date for his appearance and in the meantime release him on interim bail. If the aforesaid interpretation of learned counsel for the applicant is accepted then it is clear that the Sessions Judge has no discretion in the matter of consideration of interim bail. That will not be a correct interpretation of the word 'discretion' used by the Full Bench in the case of Amrawati (supra) as well as by the Writ Court in the order contempt whereof is alleged.
There is a difference of jurisdiction between consideration of a bail application under Section 437 Cr.P.C. and Section 439 Cr.P.C. When there is no postponement or when in his discretion the Sessions Judge refuses to grant interim bail pending consideration of regular bail then it is not a contempt. Otherwise it will mean that the Sessions Judge has no discretion in the matter of interim bail.
The Writ Court had clearly directed that it will be in the discretion of the Sessions Judge to consider granting interim bail. When he has considered it and refused to grant interim bail then it is not a contempt. He could in his discretion grant interim bail on similar terms as were made applicable to bail applications under Section 437 Cr.P.C. That was a discretion given to him by the Writ Court. He has exercised such discretion. If according to the applicant the exercise of discretion was not judicially exercised then he can avail the remedy available to him in law. It cannot be brought within the ambit of a contempt.
For the aforesaid reasons, it cannot be held that the opposite parties no.1 and 2 have disobeyed the directions issued by the Writ Court when the opposite party no.1 has decided the bail application on the same day and opposite party no.2 has in his discretion rejected the prayer for interim bail.
The contempt petition is accordingly dismissed.
No order is passed as to costs.
Order Date :- 21.10.2011 Lbm/-