Heard learned counsel for the applicant and learned A.G.A. This application has been filed with a prayer to quash the proceedings of complaint case no. 174 of 2009 under section 420 I.P.C. pending in the court of Judicial Magistrate, Hapur district Ghazpur pending in the court of learned Judicial Magistrate, Hapur district Ghaziabad. From the perusal of the record it appears that after considering the statement recorded under section 200 and 202 Cr.P.C. which discloses the commission of the aforesaid offence, the learned magistrate has taken cognizance and summoned the applicant to face the trial for the offence punishable under section 420 I.P.C. There is no illegality in the prosecution of the applicant, therefore, the prayer for quashing the same is refused. However, considering the facts, it is directed that in case applicant appears before the court concerned within 30 days from today and applies for bail, the same shall be heard and disposed of in view of Smt. Amrawati and another Vs. State of U.P. 2005 Cr.L.J. 755.
The Full Bench of this court has held in the aforementioned case;
1. Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the the decision of the Supreme Court in Joginder Kumar Vs. State of U.P. 1994 Cr.L.J. 1981, before deciding whether to make an arrest or not.
2. The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the court hearing the bail application. However, as stated above, when the bail application is under section 437 Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under section 439 Cr.P.C. it is in the discretion of the learned Sessions Judge, considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later.
The above view has been approved by the Hon'ble Apex Court in Lal Kamlendra Pratap Singh Versus State of U.P. on 23.3.2009 in Criminal Appeal No. 538 of 2009.
With this direction, this petition is finally disposed of. Order Date :- 27.1.2010 N.A.