IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25167 of 2009 NAGMANI YADAV @ GOHAN YADAV, SON OF LATE HARI CHARAN YADAV, RESIDENT OF VILLAGE- KHARAGBARA, P.S.- RAMGARH CHOWK, DISTRICT- LAKHISARAI. ----- PETITIONER Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 14.9.2009 The petitioner has challenged the order dated 26.3.2009. The facts are that the petitioner was granted bail on 7.5.2002 by the Additional Sessions Judge, V, Munger. After having been granted bail, he has not executed the bail bond and ran away from police custody without taking the benefit of the order dated 7.5.2002 much less fulfilling the conditions for grant of bail. Subsequently, the petitioner was arrested in an another case. After being arrested he has now executed the bail bond with respect to the bail granted on 7.5.2002 which the Court has refused to entertain. The Court below has rightly rejected the bail bond executed on behalf of the petitioner on the ground that due to the previous conduct of the petitioner he would not be entitled to execute the bail bond. Bail is granted under Section 438 of the Code of Criminal Procedure subject to the 2 certain conditions. Section 441 of the Code of Criminal Procedure deals with the manner in which bail bond of the accused is to be executed before he can be released on bail. Section 442 of the Code of Criminal Procedure specifically states that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and when he is in jail the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him. The provision of the Code of Criminal Procedure envisages that the petitioner who has been granted bail has to furnish bail bonds before he can be released on bail. In the present case the order of bail became a nullity as the petitioner did not furnish the bail bond at the stage when he was granted bail rather he ran away from police custody. Learned counsel for the petitioner submits that the Court below cannot refuse to release the petitioner on bail without cancelling the bail of the petitioner under 3 Sections 487(5) and 439(2) of the Code of Criminal Procedure. Sections 437 and 439 empower the High Court or the Court of Sessions to release a person on bail of any non-bailable offence after his arrest or detention. Section 435(5) empowers the Court which has released a person on bail under Section 437(1) & (2) of the Code if the Court thinks it necessary to direct such person to be arrested and commit him to custody. Similarly sub Section 2 of Section 439 provides that a High Court or Court of Sessions may direct that any person released on bail under Chapter XXXI of the Code of Criminal Procedure be arrested and commit him to custody. The order granting bail is subject to execution of bond with or without sureties for the purpose of ensuring that he shall be present as required under the Code to fact the trial. The manner in which the bond and sureties are to be executed is governed by the provisions of Section 441 of the Code of Criminal Procedure. Section 442 is the consequence which follows the order granting 4 bail to a person. Section 442 reads as follows: 442. Discharge from custody.-(1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and when he is in jail the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and such officer on receipt of the orders shall release him. (2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed. The discussion above leads to following conclusion. A person who has been ordered to be released on bail but who has not executed the bail bond as required by sub section 1 of Section 411 cannot be said to be a person released as contemplated by Section 437(5) read with this Section. Reverting to facts of this case, the petitioner was granted bail, but he did not execute a bond or surety as envisaged under Chapter XXXI of the Code, rather escaped from custody, cannot be said to be released on bail, thus he cannot insist that the bond and surety be accepted in pursuance of the bail order granted to him earlier. However, there may be an instance that there may be a person who is 5 granted bail in one case, but chooses not to execute a bail bond in the case until he is granted bail in the other cases pending against him, subsequently after grant of bail in the other cases then such a person executes a bail bond in each such case in which he is granted bail. The Court, in the above mentioned circumstance cannot refuse to accept his bail bond and surety, for the purpose of releasing him on bail on the ground of delay or any other ground, unless he is wanted or remanded in some third case. Learned counsel for the petitioner has referred to a judgment in the case of Raghubir Singh and others vs. State of Bihar, reported in AIR 1987 Supreme Court 149. In this case the apex court has discussed the proviso of section 167(2) viz-a-viz sections 437(5) and 439(2) of the Code of Criminal Procedure. The Supreme court has held that an order for release on bail under proviso to section 167(2) is not defeated by lapse of time, filing of charge sheet or by remand in custody under section 309(2) of the Code. It can only be cancelled under sections 439(5) or 439(2). In 6 the present case the petitioner was granted bail but instead of taking the benefit of the bail granted, he escaped from police custody and, therefore, the order of bail did not come into effect and cannot be compared to the grant of bail under section 167(2) of the Code of Criminal Procedure. Reference has also been made to a decision of the Supreme Court in the case of Aslam Babalal Dessa Vs. State of Maharashtra reported in (1992) 4 SCC 272). The question before the Apex Court was whether bail granted under sub Section (2) of Section 167 of the Code of Criminal Procedure for failure to complete the investigation within the period prescribed thereunder could be cancelled on mere presentation of the charge sheet at any time. Thereafter the Apex Court has held that mere presentation of charge sheet is not a sufficient ground, strong grounds must exist for cancellation of bail once a person has been released on bail. The Supreme Court held that there were good and strong grounds for cancellation of the bail. The facts of the case of Aslam Babalal Desai is very different to the facts of this case. 7 In the circumstances, it cannot be said that after a gap of seven years the Court would be bound to accept the bail bond filed by the petitioner specially as he was not in police custody in connection with Lakhisarai P.S. Case No. 247 of 1994. In the facts therefore, I find that the order passed on 26.3.2009 not accepting the bail bond filed by the petitioner justifies in view of the provisions of the Code of Criminal Procedure. This application is thus dismissed. Sanjay/A.F.R. (Sheema Ali Khan, J.)