Md. Sonu v. The State Of Bihar

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No.4747 of 2018 Arising Out of PS. Case No.-12 Year-2018 Thana- GAYA RAIL P.S. District- Gaya ====================================================== Md. Sonu Son of Md. Shahid Resident of Mohalla-West Sarai Ward No.14,P.S. Kotwali,Distt Gayat.- ... ... Appellant/s

Versus

The State Of Bihar ... ... Respondent/s ====================================================== Appearance :

For the Appellant/s :

Mr. Sudhir Kumar Sinha For the Respondent/s :

Smt. Abha Singh ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 30-01-2019 Heard learned counsel for the appellant as well as learned Additional Public Prosecutor.

Instant memo of appeal has been preferred at the end of the appellant against an order dated 17.09.2018 passed by the Additional Sessions Judge-IInd, Gaya in Cr. Appeal No.75 of 2018/30 of 2018, whereby and whereunder prayer for bail in terms of Section 389(1) of the Cr.P.C. has been rejected. Gone through the order impugned. The operative portion of the order reads as follows:- "From perusal of the F.I.R. and case diary. It appears that petitioner was apprehended by local passengers on the spot and the bag. Which was stolen from the informant was recovered from possession of the petitioner. Besides that the petitioner is involved into more cases. Bearing Kotwali P. S. Case No.383 of 2013 for offence u/s 302 and 201 of I.P.C.

Patna High Court CR. APP (SJ) No.4747 of 2018(3) dt.30-01-2019 2/2 and Kotwali P.S. Case No.470/2015 for the offences under Section 379 and 411 of I.P.C.

Considering the facts and circumstances of the case, I am not inclined to enlarge the petitioner on bail. The prayer for bail is accordingly rejected."

Mode of consideration of bail under Section 389(1) of the Cr.P.C. that means to say, post conviction stage is different from mode of consideration of prayer for bail at pre-conviction stage in accordance with Section 439 Cr.P.C. At post conviction stage, the materials available on the record so produced during course of trial is to be seen in consonance with the finding recorded by the convicting Court. From perusal of the order impugned, it is evident that learned Appellate Court had not considered the prayer in accordance with Section 389(1) of the Cr.P.C..

That being so, the order impugned is set aside. Appeal is allowed. The matter is remitted back to the learned Appellate Court to consider afresh in accordance with Section 389(1) of the Cr.P.C.

(Aditya Kumar Trivedi, J) vikash/- U T