Deepak Khosla vs State Of Nct Of Delhi & Ors. on 28 February, 2017

2. I have heard the petitioner and have examined the file.
3. The petitioner urged to declare the impugned order dated
03.01.2017 whereby bail was granted to respondents without moving any
written application by them to be a nullity in law. He further urged that

Crl.M.C.663/2017 Page 1 of 10
order dated 01.02.2017 can’t be sustained as the learned Addl. Sessions
Judge was of erroneous view that only High Court had jurisdiction to cancel
bail under Section 439(2) Cr.P.C.
4. Respondents were admittedly summoned to face trial for
commission of bailable offences under Sections 499/500 IPC. The
petitioner urged that under Section 436 Cr.P.C. grant of bail in bailable
offences is not mandatory but directory; it is not a matter of undeniable right
but is a matter of judicial discretion. Adjudicating of a prayer for bail not a
‘ministerial’ act but requires application of mind. He further urged that in
bailable offences ordinarily grant of bail though a matter of right is subject
to caveat of FTTR Rule i.e. the accused shall not flee; shall not temper; shall
not threaten and shall not repeat. In the instant case, the petitioner had
shown material before the Trial Court that by hosting the very defamatory
article on their website even on the day of grant of bail, the respondents
were repeating the ‘act’ for which they were summoned to face trial. Since
the respondents did not take steps to undo the ‘continuing act’ of defamation
after grant of bail, second complaint regarding the said article carried on the
internet was filed on 27.01.2017 and cognizance has been taken on
28.01.2017 by the Court. The respondents did not demonstrate if they were
prepared to give bail; no written application or submissions were made in
that regard. Order dated 03.01.2017 is nullity in law as the Magistrate had
no jurisdiction to forcibly thrust a bail order even when it was not asked for.

Source: Indian Kanoon

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