Patna High Court
Kailash Kant Jha And Ors. vs State Of Bihar on 28 March, 1978
Equivalent citations: 1978(26)BLJR839
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This is an application for bail, on behalf of two petitioners, who are accused for offences under Sections 302, 149, 148 and 324 of the Indian Penal Code. The occurrence alleged to have been taken place on 12th June, 1977 at about 7.30 A. M. in which one Ram Bilash Choudhary was assaulted by these petitioners along with some other. The allegation is that petitioner No. 1 gave a Barchi blow on the left side of the abdomen of the victim whereas petitioner No. 2 gave a Barchi blow on the left side of the chest of the deceased. The other accused persons, who are on bail alleged to have been given lathi blows when the victim after having received the Barchi blows was trying to run away.
2. First Information Report was lodged on the same day at about 11.30 A. M. From the order-sheet of the learned Chief Judicial Magistrate, it appears that these petitioners were taken into custody on 28th June, 1977. The investigation proceeded and a charge-sheet dated 16th July, 1977 was submitted by the Investigating Officer, which was received by the learned Chief Judicial Magistrate on 24th July, 1977, A petition for bail was filed on behalf of these two petitioners before the learned Chief Judicial Magistrate, which was taken up for consideration on 27th of August, 1977. Several points were urged in support of that application including that the charge-sheet had not been submitted within sixty days from the date when the petitioners were taken in custody and as such they were entitled to be released on bail in accordance with proviso to Sub-section (2) of Section 167 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code). It was also submitted that after submission of charge-sheet no cognizance had been taken and as such the remand of the petitioners was without any authority in law. This argument was advanced in view of Sub-section (2) of Section 309 of the Code which authorizes a Magistrate to remand an accused only after taking cognizance of an offence or on commencement of trial. It was urged on behalf of the petitioners that as no cognizance had been taken, they were entitled to be released on bail. The learned Chief Judicial Magistrate after considering the provision of Sub-section (2) of Section 167 and Sub-section (2) of Section 309 directed the petitioners to be released on bail by his order dated the 27th August, 1977.
3. It appears that cognizance on the basis of the charge-sheet was taken on 1st of September, 1977. On 12th of September 1977 the learned Magistrate perused the materials on record and passed an order of commitment in accordance with the requirement of Section 209 of the Code, committing these petitioners along with others to the court of Session. While committing the accused persons to the Court of session he also remanded these petitioners along with others to custody by his order dated the 12th September, 1977. Thereafter a prayer for bail was made before the learned Sessions Judge, Darbhanga, who rejected the prayer of bail made on behalf of the petitioner observing that they had been enlarged on bail in view of the provision of Sub-section (2) of Section 167 and Sub-section (2) of Section 309 and their applications for bail on merit having bsen rejected earlier, now after the submission of the charge-sheet and passing of the commitment order these petitioners could be taken in custody.
4. Being aggrieved by the said order passed by the learned Sessions Judge the present application for bail has been filed on behalf of the petitioners. The Learned Counsel appearing for the petitioner submitted that the view taken by the learned Sessions Judge for rejecting the bail application of the petitioners was erroneous in law. In other words, according to Learned Counsel once an accused person is released on bail even in accordance with the proviso of Sub-section (2) of Section 167 of the Code, he cannot be committed to custody unless the question of cancellation of his bail is considered in accordance with Sub-section (5) of Section 437 of the Code. Learned Counsel further submitted that mere submission of charge sheet cannot be a ground for cancellation of bail. In support of this contention reliance was placed on the recent judgment of the Supreme Court in the case of Bashir and Ors. v. State of Haryana In that case, it was observed:
As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released under Section 167(2), the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody.
In the case, which was being considered in the aforesaid Judgment of the Supreme Court, the bail of the accused concerned was cancelled merely because later a charge-sheet had been submitted and in that context the aforesaid observation was made. I may, however, hasten to add that in that very judgment in the later part of that very paragraph it was observed:
The court before directing the arrest of the accused and committing them to custody should consider it necessary to do so under Section 437(5). This may be done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody.
Reading the aforesaid observations together, it is clear that the bail of an accused person, who has been directed to he released in accordance with Sub-section (2) of Section 167 of the Code, should not be cancelled merely because later a charge sheet has heen received. The court has to consider the question of the cancellation of the bail on the basis of the materials on record. The charge-sheet along with police papers can be basis for such cancellation if the court concerned is satisfied on perusal thereof, that the accused concerned has committed a non-bailable offence and it is necessary that he should be committed to custody. Any such order has to be passed after applying the judicial mind and after looking into the materials which have been collected during investigation,
5. In the facts and circumstances of the present case, I have not been able to appreciate as to how the benefit of Sub-section (2) of Section 167 was given to the petitioners. It appears that these petitioners were taken in custody on 28th June, 1977 : the charge-sheet was received on 24th of July, 1977, i. e., within sixty days from the date when these petitioners were taken in custody and as such there was no question of releasing them on bail in accordance with Sub-section (2) of Section 167. Any way, I am not concerned with that order. The only question which is to be examined is as to whether the learned Chief Judicial Magistrate or the learned Sessions Judge has ccosidered the question of the cancellation of the bail of the petitioners as required fay law.
6. In the instant case the bail of petitioners has been cancelled not because of the submission of the charge sheet, The petitioners have been remanded to custody after passing an order of commitment in accordance with Section 209 of the Code. Clause (b) of Section 209 vests the power in the Magistrate passing an order of commitment, to remand the accused to custody during and until the conclusion of the trial. This power is, of course, subject to the provisions of the Code relating to bail. But, order of commitment is passed by the Magistrate only when it appears on the basis of materials produced before him, including the materials collected during the investigation, that the accused concerned has committed a non-bailable offence which is triable exclusively by court of session. Any such order of commitment is passed after application of the judicial mind to the facts and, circumstances of the case. In such a situation, a Magistrate after passing an order of commitment can certainly pass an order remanding the accused to custody in ...accordance with Clause (b) of Section 209 of the Code and the fact that the accused concerned was on bail in accordance with Sub-section (2) of Section 167 of the Code or that he had been released because the statutory period of 60 days had expired and no cognizance had been taken, will not be bar to exercise of the power of remanding him to custody, after passing an order of commitment.
7. Learned Counsel then submitted that the petitioners should be released on bail, after taking into consideration the merits of the case. In that connection, Learned Counsel has drawn my attention to the nature of two injuries, which are alleged to have been caused by these two petitioners. The doctor, who held the post-mortem examination has given the details of the two injuries alleged to have been caused by the petitioners. About the cause of his death he has simply mentioned that it was due to hemorrhage and shock. He has not stated specifically that the death was as a result of the aforesaid two injuries, caused by these two petitioners. This aspect of the matter has to be considered at the trial stage when the doctor will be examined and it can be clarified by him. But for the purpose of bail, I am inclined to give benefit to these two petitioners. Accordingly, I direct them to be released on furnishing bail bonds of Rs. 5,000/- (five thousand) each with two sureties of the like amount each to the satisfaction of the Sessions Judge, Darbhanga.