Himachal Pradesh High Court
Brij Bala vs State Of Himachal Pradesh on 14 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP Nos. 737 of 2019 in Cr.MP(M) No. 1116 of 2017
.
Cr.MP Nos. 739 of 2019 in Cr.MP(M) No. 1029 of 2017
Cr.MP Nos. 741 of 2019 in Cr.MP(M) No. 1030 of 2017
Cr.MP Nos. 743 of 2019 in Cr.MP(M) No. 1031 of 2017
Decided on: 14.6.2019
__________________________________________________________________
1. Cr.MP Nos. 737 of 2019 in Cr.MP(M) No. 1116 of 2017
Brij Bala ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
__________________________________________________________________
2. Cr.MP Nos. 739 of 2019 in Cr.MP(M) No. 1029 of 2017
Ashok Kumar ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
3. Cr.MP Nos. 741 of 2019 in Cr.MP(M) No. 1030 of 2017
Ashwani Kumar ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
__________________________________________________________________
4. Cr.MP Nos. 743 of 2019 in Cr.MP(M) No. 1031 of 2017
Meena Devi ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
__________________________________________________________________
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 Yes.
For the Petitioner(s) :
Mr. Ajay Sipahiya, Advocate.
For the Respondent(s). : Mr. Ashwani Sharma and Mr. Sanjeev
Sood, Additional Advocate Generals
with Mr. Sunny Dhatwalia, Assistant
Advocate General.
________________________________________________________________
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
Sandeep Sharma, Judge (oral):
The question which arises for consideration in the above .
captioned cases is "whether or not, a person, who has been already granted anticipatory bail under Section 438 Cr.PC, is required to apply for fresh bail at the stage of committal by the magistrate?"
2. Before adverting to the factual matrix of the case, this Court deems it fit to take note of Section 209 Cr.PC and various pronouncements of the Hon'ble Supreme Court as well as High Courts, dealing with issue at hand, which read as follows:-
209. Commitment of case to Court of Session when offence is triable exclusively by it. - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall - [(a) Commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]. (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial. (c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session.
3. Bare reading of aforesaid provision of law clearly reveals that as per Section 209 Cr.P.C, it must 'appear' to the Magistrate that an offence is exclusively triable by a Court of Sessions and he has to commit the case to the Court of Sessions. When it does not disclose an offence ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 3 exclusively triable by a Court of Sessions, the Magistrate has no jurisdiction or occasion to commit the case to the Court of Sessions. Even during .
enquiry or trial relating to some other offence, if it appears to the Magistrate that there is an offence exclusively triable by a Court of Sessions, the Magistrate has to commit the case to the Court of Sessions under Section 209 Cr.P.C. In the matter of committal to the Court of Sessions, there is a vast difference between the New Code of 1973 and the Old Code of 1898. Under the Old Code, the Magistrate holds a preliminary enquiry and arrives at a conclusion that there is no offence exclusively triable by a Court of Sessions, it can discharge the accused from the case, but, if an offence is exclusively triable by a Court of Sessions, the Magistrate has to forward the accused to the Court of Sessions for trial, whereas as per new Code, if it appears to the Magistrate that there is an offence exclusively triable by the Court of Sessions, it shall commit the case to the Court of Sessions, meaning thereby, under the Old Code, Magistrate forwards the accused, whereas under the New Code, he forwards the case. Since under the old Code, the accused is forwarded to the Court of Sessions, there is no provision with regard to bail, but definitely, under new Code, since the case is committed to the Court of Sessions, there is a provision relating to bail (See Section 209(b) Cr.P.C). As per Section 209 (b) Cr.P.C, the committal of the case is ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 4 "..subject to the provisions of the Code relating to bail.." This general provision is applicable to both type of Session cases, whether instituted on .
a police report or upon a private complaint.
4. When after completion of investigation, final report is filed by the Investigation Officer under Section 173 Cr.P.C., and the case is ripe for committal, question arises as to whether the accused is to be committed to custody, especially when accused is already on bail or whether he/she is required to seek fresh bail at the time of the committal.
5. At this stage, question needs consideration is whether at the time of committal of the case, the accused is required to obtain bail from the Sessions Court or from committal magistrate, who is to commit the case. Needless to say, Sessions Court in fit cases, during investigation, can grant bail to the accused.
6. In case titled Kewal Krishan v. Suraj Bhan and Anr., AIR 1980 SC 1780, similar question arose while committing case to the court of Sessions whether bail already granted to the accused is to be cancelled or accused is required to file fresh bail application. Hon'ble Apex Court in para-10 of the judgment (supra) observed as under:-
10. The proposition that in cases instituted on complaint in regard to an offence exclusively triable by the Court of Session, the standard for ascertaining whether or not the evidence collected in the preliminary inquiry discloses sufficient grounds for proceeding against the accused is lower than the one to be adopted at the stage of framing charges in a warrant case triable by the Magistrate, is now ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 5 evident from the scheme of the new Code of 1973. Section 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is .
instituted on a criminal complaint or a police report. Section 209 says: "When a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit the case to the Court of Session". If the Committing Magistrate thinks that it is not necessary- to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words "subject to the provisions of this Code relating to bail" occurring in Clause (b) of Section 209.
Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled. Section 227 of the Code of 1973 has made another beneficent provision to save the accused from prolonged harassment which is a necessary concomitant of a protracted trial. This Section provides that if upon considering the record of the case, the documents submitted with it and the submissions of the accused and the prosecution, the Judge is not convinced that there is sufficient ground for proceeding against the accused, he has to discharge the accused under this Section and record his reasons for so doing.
7. Subsequently, Hon'ble Apex Court in Free Legal Aid Committee v. State of Bihar, held that under Section 209 (b) Cr.PC, magistrate has discretion to release the accused on bail "during and until completion of trial" even in cases, where the offences are triable by the Court of Session, but however with a view to avoid hardship to an accused, Magistrate while releasing the accused on bail may require execution of bond with or without surety binding the accused not only to appear as and when required before him, but also to appear when ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 6 called upon in the Court of Sessions. Relevent para of the aforesaid judgment reads as under:
.
"2. The first interim direction sought by Mr. Sibal is that when an accused is released on bail, he should not be required to appear in court until the charge-sheet is filed and process issued by the Court. Mr. Sibal states that today what happens in many of the Magistrates' Courts in Bihar is that the accused is required to appear before the Court every fourteen days even though he is on bail and this causes considerable harassment to the accused. He submits and in our opinion rightly that this is not required by law, and Mr. K. G. Bhagat, learned advocate appearing on behalf of the State of Bihar, fairly concedes that law does not require that an accused on bail need appear before the Court before the charge-sheet is filed and process issued by the Court. We, therefore, direct that whenever an accused is released on bail he need not be required to appear before the Court until the charge-sheet is filed and the process is issued by the Court. There is also another difficulty pointed out by Mr. Sibal and it is that in cases triable by the Court of Session, the practice followed is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the, result that when the case is committed to the Court of Session, he is rearrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. This situation can however easily be avoided because there is a provision in Section 441 Sub-section (3) of the Cr.P.C. under which bail can be granted to an accused so as to bind him to appear before the Court of Session, in which event, on committal, he would not have to be re-arrested and brought before the Court of Session. It is also clear from Section 209, Clause (b) of the Cr.P.C. that the Magistrate has discretion to release the accused on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Session. We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also to appear when ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 7 called upon in the Court of Session. Mr. K. G. Bhagat on behalf of the State of Bihar also agrees that this is a procedure which can be legitimately followed by the Magistrates. We hope and trust that hereafter this .
procedure will be followed by the Magistrates unless there are any particular reasons for not doing so."
8. The Hon'ble Apex Court in cases titled Gurbaksh Singh Sibbia and Ors. v. State of Punjab (1980) 2 SCC 565 and Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors (2011) 1 SCC 694, has categorically held that anticipatory bail granted by the Court should ordinarily continue till conclusion of the trial. Decision in the aforesaid Mhetre 's case was further followed in Bhadresh Bipinbhai Sheth v. State of Gujarat and Anr (2016) 1 SCC 152.
9. Subsequent to passing of aforesaid judgments, Hon'ble Apex Court in case titled Satpal Singh v. State of Punjab decided on 27.3.2018 in Criminal Appeal No. 462 of 2018, held that protection, if any, granted under Section 438 Cr.PC, is available to the accused only till the court summons the accused based on the charge sheet and on such appearance, accused is required to seek regular bail under Section 439 Cr.PC. Merely because an accused is under protection of anticipatory bail granted under Section 438 Cr.PC, it does not mean that he is automatically entitled to regular bail under Section 439 Cr.PC. Hon'ble Apex Court in aforesaid judgment observed that satisfaction of the Court ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 8 for granting protection under Section 438 Cr.PC., is different from Section 439 Cr.PC., while considering regular bail.
.
10. At this stage, it would be relevant to take note of judgment passed by the Hon'ble Apex court in Siddharam's case supra, wherein two judges Bench took a view that decision in Salauddin' case, K.L. Verma v. State and Anr., 1998 (9) SCC 348, Sunita Devi v. State of Bihar 2005 (1) SCC 608, Adri Dharan Das v. State of W.B. (2005) 4 SCC 303, is per-
in curium. In the said judgment, the Hon'ble Supreme Court ruled that in view of the clear declaration of law laid down by the Constitution Bench in Sibbia's case, it would not be proper to limit the life of the anticipatory bail, relevant paras whereof are as under:-
"123. In view of the clear declaration of law laid down by the Constitution Bench in Sibbia case, it would not be proper to limit the life of anticipatory bail. When the Court observed that the anticipatory bail is for limited duration and thereafter the accused should apply to the regular court for bail, that means the life of Section 438 CrPC would come to an end after that limited duration. This limitation has not been envisaged by the legislature. The Constitution Bench in Sibbia case clearly observed that it is not necessary to rewrite Section 438 CrPC. Therefore, in view of the clear declaration of the law by the Constitution Bench, the life of the order under Section 438 CrPC granting bail cannot be curtailed.
124. The ratio of the judgment of the Constitution Bench in Sibbia case perhaps was not brought to the notice of Their Lordships who had decided the cases of Salauddin Abdulsamad Shaikh v. State of Maharashtra, K.L. Verma v. State, Adri Dharan Das v. State of W.B. and Sunita Devi v. State of Bihar.::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 9
125. In Naresh Kumar Yadav v. Ravindra Kumar a two- Judge Bench of this Court observed: (SCC p. 632d) "the power exercisable under Section 438 CrPC is somewhat extraordinary in character and it [should be exercised] only .
in exceptional cases." This approach is contrary to the legislative intention and the Constitution Bench's decision in Sibbia case.
xxx xxx xxx xxx
127. The judgments and orders mentioned in paras 124 and 125 are clearly contrary to the law declared by the Constitution Bench of this Court in Sibbia case1. These judgments and orders are also contrary to the legislative intention. The Court would not be justified in rewriting Section 438 CrPC.
xxx xxx xxx xxx
138. The analysis of English and Indian law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a coequal strength is also binding on a Bench of Judges of coequal strength. In the instant case, judgments mentioned in paras 124 and 125 are by two or three Judges of this Court. These judgments have clearly ignored the Constitution Bench judgment of this Court in Sibbia case which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 CrPC. Consequently, the judgments mentioned in paras 124 and 125 of this judgment are per incuriam."
11. Recently Hon'ble Apex Court in judgment titled Sushila Aggarwal and Ors v. State (NCT of Delhi) and Anr, passed in SLP (Criminal) Nos. 7281-7282 of 2017 , having noticed conflicting decision on the point in question referred the matter to larger Bench framing following questions:
"(1) Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 10 so as to enable the person to surrender before the Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the .
court."
12. Judgment in Gurbaksh 's case (supra) has been admittedly rendered by a five judges Bench and as such, it still continues to hold the field till the time it is modified/set-aside by a larger Bench. Similar question also arose for the consideration of the High Court of Delhi in case titled Court on its own motion v. State, in CRL. REF. 1/2018. It would be apt to reproduce para No. 38 of the same as under:-
"38. Question (C) referred by the learned CMM is as under:
C) Whether the effect of anticipatory bail application, be it allowed or rejected, stands ceased with the filing of charge-sheet so as to consider the regular bail application without looking into the anticipatory bail application filed during investigation?
This question of law was considered by the Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2 SCC 565. In Siddharam Satlingappa Mhetre v. State of Maharshtra, (2011) 1 SCC 694, a two judge bench of the Supreme Court took the view that the Constitution Bench in its judgment rendered in Gurbaksh Singh Sibbia (supra) has held that anticipatory bail granted by the Court should ordinarily continue till the trial of the case. The decision in Siddharam Satlingappa Mhetre (supra) was followed in Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152. However, there is another line of judgments, which advance the view that the orders of anticipatory bail should be of a limited duration. It has been so held in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667. The view taken in Salauddin Abdulsamad Shaikh (supra) has been followed in several subsequent judgments such as K.L. Verma v. State, (1998) 9 SCC 348; Sunita Devi v. State of Bihar, (2005) 1 SCC 608, and; Adri Dharan Das v. State of West Bengal, (2005) 4 SCC 303. The correctness of K.L. Verma (supra) was, however, doubted in Nirmal Jeet Kaur v. State, (2004) ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 11 7 SCC 558. HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679 is yet another decision, wherein the view taken by the Supreme Court is that the protection under Section 438 Cr PC is only till the investigation is complete and charge .
sheet is filed. The same view has been adopted in Satpal v.
State of Punjab, (2018) 3 SCC 813.
The aforesaid conflicting positions were noticed by the Supreme Court, recently, in Sushila Aggarwal v. State (NCT of Delhi) & Anr., (2018) 7 SCC 731. The Supreme Court observed that on a reading of Gurbaksh Singh Sibbia (supra), it appears that there are indications that anticipatory bail may be for a limited period. In the light of the conflicting views of different bench of the Supreme Court of equal strength, the Supreme Court in Sushila Aggarwal (supra) has referred the following questions for consideration by a larger bench of the Supreme Court, so that they are authoritatively settled in clear and unambiguous terms:
"(1) Whether the protection granted to a person Under Section 438 Code of Criminal Procedure should be limited to a fixed period so as to enable the person to surrender before the Trial Court and seek regular bail.
(2) Whether the life of an anticipatory bail should end at the time and stage when the Accused is summoned by the Court".
In the light of the aforesaid position, since the issue is still pending consideration before the larger bench of the Supreme Court, we do not consider it appropriate to delve into this question of law referred for our consideration."
13. In case titled D. Thiagarajan v. State, Madras High Court in its judgment dated 13.3.2014, dealt with same question and ruled as under:-
13. In the Sessions Court in fit cases, during the investigation stage, Sessions Court grants bails to the accused. When after completion of investigation, Final Report is filed by the Investigation Officer under Section 173 Cr.P.C., and the case is ripe for committal because of Section 209 (b) Cr.P.C question arises as to whether the accused has to be committed to custody, whether accused who is on bail, again shall seek fresh bail also called 'committal bail'.
There are many occasions even prior to the committal, the accused may be on bail. Whether before committal of the case, the accused has to obtain bail from the Sessions Court or from this Court looms large here.
::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 1214. In Kewal Krishnan V. Suraj Bhan, (AIR1980S.C.1780) in view of Section 209(b) Cr.P.C question arose whether while committing the case to the Court of Sessions bail already granted to the accused has to be cancelled. The Hon'ble .
Apex Court answered as under:- S.209 of the Code of 1973 dispenses with inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. If the committing Magistrate thinks that it is not necessary to commit the accused, who may be on bail to custody, he may not cancel the bail. This has been made clear by the words, 'subject to the provisions of this Code relating to bail' occurring in Cl(b) of S.209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled.".
15. In Subbiah @ Raju Gounder and others (1981 L.W. Crl.
356) when similar question arose before this Court a learned Single Judge referred to the phrase ".subject to the provisions of this code relating to bail' appearing in S.209(b) Cr.P.C and SURAJBHAN (supra) and held that if the accused is already on bail, his bail should not be arbitrarily cancelled.
16. In (1) Thomas (2) Pal Pandi (3) Bairavamoorthy (4) Swami (1982 L.W. (Crl.) 88), with regard to Section 209(a) Cr.P.C, a learned Single Judge of this Court held that while committing the case to the Court of Sessions bail need not be cancelled instead the learned Magistrate shall bound over the accused to appear before the Court of Sessions.
17. In Free Legal Aid Committee Vs. State of Bihar (AIR1982S.C.1463), when similar question arose the Hon'ble Apex court held as under:- ".In cases triable by the Court of Session, the practice followed by the Magistrates is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Sessions he is re-arrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. It would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be binding the accused not only to appear but also to ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 13 appear when called upon in the Court of Session. A Magistrate should normally follow this procedure unless there are any particular reasons for not doing so.
.
18. In Annamalai and Others Vs. Inspector of C.B (CID), Velllore (1985 L.W.(Crl.) 334, it was held that when the accused in a preliminary Registered Case sought grant of bail in the event of committal of the case to the Court of Sessions, a learned Single Judge of this Court referred to AIR1982S.C1463and directed the learned Magistrate to release the accused on bail as and when the order of committal is made.
19. In NKKP RAJA Vs. STATE rep by D.S.P, CBCID, Coimbatore Unit ( (2010) 2 MLJ (Crl) 700), A8 on receipt of summons in PRC No.35 of 2009 appeared before the Committal Court. Subsequently, the case was posted for committal. At that stage he approached this Court for anticipatory bail. A learned Single Judge of this Court reviewed the entire case law governing the situation arising under Section 209(a) Cr.P.C, referred to the Constitution Bench decision of the Hon'ble Apex Court in Gurbaksh Singh Sibbia and others Vs. State of Punjab 1980(2) SCC565and held that even if the summon has been received from the committal Court the accused involved in a sessions case with reference to Section 209(b) Cr.P.C will have apprehension and this Court or Sessions Court if satisfied can grant anticipatory bail to him. In the said case the learned Judge directed the Magistrate to release the accused on bail and also bound over him to appear before the Sessions Court for trial.
20. This is the position with regard to a Sessions case instituted on a police report. Though same position is involved in a Sessions case instituted upon a private complaint but there is some difference. As regards committing of the case to the Court of Sessions there is no distinction as between both type of cases viz., police case and private Complaint case (See Section 209 Cr.P.C).
21. A private complaint case is filed under 200 Cr.P.C by a private individual or by a Government Official. If it is for a Sessions Offence, conducting of preliminary enquiry, namely, examining of all the witnesses is compulsory (See Section 202 Cr.P.C). Upon taking cognizance under Section 190(i)(a) Cr.P.C, the learned Magistrate issues summons to the accused (See Section 204 Cr.P.C). In such a case, there ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 14 will be no arrest, no bail. There will be appearance of the accused in response to the summons issued by the Court. That is what exactly the situation before us. The case has reached the committal stage. At this juncture, the accused .
seeks anticipatory bail.
22. In this case, a complaint of custodial death has engaged the attention of the Government. The Government instituted statutory enquiry. Based on the enquiry report the Government passed orders directing filing of a complaint as against the petitioner and others. Accordingly, a complaint has been filed before the learned Judicial Magistrate-I, Thiruvannamalai complaining of commission of offence under Section 302 r/w. 34 IPC.
23. Though prior enquiry has been conducted by the Government Officials, complaint filed by a Government Official will also be a case coming under private complaint procedure (See Sections 200, 202 and 204 of Cr.P.C.).
24. In the meanwhile, two of the accused have passed away, Charges against them abated. When the occurrence took place petitioner was an Inspector of Police. By the time the complaint came to this level petitioner retired as a DSP. Now, he is 72 years old. According to the petitioner, in view of Section 209(a) Cr.P.C, when the case is coming up for committal, he apprehends arrest by court and he may be remanded to judicial custody. Thus, he seeks anticipatory bail.
25. As we have already seen that if summons were issued to the accused to appear in a Sessions case, and the case is coming up for committal, then there would be apprehension of arrest in the mind of the accused. In such circumstances, he can approach the Sessions Court or this Court and the Magistrate may be directed to ask the accused to execute a bond ensuring his appearance before the Court of Sessions.
26. Now, in this case, the accused is being proceeded with for a custodial death. He is the only person now, in existence. Others have gone to the other world and followed the deceased. The sole accused viz., the petitioner received the summons from the Committal Court. He is regularly attending the Court. He is an elderly man. He has fixed place of residence. He has roots in the ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 15 society. In such circumstances, referring to Section 209(b) Cr.P.C, the learned Magistrate need not commit him to custody to stand for trial before the Court of Sessions.
.
14. Now this Court shall proceed to consider the prayer made in the instant petition in light of the aforesaid provisions of law as well as judgment rendered by the Hon'ble Apex court as well other constitution courts.
15. FIR No. 96/17 dated 26.7.2017 under Sections 306, 504, 506 and 34 of the IPC, came to be registered at PS Barotiwala, District Solan, against the petitioners. Apprehending arrest, all the bail petitioners approached this Court by way of Cr.MP(M) No. 1029, 1030, 1031 and 1116 of 2017. This Court vide order dated 28.12.2017, disposed of above mentioned bail petitions by way of a common order. Close scrutiny of aforesaid order (Annexure P-1), reveals that statement came to be made by the learned Deputy Advocate General that investigation in the case is complete and since bail petitioners have joined the investigation, their custodial interrogation is not required. After completion of investigation, challan stands filed in the court of law and the prayer made in the petitions at hand on behalf of the petitioners is that since they stand already enlarged on anticipatory bail in respect of FIR No 96/17, dated 26.7.2017, they be not compelled to apply for fresh bail by the committal court at the time of committing the case to the Court of Sessions.
Petitioners' contention is that since they stand enlarged on bail, committal ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 16 court while committing the case to the court of Sessions, may get fresh bonds executed securing their presence before the Court of Sessions.
.
16. It is quite apparent from the bare perusal of Section 209 (b) Cr.PC that Magistrate has discretion to release the accused on bail even in those cases, where offence(s) are triable by the Court of Sessions, but same time, he can also remand the accused to the custody. Though, discretion is with the committal court to grant bail at this stage, but very purpose and object of such provision is to ensure presence of the accused before the sessions Court, who is ultimately competent to try the offence. Moreover, careful perusal of Section 209 (b) Cr.PC, itself reveals that committal court while passing remand order, if any, shall consider the bail, if any, filed by the accused under the provisions contained in the Code relating to the bail.
17. It is not in dispute that while passing remand order or granting bail at the committal stage, committal court is required to look into the material placed before it, but same time, careful perusal of Section 209 (b) Cr.PC nowhere suggests that in every case, Magistrate at the time of committal would call upon the accused to file fresh bail application, especially when he/she already stands enlarged on anticipatory bail. If Magistrate solely with a view to ensure presence of accused in the Court of Session calls upon the accused to apply for fresh ::: Downloaded on - 28/09/2019 23:28:48 :::HCHP 17 bail, that would certainly amount considerable inconvenience to the accused without any corresponding advantage so far as the .
administration of criminal justice is concerned. In that eventuality magistrate while committing the case to the court of session can call upon the accused to furnish fresh bonds undertaking therein to cause his/her presence before the sessions court during the trial.
18. Consequently, in view of facts and circumstances referred herein above as well as law taken into consideration it is ordered that committal court while committing the case under Section 209 (b) Cr.PC to the Sessions Court, may not commit the accused to custody to stand for trial before the court of sessions, rather it may require them to furnish fresh bonds undertaking therein to remain present in the court of session during trial. Accordingly, aforesaid applications stand disposed of alongwith pending applications, if any.
14th June, 2019 (Sandeep Sharma),
manjit Judge
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