SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Rajesh @ Rakesh vs State Of Raj And Anr on 5 April, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Application No. 192/2018

Rajesh @ Rakesh S/o Panna Lal B/c Mali, R/o Jamat Gali, Ward
No.6, New Colony, Tonwn Lalsot, District Dausa, Raj.
—-Petitioner
Versus
1. State Of Rajasthan Through Pp.
2. Sho, Police Station Lalsot, District Dausa, Raj.
—-Respondents

For Petitioner(s) : Mr. Nawal Singh Sikarwar
For Respondent(s) : Mr. NS Dhakad PP

HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Order

05/04/2018

This Court on 7.3.2018 pertaining to case FIR No.

137/2016 registered at Police Station Lalsot, District Dausa, had

passed the following order:-

“Present petition has been filed under Section 482 Cr.P.C. praying that the
impugned order dated 11.10.2017 passed by Additional Sessions Judge, Lalsot,
District Dausa (Raj.) be set aside.

Counsel for the petitioner has submitted that Investigating Agency
initially opined that the offences under Sections 147, 148, 149, 323, 341 and 380
IPC are made out and accepted the bail bonds of the petitioner.

Counsel for the petitioner submitted that subsequently an opinion given
by Additional Director of Prosecutor offence under Section 308 IPC was added.

Counsel for the petitioner further contends that on the application filed
by the complainant under Section 439(2) Cr.P.C., bail bonds accepted by the
police were canceled by Additional Sessions Judge, Lalsot, District Dausa vide
impugned order dated 11.10.2017.

Having heard counsel for the parties, this court is of the view that order
dated 11.10.2017 passed by Court of Additional Sessions Judge, Lalkot, District
Dausa, under Section 439(2) Cr.P.C. is without jurisdiction and is liable to be set
aside as rightful course after addition of offence under Section 308 IPC for the
(2 of 5) [CRLMA-192/2018]

accused-petitioner was to be apply for bail qua the said offence. There was no
ground for cancellation of the bail bonds already accepted by the police.

In the present case, the occurrence had taken place in year 2016.
Petitioner is enjoying his liberty since then. A coordinate Bench on 15.11.2017
had passed the interim order in favour of the petitioner.

Taking totality of the circumstances, this court is of the view that at this
juncture it shall be highly unjust to send the petitioner behind the bars.

Consequently, it is ordered that in case petitioner appear before the trial
court within two weeks from today, the said court shall accept personal bonds of
the petitioner and the bonds to be furnished by the sureties to its satisfaction. The
bail bonds and surety bonds so furnished shall enure during the course of the
trial. ”

In the order dated 7.3.2018, offences and name of

parties were also noted, when the order was presented, in utter

disregard to the order passed by this Court, on 20.3.2018,

Additional Chief Judicial Magistrate, Lalsot, Dausa stated that since

in the order passed by the High Court, number of FIR and name of

court was not mentioned, therefore, the order could not be

complied with.

The learned counsel for the applicant has submitted

that till today, since charge-sheet has not been committed to the

court of Sessions, the court of Additional Chief Judicial Magistrate,

Lalsot, Dausa was the trial court. The right course for the

Additional Chief Judicial Magistrate, Lalsot, Dausa was to call for

records and comply with the order passed by this Court. Additional

Chief Judicial Magistrate, Lalsot, Dausa for above reasons could

not disobey the order of this Court.

At this stage, the learned counsel for the applicant has

submitted that the court of Additional Chief Judicial Magistrate,

Lalsot, Dausa had not accepted the bail bonds because offence

was triable by the court of Sessions.

(3 of 5) [CRLMA-192/2018]

The learned counsel for the applicant has relied upon

the case of Ramji vs. State of Punjab, 2001 (1) RCR (Cr)

538, wherein it has been held as under:-

“3. Ordinarily, this application would have been disposed of by merely
modifying the order dated 9.11.2000 and directing the petitioners to
surrender before the Sessions Judge on any other date but since the
question as to whether the Court of Judicial Magistrate 1st Class is
entitled to grant bail in cases punishable with imprisonment for life,
though it is the trial Court, would arise in a large number of cases, notice
of this application was given to Advocate General, Punjab and arguments
have been heard in detail.

4. The issue which is raised in the present case is that though the offences
punishable with imprisonment for life are triable by the Court of Judicial
Magistrate 1st Class, the difficulty which is being faced by the Courts,
according to the counsel forthe petitioners, arises out of the interpretation
that they are placing on the provisions of Section 437 Cr.P.C. which spells
out the power of Court other than the High Court or the Court of Sessions
to admit a person accused of committing non-bailable offence on bail. The
relevant portion of Section 437 Cr.P.C. reads as under:

“437(1)- When any person accused of, or suspected of, the
commission of any non-bailable offence is arrested or detained
without warrant by an officer-in-charge of a police station or
appears or is brought before a Court other than the High Court or
Court of Session, he may be released on bail, but –

(i) such person shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life.”

5. A perusal of this Section indicates that the restriction on the power of
the Court is in relation to the application of bail filed by a person in whose
case there appears to be a reasonable ground for believing that he is guilty
of an offence punishable with death or imprisonment for life. While
analysing the scope of the words ‘death’ or ‘life imprisonment’ in
Mohammed Eusoof v. Emperor, AIR 1926 Rang 51, the Court had held
that the prohibition against granting bail is confined to cases where the
sentence is either death or alternatively transportation for life and did not
extend to offences punishable with transportation for life only. Their
Lordships while coming to this conclusion had observed :

“It is difficult to see what principle, other than pure empiricism,
should distinguish offences punishable with transportation for life
from offences punishable with long terms of imprisonment; why,
for instance, the detenu accused of lurking house trespass with a
view to commit theft, for which the punishment is fourteen years’
imprisonment should be specially favoured as against the
individual who has dishonestly received stolen property, knowing
that it was obtained by dacoity, for which the punishment happens
to be transportation for life.”

(4 of 5) [CRLMA-192/2018]

6. The above decision was cited with approval in Tularam v. Emperor,
AIR 1927 Nag 53

7. In Satyan v. Stale, 1981 Crl.L.J. 1313, the Kerala High Court after
analysing the aforesaid Section observed that :

“A scrutiny of the several Sections of the Indian Penal Code will
reveal that there is only an offence viz., the one under Section
303 for which death alone is the punishment. There are three
offences for which the sentence is death or imprisonment for life
and fine (See Sections 121 and 302). The offences mentioned
in Sections 132, 305, 307 and 396 are punishable with death or
imprisonment for life or imprisonment for 10 years and fine. All
these offences are to be tried only by the Court of Session. There
are other offences wherein the punishment is either imprisonment
for life or imprisonment for a term and fine. Incidentally it is noted
that under Section 363A for the offence of maiming a minor for
being employed or used for purposes of begging the punishment is
imprisonment for life with liability to fine also. Section
389 provides for imprisonment for life where the offence
punishable is under Section 377, Indian Penal Code. It is
significant to note that while most of the offences for which
imprisonment for life is provided as a punishment are triable by
the Court of Session, there are some where the trial is to be by a
Magistrate of the First Class (See Sections
326, 389, 394, 409, 467, 472, 474 and 477 IPC). A Magistrate of
the First Class is not competent to pass a sentence of imprisonment
exceeding three years. In case the Magistrate feels that an accused
ought to receive a more severe punishment he may submit the
proceedings to the Chief Judicial Magistrate as provided in Section
325Cr.P.C. The Chief Judicial Magistrate is not competent to
sentence an accused for imprisonment exceeding seven years.
(See Section 29, Cr.P.C.). It follows that in cases where the
offences are to be tried by a Magistrate of the First Class or the
Chief Judicial Magistrate, even if the maximum punishment is
imprisonment for life the legislature does not ordinarily except the
imposition of the sentence.”

and after noticing the aforesaid judgments concluded that :
“The reasoning applies with equal force in interpreting the phrase
“offence punishable with death or imprisonment for life.” So long
as an offence under Section 326 is triable by a Magistrate of First
Class, there is no reason why it should be viewed differently in the
matter of granting bail from an offence under Section 420 IPC for
which the punishment extends to imprisonment for 7 years or any
other non-baitable offence for which the punishment is a term of
imprisonment.”

8. This judgment was relied upon by the Calcutta High Court in Sudarsan
Base v. State of West Bengal, 1997(4) All India Criminal L.R. 154 and by
the Andhra Pradesh High Court in Ashireddygari Narasimhareddy v. State
of A.P., 2000(3) RCR (Crl.) 573 which had taken the same view.

9. During the course of arguments, the judgment State v. Sayan Singh,
AIR 1953 Pepsu 146 was also cited in support of the submission that the
(5 of 5) [CRLMA-192/2018]

Court which is competent to try the matter would impliedly also be
empowered to grant bail in the case, which interpretation, to my mind will
have to be accepted in view of the fact that none of the cases which are
punishable alternatively with death or life imprisonment are triable by any
other Court than the Court of Sessions.

10. In view of the aforesaid discussion, it has to be held that the bar
contained in Section 437(1)(i) of the Code will have to be restricted to
only those cases where the offence which the accused is alleged to have
committed is punishable alternatively with ‘death’ or ‘life imprisonment’
and not in cases in which the offence is punishable with life
imprisonment.”

In view of the judgment relied, and reproduced above

since offence under Section 308 IPC is not punishable with life

imprisonment, court of Additional Chief Judicial Magistrate, Lalsot,

Dausa, even though cannot try offence under Section 308 IPC, yet

can accept bail bonds. Hence, Additional Chief Judicial Magistrate,

Lalsot, Dausa is directed to comply with the order dated 7.3.2018

within a period of two weeks from today.

(KANWALJIT SINGH AHLUWALIA),J

Mak/-

Leave a Reply

Your email address will not be published. Required fields are marked *


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2018 SC and HC Judgments Online at MyNation