Bombay High Court Asaram Sitaram Padole-vs-Yadaorao Raghobaji Hatwar And on 9 July, 1991
Equivalent citations:(1991) 93 BOMLR 994
Author: B Wahane
Bench: B Wahane
B.U. Wahane, J.
1. By this criminal revision application, the applicant has challenged the order dated 6.2.1990 passed by the Judicial Magistrate, First Class, Bhandara, releasing the accused on bail on his executing P.R. Bond with one surety in the like amount.
2. Mr. Padole, the applicant, submitted that because of the death his daughter, an offence is registered against the non-applicant No. 1 Yadavrao, under Sections 304-B, 498A and 306 of the Indian Penal Code. According to him the Judicial Magistrate, First Class, Bhandara has no jurisdiction to release the accused on bail, the non-applicant No. I being involved in a case exclusively triable by the Sessions Court. Therefore, according to him, the Judicial Magistrate, First Class. Bhandara, has exceeded his powers and therefore, the order be set aside and the non-applicant No. 1 be directed either to produce himself or he be taken in the custody.
3. Shri Qazi, the learned counsel for the non-applicant No. 1 filed reply to the application presented by the applicant. In para No. 3 of the reply it is specifically mentioned that an anticipatory bail was granted to the non-applicant No. 1 by the learned Sessions Judge, Bhandara, in Miscellaneous Criminal Application No. 303 of 1989. The order was challenged by the applicant in this Court in a Criminal Application No. 1039 of 1989 and the same was dismissed on 21.12.1989 by the Hon’ble Justice Mr. Ratnaparkhi and thereby anticipatory bail granted by the learned Sessions Judge, Bhandara, was confirmed by this Court. In view of the anticipatory bail granted by the Sessions Judge, Bhandara, the Police Officers of Tumsar Police Station, released the applicant on bail as directed by the Sessions Judge, Bhandara.
4. After completing the investigation, the charge-sheet came to be filed before the Judicial Magistrate, First Class, Bhandara on 6.2.1990. Therefore, the non-applicant No. I submitted an application before the learned Judicial Magistrate, First Class, Bhandara, to release him on bail on executing the fresh P.R. Bond and the surety in the like amount. Therefore, the learned Judicial Magistrate, First Class, Bhandara, passed the impugned order.
5. In para 4 of the reply submitted by the non-applicant No. 1, it is specifically stated that the case is committed to the Sessions Court and it is registered as Sessions Trial No. 27/90. The non-applicant No. I appeared before the Sessions Judge, Bhandara on 20.3.1990 and he was released bail in crime No. 209/89 for the offences punishable under Sections 304B, 306 and 498A of the Indian Penal Code. The non-applicant No. 1 executed fresh bail bond and that of his surety on 20.3.1990.
6. The non-applicant No. I was already released on anticipatory bail by the Sessions Court, Bhandara and the same bail order was confirmed by this Court. Under the law, there was no necessity to present an application before any Court again for the release on bail, either at the time of filing charge sheet or committing the case to Sessions Court for trial. The applicant/accused has to execute his fresh bond and that of his surety.
7. The words “released on bail” in Section 439(2) cover both of cases i.e. released after arrest and released from arrest. A person released on anticipatory bail equally answers the description of a person who had been “released on bail” in the sense admitted to bail by Court. The power conferred by Sub-section (2) of Section 439 is intended to be operative upon and cover all types of bail under Chapter XXXIII. The bail under Section 167(2), Criminal Procedure Code has the same incidents as the bail granted under Chapter XXXIII and is accordingly to remain valid till it is cancelled and the cancellation of the bail can only be on the grounds known to Law and the receipt of the charge-sheet in Court can by itself be no ground for cancellation of bail. In other words it means even the anticipatory bait granted under Section 438, Criminal Procedure Code continues to be in operation until the conclusion of trial unless cancelled by appropriate Court.
8. Therefore, even if the Judicial Magistrate, First Class, Bhandara has used the words “Accused be released on bail” it will not make any difference because he is not empowered to release the applicant/accused on bail in the cases exclusively triable by the Sessions Court. In the instant case, the non-applicant No. 1/accused is already released by the Sessions Court, Bhandara, on bail and it was confirmed by this Court. In view of these facts, I do not find any substance in the application. It is, therefore rejected.
9. The applicant made a specific prayer challenging the order passed by the learned Judicial Magistrate, First Class, Bhandara, dated 6.2.1990. I do not understand the propriety why he has joined Shri P.W. Shesh, the Special Judicial Magistrate, Bhandara, as the non-applicant. When query was raised, the applicant submitted that Shri Shesh, Special Executive Magistrate did not record the Dying Declaration properly. However, no relief is sought in the petition. The applicant is a retired police officer. Probably, the idea of suspecting others is still haunting him and therefore, it being a death of his own daughter, he finds fault with every one and every where, as if, he is wearing a spectacle of yellow coloured glasses.
10 Shri Somalwar, the learned counsel for Shri Shesh, Special Executive Magistrate, submitted that as the petitioner joined Shri Shesh as respondent without any rhyme or reason and thereby caused mental and monetary loss, Shri Shesh be awarded compensation. I do agree with Shri Somalwar, the learned counsel for Shri Shesh, Special Executive Magistrate, but the petitioner being an old-retired police officer, he deserves to be excused. However the applicant is directed to desist from repeating such activities. The application is dismissed.