V. Chinna Reddy v. N. Vidayasagar Reddy — 1982 DIGILAW 394 (MAD)

ORDER Sri B. Subhashan Reddy, the learned Counsel for the petitioners, contends that when the petitioners-accused were granted anticipatory bail, the learned Magistrate cannot take them into custody at the time of committing them for trial to the Sessions Court. 2. The facts leading to this petition may be mentioned as follows: The first respondent gave a report to the Station House Officer, Rural Police Station, Nirmal, making certain allegations against the petitioners. The Sub-Inspector registered a case as Crime No. 50 of 1981 under sections 447 , 324 and 326, Indian Penal Code, against the petitioners. The S. O. issued first information report and took up investigation. The petitioners apprehending that they would be arrested filed Crl.M.P. Nos. 586 of 1981 and 623 of 1981 in the Court of the Sessions Judge for anticipatory bail. The learned Sessions Judge granted anticipatory bail under section 438, Criminal Procedure Code. After completion of investigation the Sub-Inspector referred the case as one of civil nature. Aggrieve3 with the refer notice sent by Investigating Officer to the first respondent, he (the first respondent) filed a private complaint in the Judicial First Class Magistrate Court, Nirmal, alleging that the petitioners committed offences punishable under sections 148 , 447 , 324 , 326 and 307, Indian Penal Code. The learned Magistrate registered it as P.R.C. No. 4 of 1981 and recorded the sworn statement of the complaint and also other witnesses that were examined by the complaint and took the complaint under sections 148 , 447 , 324 , 326 and 307, Indian Penal Code, and issued summons for the appearance of the accused. The accused in their turn filed Crl.M.P. No. 1421 of 1982 in this Court for quashing the proceedings P.R.C. No. 4 of 1981. This Court after hearing both the sides dismissed the petition on 3rd July, 1982. 3. The complainant examined all the material witnesses and they were also cross-examined. Arguments were also heared. The learned Magistrate, therefore, posted the matter for committal. The accused filed a petition before the Sessions Judge, Crl.M.P. No. 365 of 1982 seeking direction from the Sessions Judge to the Judicial First Class Magistrate, Nirmal, to the effect that the accused should not be taken into custody as per the provisions of section 209 (b), Criminal Procedure Code, while committing the accused to the Court of Session for trial. 4. 4. The learned Sessions Judge dismissed the said petition on the ground that he has no power to invoke the provisions of section 482 , Criminal Procedure Code, and also on the ground that it is not desirable for him to interfere with the discretion of the Magistrate The accused, therefore, filed this petition in this Court under section 482. Criminal Procedure Code, praying that this Court should exercise its inherent jurisdiction under section 482 , Criminal Procedure Code, and direct the Magistrate not to take the accused to custody under section 209 (b), Criminal Procedure Code, while committing the accused to the Court of Session for trial. 5. Sri Subhashan Reddy, the learned Counsel for the petitioners, contends that as the petitioners were already granted anticipatory bail, the committing Magistrate has no jurisdiction to remand the accused to custody under section 209 (b) , Criminal Procedure Code, even while committing the petitioners to Court of Session for trial and if the accused are committed to custody under section 209 (b) , Criminal Procedure Code, it would amount to cancellation of bail, which was already granted to them and the bail which was already granted cannot be cancelled and the accused cannot be taken into custody on the ground that the Magistrate is committing the accused to Court of Session under section 209 (b), Criminal Procedure Code. 6. Sri M. S. K. Sastry, the learned Counsel for the first respondent, contends that the proceedings in P.R.C. No. 4 of 1981 are entirely different from the proceedings in Crime No. 50 of 1981 and both the proceedings are independent of each other and hence the, anticipatory bail granted to the accused in Crime No. 50 of 1981 ceased to be in force when the investigation was completed and a refer notice was given and the proceedings in P.R.C. No. 4 of 1981 are different and since the offences under sections 148 and 307, Indian Penal Code, were also prima facie found to have been committed by the accused, the complaint was registered as P.R.C. No. 4 of 1981 under sections 148 , 447 , 324 , 326 and 307, Indian Penal Code, and hence the bail granted in Crime No. 50 of 1981 will not be available in the criminal proceedings in P.R.C. No. 4 of 1981. 7. 7. The learned Public Prosecutor, on the other hand, contends that the proceedings in P.R.C. No. 4 of 1981 are only in continuation of the proceedings in Crime No. 50 of 1981 even though a refer notice was given by the Investigation Officer against the complaint and hence the bail granted in Crime No. ‘50 of 1981 was operative to the advantage of the accused in P.R.C. No. 4 of 1981 and they cannot, therefore, be committed to custody under section 209 (b), Criminal Procedure Code. 8. From the admitted facts, it is clear that the accused were granted anticipatory bail in Crime No. 50 of 1981, A-1, A-8 and A-9 filed Crl.M.P. No. 586 of 1981 for the grant of anticipatory bail in Crime No. 50 of 1981, while A-2 to A-7 filed Crl.M.P. No. 623 of 1981 in the same crime number. The learned Sessions Judge allowed Crl.M.P. No. 586 of 1981 on 10th November, 1982, and granted anticipatory bail to A-1, A-8 and A-9. He also allowed Crl.M.P. No. 623 of 1981 on 25th November, 1981, and granted anticipatory bail to A-2 to A-7. Thus all the accused i.e., A-1 to A-9 in Crime No. 50 of 1981 were granted anticipatory bail. 9. After the refer notice was issued on 1st December. 1981, by the Investigating Officer, the complainant in Crime No. 50 of 1981, filed a private complaint before the Judicial First Class Magistrate, Nirmal. The learned Magistrate took it on file as P.R.C. No. 4 1981 under sections 148 , 447 , 324 ,326 and 307, Indian Penal Code. The learned Magistrate examined the witnesses and heard the arguments and posted the case for committal order. The accused are apprehending that they would be taken into custody under section 209 (b), Criminal Procedure Code, if the learned Magistrate commits them to Court of Session for trial. Clause (b) of section 209, Criminal Procedure Code, reads as follows: — “Subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of the trial.” 10. A persual of this provision clearly shows that the Magistrate's power to remand the accused to custody during and until the conclusion of the trial in exercise of the power given to him by this provision is subject to the provisions of this Code relating to bail. A persual of this provision clearly shows that the Magistrate's power to remand the accused to custody during and until the conclusion of the trial in exercise of the power given to him by this provision is subject to the provisions of this Code relating to bail. If the accused are enlarged on bail, the committing Magistrate has no power to cancel it on the ground that he is committing the accused to Sessions Court for trial. The Legislature in its wisdom, has, therefore, employed the expression “subject to the provisions of the Code relating to bail” in section 209, Criminal Procedure Code, for the guidance of the Magistrate. This expression makes it abundantly clear that the Magistrate will have to remand the accused at the time of committing the accused tot Sessions Court for trial “subject to the provisions of the Code relating to bail.” This expression used in clause (b) of section 209 , Criminal Procedure Code, clearly refers to sections 436 , 437 , 438 and 439, Criminal Procedure Code, which contain the provisions relating to bail. In the absence of any such misuse or abuse, this provision requires the Magistrate not to remand the accused to custody, if he was already on bail granted by the Sessions Court or the High Court and he should be on bail during and until the conclusion of the trial. The Magistrate should, therefore, have due regard to this expression “subject to the provisions of this Code relating to bail” employed in clause (b) of section 209, Criminal Procedure Code, while passing an order committing the accused to Sessions Court for trial. The Magistrate has no right or power to ignore this important expression used in section 209 (b), Criminal Procedure Code and consequently has no jurisdiction to remand the accused to custody while committing the accused to Sessions Court for trial. 11. The fact that the Magistrate is committing the accused to Sessions Court for trial does not constitute a valid ground for cancellation of bail, which was already granted to the accused. It is, therefore, dear that the Magistrate while passing an order of committal cannot remand the accused to custody under section 209 (b), Criminal Procedure Code, if the accused was already granted bail. It is, therefore, dear that the Magistrate while passing an order of committal cannot remand the accused to custody under section 209 (b), Criminal Procedure Code, if the accused was already granted bail. That being the legal position the anticipatory bail granted by the Sessions Judge cannot be cancelled by a Magistrate for the purpose of section 209 (b) of the Code, while committing the accused to Court of Session for trial. 12. Though this question was not the subject-matter in Kewal Krishan v. Suraj Bhan, A.I.R. 1980 S.C. 1780 their Lordships incidentally observed that if the Committing Magistrate thinks that it is not necessary to commit 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. 13. In Rampal Singh v. State of Uttar Pradesh, 1975 All.L.R. 593: 1975 All. Crl. C. 367: 1975 All.W.C. 589: 1976 Crl.L.J. 288 the Magistrate, on receipt of the charge-sheet, cancelled bail, which was granted under section 167 (2), Criminal Procedure Code. The Supreme Court held that there is no difference between the bail granted under section 167 (2) , Criminal Procedure Code, and the bail granted under Chapter XXXIII and they remain valid till they are cancelled and the cancellation of the bail in either case can only be on the grounds known to law and the receipt of the Magistrate in Court can by itself be no ground for cancellation of the bail, which was granted under section 167 (2), Criminal Procedure Code. 14. What was laid down in the above cited case holds good even in the case of the accused, who were already enlarged on anticipatory bail granted by the Sessions Court and they cannot be committed to custody under section 209 (b), Criminal Procedure Code. 15. In Rewat Dan v. State of Rajasthan, 1975 Crl.L.J. 691 the Rajasthan High Court observed that section 209 empowers the Magistrate to remand the accused person to custody at the, time of committing him to the Court of Session for trial. But this power is controlled by the provisions of the Code relating to bail. 15. In Rewat Dan v. State of Rajasthan, 1975 Crl.L.J. 691 the Rajasthan High Court observed that section 209 empowers the Magistrate to remand the accused person to custody at the, time of committing him to the Court of Session for trial. But this power is controlled by the provisions of the Code relating to bail. The committing Magistrate is, therefore, not permitted to cancel the bail of an accused person and to remand him to custody at the time of the Committing the case to Sessions Court for trial, if he has been bailed out by an order of the Court or by an order of the Court of Session, unless the order passed by the High Court or the Court of Session is of a temporary nature and permits the Magistrate to reconsider the matter at some subsequent stage in the proceedings. 16. If the learned Magistrate remands the accused to custody under the cloak of clause (b) of section 209, Criminal Procedure Code, he should be deemed to have passed an order of cancellation of bail. If the Court of Session or the High Court grants bail, either of them has the power to cancel the bail under section 439 (2), Criminal Procedure Code, on specific grounds that the accused had committed misconduct or misuse of the terms of the bail bond or that the accused is trying to abscond after the charge-sheet is filed or threatening or influencing or tampering with the evidence or interfering with the investigation or obstructing the judicial process or otherwise misusing or abusing the bail. If the Magistrate, who granted bail, wants to cancel it, he can cancel bail under section 437 (5), Criminal Procedure Code, on the same grounds mentioned above. 17. It is, therefore, clear that the Magistrate is not empowered to remand the accused to custody under section 209 (b), Criminal Procedure Code, if the accused was already granted bail. 18. But Sri M.S.K. Sastry, as stated above, contends that the anticipatory bail was granted to the accused in Crime No. 50 of 1981, but not in these proceedings and the present proceedings in P.R.C. No. 4 of 1981 are entirely different from the proceedings in Crime No. 59 of 1981. 19. 18. But Sri M.S.K. Sastry, as stated above, contends that the anticipatory bail was granted to the accused in Crime No. 50 of 1981, but not in these proceedings and the present proceedings in P.R.C. No. 4 of 1981 are entirely different from the proceedings in Crime No. 59 of 1981. 19. It is not in dispute that the subject-matter in Crime No. 50 of 1981 and in P..R. C. No. 4 of 1981 is one and the same. The allegations made by the first respondent in his report registered by the police as Crime No. 50 of 1981 are the same in the complaint registered by the Magistrate as P.R.C. No. 4 of 1981 on his file. The proceedings in Crime No. 50 of 1981 should not, therefore, be treated as different from the proceedings in P.R. C. No. 4 of 1981. It is true that the proceedings in P.R.C. No. 4 of 1981 are on the file of the Magistrate, while the proceedings in Crime No. 50 of 1981 are on the file of the Police. But on that account, it cannot be said that they are two different proceedings. In such a case the proceedings in P.R.C. No. 4 of 1981 should be treated as continuation of the proceedings in Crime No. 50 of 1981. In State of Kerala v. Wilfred, 1968 K.L.T. 57 a complaint was filed before the Magistrate and the same was forwarded to the Police under section 156 (3), Criminal Procedure Code, for investigation and report and the police after investigation filed a final report and the same was taken on file by the, Magistrate and the case was posted to 26th April, 1965 for hearing. But nobody was present for the prosecution. So the learned Magistrate applied the provisions of section 247, Criminal Procedure Code and dismissed the same and acquitted the accused. The order of acquittal was questioned on the ground that the learned Magistrate has no power to dismiss the complaint under section 247, Criminal Procedure Code, and dismissed private complaint. The learned counsel appearing for the prosecution contended that the case having been taken cognizance of on the report of the police, it ought to have treated as a police charge and not as a private complaint for the purpose of section 247 of the Code. The learned counsel appearing for the prosecution contended that the case having been taken cognizance of on the report of the police, it ought to have treated as a police charge and not as a private complaint for the purpose of section 247 of the Code. On behalf of the accused it was argued that the case continues to be one instituted on the complaint. The learned single Judge, (K. Sadasivan, J.), held, that the complaint originally filed will not, on that ground assume a different garb when the police, report is received and the proceedings will continue to be proceedings instituted on complaint. The learned single Judge followed the decision of the Division Bench of the Allahabad High Court in Badri Prasad Gupta v. Kripa Shanker, (1968) K.L.T. 57, which also took the same view. 20. The rulings in State of Kerala v. Wilfred, A.I.R. 1967 All. 468 and Badri Prasad Gupta v. Kripa Shanker1 are relevant only to show that the proceedings in the complaint and the proceedings in the case which was forwarded by the Magistrate under section 156 (3), Criminal Procedure Code, for investigation and the final report submitted by the police do constitute one and the same transaction and have the same character and will not constitute two different and independent proceedings, merely because of the change of the forum. 21. The legal position is that the proceedings in Crime No. 50 of 1981 are merged with the proceedings in P.R.C. No. 4 of 1981 or the proceedings in Crime No. 4 of 1981 are the continuation of the proceedings in Crime No. 50 of 1981. Hence the anticipatory bail granted in Crime No. 50 of 1981 will continue to be in force in P.R.C. No. 4 of 1981 till it is cancelled, by the Sessions Judge or the High Court as the case may be under section 439 (2), Criminal Procedure Code, on specific ground. If that be so, the Magistrate cannot commit the accused to custody under section 209 (b), Criminal Procedure Code, while committing the accused to the Court of Session for trial. Thus I find no substance in the contention of Sri M. S. K. Sastry. 22. Having regard to my above discussion, I find merits in this petition. 23. In the result, the petition is allowed. 24. Thus I find no substance in the contention of Sri M. S. K. Sastry. 22. Having regard to my above discussion, I find merits in this petition. 23. In the result, the petition is allowed. 24. On behalf of the first respondent an oral request is made seeking for leave to appeal to the Supreme Court. I do not think that it is a fit case to appeal to the Supreme Court. Hence leave is refused. C.V.N.R. ----- Petition allowed.