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1987 DIGILAW 387 (KAR)

STATE OF KARNATAKA v. CHAMANSAB

1987-11-19

P.A.KULKARNI

body1987
KULKARNI, J. ( 1 ) THE accused though served has remained absent. ( 2 ) THIS is an application by the State against the order dated February 5,1987, passed by the J. M. F. C. Hadagalli in Crime no. 4/87 of Hadagali Police Station releasing the accused, apprehended under section 302 !pc, on bail. ( 3 ) THE material facts are : The deceased is the younger brother of the accused. The accused was running an arrack shop in a portion of the building and the deceased was running a flour mill in the other side of the building. On account of the running of the arrack shop by the accused, customers of the deceased who was running a flour mill, work being put to a good deal of nuisance. The deceased made a complaint about this The accused had to shift his arrack shop. Further there was also d. spute between the accused and deceased regarding the property that had fallen to their shares in the partition. On 13-1-1987 at about 10-30 a. m. the accused assaulted the deceased by squeezing the testicles. The accused again went to the flour mill of the deceased at about 11 p. m. and assaulted him with the club which brought about his death. The wife of the deceased who had gone to the rescue of the deceased at the time of the assault was also assaulted by the accused. Later on, a complaint was lodged before the Police on 15-1-1987. When the accused was produced before the Magistrate for obtaining remand, the magistrate released the accused on bail. It is this order of the release of the accused on bail that has been questioned in this petition. ( 4 ) WHENEVER an accused is produce before the Magistrate for the purpose of obtaining a remand in a case in which the accused is apprehended for an offence punishable with death or imprisonment for life, it is rather not proper to release the accused on bail. ( 4 ) WHENEVER an accused is produce before the Magistrate for the purpose of obtaining a remand in a case in which the accused is apprehended for an offence punishable with death or imprisonment for life, it is rather not proper to release the accused on bail. The Supreme Court in Gurcharan Singh and others v. State (Delhi Administration), (A. I R. 1978 SC p. 179) has stated as :"if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life and forwards him to a Magistrate, the magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Sec. 437 (1), bail appears to be out of the question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as investigation progresses and more facts and circumstances come to light. "therefore, the release of the accused on bail at the stage when the investigation is in progress, offends the principles of propriety and judicial conscience. The release of the accused on bail in such cases at the stage of the investigation by the Magistrate would surely hamper the investigation of the case. The Magistrate as well as the police must not act in a way which would bring about conflict in discharge of their duties. Releasing of the accused on bail by the Magistrate at the stage of investigation would definitely hamper the investigation and would introduce a lot of obstacles in the fair investigation of the case Therefore, releasing of the accused on bail at the time of investigation itself is a serious act of impropriety. Therefore, the learned magistrate was wrong in releasing the accused on bail at that stage. ( 5 ) ACCORDING to the prosecution, the wife of the deceased is an eye witness in the case. She may be an interested witness. But the question as to whether her evidence should be believed or not, is a matter which will have to be decided by the Sessions Court The magistrate cannot usurp the functions of the Sessions Judge at the stage of investigation itself. She may be an interested witness. But the question as to whether her evidence should be believed or not, is a matter which will have to be decided by the Sessions Court The magistrate cannot usurp the functions of the Sessions Judge at the stage of investigation itself. The Magistrate under the amended Criminal Procedure Code is nothing but a post office of forwarding the case to the Sessions Court for disposal. When that us the only function of the Magistrate under the amended Criminal Procedure Code, it would be too much to expect of him to pass an order of releasing the accused on bail. It may be that the offence has taken place on 13th and the complaint was lodged on 15th. What would be the effect of the delay can be decided only by the trial. Court but not by the Magistrate, who under the amended Criminal Procedure code has been constituted practically more or less a post office. ( 6 ) THEREFORE, under these circumstances, the order passed by the Magistrate releasing the accused on bail is set aside. The petition is allowed. The bail granted to the accused by the Magistrate is cancelled. He should surrender before the Sessions Judge concerned. --- *** --- .