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Rajasthan High Court · body

1990 DIGILAW 759 (RAJ)

Bablu v. State of Rajasthan

1990-12-10

N.L.TIBREWAL

body1990
JUDGMENT 1. - Through this bail application, the applicant petitioner Bablu, approached to this Court, for grant of pre-arrest bail in a criminal case bearing F.I.R. No. 121 of 1990, Police Station, Masalpur, District, Sawai Madhopur. This Court, vide its order dated 15th November, 1990, rejected the first bail application but a direction was given that the petitioner may surrender before Competent Court, if he so desires. 2. Thereafter, the petitioner surrendered himself before the Court of learned Addl. Sessions Judge Karauli, (Camp at Hindone City) The learned Addl. Sessions Judge, refused to admit the accused petitioner and consider his application on the ground that the case was under investigation and no case was pending before him, as such, the Competent Court was not the Court of Additional Sessions Judge, Karauli, but it was the Court of learned M.J.M. Karauli. The said Court, therefore, directed that the petitioner could surrender before the Court of learned Munsiff and Jud. Magistrate Karauli, if he so desired. 3. The contention of the learned counsel for the petitioner is that the Court of learned Addl. Sessions Judge, Karauli, is the concerned court, which has jurisdiction to hear the bail-application under Section 439 Cr.P.C. with regard to the criminal cases, registered at Police Station, Masalpur, and the Court should not have rejected the prayer of the petitioner when he surrendered before it. In support of his contention, he placed reliance on the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and ors. AIR 1930 S.C. 785. 4. It is not disputed before me that the Court of learned Additional Sessions Judge, Karauli, has the jurisdiction to hear the bail-application of the criminal cases registered at Police Station, Masalpur. The contention of the learned Public Prosecutor, is that the normal procedure, which is being adopted in the Sub ordinate Court, is that the person, who is an accused in a non-bailable offence may surrender to the Court of the concerned Magistrate and move an application for grant of bail. He can move to the higher Court that is the Court of learned Sessions Judge/Additional Sessions Judge, as the case may be, only after the rejection of the bail-application by the Court of learned Magistrate. He further submits that the Court of learned Magistrate, is the Competent Court, specially, when the case is not pending in the Court of learned Sessions Judge/Additional Sessions Judge. He further submits that the Court of learned Magistrate, is the Competent Court, specially, when the case is not pending in the Court of learned Sessions Judge/Additional Sessions Judge. Learned P.P. further submits that the view of the learned Additional Sessions Judge, that it was not a competent Court, where the accused can surrender directly to his Court, is in accordance with law. 5. I have considered the rival contentions made by the learned counsel for both the parties. The provisions as to bail are contained in Chapter-XXXIII in the Criminal Procedure Code, 1973. Section 436 of the Cr.P.C. deals with regard to the bailable offence, whenever a person accused of a bailable offence is arrested oi detained in custody 6. Section 437 of the Cr.P.C. deals with regard to the bail in the cases of non-bailable offence. It provides that 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 the Police Station or appears or is brought before a Court other than the High Court or Court of Sessions, he can be released on bail subject to the limitations provided in the said provision. A perusal of this provision makes it clear that a person can be released on bail by a Court, other than the High Court, or the Court of Sessions, under Section 437 Cr.P.C. provided the case does not fall within the limitations provided in the said Section, if he is either arrested or detained or appears or is brought before a court. Thus, a person can directly appear before such Court and may be ordered to be released on bail by the said Court. 7. Section 438 Cr.P.C. deals with regard to pre-arrest bails. I am not concerned, presently with this Section. 8. Section 439 Cr.P.C. gives special powers to the High Court or a Court of Sessions, to release any person, accused of an offence and in custody. 9. From the above scheme with regard to the bails, it is clear that the Court of Sessions (which includes the Court of Additional Sessions Judge, also, having jurisdiction) is competent to release any person accused of an offence provided he is in custody. For applying the provisions of Section 439 Cr.P.C. two conditions are necessary, namely:- 1. That a person should be an accused of an offence; and 2. For applying the provisions of Section 439 Cr.P.C. two conditions are necessary, namely:- 1. That a person should be an accused of an offence; and 2. that the person should be in custody. 10. It cannot be disputed that the petitioner was an accused in F.I.R. No. 121/1990, Police Station, Masalpur. So far as second condition is concerned, if an accused appears and surrenders himself before the Court of Sessions, then such accused would be considered to be in custody within the meaning of Section 439 Cr.P.C. 11. In the aforesaid judgment, given in the case of Niranjan Singh and another v. Prabhakar Rajaram Kharote and ors. (supra), the Hon'ble Supreme Court, observed as under:- "No person accused of an offence can move the court for bail under Section 439 unless he in custody. Where the accused had appeared and surrendered before the Sessions Judge, the fudge, would have jurisdiction to consider the bail application, as the accused would be considered to have been in custody within meaning of Section 439. Custody in the context of Section 439 is physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of the Court. He can be in custody not merely when the police arrests him, produces him before a Magistrate, and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions." It was further observed in paragraph 9 of the judgment:- "A serious view of such a course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case, the accused made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have refused bail and remanded the accused to custody, but, in the circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of bail." 12. From the aforesaid view, taken by the Apex Court of the Country, there is no doubt that the Court of learned Additional Sessions Judge, Karauli, assumed jurisdiction to hear the bail-application under Section 439 Cr.P.C. when the accused appeared before it and moved an application for grant of bail. From the aforesaid view, taken by the Apex Court of the Country, there is no doubt that the Court of learned Additional Sessions Judge, Karauli, assumed jurisdiction to hear the bail-application under Section 439 Cr.P.C. when the accused appeared before it and moved an application for grant of bail. It is hardly relevant for consideration of bail under Section 439 Cr.P.C. as to whether the charge-sheet has been filed or not. Even at the stage of investigation, the provisions of Section 439 Cr.P.C. are applicable. 13. Whether a bail should be granted or not is a different matter, but the learned Additional Sessions Judge, Karauli, is not right when he observed that the Court of learned Additional Sessions Judge, was not a Competent Court, when the accused appeared before it and put himself in physical control of the said court. In such a situation, the learned Judge, should have decided the application on merits or passed necessary orders on the said application. The Court was free either to admit the accused on bail or remand to judicial custody or other custody. 14. I therefore, set-aside the order dated 23rd November, 1990, passed by the learned Additional Sessions Judge. Karauli, and hold that the said Court is a Competent Court to hear the bail-applications under Section 439 Cr.P.C. even if a person who is an accused of the offence and appears before the said Court and moves an application for grant of bail. The jurisdiction of the said Court is not taken-away simply because the case is at the stage of investigation.Petition disposed of. *******