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2001 DIGILAW 420 (CAL)

Bholanath Chatterjee v. State of West Bengal

2001-07-13

Debiprasad Sengupta

body2001
JUDGMENT Debiprasad Sengupta, J.: This revisional application has been directed against an order dated 15.12.2000 passed by the learned Sessions Judge, Bankura in Criminal Misc. Application No. 874 of 2000. 2. On completion of investigation of Bankura P.S. Case No. 200/2000 dated 2.9.2000 police submitted charge sheet against the present petitioner and others under section 307/34 of the Indian Penal Code. The present petitioner filed a petition before the learned Sessions, Judge, Bankura with a prayer for accepting surrender and for considering his prayer for bail under section 439 of the Code of Criminal Procedure. It was submitted before the learned Sessions Judge that since charge sheet has already been submitted and other accused persons are on bail, the present petitioner should also be granted bail. The said petition filed by the petitioner was opposed by the learned Public Prosecutor, who submitted that the Sessions Court cannot accept surrender of the petitioner unless the case is committed to the Court of Sessions. After hearing the submissions made on behalf of the respective parties the learned Sessions Judge rejected the prayer of the petitioner and refused to accept surrender by the impugned order. Challenging the said order of the learned Sessions Judge the petitioner has come up before this court in revision. 3. Mr. Milon Mukherjee, learned Advocate appearing for the petitioner submits that since charge sheet has already been submitted in this case and since the learned Magistrate is not empowered to grant bail to the petitioner who is an accused in a case triable exclusively by the Court of Sessions, the learned Sessions Judge is very much competent to accept surrender and to grant bail to the petitioner. 4. In support of this contention Mr. Mukherjee relies on a judgement of the Hon'ble Apex Court reported in AIR 1980 SC 785 (Niranjan Singh & Anr. vs. Pravakar Rajaram Kharote & Anr.). In the said judgement it was held by the Hon'ble Supreme Court as follows : - “Custody, in the context of section 439, (we are not, be it noted, dealing with anticipatory bail under section 438) 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. In the present case, the police officers applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate was wholly irregular and may be, enabled the accused persons to circumvent the principle of section 439 Cr.P.C. We might have taken 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. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to the custody of the court. We, therefore, do not proceed to upset the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state that had we been left to ourselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion exercised by the two courts below.” 5. From a reading of the aforesaid judgement it appears that the learned Magistrate after rejecting the prayer for bail of the accused police officer stayed the operation of his own order of rejection to enable the accused to pray for bail before the Sessions Judge. The Hon'ble Supreme Court seriously deprecated such practice adopted by the learned Magistrate, which was wholly irregular and enabled the accused persons to circumvent the principle of section 439 Cr. P.C. But since the accused persons were granted bail by the learned Sessions Judge, the Hon'ble Supreme Court in exercise of its power under Article 136 of the Constitution of India was not inclined to upset the order of bail which was granted by the learned Sessions Judge. P.C. But since the accused persons were granted bail by the learned Sessions Judge, the Hon'ble Supreme Court in exercise of its power under Article 136 of the Constitution of India was not inclined to upset the order of bail which was granted by the learned Sessions Judge. From a reading of the aforesaid judgement it becomes clear that the Hon'ble Supreme Court highly deprecated the practice adopted by the learned Magistrate as also by the learned Sessions Judge. The Hon'ble Supreme Court in the aforesaid judgement has nowhere held that in a case exclusively triable by the Court of Sessions, the accused can straightway surrender before the Court of Sessions without appearing before the learned Magistrate, who issued warrant of arrest against the petitioner. In my considered view the judgement referred to above does not have any manner of application in the present case. 6. Mr. Mukherjee next relies on a judgement of the Hon'ble Supreme Court reported in J.T. 2001(4) SC 116 (Prahlad Singh Bhati vs. N.C.T, Delhi & Anr.). From a reading of the said judgement it appears that the accused was granted bail by the Metropolitan Magistrate, New Delhi in a case under section 302 I.P.C. Challenging the said order a revision was preferred which was dismissed by the learned Single Judge of the High Court. Being aggrieved by both the orders as aforesaid the father of the deceased approached the Hon'ble Supreme Court by preferring an appeal. The Hon'ble Supreme Court, while allowing the appeal and setting aside the orders of the Magistrate as also of the High Court, held as follows:- “Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking, if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.” “In the instant case while exercising the jurisdiction apparently under section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.” “In the instant case while exercising the jurisdiction apparently under section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder." 7. In the aforesaid judgement it was “held by the Hon'ble Supreme Court that both the orders passed by the learned Magistrate and the High Court were highly irregular. But the Hon'ble Supreme Court permitted the accused respondents to apply for regular bail before the trial court. I have carefully gone through the judgement referred to above and in my opinion the said judgement is not applicable in the present case. 8. Next judgement relied upon by Mr. Mukherjee is reported in 1983(2) Crimes 800 (Sh. Sheroman Singh vs. The State of U.P.). In the said judgement it was held by the learned Single Judge of Allahabad High Court that unless the accused surrenders and is in custody within the meaning of section 439 of the Code of Criminal Procedure and unless he follows Rule 18 of the Allahabad High Court Rules, 1952, which means that he moved the Sessions Court and obtained an order of rejection, his bail application cannot be entertained by the High Court. I have gone through the judgement referred to above. The facts and circumstances of that particular case is quite different from that of the present one. The said judgement has got no application in the present case. 9. Mr. S.S. Roy, learned Advocate appearing for the State submits that the accused was shown as absconder in the charge sheet and the learned Magistrate issued warrant of arrest against him. But the accused petitioner without surrendering before the learned Magistrate straight-way approached the learned Sessions Judge for bail which is not permissible under the law. 9. Mr. S.S. Roy, learned Advocate appearing for the State submits that the accused was shown as absconder in the charge sheet and the learned Magistrate issued warrant of arrest against him. But the accused petitioner without surrendering before the learned Magistrate straight-way approached the learned Sessions Judge for bail which is not permissible under the law. Since the case has not yet been committed to the Court of Sessions, the petitioner cannot surrender before the learned Sessions Judge and pray for bail. He has to surrender before the learned Magistrate. 10. I have heard the learned Advocates of the respective parties. I have also carefully gone through the judgement referred to above and in my considered view the said judgements do not have any application in the present case. I find sufficient merit in the submissions made by Mr. Roy, learned Advocate of the State. When the case has not been committed to the Court of Sessions, the accused/petitioner cannot straight-way approach the learned Sessions Judge to accept surrender and to grant bail. In my view the impugned order does not suffer from any illegality and I do not find any reason to interfere with the same. 11. The present application accordingly fails and the same is dismissed. Appeal dismissed.