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2003 DIGILAW 47 (PAT)

Rajesh Kumar @ Raju v. State Of Bihar

2003-01-13

P.N.YADAV, S.N.JHA

body2003
Judgment 1. These two writ petitions on behalf of single petitioner each have been heard together. The petitioners have approached this Court seeking their release by writ of habeas corpus in connection with Siwan Town P.S. Case No. 165 of 2002. The relevant facts are as follows. 2. On 23.10.2002 the FIR of Town P.S. Case No. 165/2002 under various sections of the Indian Penal Code and sections 18{c)/18A{1) of the Drugs and Cosmetics Act, 1940 ws received in the court of Vacation Judge, Siwan. Five accused of the case were also produced. The 7th Additional Sessions Judge (Shri R.K. Lalwho was acting as the vacation Judge as per roster on that date) entertained the FIR and directed the case to be registered even though the forwarding letter was addressed to CJM, Siwan. He also remanded the accused, including the petitioners, to judicial custody. They were directed to be produced again on 2.11.2002. On 26.10.2002 another accused, Ranjit Singh, was produced before the learned Judge and he too was remanded to judicial custody till 8.11.2002. On the same day an application for bail was filed on behalf of accused Gyan Prakash.The court observed as under: "The accused is a practising advocate of this place-hailing from a highly respectable and educated family enjoying important status in society... Considering his professional status and social status supported by majority of the advocates present in the Court, supporting the nature and character of the accused I do not find it proper to ignore the submission in favour of accused made by majority of lawyers including Shri Thakur Jawala Prasad, Secretary, District Bar Association, Siwan, who is also an important member of the Bar holding the post of Secretary." Observing thus the learned Judge directed the accused to be released on bail. Immediately thereafter on 26.10.2002 itself three more applications for bail were filed on behalf of the two petitioners herein and Nirmala Devi. The learned Judge granted bail to them too. The bail bonds on behalf of accused Gyan Prakash and Nirmala Devi filed on 27.10.2002 were accepted and release orders with respect to them were directed to be issued. On 28.10,2002 application for bail on behalf of accused Ranjit Singh and the bail bonds furnished by the petitioners came up for consideration. On that day, it may be pointed out, another Additional Sessions Judge (Shri OK. Singh, 3rd Addl. On 28.10,2002 application for bail on behalf of accused Ranjit Singh and the bail bonds furnished by the petitioners came up for consideration. On that day, it may be pointed out, another Additional Sessions Judge (Shri OK. Singh, 3rd Addl. Sessions Judge-as stated at the Bar) was functioning as the Vacation Judge as per roster. He called for the case diary and directed the application to be put up for hearing on 31.10.2002. He declined to accept the bail bonds furnished on behalf of the petitioners on the ground that the earlier orders granting bail to them were not in accordance with law. He observed that forwarding letter of the FIR was addressed to the Chief Judicial Magistrate, Siwan but the FIR was not seen by the ACJM (who had been detained for discharging the functions of the CJM during the relevant period). He noted that none of the offences was triable by the Special Court. As a matter of fact, the Sessions Judge was not Special Judge, and so far as offence under the Drugs and Cosmetics Act was concerned, as per section 32, a Metropolitan Magistrate or a Judicial Magistrate of First Class was competent to try the offence. The learned Judge concluded as- under, Therefore, the procedure adopted in this case by the Vacation Judge is not proper and against the provisions of law... From perusal of the case diary and ordersheet dated 26.10.2002 it also appears that the learned Vacation Judge has granted bail to accused Gyan Prakash as well as to accused Rajan Kumar Gupta, Rajesh Kumar alias Raju Prasad and Nirmala Devi treating himself as the original court of jurisdiction. In my view this order does not seem to be in accordance with the law." 3. Accordingly, the learned Judge refused to accept the bail bonds submitted on behalf of the petitions and other accused and directed the entire case records to be sent to the CJM with a direction to start the procedure from the beginning in accordance with law as provided under the Cr.P.C. The G.R. Clerk was directed to show cause as to why action be not taken for this vital mistake and irregularity committed by him. 4. At this stage, the petitioners approached this Court in the present writ petitions. The petitions came for preliminary hearing on 3.12.2002 and 4.12.2002. 4. At this stage, the petitioners approached this Court in the present writ petitions. The petitions came for preliminary hearing on 3.12.2002 and 4.12.2002. Being of the view that once the bail had been granted, rightly Or wrongly, the successor Judge having coordinate jurisdiction could not sit over the said order, the CJM, Siwan was directed to pass appropriate order on the bail bonds already furnished by the petitioners pursuant to the order of the Vacation Judge dated 26.10.2002. Pursuant to the said interim orders on their bail bonds being accepted, the petitioners have since been released. 5. When the cases came up for hearing today, counsel for the petitioners submitted that the petitioners had approached this Court for direction for acceptance of the bail bonds which has since been done and their purpose has thus been served. In the circumstances he has nothing further to argue, and the interim orders may be made absolute. 6. We agree with the counsel, in the circumstances, that with the passing of interim order and the petitioners release pursuant thereto their purpose stands served and there remains little for him to argue. We have nevertheless decided to record the present order as we are not able to appreciate how, firstly, the former Vacation Judge {Shri R.K. Lal, 7th Addl. Sessions Judge, Siwan) could entertain an FIR treating himself as a court of original jurisdiction in utter disregard to provisions of section 193 of the Code of Criminal Procedure. Not only he entertained the FIR but he also remanded the accused persons-a power which he clearly did not possess. Secondly, we are also not able to appreciate his conduct so far as the manner of granting bail to accused Gyan Prakash is concerned. He was granted bail on the solitary ground that he was an advocate of Siwan court and majority of the lawyers including the Secretary of the local Bar Association supported his professional and social status. The consideration, in our opinion, ws totally irrelevant to the grant of bail. We are also not able to appreciate the conduct of the successor Vacation Judge (said to be Shri C.K. Singh, Addl. Sessions Judge III, Siwan). The consideration, in our opinion, ws totally irrelevant to the grant of bail. We are also not able to appreciate the conduct of the successor Vacation Judge (said to be Shri C.K. Singh, Addl. Sessions Judge III, Siwan). Once the court of coordinate jurisdiction, rightly or wrongly, granted bail to the accused, he had no business to make comments on his order and conduct and refuse to pass necessary orders on the bail bonds furnished before him forcing the petitioners to approach this Court in the present petitions and, meanwhile, to remain in custody for certain period. Perhaps, he also exceeded his jurisdiction when by a judicial order he directed the G.R. Clerk to submit explanation thereby usurping jurisdiction of the Sessions Judge. Ail that he could have done was to bring to the notice of the Sessions Judge the conduct of the clerk. We are of the view that conduct of both Shri R.K. Lal, 7th Addl. Sessions Judge, Siwan, and Shri C.K. Singh, 3rd Addl. Sessions Judge, Siwan should be examined on the administrtive side. 7. So far as these petitions are concerned, the interim orders dated 3.12.2002 in Cr.W.J.C. 438/2002 and 4.12.2002 in Cr.W.J.C. 444/2002 are made absolute and the petitions stand disposed of. 8. Let this order along with the relevant orders of the court below, referred to above, be put up before Hon ble the Chief Justice for needful.