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2013 DIGILAW 232 (PNJ)

Munni v. State of Haryana

2013-02-20

L.N.Mittal

body2013
JUDGMENT Mr. L.N. Mittal, J. (Oral) : - Accused Munni has filed this petition under Section 482 of the Code of Criminal Procedure (in short – Cr.P.C.) assailing order dated 01.06.2011 (Annexure P-2), passed by learned Sub Divisional Judicial Magistrate (SDJM), Hansi. 2. The petitioner was arrested in FIR No.299 dated 28.05.2011, under Section 304-A of the Indian Penal Code (in short – IPC), registered at Police Station Hansi City, District Hisar and was produced before learned SDJM, Hansi. Since offence under Section 304-A IPC is bailable, counsel for the petitioner prayed for release of the petitioner on bail. However, learned Magistrate, vide order Annexure P-2, found that in fact, from prosecution version, offence punishable under Section 304 Part-II IPC was made out. Consequently, bail was declined to the petitioner by learned SDJM vide order Annexure P-2. Feeling aggrieved, petitioner has filed this petition to assail the said order. 3. I have heard counsel for the parties and perused the case file. 4. At the outset, it has to be noticed that SDJM, Hansi has been impleaded as respondent no.2 to the instant petition. This practice of impleading the Judicial Officers as party to the case, while challenging judicial orders passed by them, has been strongly deprecated by this Court as well as by Hon’ble Supreme Court, but in spite thereof, in the instant case, the Judicial Officer has been implicated as respondent no.2, although by designation and not by name. Accordingly, respondent no.2 is deleted from the array of respondents. 5. Counsel for the petitioner, relying on judgment of Hon’ble Supreme Court in the case of Rasiklal vs. Kishore s/o Khanchand Wadhwani reported as, [2009(3) Law Herald (SC) 2059] : 2009 (2) R. C. R. (Criminal) 161, contended that since offence under Section 304-A IPC was bailable, the learned Magistrate was bound to release the petitioner on bail, and therefore, impugned order is patently illegal. Reliance has also been placed on unreported judgment dated 30.04.2009 of this Court passed in Crl. Misc. No. M-11493 of 2009 titled Trinayan Saikia vs. State of Haryana. 6. I have carefully considered the matter. The aforesaid contention of counsel for the petitioner cannot be accepted. Merely because the police alleged that offence under Section 304-A IPC was made out, the Magistrate was not bound to accept the same blindly. The Magistrate was required to apply his judicial mind. 6. I have carefully considered the matter. The aforesaid contention of counsel for the petitioner cannot be accepted. Merely because the police alleged that offence under Section 304-A IPC was made out, the Magistrate was not bound to accept the same blindly. The Magistrate was required to apply his judicial mind. On doing so, learned Magistrate found that in fact, offence under Section 304 Part-II IPC was prima facie made out. Consequently, bail was rightly declined to the petitioner. If police version is accepted blindly by the Magistrate, even at the stage of remand/bail, it may result in great miscarriage of justice. A simple example would be sufficient to demonstrate the same. Taking a converse situation, the police in a case falling under Section 304-A IPC, may present the accused with application for remand alleging the case to be under Section 304 or Section 302 IPC. If the Magistrate accepts such version blindly, it would result in great miscarriage of justice to such accused. Consequently, the Magistrate is required to apply his mind even at the said stage and to see what offence is prima facie made out from the police version. On the other hand, if contention of counsel for the petitioner is accepted, then everything would be in the domain of police, and the Courts would become redundant. Such situation cannot be accepted. In Cr.P.C., there is separation of powers and functions of the police and the Courts. Police presents its case before the Courts. The Courts, after granting opportunity of hearing to the parties concerned, are supposed to pass appropriate orders. 7. In view of the aforesaid, the impugned order of learned Magistrate cannot be said to be suffering from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of inherent powers under Section 482 Cr.P.C. I may hasten to add that I should not be misunderstood to mean that offence under Section 304 Part II IPC was prima facie made out in this case. I am not expressing any opinion in this regard, particularly because counsel for the parties have informed that already charge under Section 304-A IPC has since been framed against the petitioner. 8. It may also be noticed that the petitioner had already been released on bail on 09.06.2011, pursuant to interim order of this Court. 9. I am not expressing any opinion in this regard, particularly because counsel for the parties have informed that already charge under Section 304-A IPC has since been framed against the petitioner. 8. It may also be noticed that the petitioner had already been released on bail on 09.06.2011, pursuant to interim order of this Court. 9. Judgment of Hon’ble Supreme Court in the case of Rasiklal (supra) has no applicability to the instant case. There is no quarrel with the proposition that in a bailable case, the accused has to be released on bail if he is ready and willing to furnish requisite bail bonds. However, in the instant case, the question before the Magistrate was whether bailable offence under Section 304-A IPC was made out or non-bailable offence under Section 304 Part-II IPC was made out. The Magistrate was of the view that the latter (non-bailable) offence was made out and consequently, the petitioner was held not entitled to bail as a matter of right. 10. Judgment of this Court in the case of Trinayan Saikia (supra) rather goes against the petitioner. In that case, FIR was registered under Section 304-A IPC on account of death of a person, who got stuck up in a lift. However, later on, offence under Section 304 IPC was added. Consequently, bail of the petitioner was declined not only by the Magistrate, but also by Sessions Court. However, this Court, keeping in view the facts and circumstances of that case, granted bail to the said accused. In the aforesaid circumstances, if in the instant case, the Magistrate holding the case to be falling under Section 304 Part-II IPC, did not grant bail to the petitioner, the impugned order cannot be held to be illegal merely on the ground that the petitioner should have been released on bail because offence under Section 304-A IPC, advanced by the police, was bailable one. 11. For the reasons aforesaid, the instant petition is dismissed as being meritless, but it shall not effect order of release of the petitioner on bail. ---------0.B.S.0------------