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2014 DIGILAW 317 (HP)

Balwant Singh v. State of Himachal Pradesh

2014-03-31

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. Learned Additional Advocate General has placed on record the status report and Investigating Officer, SI Rajesh Kumar of Police Station, Nurpur, District Kangra has produced the record. 2. Heard. 3. Petitioner is an accused in FIR No.20 of 2014, which initially was registered against him and his co-accused under Sections 308, 335, 337, 338, 286 read with Section 34 of Indian Penal Code and 30 of Arms Act in Police Station, Nurpur, District Kangra. Now no case for the commission of an offence under Sections 308, 335 and 337 of Indian Penal Code has been found to be made out against him and the police in the report filed on 28.3.2014 under Section 173 Cr.P.C. in the Court of learned Judicial Magistrate 1st Class, Nurpur sought his prosecution only for the commission of an offence punishable under Sections 286 and 338 read with Section 34 of Indian Penal Code, 30-54-59 of Arms Act and 51 of Wild Life (Protection) Act. He has been arrested in this case on 28th January, 2014 at a stage when booked under Section 308 of Indian Penal Code also, a non-bailable offence and presently is in judicial custody. 4. It is seen that an offence punishable under Sections 286 and 338 of Indian Penal Code is bailable. For the commission of an offence punishable under Section 51 of Wild Life (Protection) Act, there is provision of maximum sentence to undergo 3 years’ imprisonment and as regards an offence punishable under Section 30 of Arms Act, there is provision to undergo imprisonment upto six months. Learned counsel, therefore, submits that the offence, the accused-petitioner allegedly committed, is bailable. Part-II of 1st Schedule of the Code of Criminal Procedure takes care of the classification of offences committed under other laws except for those under the Indian Penal Code. First and second item below Part-II of the Schedule classifies the offence bailable/non-bailable in view of the provision of sentence made in such law against an offender, if ultimately held guilty by the competent court after holding trial. First and second item below Part-II of the Schedule classifies the offence bailable/non-bailable in view of the provision of sentence made in such law against an offender, if ultimately held guilty by the competent court after holding trial. In view of an offence under Section 51 of Wild Life (Protection) Act is punishable with imprisonment which may extend upto 3 years meaning thereby that the convict can even be sentenced for a period less than 3 years also, whereas, the offence under Section 30 of the Arms Act is punishable with imprisonment which may extend upto six months, the present, is a case where the offence, the accused-petitioner has allegedly committed either under Indian Penal Code or Arms Act or Wild Life (Protection) Act, is bailable. No doubt, initially, the accused was booked for the commission of an offence punishable under Sections 308 of the Indian Penal Code, a non-bailable offence, however, he has not been found to have committed the said offence nor the report under Section 173 Cr.P.C. filed against him for commission of the same. As a matter of fact, on dropping of the case registered against the accused-petitioner under Section 308 of the Indian Penal Code, his detention being not only unwarranted, but illegal also, the Magistrate in stead of remanding the accused further in judicial custody should have released him at once from custody on furnishing of personal/surety bond. 5. In view of the above and also that the prosecution of the accused-petitioner has now only been sought for the commission of a bailable offence, this petition is not maintainable and the same is accordingly dismissed, of course, with a direction to learned Judicial Magistrate 1st Class, Court No.1, Nurpur, District Kangra to cause the production of accused-petitioner before him immediately on production of a copy of this judgment and at once release him from custody on usual terms and conditions. The petition stands accordingly disposed of. Authenticated copy to the parties.