1. Sri B. Subhashan Reddy, the learned counsel for the petitioners, contends that when the petitioner-accused were granted anticipatory bail, the learned Magistrate cannot take them into custody at the time of committing them for trial to the Sessions Court.
2. The facts leading to this petition may be mentioned as follows : The first respondent gave report to the S.H.O. of Rural Police station, Nirmal, making certain allegations against the petitioners. The Sub-Inspector registered a case as Crime no. 50/1981 under sections 447, 324, and 326 IPC., against the petitioners. The Sub-Inspector also issued FIR and took up investigation. The petitioners apprehending that they would be arrested filed Cr. MP Nos. 586/1981 and 623/1981, in the Court of Sessions Judge for anticipatory bail. The learned Sessions Judge granted anticipatory bail under S. 438 Cr.P.C. The Sub-Inspector after completing the investigation referred the case as one of civil nature. Aggrieved with the said orders of the police referring the case as one of civil nature, the first respondent filed a private complaint in the Judicial it Class Magistrate's Court, Nirmal, under sections 147, 447, 324, 326 and 307 I.P.C. and the same was taken on file as PRC. No. 4 of 1982. The learned Magistrate has recorded the sworn statement of the complainant and also the other witnesses in the case. The petitioners in their turn file Crl. MP. No. 1421 of 1982 in this Court (High Court) for quashing the proceedings in P.R.C. No. 4 of 1982. But the same was dismissed on 3-7-1982. By virtue of the orders passed by the learned Sessions Judge in Crl. MP. Nos. 586/1981 and 623/1981, the petitioners were enlarged on anticipatory bail and since then they have been on bail. Now the Magistrate is proceeding to commit the accused to the Sessions Court for trial under S. 209. Cr.P.C. The accused, therefore, apprehend that the Magistrate will remand them to custody. Hence they filed a petition Crl. MP No. 365 of 1982, before the Sessions Judge, under S. 482 Cr.P.C. for giving direction to the learned Judicial First Class Magistrate Nirmal, not to take the accused into custody at the time of committing them for trial to the Sessions Court. It was urged the learned Sessions Judge that S. 482 Cr.P.C. cannot be invoked but the application can be considered under S. 439 Cr.P.C. The learned Sessions Judge held that Sessions Court has no power to invoke the provisions of S. 482 Cr.P.C. The learned Sessions Judge, finally dismissed the petition on the ground that it is not desirable for him to interfere with the discretion of the Magistrate. The accused-petitioners, therefore filed this petition under S. 482 Cr.P.C.
3. Sri B. Subhashan Reddy, the learned counsel for the petitioners, contends that as the petitioners were already granted bail, the committing Magistrate has no jurisdiction to remand the accused to custody under S. 209(b) Cr.P.C. while committing the petitioners to Court of Session for trial and if they are committed to custody under S. 209(b) Cr.P.C. it would amount to cancellation of bail which was granted already to them. The learned Public Prosecutor, contends that the committing the accused to the Court of Session, the Magistrate has got the power under S. 209(b) Cr.P.C. to remand the accused to custody during and until the conclusion of the trial.
4. The question that requires consideration is whether the Magistrate is empowered to remand the accused to custody while committing the accused to the Court to Session for taking their trial even though the accused were already on bail
5. Since it is not a revision against the order of the Sessions Court, the correctness or illegality of the order passed by the learned Sessions Judge need not be examined. But this Court can dispose of the question from above in this petition only under S. 482 Cr.P.C.
6. From the admitted facts it is clear that the accused were granted anticipatory bail. They now apprehend that they will be remanded to custody by the committing Magistrate while committing them.
(Accused to the Sessions Court for trial under S. 209 Cr.P.C.)
Clause (b) of S. 209 Cr.P.C. reads as follows :-
'Subject to the provisions of this Code relating to bail remand the accused to custody during, and until the conclusion of the trial'.
The Magistrate's power to remand the accused to custody during and until the conclusion of the trial in exercise of the power given to him by this provision is subjected to the provisions of this Code relating to the bail. It is now well settled that when once the a bail granted to the accused was governed by Chap. XXXIII, the bail should continue to be in force till it is cancelled under S. 437(5) Cr.P.C. of under S. 439(2) Cr.P.C., S. 437(5) Cr.P.C. empowers the very Magistrate who has released the person on bail under Sub-section (10 or sub-section (2) of S. 437 Cr.P.C. to direct that such person be arrested and committed to custody. Thus, this provision pertains to a Court of Magistrate but not a High Court or a Court of Session. S. 439 Cr.P.C. empowers High Court or a Court of Session to direct that any persons, who has been released on bail, under Chap. XXXIII be arrested and remanded to custody. Since the Magistrate has not granted anticipatory bail to the petitioners in the case on hand, he has no jurisdiction to pass an order for cancellation of bail under S. 437(5) Cr.P.C. But the Sessions Court which has granted the anticipatory Bail or the High Court is competent to pass under S. 439(2) Cr.P.C. an order for cancellation of the bail. But the Sessions Court or the High Court has no jurisdiction to pass an order of cancellation under S. 439(2) Cr.P.C. at its whims and fancy. It can cancel only on specific grounds that the accused has committed misconduct or misuse of the terms of the bail or that the accused is trying to abscond after the charge-sheet is filed or threatening or influencing or tampering with the evidence or interfering with the investigation or obstructing the judicial process or otherwise misusing or abusing the bail. The fact that the Magistrate is committing the accused to Sessions Court for trial does not form a valid ground for the Sessions Judge of the High Court to remand the accused to custody, as it does not constitute a ground for cancellation of bail which was already granted.
7. In Ram Pal Singh v. State of U.P. (1976 Cri LJ 288) their Lordships of the Allahabad High Court held that the bail under S. 167(2) has the same incidents on the bail granted under Chap. XXXIII and is accordingly to remain valid till it is cancelled and the cancellation of bail can only be on the grounds known to law and the receipt of the charge-sheet in court can by itself be no ground for cancellation of the bail. What was laid down by the Supreme Court in the above case holds good even in the case of the accused herein who were to be committed under S. 209 Cr.P.C. by the Magistrate to Sessions Courts for their trial. When once it was accepted that the bail granted under Chap. XXXIII remains valid till it is cancelled, the cancellation of the bail should be ordered only on any of the grounds mentioned above. Hence the accused cannot be remanded to custody on the ground that the accused are committed to Sessions Court for trial. The legal position is, thus clear that if the accused are enlarged on bail the committing Magistrate has no power to cancel it on the ground that he is committing the accused to Sessions Court for trial. The Legislature in its wisdom has, therefore, employed the expression 'subject to the provisions of this Code relating to bail' in Clause (b) of S. 209 Cr.P.C. for the guidance of the Magistrate. This expression makes it abundantly clear that the Magistrate will have to remand the accused at the time of committing the accused to Sessions Court for trial 'subject to the provisions of the Code relating to bail.' This expression used in Clause (b) of S. 209 Cr.P.C. clearly refers to Sections 436, 437, 438 and 439 Cr.P.C. which contain the provisions relating to bail. In the absence of any such misuse or abuse, this provision requires the Magistrate not to remand the accused to custody if he was already on bail granted by the Sessions Court or the High Court and he should be on bail during and until the conclusion of the trial. The Magistrate should, therefore, have due regard to this expression 'subject to the provisions of this Code relating to bail' employed in Clause (b) of S. 209 Cr.P.C. while passing an order committing the accused to Sessions Court for trial. The Magistrate has no right or power to ignore this important expression used S. 209(b) and consequently has no jurisdiction to remand the accused to custody, while committing the accuse to Sessions Court for trial. A similar view was taken in Rewat Dan v. State of Rajasthan, 1975 Cri LJ 691 (Rajasthan High Court). In that case it was observed that S. 209 empowers the Magistrate to remand the accused person to custody at the time of committing him to the Court of Session for trial. But this power is controlled by the provisions of the Code relating to bail. The committing Magistrate is, therefore, not permitted to cancel the bail of an accused person and to remand him to custody at the time of committing the case the Sessions Court for trial if he has been bailed out be an order of the High Court or of the Court of Session unless the order passed by the High Court or the Court of Session is of a temporary nature and permits the Magistrate to reconsider the matter at some subsequent stage in the proceedings.
8. Having regard to the above discussion, I find merits in this petition. The learned Magistrate is directed not to take the accused to custody while committing the case to the Sessions Court for their trial.
9. In the result the petition is allowed.
10. Petition allowed.