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Kapoor Singh Nidhan Singh and ors. Vs. the State of Haryana - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1975CriLJ1007
AppellantKapoor Singh Nidhan Singh and ors.
RespondentThe State of Haryana
Excerpt:
.....of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; in the oresent case, since the petitioners wore accused of the commission of murder, which was a non-bailable offence of very serious nature, the learned magistrate was perfectly justified under section 209(b), read with section 437(5), criminal procedure code, 1973, to commit them in custody to the sessions court for their trial for the offences which were exclusively triable by the court of session, the collective reading of section 209(b) and section 437(5), criminal procedure code, would show that the magistrate has jurisdiction to cancel bail of the..........four petitioners were allowed bail, as required by the proviso to sub-section (2) of section 167. criminal procedure code, 1973, by the magistrate because the investigation of the case against them could not be completed and no chalan against them was put in court by the police within the period of sixty days from the dates of their arrest, subsequently, chalan against them was, however, put in the court of the concerned magistrate by the police. the learned magistrate, after perusing the chalan, papers, found that the offences alleged against the petitioners were triable exclusively by the court of session and, accordingly, he under section 209 (a) and (b), criminal procedure code, 1973, committed them in custody to the court of session for their trial for the aforesaid offences. the.....
Judgment:
ORDER

S.S. Sidhu, J.

1. Kapoor Singh, Hazura Singh, Lai Singh and Maghar Singh accused who, along with some other co-accused, have been committed in. custody to the Court of Sessions Judge for their trial under Sections 302, 307, 148, read with Section 149, Indian Penal Code, and under 'Sections 25 and 27 of the Arms Act have presented this bail application in this Court.

2. Briefly, the facts of the case Hiving rise to this application are that all the four petitioners were allowed bail, as required by the proviso to Sub-section (2) of Section 167. Criminal Procedure Code, 1973, by the Magistrate because the investigation of the case against them could not be completed and no chalan against them was put in Court by the police within the period of sixty days from the dates of their arrest, Subsequently, chalan against them was, however, put in the Court of the concerned Magistrate by the police. The learned Magistrate, after perusing the chalan, papers, found that the offences alleged against the petitioners were triable exclusively by the Court of Session and, accordingly, he under Section 209 (a) and (b), Criminal Procedure Code, 1973, committed them in custody to the Court of Session for their trial for the aforesaid offences. The petitioners moved a bail application before the learned Additional Sessions Judge, Hissar, to whom the case had been assigned by the learned Sessions Judge, Hissar, for trial. He, after hearing the parties, declined bail to the petitioners vide his order dated November 20, 1974.

3. The petitioners have made prayer for grant of bail to them in their application on two grounds. Firstly, that the prosecution case on the face of it looks to be false, Secondly, that the learned Magistrate had no jurisdiction to cancel bail of the petitioners and remand them to custody,- while committing them to the Court of Session for trial.

4. All the four petitioners were allegedly armed with firearms and they had allegedly used them at the time of occurrence. As a result of receiving injuries at the hands of the petitioners and their co-accusedl Niranjan Singh had died. One Atma Ram, too, had been hit with pellets. After taking all the facts of the case into consideration, there appears to be hardly any justification for allowing bail to the petitioners, more especially, when the case, as stated at the Bar by the learned Counsel for the State, has already been fixed on January 18, 1974, for scrutiny by the trial Court and it is likely to be fixed for trial thereafter. Even the learned Counsel for the petitioners has only half-heartedly stressed the first ground. However, he, laying much stress on the second ground, has contended that mance the learned Magistrate had allowed bail to the petitioners under Section 167,' Criminal Procedure Code, he had no jurisdiction to cancel the same and remand them to custody, while committing them to the Sessions Court for trial. I have' heard the learned Counsel for the State also, in this behalf.

5. Section 167(2), inclusive of proviso (a), Criminal Procedure Code, 1973, reads as under:-

167 (1) xx xx xx(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:

Provided that-

(a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the prposes of that Chapter.

XX XX XX XXXX XX XX XXIt is, therefore, clear that any accused person released on bail under Section 167, Criminal Procedure Code, shall be deemed to be so released under the provisions of Chapter XXXII! for the purposes of that Chapter. Section 437 occurs in Chapter XXXIII, Criminal Procedure Code. Sub-sections (1) and (2) of Section 437, Criminal Procedure Code, provide as to when bail may be taken in case of non-bailable offence. Thus, bail allowed by , the Magistrate in this case to the petitioners under Section 167, Criminal Procedure Code, shall be deemed to have ' been allowed 'under the aforesaid provisions of Section 437, Criminal Procedure Code. Sub-section (5) of Section 437, Criminal Procedure Code lays down as under;

437 (1) x x x x x (2) x x x x x (3) x x x x x(4) x x x x x (5) Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may if it considers it- necessary so to do, direct that such person be arrested and commit him to custody.

XX XX XX XXIn view of that provision, the Magistrate could direct for the arrest of the petitioners and also commit them to custody, provided he had then considered it necessary so to do, Section 209 (a) and (b). Criminal Procedure Code lays down as to when and how the case is to be committed to the Court of Session and it reads as follows: -

209. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of. the trial;

(c) xx xx xx xx(d) xx xx xx xxIn accordance with the aforesaid provisions of Section 209, Criminal Procedure -Code, the Magistrate, while committing the case to the Court of Session, has no option but to remand the accused to custody during, and until the conclusion of, the trial, but, of course, that option is 'to be exercised suhiect to the provisions of the Criminal Procedure Code relating to bail. In the oresent case, since the petitioners wore accused of the commission of murder, which was a non-bailable offence of very serious nature, the learned Magistrate was perfectly justified under Section 209(b), read with Section 437(5), Criminal Procedure Code, 1973, to commit them in custody to the Sessions Court for their trial for the offences which were exclusively triable by the Court of Session, The collective reading of Section 209(b) and Section 437(5), Criminal Procedure Code, would show that the Magistrate has jurisdiction to cancel bail of the accused person who may have been allowed bail by him in a case of non-bailable offence under the provisions of Section 167, Criminal Procedure Code, and remand him to custody during, and until the conclusion ot the trial while committing the case against him to the Court of Session provided he considers it necessary so to do. It may also be pointed out here that Sub-section (5) of Section 437, Criminal Procedure ''ode, empowers the Magistrate, who has bailed out an accused person under Section 167, Criminal Procedure Code^ because of his chalan having not been put in Court within sixty days of his arrest, to direct for his arrest and commit him to custody in all the cases of non-bailable 1975 Cri. L. J./64 VI offences, which may be triable even by his own Court, provided he considers it necessary so to do at any subsequent stage. Suppose such an accused person mis-uses the concession of bail allowed to him by the Magistrate, then the Magistrate shall be fully competent to cancel his bail and commit him to custody for that reason under Sub-section (51 of Section 437, Criminal Procedure Code, because the accused person released on bail under Section 167, Criminal Procedure Code, shall be deemed to be so released under the provisions of Chapter XXXIII which includes Section 437, Criminal Procedure Code, for the purposes of that Chapter. Thus, I would repel the argument of the learned counsel for the petitioners that the learned Magistrate in this case had no jurisdiction t0 cancel the bail and remand them in custody, while committing them to the Sessions Court for their trial.

6. For the reasons given above, I find no ground for the acceptance of this bail application and the bail, as prayed for by the petitioners, is declined.


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