Devinder vs State of Haryana

K.S. Kumaran, J.

The allegation against the petitioner Devinder son of Rampat is that he along with the coaccused attacked Nand Lal and others. According to the State on 8.9.1998 at 10 p.m. while Nand Lal and others were sitting in front of their house, petitioner Devinder fired a shot from his rifle hitting on the right side of the back of Nand Lal. Phool Singh the co accused is also stated to have fired from his rifle which hit on the armpit of Nand Lal. Nand Lal who was taken to the Hospital died.

The petitioner''s application for bail was dismissed by the Additional Sessions Judge, Rewari, that is why the petitioner has approached this Court under Section 439 Cr.P.C. for bail.

I have heard the counsel for both the sides and perused the records on file.

The learned counsel for the petitioner contendes that Phool Singh, the co accused who also allegedly used a fire arm has been granted bail by this Court. But, the copy of the order (Annexure P1) granting bail to Phool Singh, shows that the Gun that was allegedly used by Phool Singh had been deposited in the Police Station long prior to the date of the alleged occurrence. Therefore, it was contended that he could not have used the said fire arm for the commission of the offence. But that is not the case with the petitioner.

But one vital objection taken by the petitioner is that he is employed in the Indian army and posted in 12 Jat Regiment, Glacier C/o 56 A.P.O. and, therefore, the previsions of Rules 3 and 4 of the Criminal Court and Court Martial (Adjustment of Jurisdiction) Rules, 1952 had to be complied with by the Magistrate before whom he was produced whereas the Magistrate had failed to do so and, therefore, he is entitled to be released on bail.

Rule 3 provides that where a person subject to military, naval or Air Force law is brought before a Magistrate and charged with any offence for which he is liable to be tried by a courtmartial, such Magistrate shall not proceed to try such person or to issue orders for his case to be referred to a Bench, or to inquire with a view to commit him for trial by the Court of Sessions, unless he records his reasons for not doing so.

Rule 4 of the 1952 Rules provides that the Magistrate shall give written notice to the Commanding Officer of the accused and until the expiry of a period of seven days from the date of the service of such notice he shall not convict or acquit, frame charges or commit him, to the Court of Sessions.

Therefore, the learned counsel for the petitioner contends that inasmuch as this procedure his not been followed and he is entitled to be released on bail. The learned counsel for the petitioner relied upon the decision of his Court in Kulwant Singh @ Kala v. State of Punjab, 1991(1) RCR 618 and Pritam Singh v. State of Haryana, 1994(1) RCR 131.

Taking into consideration all these aspects but without going through the merits of the claims made by the petitioner, I am of the view that the petitioner is entitled to be released on bail. The applicability of the provisions of Rules 3 and 4 of the 1952 Rules relied upon by the petitioner shall be considered by the Court concerned before proceeding further.

Resultantly, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of the Chief Judicial Magistrate, Rewari, subject to the observations made above.