Jagan Lal and others vs State of Punjab and another

S.C. Malte, J.

Heard. In this case the FIR dated 13.6.1994 was lodged by respondent Bhajan Lal, and he made a grievance that the present petitioners had killed his father. It is an admitted position that after investigation the police found that the said FIR was false. Therefore, the police had initiated proceedings under Section 182 IPC against Bhajan Lal by filing complaint dated 6.3.1995. Prior to that, on 17.1.1995, respondent No. 2 Bhajan Lal filed a complaint in the Court of Judicial Magistrate 1st Class, Abohar, and alleged that the present petitioners have committed offence under Section 302 read with Section 34 IPC by killing Chandi Ram, the father of Bhajan Lal. It may be noted that the same allegations were the subjectmatter of investigation by the police on the basis of FIR filed on 13.6.1994; and after investigation those allegations turned out to be false, giving rise to proceedings under Section 182 IPC against Bhajan Lal. In the set of these circumstances, the Magistrate issued nonbailable warrant against the petitioners while making enquiry into the complaint filed before him by Bhajan Lal. The petitioners, therefore, rushed to the Court for anticipatory bail. The reasoning given by the Sessions Judge, Ferozepure, is that the Magistrate has passed a speaking order while issuing the nonbailable warrants. On this sole ground he has dismissed the petition for anticipatory bail.

The admitted position before me is that after the complaint was filed, the evidence of the witness is being recorded by the Magistrate, and further steps are yet to be taken in the case. It was submitted by the counsel for respondent No. 2 that while recording the statement of the witnesses, the presence of the accused at the stage of proceedings under Section 202 Cr.P.C. was also necessary. In that respect I would like to invite attention to clause (2) to Section 202 Cr.P.C. which is as follows :

"(2) In an inquiry under subsection (1), the Magistrate may, if he thinks fit, take evidence of witness on oath. Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath".

Obviously, therefore, if the proceedings are at the stage of 202 Cr.P.C. and the Magistrate is making an enquiry into the allegation to find out the truth of the allegations, and if the offence complained of is exclusively triable by the Court of Sessions, he need not call the accused.

It is only after he forms some opinion on the basis of the material before him, that he is expected to exercise his powers under Sections 208 and 209 Cr.P.C. for the purpose of commitment of the case to the Court of Sessions.

It is turn provides that in a case instituted on police report or otherwise, the accused appears before or brought before the Magistrate, the case shall be committed if it appears to the Magistrate that the offence is exclusively triable by the Court of Sessions. In that case he would take the accused into custody as per Clause (1)(b) of Section 209 Cr.P.C.

It was submitted by the counsel for respondent No. 2 that Section 204 Cr.P.C. contemplates the presence of the accused. In my view, Section 204 Cr.P.C comes into play only after the Magistrate take cognizance of the offence. In this case the Magistrate, as yet, has not taken the cognizance in the (sic), it is understood and has not further decided to act under Section 208 Cr.P.C. In view of that it is obvious that the petitioners should have sought the quashing of the order issuing nonbailable warrants by the Magistrate. However, the petitioners have challenged it in this petition and has sought the indulgence of this Court for grant of anticipatory bail. Section 438 Cr.P.C. contemplates anticipatory bail when the arrest is apprehended on the accusation of having committed a nonbailable offence. In view of that, I pass the following order :

The petitioners are granted anticipatory bail on the conditions that in the event of their arrest pursuant to the proceedings filed in the Court of Judicial Magistrate 1st Class, Abohar, they shall be released on bail on each of them executing bail bond coupled with the surety bond to the satisfaction of the said Magistrate and that they shall not in any manner tamper with the prosecution evidence or interfere in the progress of the case. The petitioners are directed to appear before the Judicial Magistrate 1st Class, Abohar, on 8.2.1996.