Jalaluddin Majumdar and Others vs State of Assam

M. Sharma, J.—Heard Mr. N.M. Lahiri, learned Counsel for the Petitioner, Also heard Mr. N. Mahammad, learned Public Prosecutor.

Petitioners have filed this application u/s 439 read with Section 482 Code of Criminal Procedure against the order dated 15.9.94 passed by the Addl. Sessions Judge, Cachar, Silchar in Sessions Case No. 41/94 u/s 302/323/324/427/34 IPC pending before the said court. The Petitioners are accused in the said Sessions case.

Petitioners were kept in custody for the statutory period of 90 days and thereafter they were released as the investigation could not be completed during that statutory period. The Petitioners remained on previous bail after their committal to sessions by order dated 15.7.94 of the learned Addl. Sessions Judge after transfer of the case to that court. On 15.9.94 learned Addl. Sessions Judge framed charges under the above mentioned sections of IPC and while the order of framing of charges was passed, the learned Judge directed rearrest of the Petitioners for commitment to custody and since 15.9.94 the Petitioners have been in custody. By the impugned order dated 15.9.94 the learned court below held that by order dated 4.3.93 in CR Case No. 2843/92 the accused were released on bail after their detention in prison for 90 days; that the Magistrate passed the bail order u/s 167 Code of Criminal procedure during investigation and before chargesheet was received against the accused; that the bail order was passed under legislative mandate and not on merits and that after the said order was passed by the Magistrate chargesheet was received and the case was committed to the Court of Session. The reason for rearrest of the Petitioners, as given in the impugned order, is that the accused persons caused death of the deceased. That the post mortem report shows that the deceased received six injuries and doctor''s report also corroborated it; that the deceased died immediately after the occurrence. It was further held by the learned Addl. Sessions Judge that there appeared reasonable grounds for believing that the accused are guilty of offence punishable with imprisonment for life or death.

The power of the High Court or Sessions Court as given by Section 439 Code of Criminal Procedure definitely, not controlled by statutory limitation laid down in Section 437 Code of Criminal Procedure for refusing bail, if there appears reasonable grounds for believing the accused to be guilty of an offence punishable with death or life imprisonment. There is no dispute that power u/s 439 are not distinct defining the limits within which they would be exercised as the powers u/s 437. The discretion is unfettered by Section 437 and it must be exercised judiciously Harsh Sawhney Vs. Union Territory (Chandigarh Admn.), This power has been reiterated in a catena of decisions (after Gurcharan Singh''s case AIR 1978 SC 179 that the Sessions Judge must have jurisdiction over the Magistrate whose orders he examined and the power given under the section can be exercised in respect of any order of a Magistrate u/s 437(1) or read with Section 437(3). But the power is not to be exercised as if punishment before the trial is imposed and the material consideration should be whether the accused would be readily available for his trial and whether there is likelihood of jumping bail or tampering evidence and if there is a prima facie case then bail can be rejected.

Ordinarily when Sessions Judge refuses bail the jurisdiction of the High Court has to be sparingly exercised to interfere with it and only in exceptional cases, when, there is a glaring defect in the procedure and where there is gross miscarriage of justice which may lead to manifest error on a question of law. Definitely in such a case the High Court would interfere. As it appears from the impugned order there is no allegation from the prosecution side against the Petitioners to find but a prima facie case against them regarding jumping of bail condition. In that view of the matter I return the case to the learned Addl Sessions Judge, Cachar, Silchar for reconsideration of the bail prayer u/s 439 Code of Criminal Procedure. The learned Addl. Sessions Judge may consider fresh bail petition in the light of the observation and reassess this aspect of the case.

With the direction the petition is disposed of.