Madan Mohan Kichloo vs State of M. P. and Another

Tej Shankar, J.

This revision petition has been preferred against the order dated 12.8.1996 passed by Shri G. D. Saxena, Fourth Additional Sessions Judge, Gwalior, whereby he rejected the application of (he petitioner u/s 439 Cr. P. C.

The revision petition has arison out of the following facts :

A complaint was moved purporting it to be under Sections 452, 341, 294, 307, 326 and 506 B. /34 IPC and the learned Court took cognizance. The petitioner moved an application for anticipatory bail, which was allowed on 21.3.1996 by this Court and the petitioner was given interim bail for a period of 15 days. He was directed to surrender before the concerned Court and to apply for regular bail. The petitioner appeared before the Sessions Judge on 29.3.1996 and moved an application u/s 439 Cr. P. C, which was transferred to the Court of Forth Additional Sessions Judge, Gwalior for disposal. He appeared on 4.4.1996, i.e. the date fixed for hearing and continued to appear till 12.8.1996, when the application was rejected on the ground that the petitioner did not comply with the order this Court, hence this petition.

The petitioner has been heard finally at the admission stage. Learned counsel for the petitioner contended that the petitioner''s application for bail was rejected by the learned Sessions Judge on the ground that he did not comply with the orders of this Court. The fact is that the petitioner had appeared before the learned Sessions Judge, which was the Court competent to grant bail. He could not appear before the learned Magistrate because he was not competent to grant bail and he had no jurisdiction. Lengthy argument has been advanced by the learned counsel for the revisionist on the point that the accused had to surrender and apply for regular bail before the Court which had jurisdiction to grant bail i. e. the Sessions Court and not before the Magistrate who had no jurisdiction. It is therefore incorrect to say that the petitioner did not comply with the orders of this Court. On the other hand, it has been submitted that the concerned Court was the Court of Magistrate and the petitioner ought to have surrender before that Court.

The most important point that calls for consideration in this case is as to whether the accused petitioner in compliance with the order had to surrender before the Court of Magistrate. By order dated 21.3.1996 of this Court, the petitioner was granted anticipatory bail for a short period of 15 days and he was directed to surrender before the Court concerned within a period of 15 days and apply for regular bail, if he so chooses. Now, the question is what is the concerned Court. The main thrust of the learned counsel for the petitioner is that tire concerned Court was the competent Court, i. e. the Court of Session and not the Court of Magistrate, who had no jurisdiction to grant bail in the present case. He place reliance on a decision of learned Single Judge of this Court in case of State of M. P. Vs. Laxminarayan (1970 MPLJ 236) wherein a view was taken that Magistrate had no power to grant bail in a case of offence which is punishable with imprisonment for life. The other case relied upon in this connection is a decision of a Single Learned Judge of Allahabad High Court in case of Chandra Prakash Vs. Mohanlal (1984 (2) Crimes 325), wherein the learned Single Judge took the view that the Magistrate had no jurisdiction to grant bail to the accused charged u/s 307 IPC. The other decisions relied in this connection is Refuquddin and others Vs. Bashir Ahmad and others (1985 (I) Crimes 1076), a single Judge decision of the Allahabad High Court. I have carefully gone through these authorities. It has to be taken note of that the provisions of Section 439 Cr. P. C. go to show that when a person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail. It however makes two exceptions; firstly, that he will not be released, if there appears reason(sic)f grounds for believing that he has been guilty of an offence punishable with death, imprisonment for life or imprisonment for seven (sic) or more and secondly if such offence is a cognizable offence and he has been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. However, there is also proviso appended to it in which the Court has jurisdiction to grant bail in the cases covered by the two provisions i. e. Sub-section (1) (i) and (1) (ii) is such person is under the age of sixteen years of age or is a woman or is sick or infirm. Not only this there are two more provisos which enable the Court to grant bail under the second proviso to a person covered by Clause (ii), if the Court is satisfied that it is just and proper so to do for any other special reason. Thus, the legislature has not ousted the jurisdiction of the Magistrate to grant bail absolutely. It has rather put a rider upon the power of the Court to grant bail in the cases covered by Section 437 (1) (i) & (ii) even in those cases. There is jurisdiction to grant bail as mentioned in the provisos. Thus, to my mind, the Legislature has not ousted the jurisdiction of the Magistrate to grant bail absolutely. It has put a bar on the powers of the Magistrate to grant ball in cases covered under Clause (1) (i) and (1) (ii). Thus, in my view the accused had to appear before the Court of Magistrate. The view that the accused has to appear before the Magistrate finds support from the observations of the apex Court, made in case of Gurcharan Singh Vs. State (Delhi Admn). (AIR 1978 SC 179). If we peruse the observations of the apex Court made in para 24 of the this authority, we find that the powers conferred u/s 439 (1) Cr. P. C. and 437 Cr. P. C. have been taken into consideration and the observation is that.

"it is, however, legitimate to suppose that the High Court or the Court of Sessions will be approached by an accused only alter he has failed before the Magistrate and after the investigation had progressed throwing light on the evidence and circumstances implicating the accused."

Thus, it was the duty of the petitioner to have approached the Court of the Magistrate initially. The words "concerned Court" therefore means the Court of Magistrate. To my mind, in every case initially the accused has to appear before the Magistrate and apply for bail and (he High Court or the Court of Session could be approached only after he fails before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused, as laid down in the aforesaid authority of Gurcharan Singh''s case. Provisions of Section 439 Cr. P. C. are special powers of the High Court or Court of Session regarding bail and they apply only when the accused of an offence in under custody. Thus, it pre-supposes that before the powers u/s 439 Cr. P. C. could be invoked, accused must be in custody. In this view of the matter, the accused should have surrendered before the Court of Magistrate in compliance of the order of this Court and as he did not appear before the Magistrate complying with the orders, the learned Magistrate was perfectly justified in rejecting the application.

Before parting, I may also mention the argument of the learned counsel for the petitioner that there is no bar in approaching the High Court directly for bail in exceptional cases. In support of his contention, he relied upon Abdul Karim Khan Vs. State of Madhya Pradesh, where it was observed that usual practice is that a person deserving bail should approach the lower court, but this practice is not inflexible because S. 498 (old Code) gives unlimited judicial discretion to the High Court in the matter of granting bail. There is no bar to the High Court entertaining a bail application directly if peculiar circumstances exist. This authority, to my mind, loses significance in view of the aforesaid observations made by the apex Court in Gurcharan Singh''s case.

In view of what has been said above, I agree with the learned Court below. The revision petition therefore, fails and it is directed that the petitioner shall appear before the learned Magistrate and take such legal recourse as is provided under the law. The revision petition is accordingly disposed of.