Walaiti Lal alias Surinder Kumar vs State (U.T.), Chandigarh

I.S. Tiwana, J. (Oral)

The petitioner who along with one Kharaiti Lal was accused of the commission of offence under Sections 392/397, Indian Penal Code and Sections 25/27 of the Arms Act, was arrested by the Chandigarh police on 6th February, 1985. The alleged occurrence had taken place on 23rd January, 1985. Before any progress could be made in the case, the petitioner escaped from the custody of the police on 21st/22nd February, 1985. He, however, was rearrested on 26th August, 1986 and was then released on bail in recognition of his right under Section 167(2), Cr.P.C. on 9th December, 1986 as according to the Magistrate the police had failed to submit the challan within the requisite period of 90 days from the date of his arrest i.e. 25th August, 1986. It may be mentioned here that while he was absconding challan was submitted against him as well as his coaccused Kharaiti Lal on 20th September, 1985 and as a result of the trial that followed, said Kharaiti Lal was convicted on 23rd July, 1986. He is now stated to be on bail as allowed by this Court on appeal.

While committing the petitioner to the Court of Sessions to face the trial the Magistrate on 15th December, 1986 directed him to be taken into custody. The petitioner then moved an application before the trial Court i.e. the Additional Sessions Judge, Chandigarh for the grant of bail during the pendency of the trial, but the same has been declined. The primary reason that weighed with the learned Judge for dismissing the petitioner''s bail application was that he had wrongly been released on bail by the Magistrate under Section 167(2) of the Criminal Procedure Code, as according to the learned Judge the submission of the supplementary challan against the petitioner on 9th December, 1986 i.e. subsequent to his rearrest dated 26th August, 1986 was of no consequence. The learned Judge was further of the view that as a matter of fact the challan had already been submitted against the petitioner on 20th September, 1985 while he was absconding. He, therefore, felt that the petitioner had rightly been committed to custody by the Magistrate and there was no ground to release him on bail. He thus has filed the present application under Section 439, Criminal Procedure Code, for the grant of bail to him.

What is seriously being urged by the learned Counsel for the petitioner is that once the Magistrate had granted bail to the petitioner in view of the provisions of Section 167(2) of the Code of Criminal Procedure even if for arguments'' sake it has to be accepted that this release was not strictly covered by this provision the Magistrate could not commit the petitioner to custody at the time of his commitment to the court of Sessions, for trial, in the absence of any reason which could justify the cancellation of bail in terms of Section 437(5) of the Criminal Procedure Code. To support this plea of his, the learned Counsel relies on two judgments reported as Bashir and others v. State of Haryana, 1978 C.L.R. 223 (S.C.) and Kewal Krishan v. Suraj Bhan and another, 1980 Criminal Appeals Reporter 353 and also on an earlier judgment of mine in Criminal Misc. No. 5784M of 1986 (Chinder Kaur v. Harpal Singh) decided on December 11, 1986. Mr. Brar, learned Counsel for the respondents, however, urges with some amount of vehemence that keeping in view the scope of Section 209 of the Criminal Procedure Code, the Magistrate was perfectly justified in committing the petitioner to custody while committing him to face trial before the Sessions Court in the absence of any reason which could justify the cancellation of bail granted to him. He emphasises that in a case which is exclusively triable by a Court of Sessions, the Magistrate must commit the accused to custody for trial. For this stand, he relies on certain observations made by their Lordships of the Supreme Court in State of U.P. v. Lakshmi Brahman and another, 1983, Criminal Appeals Reporter 193 (S.C.) and a judgment of this Court in Hari Chand v. State of Punjab, 1984 Criminal Law Times, 92.

I have given my thoughtful consideration to the entire matter in the light of the above noted submissions of the learned Counsel. I, however, find that the learned trial Court has erred in declining bail to the petitioner in the light of the reasoning adopted by it. In Chinder Kaur''s case (supra) I had the occasion to examine all the judgments relied upon by the learned Counsel on either side. Therein I expressed the opinion that once an accused is on bail the committing Magistrate can only commit him to custody, at the time of his commitment to the Court of Session, if he is of the opinion that there are grounds to cancel the bail in the light of the provisions of Section 437(5) of the Criminal Procedure Code. He cannot cancel the bail arbitrarily. For this opinion, I had placed reliance on the following observations made by their Lordships of the Supreme Court in Kewal Krishan''s case (supra).

"If the committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody, he may not cancel the bail. This has been made clear by the words `subject to the provisions of this Code relating to bail'' occurring in clause (b) of Section 209. Therefore, if the accused is already on bail, his bail should not be arbitrary cancelled."

Ratio of Lakshmi Brahman''s case (supra) relied upon by Dr. Brar does not appear to be relevant at all to the instant case as in that case the question to be settled by the Court was as to how the Magistrate has to deal with an accused who has been forwarded to him with the police report under Section 170 Cr.P.C. which discloses an offence exclusively triable by the Court of Session during the period relating to the submission of the said report and the order of commitment under Section 209, Criminal Procedure Code. The question as to what has to happen or how an accused who is granted bail during that interregnum has to be deal with at the time of his commitment to the court Sessions was not at all before the Court.

In the light of the discussion above, and also the fact that the coaccused of the petitioner who is on bail even after his conviction by the Court, as indicated earlier, I allow bail to the petitioner to the satisfaction of the Chief Judicial Magistrate, Chandigarh.