Criminal Application No.292 of 2014

19th January, 2015.

Petitioner Counsel: Mr. T.M. MALNAS, Mr. J.A. MALNAS
Respondent Counsel: Mr. M.M. EKRE

Cases Cited:
Prahlad Singh Bhati Vs. N.C.T. Delhi and another, 2001 ALL MR (Cri) 739 (S.C.)=AIR 2001 SC 1444 [Para 3,7]
Uttamkumar s/o. Chandrakant Wagh and another Vs. State of Maharashtra, 2012 ALL MR (Cri) 3468=2013(1) Mh.L.J. (Cri) 695 [Para 3]

JUDGMENT

JUDGMENT :- Heard finally by consent.

2. Admit.

3. It has been submitted on behalf of the applicant-complainant in Crime No.151/2013 initially registered for the offences punishable under Sections 147, 148, 341, 324, 325, 294, 506, 452 read with Section 149 of the Indian Penal Code against the non-applicant Nos.2 to 11 and later on also under Section 326, read with Section 149 of the Indian Penal Code that the learned Magistrate Digras could not have exercised suo motu powers to release the non-applicant Nos.2 to 11 or the accused persons on bail for subsequently added offence punishable under Section 326 of the Indian Penal Code, without these accused persons asking for their release on bail for the said Sections. He submits, relying upon the ratio of the case of Prahlad Singh Bhati vs. N.C.T. Delhi and another, reported in AIR 2001 SC 1444 : [2001 ALL MR (Cri) 739 (S.C.)], which had been followed in the case of Uttamkumar s/o. Chandrakant Wagh and another vs. State of Maharashtra, reported in 2013(1) Mh.L.J. (Cri) 695 : [2012 ALL MR (Cri) 3468] that when newly added Section prescribes maximum punishment of life imprisonment or death penalty, the only course available to the Magistrate is to direct the accused persons to be taken into custody and commit them to Magisterial Custody Remand, unless their case is covered under the proviso to Section 437 of the Criminal Procedure Code.

4. Learned A.P.P. for the respondent No.1/State submits that it is a fact that the learned Magistrate had exercised suo moto powers in this case, but such exercise of the power not having resulted in failure of justice, cannot be seen to be providing a sufficient ground for making interference with the impugned order.

5. It is true that some time after, the prosecution added section 326 offence in crime No.151/2013 that was registered at Police Station Digras against the non-applicant Nos.2 to 11 and when this offence was added against them, the non-applicant Nos.2 to 11 were already enlarged on bail. After addition of the offence, the propriety required that the non-applicant Nos.2 to 11 were given notice of the addition of the said offence against them and heard on the need of their being committed to Magisterial Custody. It appears that the non-applicant Nos.2 to 11 were not given any such notice and the notice that was given to them was of the application filed by the complainant praying for sending of non-applicant Nos.2 to 11 to jail in view of the registration of the offence punishable under Section 326 of the Indian Penal Code by Digras Police, which offence was punishable with maximum sentence of life imprisonment. The non-applicant Nos.2 to 11 simply sought time to file their say which they did not file, even on 13th August, 2013. On 13th August, 2013, in the absence of any say of the non-applicant Nos.2 to 11, the learned Magistrate rejected the application dated 7.8.2013 of the applicant and directed the non-applicant Nos.2 to 11 to furnish fresh bail bonds.

6. In fact, the application filed on 13th August, 2013 by the non-applicant Nos.2 to 11 was not for grant of bail to them under Section 326 of the Indian Penal Code. It was for grant of time to furnish fresh bail bonds for securing their release on bail under Section 326 of the Indian Penal Code. In other words, the non-applicant Nos.2 to 11 took it for granted that the learned Magistrate had already granted bail to them under Section 326, which was not the fact established on record. The bail was yet to be granted, and there was also no application moved by the accused persons praying for their release on bail. Even, the learned Magistrate thought that there was no need on his part to pass a specific order granting bail to the non-applicant Nos.2 to 11 under Section 326 of the Indian Penal Code and what was done by the learned Magistrate was only issuing a direction on 13th August, 2013 to the non-applicant Nos.2 to 11 to furnish fresh bail. This order passed by the learned Magistrate is incomplete and not in consonance with well settled principles of law. Unless there is a prayer for release of the accused on bail in a nonbailable offence, bail cannot be granted to him though this prayer can also be made orally. Then, the order to the effect that the accused are directed to furnish fresh bail can also not be passed unless there is first an order directing grant of bail to the accused or directing their release on bail on furnishing bailbonds in specific sums. That has not occurred in this case and therefore, the order passed by the learned Magistrate is against the well settled principles of law, inasmuch as it is also an incomplete order.

7. As the regards the ratio of Prahlad Singh Bhati's case, [2001 ALL MR (Cri) 739 (S.C.)] (supra), in my humble opinion the facts of that case being different from facts of this case, it would not be applicable to present case. In that case, an offence of murder (Section 302 I.P.C.) triable by Sessions Court was added subsequently and yet the Magistrate granted regular bail on the strength of anticipatory bail granted for lesser offence by Sessions Court. Such are not the facts of this case.

8. All said and done, it has to be further examined in this case as to whether or not the impugned order has resulted in failure of justice, as this aspect assumes importance when this Court is called upon to exercise its extraordinary jurisdiction under Section 482 and also its supervisory jurisdiction under Section 483 of the Criminal Procedure Code. In the instant matter, the non-applicant Nos.2 to 11 were already released on bail by the learned Magistrate for the offences previously registered in the same crime and it was only one Section i.e. offence punishable under Section 326 was added against them subsequently and this offence, as rightly found by the learned Magistrate to be falling in the same category of the offences as one punishable under Section 324, although in an aggravated form, no purpose would have been served by arresting the non-applicant Nos.2 to 11 at a time when the Investigating Officer also did not require the presence of the non-applicant Nos.2 to 11 at the Police Station for the purposes of any further investigation in the matter. It was also not the case of the prosecution that due to subsequent developments, possibility had arisen that the non-applicant Nos.2 to 11 might thwart the course of justice or might not be available for trial of the case against them. Therefore, I am of the view that the impugned order cannot be said to have occasioned any failure of justice in this case and as such, as rightly submitted by the learned Addl. Public Prosecution for the non-applicant No.1/State, the finding recorded by the learned Magistrate in the impugned order cannot be interfered with, in view of Section 465 of the Criminal Procedure Code.

9. Before parting with the judgment, I find it necessary to give a word of advice to the learned Magistrate. He shall do well in future in appropriately considering the lacunae found out by this judgment in the approach adopted by the learned Magistrate in the matter and directing the non-applicant Nos.2 to 11 to straightaway furnish fresh bail without specifying that they were being released on bail for an offence punishable under Section 326 and also without mentioning as to what kind of fresh bail bonds were directed to be furnished by the non-applicant Nos.2 to 11.

10. At this stage, learned counsel for the respondent Nos.2 to 11 submits that the lacunae have been made up by the learned Magistrate later on when he accepted fresh bail bonds for specified amount from the respondents.

11. The Criminal Writ Petition is, therefore, dismissed.

12. Copy of the order be sent to the Principal District Judge, Yavatmal and also to Judicial Magistrate, First Class, Digras to enable the learned Magistrate to make improvement in dealing with similar matters in future.

Petition dismissed.