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Case Number
Advocates
  • A.P Mundargi with Niranjan Mundargi
  • A.S Gadkari, A.P.P
  • For Applicant: B.D Joshi
Judges
  • A.M Khanwilkar, J.
Acts
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Citation Codes
Equivalent Citations
citation codes
Case Number
Advocates
  • A.P Mundargi with Niranjan Mundargi
  • A.S Gadkari, A.P.P
  • For Applicant: B.D Joshi
Judges
  • A.M Khanwilkar, J.
Acts
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Smart Summary

Structured Summary of the Opinion (A.M. Khanwilkar, J.)

Factual and Procedural Background

Respondent No. 1 was named as an accused in an offence registered with Mahad Police Station under sections 147, 148, 307, 323, 504, 437, 452, 506 of the Indian Penal Code and section 3 read with section 25 of the Arms Act. Respondent No. 1 initially sought anticipatory bail before the Sessions Court (which was rejected) and then before this Court. By order dated 3rd February, 2005, this Court disposed of the anticipatory bail application by granting limited protection: respondent No. 1 was allowed to surrender before the appropriate Court and prefer a regular bail application on or before 9th February, 2005.

Relying on that liberty, respondent No. 1 surrendered before the Sessions Court and applied for regular bail. The Sessions Court, by order dated 8th February, 2005, observed (prima facie) that, in light of section 209 of the Criminal Procedure Code, the appropriate Court to surrender might be the J.M.F.C., Mahad, but nevertheless granted provisional bail to respondent No. 1 until final hearing of the bail application (scheduled for 17th February, 2005).

On 9th February, 2005, the investigating officer applied to the J.M.F.C., Mahad for police custody of respondent No. 1. The Magistrate directed respondent No. 1 to be sent to magisterial custody but, immediately after that order, respondent No. 1 informed the Magistrate that the Sessions Court had already granted provisional bail. The Magistrate then ordered respondent No. 1 to be released on the same provisional bail granted by the Sessions Court until further orders by the Sessions Court. The Sessions Court later heard and finally disposed of the regular bail application on 17th February, 2005, directing release of respondent No. 1 on regular bail. The present petition challenges the Sessions Court order of 8th February, 2005 and the J.M.F.C. order of 9th February, 2005.

Legal Issues Presented

  1. Whether the Sessions Court (Raigad at Alibag) was an appropriate court in which respondent No. 1 could surrender and have his regular bail application entertained, notwithstanding the prima facie view that the J.M.F.C., Mahad had territorial jurisdiction under section 209 Cr.P.C.
  2. Whether the Magistrate (J.M.F.C., Mahad) could lawfully refuse police custody and instead release respondent No. 1 on the provisional bail previously granted by the Sessions Court.
  3. Whether the provisional bail order of the Sessions Court lapsed automatically upon respondent No. 1's appearance before the Magistrate, thereby rendering the Magistrate's order releasing him impermissible.

Arguments of the Parties

Applicant's Arguments (as presented through Mr. Joshi)

  • The Sessions Court was not the appropriate Court for respondent No. 1 to surrender in terms of the liberty granted by this Court on 3rd February, 2005; the appropriate Court would be the Court of J.M.F.C. where remand proceedings would be taken on the investigating agency's application.
  • Because the Sessions Court lacked competence to entertain the regular bail application unless respondent No. 1 had first surrendered before the Magistrate, the Sessions Court's provisional bail order dated 8th February, 2005 is invalid.
  • The Magistrate's order dated 9th February, 2005 — releasing respondent No. 1 on the same provisional bail — cannot be sustained because the Sessions Court's provisional order had, according to the applicant, come to an end when respondent No. 1 appeared before the Magistrate.
  • To support these contentions, reliance was placed on two Apex Court decisions: Sunita Devi v. State of Bihar (2005 (2) Mh.L.J (S.C) 534 : 2005 All MR (Cri) 511 (SC)) and Niranjan Singh v. Prabhakar Rajaram Kharote (AIR 1980 SC 785).

Respondent No. 1's Position (as appearing in the record)

  • Respondent No. 1 surrendered to the Court and applied for regular bail before the Sessions Court, relying on the liberty granted by this Court on 3rd February, 2005.
  • When the Magistrate initially directed magisterial custody, respondent No. 1 submitted that a provisional bail order of the Sessions Court was then operating in his favour and that he should not be taken into custody; the Magistrate thereupon ordered release on the same provisional bail until further orders of the Sessions Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in this Opinion
Sunita Devi v. State of Bihar, reported in 2005 (2) Mh.L.J (S.C) 534 : 2005 All MR (Cri) 511 (SC) Decision dealing with the issue of when a person can be said to be in custody; reliance was placed particularly on the exposition in paragraph 16 of that decision. The Court held that the ratio in paragraph 16 of Sunita Devi was of no avail to the applicant in the present controversy. The High Court observed that Sunita Devi concerns custody status and does not address whether the Sessions Court is an inappropriate forum for surrender to entertain regular bail in offences punishable with imprisonment for life.
Niranjan Singh v. Prabhakar Rajaram Kharote, reported in AIR 1980 SC 785 Authority for the proposition that a Court could not entertain a bail application unless the accused was in custody; in that case the Magistrate finally disposed of a bail application without requiring the accused to surrender or be taken into custody. The Court held that Niranjan Singh was not applicable to the present facts. It is not an authority that an accused charged with offences punishable with imprisonment for life cannot surrender before the Sessions Court and seek bail under the Code. The High Court observed that taking such a view would be contrary to the purpose of section 439 Cr.P.C.

Court's Reasoning and Analysis

The Court proceeded through a stepwise analysis focused on jurisdiction, the effect of the provisional bail order, and the applicability of the authorities relied upon by the applicant.

  1. Nature of the liberty granted by this Court (3rd February, 2005): The court observed that the liberty to "surrender before the appropriate Court and apply for regular bail" meant that respondent No. 1 was required to surrender before some court so that a regular bail application could be considered. That, however, did not rigidly confine him to surrender only before the J.M.F.C.
  2. Competence of the Sessions Court: Because the offences included those punishable with imprisonment for life, the Sessions Court was competent to entertain the bail application. The Court reasoned that if respondent No. 1 had surrendered before the J.M.F.C., that Magistrate could not have granted bail given the nature of the offences; thus, the Sessions Court was an appropriate forum for surrender and for considering the regular bail application.
  3. Effect of the Sessions Court's provisional bail and the Magistrate's subsequent order: The Magistrate initially ordered magisterial custody on an application by the investigating agency, but upon learning of the subsisting provisional bail order of the Sessions Court, the Magistrate corrected the position and ordered release on the same provisional bail until further orders of the Sessions Court. The High Court held that, given the subsisting provisional bail order, the Magistrate had no jurisdiction to send respondent No. 1 to custody and that the Magistrate merely gave effect to the Sessions Court's order.
  4. Whether appearance before the Magistrate terminated the provisional bail: The Court rejected the applicant's contention that by appearing before the Magistrate (in response to the remand application) respondent No. 1's provisional bail automatically terminated. The Court found that respondent No. 1's appearance was prompted by the remand application and did not constitute abandonment of rights under the subsisting Sessions Court provisional bail order.
  5. Applicability of relied decisions: The Court examined the two authorities cited by the applicant and found neither supportive. Sunita Devi deals with custody status and does not address whether surrender before the Sessions Court was inappropriate in life‑punishable offences. Niranjan Singh concerned a magistrate entertaining a bail application without the accused being in custody; it does not stand for the proposition that an accused cannot surrender before the Sessions Court and avail of bail remedies under section 439 Cr.P.C.
  6. Practical outcome: The Sessions Court ultimately heard and allowed the regular bail application on 17th February, 2005. That order was not challenged in the present petition and the High Court observed that the challenge to the interim and magisterial orders was without substance in light of the reasoning above.

Holding and Implications

Holding: Application dismissed.

Implications:

  • The High Court upheld the validity of the Sessions Court's provisional bail order dated 8th February, 2005 and the Magistrate's order dated 9th February, 2005 insofar as the Magistrate gave effect to the subsisting provisional bail order rather than sending respondent No. 1 into custody.
  • The Court rejected the applicant's submissions that surrender before the Sessions Court was inappropriate in the circumstances and found that the Sessions Court was competent to entertain the regular bail application for offences punishable with imprisonment for life.
  • The regular bail order of the Sessions Court dated 17th February, 2005 (directing release on regular bail) was noted as not being challenged in the present petition and thus stands unaffected by this decision.
  • No broader precedent or novel legal principle was announced beyond the application of existing law to the facts; the decision resolves the petition by dismissing it and upholding the orders relied upon by respondent No. 1.

Disposition: Application dismissed.

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    Balkrishna Dhondu Raul v. Manik Motiram Jagtap

    A.M Khanwilkar, J.:— Heard Counsel for the parties. This application takes exception to the order passed by the Sessions Court, Raigad at Alibag, dated 8th February, 2005, as well as the order passed by the J.M.F.C, Mahad at Mahad, dated 9th February, 2005. The background in which the aforesaid orders came to be passed is as follows.

    2. Respondent No. 1 has been named as accused in an offence registered with Mahad Police Station punishable under sections 147, 148, 307, 323, 504, 437, 452, 506 of the Indian Penal Code; and section 3 read with section 25 of the Arms Act. Respondent No. 1 had, in the first place, approached the Sessions Court by way of anticipatory bail application, which was, however, rejected. Another unsuccessful attempt of anticipatory bail was made before this Court by respondent No. 1. This Court by order dated 3rd February, 2005 disposed of the anticipatory bail application preferred by the respondent No. 1 granting limited protection to respondent No. 1 to surrender before the appropriate Court and prefer regular bail application, if so advised, on or before 9th February, 2005. In view of the liberty granted by this Court, respondent No. 1 surrendered before the Sessions Court and moved application for regular bail. The Sessions Court, by order dated 8th February, 2005, prima facie, observed that considering the provisions of section 209 of the Criminal Procedure Code, the appropriate Court to surrender would be J.M.F.C at Mahad, who has jurisdiction over that particular matter. Nonetheless, the Sessions Court proceeded to grant provisional bail to the respondent No. 1 till the final hearing of the bail application, which was scheduled for 17th February, 2005. On 9th February, 2005, the investigating officer moved the concerned J.M.F.C at Mahad for sending the respondent No. 1 to police custody. The respondent No. 1 had appeared before the J.M.F.C, but the Court did not accede to the request made by the investigating officer to send the respondent No. 1 to police custody. Instead, it directed that he be sent to Magisterial custody. Immediately, on passing of that order, the respondent No. 1 moved a formal application before the concerned Magistrate pointing out that he was ordered to be released on provisional bail by the Sessions Court and that order was still operating in his favour. The Magistrate in order dated 9th February, 2005, adverting to the fact pointed out by the respondent No. 1, proceeded to order that the respondent No. 1 be released on same bail as has been provisionally granted by the Sessions Court, Raigad at Alibag till further orders by the Sessions Court. It is not in dispute that thereafter the regular bail application has been heard by the Sessions Court and finally disposed of on 17th February, 2005 directing release of the respondent No. 1 on regular bail in relation to the offence in question.

    3. Mr. Joshi, for the applicant, however, contends that the Sessions Court was not the appropriate Court where the respondent No. 1 could have surrendered in terms of the order passed by this Court on 3rd February, 2005 on his anticipatory bail application. Whereas, the appropriate Court would be the Court of J.M.F.C, where remand proceedings were to be proceeded on the application made in that behalf by the investigating agency. In his submission, therefore, the Sessions Court could not have passed the order on the application for bail preferred by the respondent No. 1, being incompetent to entertain the said application, unless the respondent No. 1 was to first approach the Court of Magistrate and surrender before that Court. It is contended that even the order passed by the Magistrate on 9th February, 2005 cannot be sustained. Inasmuch as, the respondent No. 1 having volunteered to appear/surrender before the Court of J.M.F.C, the order which was passed by the Sessions Court and was to enure in his favour till 17th February, 2005 came to an end and the Magistrate ought to have dealt with the respondent No. 1's application for bail on its own merits in accordance with law. It is, therefore, contended that the order of the Magistrate releasing the respondent No. 1 on same bail as has been provisionally granted by the Sessions Court, Raigad at Alibag, cannot stand the test of judicial scrutiny. To buttress the above submissions, reliance is placed on the decision of the Apex Court in the case of Sunita Devi v. State of Bihar, reported in 2005 (2) Mh.L.J (S.C) 534 : 2005 All MR (Cri) 511 (SC). Reliance is also placed on the decision of the Apex Court in the case of Niranjan Singh v. Prabhakar Rajaram Kharote, reported in AIR 1980 SC 785.

    4. In my opinion, however, there is no substance in the submission canvassed on behalf of the applicant before this Court. For, after this Court granted liberty to the respondent No. 1 to surrender before the appropriate Court and apply for regular bail, if so advised, the respondent No. 1 became liable to surrender before the Court before his prayer for bail could be considered. That does not mean that the respondent No. 1 was obliged to surrender before the Court of J.M.F.C and could not have surrendered before the Court of Session, Raigad at Alibag, which, indeed, was the Court competent to entertain the bail application in respect of the offences, which was punishable with imprisonment for Life. On the other hand, if the respondent No. 1 was to surrender before the Court of J.M.F.C at Mahad, that Court could not have granted bail to the respondent, having regard to the nature of offence for which the respondent No. 1 was being tried being punishable with imprisonment for life. In that sense, the Court of Session was the appropriate Court where the respondent No. 1 could have surrendered before inviting the Court to consider his regular bail application. Viewed in this perspective, no fault can be found with the order passed by the Sessions Court directing release of the respondent No. 1 on provisional bail by order dated 8th February, 2005, as that Court assumed jurisdiction to pass such an order on the bail application moved before it by the accused upon surrendering before that Court.

    5. The grievance of the Applicant that the Magistrate could not have granted bail to the respondent No. 1 clearly overlooks the circumstances in which the said order came to be passed by the Magistrate. The investigating agency moved a formal application for giving police custody of respondent No. 1. On that application, the Court ordered that the respondent No. 1 be sent to Magisterial custody. Soon after that order was passed, the respondent No. 1 moved a formal application asserting that provisional bail has already been granted by the Sessions Court, which was operating in favour of respondent No. 1, and for which reason, respondent No. 1 ought not to be sent to Magisterial custody as has been ordered. In view of this situation, the J.M.F.C proceeded to order to release the respondent No. 1 on same bail which has been provisionally granted by the Sessions Court till further orders to be passed by the Sessions Court, Raigad at Alibag. In fact, in view of the subsisting provisional bail order passed by the Sessions Court in favour of the respondent No. 1, the Magistrate had no jurisdiction to order that respondent No. 1 be taken into Magisterial custody. Significantly, the Magistrate has only corrected the mistake and passed an order only to give effect to the provisional bail order passed by the Sessions Court.

    6. To get over this position, it was argued that the provisional bail order granted by the Sessions Court came to an end as soon as the respondent No. 1 appeared before the Magistrate. As a consequence, the Magistrate could not have granted bail to the respondent No. 1. There is no substance in this submission. Appearance made by the respondent No. 1 was only because Remand Application was moved before the Magistrate by the Investigating Agency. That does not mean that the respondent No. 1 gave up his rights as were available to him under the subsisting order of the Sessions Court. Besides, as mentioned earlier, the Magistrate has not granted bail as such, but, has passed an order to give effect to the subsisting provisional bail order passed by the Sessions Court. Viewed in this perspective, it is not a case of abuse of process of the Court by the respondent No. 1 as is sought to be contended. But, on the other hand, the respondent No. 1 has subjected himself to the orders of the Court passed from time to time.

    7. Insofar as the decision in the case of Sunita Devi (supra) pressed into service on behalf of the applicant is concerned, that is a judgment dealing with the issue as to when a person can be said to be in custody. Much reliance was placed on exposition in para 16 of the decision. In my view, however, the ratio in para 16 of the decision in that case is of no avail to the applicant. That is not a decision, which deals with the question that the Sessions Court is not the appropriate Court for surrendering, so as to entertain the regular bail application in respect of offence punishable with imprisonment for life.

    8. Reliance was also placed on the decision in the case of Niranjan Singh (supra). Even this decision is of no avail. Inasmuch as, the fact situation in that case was that the Magistrate proceeded to finally dispose of the bail application without requiring the accused to surrender before him or taken into custody. In that context, the Apex Court has observed that the Court could not have entertained the bail application, unless the accused was in custody. This is not an authority on the proposition that the accused named in offences punishable with imprisonment for life cannot surrender before the Sessions Court and avail of remedy of bail as permissible by the provisions of the Code of Criminal Procedure. Taking any other view will run contrary to the purport of section 439 of the Code.

    9. Be that as it may, as mentioned earlier, in the present case, the regular bail application filed by the respondent No. 1 before the Sessions Court has been finally heard and decided on 17th February, 2005, whereby the prayer for regular bail has been granted by the Sessions Court. That order is not subject matter of challenge in the present petition.

    10. Accordingly, there is no substance in this application. The same is dismissed.

    Application dismissed.
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    Comments

    Balkrishna Dhondu Raul v. Manik Motiram Jagtap
    (Mar 29, 2005)