JARNAIL SINGH Vs. PITAMBER SINGH

JUDGEMENT

(1.) Leave granted.

(2.) The informant assails the order of the punjab and Haryana High Court dated 22-11- 2000 granting anticipatory bail to the accused in a case where the allegation was that the accused gave a gandasa blow on the head for which a criminal proceeding under Sections 326 and 307 1pc is pending. The respondent accused after entering appearance filed an affidavit stating therein that in the meantime an application for regular bail was filed and the learned Magistrate has already released him on bail exercising power under Section 437 Cr. P. C. and, therefore, this Court need not examine the legality of the order granting anticipatory bail. On examining the application for regular bail, we find that the accused had stated that the High Court having granted anticipatory bail, he may be released on bail by invoking the power under Section 437 Criminal Procedure Code On the facts and circumstances of the present case and in view of the allegations made, we have no manner of doubt that the High Court committed serious error by invoking the power under section 438 Criminal Procedure Code and granting anticipatory bail to the accused. The said order granting anticipatory bail is accordingly set aside. It is true that in the meantime technically the magistrate in exercise of power under Section 437 Criminal Procedure Code has granted bail to the accused, but the same was because of the grant of anticipatory bail by the High Court. The aforesaid order granting anticipatory bail having been set aside, we also think it appropriate to set aside the order of the Magistrate granting bail under Section 437 Criminal Procedure Code and direct that the application for bail may be considered on its own merits taking into consideration all germane factors including the gravity of offence.

(3.) The accused may move the Magistrate within a week from today. The counsel appearing for the State, states that the accused will not be arrested till his application for bail under Section 437 is decided by the Magistrate.