UNION OF INDIA Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an interesting litigation where Union of India has questioned the stand taken by the State of Assam. State's appeal was accepted by learned Single Judge of the Guwahati High Court. The controversy lies in a very narrow compass. The issue is whether an application under Section 438 of the Code of Criminal Procedure, 1973 (in short the 'Code') could be filed in respect of offences contemplated under the provisions of Railway Property (Unlawful Possession) Act, 1966 (in short the 'Act'). A learned Single Judge held that the offences were bailable after referring to Section 8 of the Act. A review application was filed for suitable modification on the ground that Section 8 of the Act has not been properly analysed. Reliance was placed on a decision of learned Single Judge of the Madras High Court which was reported in brief in State v. Sundara Pandian (1979 Cri Law Journal NOC 194). The review application was rejected on the ground that a case for review was not made out and the view originally expressed was correct.

(2.) In support of the appeal learned counsel for the Union of India submitted that the learned Single Judge has not kept in view the provisions contained in Section 8 in the proper perspective. The High Court has erroneously come to hold that the accused had a right to get bail provided he was willing to offer surety/security. It was held that only when the accused is not in a position to provide security or surety then only he can be sent to the Magistrate having jurisdiction. It was submitted that effect of the proviso to sub-section (2) of Section 8 has not been kept in view.

(3.) Learned counsel for the State of Assam supported the judgment of the learned Single Judge in Crl. Original Application No. 620/1995 and in Crl. Misc. Case No. 219/95.