NAGESH DEVADIGA ALIAS NAGESH Vs. STATE

JUDGEMENT

(1.) The petitioners are accused in Sessions Case No. 81/2009 pending on the file of the I Addl. Sessions Judge, D.K., Mangalore, registered for the offences punishable under Sections 324, 325, 326, 307, 302 r/w. 34 IPC. Initially, after investigation for the aforesaid offences, a charge-sheet came to be filed by the Investigating Agency before the JMFC [II Court], Mangalore, in C.C. No. 3115/2009. During the investigation, the petitioners had applied for bail before the. Sessions Court and the Fast Track Court-I at Mangalore had granted bail vide its Order dated 9th February, 2009 in Crl. Misc. No. 62/2009. In pursuance of the bail. Order, the petitioner appeared before the Magistrate, executed bail bonds on 22.07.2009 and were released on bail. Vide the committal Order under Section 209 Cr.P.C. dated 25.07.2009, when all the petitioners were present before the Magistrate, the surety was also present and as the offences were exclusively triable by the. Sessions Court, the learned Magistrate heard the Assistant Public Prosecutor and also the counsel for the accused, furnished the copy of the charge-sheet to the accused under Section 207 Cr.P.C. and committed the case to the Sessions Court for trial directing the petitioners to execute a personal bond for the likesum. The surety and the accused executed the bond and the petitioners were directed to appear before the Sessions Court on service of the summons. The surety was also directed to keep the accused present before the Court on the date of appearance.

(2.) I have heard the learned counsel for the petitioners and also the learned High Court Government Pleader.

(3.) It is relevant to note that after rejection of the memo by the Sessions Court, the petitioners filed an application under Section 439 Cr.P.C., which came to be allowed and in pursuance of the said Order, bail bond/s and surety bond/s has/have been executed. In such circumstances, the question raised before this Court is only of academic interest. It is under Section 209 Cr.P.C., that the Magistrate before whom the accused appeared or is brought and the learned Magistrate finds that the offence is exclusively triable by the Sessions Court, he has to comply with the provisions of Sections 207, 208 Cr.P.C. as the case may be and subject to the provisions of the Code relating to bail, remand the accused to the custody during and until conclusion of the trial. So, under the provisions of sub-Section (b) of Section 209 Cr.P.C., the Magistrate has a discretion to direct the accused to appear before the Sessions Court and can take bail bonds or surety bonds either for their appearance before the Sessions Court or even until conclusion of the trial. So, this provision grants a discretion to the learned Magistrate even to take the bail bonds and surety bonds from the accused until conclusion of the trial before the Sessions Court. But, generally, this procedure is not followed by the Magistrates and it may be because they leave it to the discretion of the Sessions Court so far as the bonds to be executed and the conditions to be imposed.