K K GIRDHAR Vs. M S KATHURIA

JUDGEMENT

(1.) This is a petition under S. 482 Cr. D P. C. for setting aside the order dated April 29, 1988 passed by Mr. Dinesh Dayal, Metropolitan Magistrate, New Delhi granting bail to the respondent in the case punishable under S. 9(1) (a) of the Central Excise & Salt Act, 1944. The respondent was arrested in the case on April 16, 1988. He was remanded lo judicial custody upto April 18, 1988 and then upto April 29, 1988. On April 29, 1988 an application was moved on behalf of the Central Excise Department seeking further remand of the respondent for a further period of two weeks. This application was put up before Mr. Dinesh Dayal, Metropolitan Magistrate. An application for releasing the respondent on bail was then moved before the learned Magistrate. The learned Magistrate allowed the application and directed the release of the petitioner on bail on his furnishing a personal bond in the sum of Rs. 50,0001- with one surety in the like amount. The further admitted facts of the case are that an application for bail earlier moved on behalf of the respondent had been dismissed by the Additional Sessions Judge, Patiala House. New Delhi by his order dated April 19, 1988. Another application for bail moved by the respondent on April 18, 1988 before the Link Metro- politan Magistrate had been adjourned for hearing after notice to the petitioner to May 3, 1988

(2.) Mr. Satish Aggarwal, learned counsel for the petitioner. submitted that the respondent accused was not produced before the learned Magistrate on April 29, 1988 before whom the application for remand was submitted and that in such a situation the only course open to the learned Magistrate was to have directed the Duty Magistrate to go to the jail premises and to consider the application for further remand of the accused who could not be produced in the court being ill and that it was not open to the learned Magistrate to have dealt with the bail application. The further submission is that if the learned Magistrate wanted to deal with the application for bail he ought to have issued a notice, thereof to the petitioner who is an Inspector. Central Excise or to his counsel, particularly in view of the fact on an earlier bail application notice was issued to the petitioner. Inspector. The next submission on behalf of the petitioner is that the respondent had suppressed some important facts from being placed before the Court namely, that his earlier application for " bail had already been dismissed by the court of Sessions on April 19, 1988 and further chat the other bail application moved by the respondent was to come up before the learned Magistrate on May 3, 1988. It is submitted that that amounted to playing a fraud on the court by the respondent and the order obtained by the respondent on his bail application on April 29, 1988 was thus vitiated and should accordingly be set aside.

(3.) As regards the first submission of Mr. Aggarwal that the learned Magistrate could not treat the application purporting to be one for obtaining further remain of the accused as an application for remand and that the only course available to him was to have directed the Duty Magistrate to go to the Central Jail, Tihar to consider the application for remand when the accused had not been produced, I am afraid that is not tenable. The Supreme Court in the case Raj Narain v Supdt. Central Jail. New Delhi and another, 1971 Cr. L.J. 244(1) held that there is nothing in the law which required the personal presence of the prisoner before the Magistrate at the time of seeking his remand to custody and that it is only a rule of caution for the Magistrate before granting the remand at the Instance of the police that the presence of the prisoner before the Magistrate is insisted upon. It was further observed in this very case that even if if be desirable for the Magistrate to have the prisoner produced before him, when he recommits him to further custody, a Magistrate can act only as the circumstances permit. In the case of Lakshmanrao v. Judicial Magistrate First Class. Parvatipuram and others. 1971 Cr. L.J. 253(2). V was again held that as a matter of law personal presence of an accused person before a Magistrate is not a necessary requirement for the purpose of his remand under S. 344 Criminal Procedure Code . 189 at the instance of the police, though as a rule of caution it is highly desirable that the accused should be personally produced before the Magistrate so that he may, If he so chooses, make a representation against his remand and for his release on bail. It is thus clear that "it was open to the learned Magistrate to have dealt with the application of remand of the accused which was moved before him. It is equally clear that it was also available to the accused to move an application for his being released on bail at that very time which could be either a verbal application or an application in writing." Now, as regards the question of issuing a notice of the bail application that was moved before the learned Magistrate on April 29, 1988 to the department or its counsel, the bail application was moved on behalf of the accused before the learned Magistrate at the time when the learned Magistrate was dealing with. the application for remand of the accused moved on behalf of the department itself. It was for the petitioner to be present before the court at that time either personally or through his counsel. am of the view that in such a situation it was not incumbent on the learned Magistrate to have adjourned, the bail application or to have issued another notice to the petitioner even for a later hour on the same date. Whenever an application for remand of an accused is moved on behalf of the prosecution, it has to be prepared for the opposition to the same and for a prayer for the release of the accused on bail. For that purpose an application opposing the remand and for bail can be moved instantly, even if some application for bail moved earlier is pending and is posted to a future date. The learned Magistrate was bound to deal with the application of remand and the bail application together at one and the same time and without further postponement of the hearing of either of them. Now. so far as the question that it was not brought to the notice of the learned .Magistrate by the counsel for the accused who moved the bail application before the learned Magistrate that an earlier bail application of the respondent had been dismissed by 'he Session's Court and another application for bail had been adjourned by the Link Metropolitan Magistrate to May 3, 1988 after notice to the petitioner, it was very desirable on the part of the accused to have brought these facts to the notice of his counsel who moved the bail application before the learned Magistrate on April 29, 1988. However, it could happen that the accused in his anxiety to be released on bail just instructed his counsel to move a bail application on his behalf without furnishing information in the said regard namely about the fact of his earlier application for bail having been dismissed by the Session's Court and of the other bail application being pending before a Magistrate. It may be noted that the earlier two bail applications were moved by the petitioner through an advocate other than the one though whom the application in question was moved. It is further to be noted that the kail application was moved on behalf of the respondent on April 29, 1988 both for opposing the further remand of the respondent, and for seeking his release on bail. It was for the petitioner, Inspector of the Department, to see that the due appearance was put in before the learned Magistrate at the healing of the remand application either by him personally or through an authorised representantly who should have been fully conversant with the facts and circumstances of the case including the fate of the earlier bail application having been moved a; the time when the remand was under consideration and the fact that the. fate of the two earlier bail applications of the respondent was not brought to the notice of the court by the counsel for the respondent cannot be said to amount to playing a fraud on the court or to amount to an abuse of the process of the court, It may be stated here that the cancellation of bail is not sought on any ground such as that the respondent has abused the concession of bail. In view of what has been said above, the petition is dismissed.