AHER GHELA RAMSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners herein are the persons who are sought to be tried for the offences under sec. 147 148 149 and 302 read with sec. I. P. C. as well as secs. 25 (1) (A) of the Indian Arms Act. It is said that they formed an unlawful assembly and committed the murder of one Hama Sidabhai. The case of the prosecution is that during the scuffle the complainant Jetubha who happens to be a police constable at village Kalyanpur tried to intervene but he was prevented by petitioners nos. 2 and 4 who are Aher Lakhman Bogha and Aher Desur Ramshi. It is said that thereafter even this constable was stabbed by the person named Nathu Ramshi.

(2.) The facts of the case reveal that when the proceedings were pending before the committing Megistrate the petitioners were enlarged on bail under sub-sec. (2) of sec. 167 of the Code of Criminal Procedure 1973 which is hereinafter referred to as the new Code. Thereafter on 15-7-75 the learned Magistrate Committed the case for trial to the Sessions court. On that date the petitioners S applied to the learned committing Magistrate to continue the bail which was already granted to them under sec. 167 of the new Code. The learned Magistrate granted the request and continued the petitioners on bail only upto 29th July 1975 Thereafter on 29th July 1975 the petitioners approached the Sessions Court and requested the said court to allow them to continue on bail. The court of Sessions initially passed the order for bail pending the hearing of that application treating the said application as one for obtaining a fresh order of bail. When the application came up for hearing it was contended by the petitioners that the Sessions court was not authorised to hear the application as one of allowing the petitioners to be enlarged on fresh bail because the only request which the petitioners had made was to allow them to continue on bail. It was contended on behalf of the applicants that hearing of their application on merits would be tantamount to cancellation of bail granted by the learned Magistrate which was not permissible. The learned Sessions Judge thereupon framed a question as to whether the hearing of the application to allow the applicants to continue on bail would be tantamount to cancellation of bail already granted by the learned Magistrate The learned Sessions Judge answered this question in the negative and thereafter proceeded to consider whether any of the applicants deserved to be released on bail. As a result of this order the learned Sessions Judge refused bail to the petitioners not. 1 to 4 but allowed petitioner no. 5 and others to be enlarged on bail. Thus the petitioner no. 5 Aher Somat Kana is found to he already on bail and therefore so far as that petitioner is concerned _ Shri Raval is permitted to delete his name as one of the petitioners of this application. The matter which now remains to be considered is only with regard to petitioners nos. 1 and 4. 3 The contention which is raised by Shri Raval during the course of the hearing of this application is somewhat different from the one which was raised on behalf of the petitioners before the leaned Sessions Judge. Here Shri Raval has contended that once the accused person is enlarged on bail under the provisions contained in sub-sec. (2) of sec. 167 of the new Code said accused must be allowed to continue on bail even after the case is committed to the Sessions court unless the hail is specifically cancelled for sufficient reasons under sub-sec. (5) of sec. 437 of the new Code. To fortity this contention Shri Raval has made an attempt to seek support from some of the observations made by Division Bench of this court in UMEDSINH VAKMATJI JADEJA & ORS. V. STATE OF GUJARAT (1975) 16 G.L.R. 572.

(3.) In the above referred case of Umedsinh the question which was involved was whether in cases wherein the provisions of sub-sec. (2) of sec. 167 of the new Code are attracted the accused persons can claim bail as of right even though pending his application of bail the police has submitted the charge sheet. There was a difference of opinion on this question in that case and therefore the Division Bench resolved that question and came to the conclusion that if pending the application for bail under sub-sec. (2) of sec. 167 of the new Code a charge sheet is filed in court the investigation comes to an end and so also the power of the Magistrate of granting bail to the Accused under the provisions of sec. 167 (9) of the new Code. It is further observed therein that the Magistrate can exercise powers of granting of bail in such cases only under sec. 437 of the new Code. In this connection the Division Bench has made son observations Which ate pertinent to the facts of this case. I shall There fore; shortly refer to these observations. The court after considering the provisions of sec. 167 (2) and 437 of the new Code has observed that both these sections operate in different fields because under sec. 167 (2) the Magistrate has to exercise his power of releasing on bail on the simple ground that the total period of detention of the accused has exceeded 60 days during the course of investigation of police. Then the court has observed as under: But this power is to be exercised during the pendency of investigation only. The power under sec. 167(2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put in other words when he takes cognizance of the case either under the provisions of sec. 170 or 173 of the Code. If the Magistrate takes congnizance of the offence under either of the aforesaid sections the Magistrate can exercise power only under sec 437 of the Code. After having said this the court has made the following observations on which Shri Raval has put good deal of reliance during the course of the hearing of this petition. If in a case the investigation is not completed within the period of 60 days and the accused is released on bail under the provisions of sec. 167 of the Code then the order of bail operates even after the charge sheet is filed. This is so because of the deeming fiction provided in proviso (1) to sub-sec. (9) of sec. 167 of the Code. The proviso provides that every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. The effect of these provisions is that if a person is released on bail during the pendency of investigation the order of release on bail operates even after the charge sheet is filed. The deeming fiction is very widely worded. Under the said deeming provisions every person released on bail under the provisions of sec. 167 shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. The effect of this deeming provision is that if an accused person is released on bail as per the provisions of sec 167(2)(a) the bail order continues even after the charge sheet is filed. But in view of the provisions of deeming fiction it is open to the prosecution to make an application for cancellation of bail under the provisions of sub-see. (5) of sec. 437 of the Code. Relying upon these observations Shri Raval contended that since this has observed therein that the order of bail passed under sec. 167 of the Code operates even after the charge sheet is filed said bail order should continue even after the accused is committed to the Sessions court to stand his trial. According to Shri Raval therefore if the accused is required to be taken in custody specific order for cancellation of bail under sub 6 (5) of sec. 437 of the Code should be passed.