BALKRISHNA DHONDU RAUL Vs. MANIK MOTIRAM JAGTAP

JUDGEMENT

(1.) Heard Counsel for the parties. This application takes exception to the order passed by the Sessions Court, Raigad at Alibag, dated 8th February, 2005, as well as the order passed by the J. M. F. C. , Mahad at Mahad, dated 9th february, 2005. The background in which the aforesaid orders came to be passed is as follows.

(2.) Respondent No. 1 has been named as accused in an offence registered with Mahad Police Station punishable under sections 147.148, 307, 323, 504, 437, 452, 506 of the Indian Penal Code; and section 3 read with section 25 of the arms Act. Respondent No. 1 had, in the first place, approached the Sessions court by way of anticipatory bail application, which was, however, rejected. Another unsuccessful attempt of anticipatory bail was made before this Court by respondent No. 1. This Court by order dated 3rd February, 2005 disposed of the anticipatory bail application preferred by the respondent No. 1 granting limited protection to respondent No. 1 to surrender before the appropriate Court and prefer regular bail application, if so advised, on or before 9th February, 2005. In view of the liberty granted by this Court, respondent No. 1 surrendered before the sessions Court and moved application for regular bail. The Sessions Court, by order dated 8th February, 2005, prima facie, observed that considering the provisions of section 209 of the Criminal Procedure Code, the appropriate Court to surrender would be J. M. F. C. at Mahad, who has jurisdiction over that particular matter. Nonetheless, the Sessions Court proceeded to grant provisional bail to the respondent No. 1 till the final hearing of the bail application, which was scheduled for 17th February, 2005. On 9th February, 2005, the investigating officer moved the concerned J. M. F. C. at Mahad for sending the respondent No. 1 to police custody. The respondent No. 1 had appeared before the J. M. F. C. , but the Court did not accede to the request made by the investigating officer to send the respondent No. 1 to police custody. Instead, it directed that he be sent to magisterial custody. Immediately, on passing of that order, the respondent No. 1 moved a formal application before the concerned Magistrate pointing out that he was ordered to be released on provisional bail by the Sessions Court and that order was still operating in his favour. The Magistrate in order dated 9th february, 2005, adverting to the fact pointed out by the respondent No. 1, proceeded to order that the respondent No. 1 be released on same bail as has been provisionally granted by the Sessions Court, Raigad at Alibag till further orders by the Sessions Court. It is not in dispute that thereafter the regular bail application has been heard by the Sessions Court and finally disposed of on 17th february, 2005 directing release of the respondent No. 1 on regular bail in relation to the offence in question.

(3.) Mr. Joshi, for the applicant, however, contends that the Sessions Court was not the appropriate Court where the respondent No. 1 could have surrendered in terms of the order passed by this Court on 3rd February, 2005 on his anticipatory bail application. Whereas, the appropriate Court would be the court of J. M. F. C. , where remand proceedings were to be proceeded on the application made in that behalf by the investigating agency. In his submission, therefore, the Sessions Court could not have passed the order on the application for bail preferred by the respondent No. 1, being incompetent to entertain the said application, unless the respondent No. 1 was to first approach the Court of magistrate and surrender before that Court. It is contended that even the order passed by the Magistrate on 9th February, 2005 cannot be sustained. Inasmuch as, the respondent No. 1 having volunteered to appear/surrender before the Court of J. M. F. C. , the order which was passed by the Sessions Court and was to enure in his favour till 17th February, 2005 came to an end and the Magistrate ought to have dealt with the respondent No. 1 's application for bail on its own merits in accordance with law. It is, therefore, contended that the order of the Magistrate releasing the respondent No. 1 on same bail as has been provisionally granted by the Sessions Court, Raigad at Alibag, cannot stand the test of judicial scrutiny. To buttress the above submissions, reliance is placed on the decision of the Apex court in the case of Sunita Devi vs. State of Bihar and anr. , reported in 2005 (2) mh. L. J. (S. C. ) 534 = 2005 All MR (Cri) 511 (SC). Reliance is also placed on the decision of the Apex Court in the case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others, reported in AIR 1980 SC 785.