SHOBHARAM Vs. STATE

JUDGEMENT

(1.) THIS is an application by the complainant in a case in which the non-applicants (five in number) have been proceeded against under different sections including 307, Indian Penal Code with the use of fire-arm. The main allegation is that the non-applicants came in a body to the house of the applicant and one of them opened fire from a 12-bore gun injuring the complainant on his leg. He however did not die and recovered after treatment in a hospital. First information report was treated as one under sections 324, 148 and 149 and accordingly the police gave bail after arresting the non-applicants. In course of further investigation the police found that it was a case under section 307, Indian Penal Code also and were presumably preparing to re-arrest the non-applicants Actually, however, no arrest had been made and no forwarding of the arrested persons to a Magistrate.

(2.) AT that stage the non-applicants went to the Sessions Court and applied for bail. Certainly they were already on bail; but they wanted bail in a case under section 307 which surprisingly enough was granted. In effect this was the grant of what is called the "anticipatory bail", something which has been disapproved by this High Court's judgment reported in State v. Narayan Prasad (1963 MPLJ 429 = 1963 JLJ 390.) The proper course for the Sessions Judge would have been to direct the applicants for bail to go and surrender before the police and after being arrested move the Magistrate for bail. Strictly speaking the Sessions court does not become the "trial Court" till after an order of commitment is passed. However, when the Magistrate refuses bail the Sessions Court can hear applications against that order as the appellate or revisional Court. Thus the order granting bail to these people is an improper one.

(3.) THE prayer now is that the bail granted by the Sessions Court should be cancelled and all these non-applicants remanded to custody to take their chance if they like by making fresh applications for bail.