(1.) THIS is an application for bail on behalf of eight accused-applicants with notice to t le state. The application is opposed.
(2.) THE application brings to legal a point of some importance relating to the powers of the High Court regarding bail as laid down in section 439 of the code of Criminal Procedure, 1973 (Act ii of 1974 ). The facts necessary or appreciating the point raised can be put in a short compass. A first in formation was lodged at the Sainthia police Station on the 1. 6th September, 1971 at about 12. 35 hours by one Near chandra Bhandari alleging inter alia that at about 1. 00 hour in the night when he was sleeping in the varanda of the first floor of his east facing house, and his son Anil, a student of Class IX, and his two daughters were sleeping in two different rooms on the same floor, some persons called him by his name and an enquiry disclosed their identity as Naxalites. The de facto complainant came down with a lighted lantern on request, and found the accused applicants along with 4-5 other armed with daggers, gun-like weapons and torches. They requested him to show the way to the river. His son, Anil, who in the meanwhile had come down was asked by the de facto complainant not to come but he was also persuaded lo accompany. When they reached the tank called "sunri Pukur" towards the west of the village, the members of the raiding party suddenly attacked Anil with daggers and when the de facto complainant rushed to his rescue, he was threatened with dire consequences and one of them fired a short from a gun like weapon. The consentient hue and cry attracted several villagers to the spot and the members of the raiding party disappeared shouting slogans. Anil was found to be dead. The Police on completing the investigation, submitted a charge-sheet against all the accused under sections 148/149/364/302 of the Indian Penal Code. An Inquiry under Chapter XVIII of the Criminal procedure Code, 1898, followed. The accused persons were directed by the learned Enquiring Magistrate to be released on bail as and when they are produced before him and they continued on such bail for about two years till the order of their committal. The learned Sub-Divisional Judicial Magistrate, Suri Sadar, Birbhum, ultimately committed the accused-applicants to the court of Session to stand their trial on charges under sections 148, 149/364 and 1491302 of the Indian Penal Code and they were taken into custody. An application for bail was moved thereafter before the learned Sessions Judge, Saurian the 28th February, 1974 but the same was rejected. A similar prayer made before the High Court was also rejected on the 14th March, 1974 with a direction for expediting the Sessions trial. This closes the first chapter. The code of Criminal Procedure, 1973 (Act II of 1974), having come into force in the meanwhile on and from the 1st april, 1974 and the Sessions trial being delayed till the 1st of July, 1974, the irate fixed for the purpose, the present application for bail was filed on the 20th May, 1974.
(3.) MR. Bhakti Bhusin Mondal Advocate (with Mr. Bhakti Pada Ghosh, Advocate)appearing in support of the application made a two-fold submission. The first dimension of his contention is that the scope and ambit for granting bail under the new Code is definitely wider than that under the old Code land as such the difficulty that started this Court in the face on the earlier occasion did no longer hold good, even apart from the further materials arising for consideration. Mr. Rajesh Ghosh, deputy Legal Remembrancer, State of west Bengal, however, pined issue and submitted that the provisions of the repealed Code and the new Code being by and large the same, and the line of decisions under the former being applicable to the latter, the considerations for granting bail by the High Court remain substantially the same. Mr. Mondal, to lend assurance to his sub. missions, referred to the proviso to section 167 (2); the provisions of section 437 (6); and those of section 439 (1) (a)of the new Code. Section 167 of Act ii of 1974 corresponds to section 167 of act V of 1898 and the proviso under section 167 (2) of the new Code inter alia lays down that "but no Magistrate shall authorize detention of the accused persons in custody under this section for a total period exceeding 60 days, the accused persons shall be released etc. " The provisions again of sub section 6 to section 437 of the new Code, corresponding to section 497 (3a) of Act v of 1898, as inserted by the Code of criminal Procedure (Amending) Act, 26 of 1954, are as follows :