SANTOSH SAHOO AND ORS. Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard learned Counsel for the petitioners and learned Additional Government Advocate. I have also heard learned Counsel for the informant. The petitioners are apprehending arrest for the alleged commission of offence under Sections 323, 354, 341, 379, 294 and 506 of the IPC read with Section 3 of the SC & ST (PA) Act in 1. C.C. Case No. 37 of 2015 of the Court of learned J.M.F.C., Odagaon.

(2.) It is seen from the record that after taking cognizance of the offence, learned J.M.F.C, Odagaon has issued summons against the petitioners, for which an application under Section 438 of Cr.P.C. cannot be maintainable as there is no apprehension of arrest of the petitioners. However, the learned Counsel for the petitioners submits that since the offence under Section 3(1)(x) of the S.C. & S.T. (P.A) Act is made out against the petitioners, there is every possibility of the petitioners being remanded to judicial custody by the learned J.M.F.C, Odagaon as he has no jurisdiction to enlarge bait under Section 439 of Cr.P.C.

(3.) However, this Court in Bulu Hazari @ Pradeep Kumar Hazary and five others v. State of Orissa, ABLAPL No. 18965 of 2015, as per order dated 15.02.2016, has held at paragraph 8 that a bare reading of Clause (i) of Sub-section (1) of Section 437 of Cr.P.C. makes its clear that Magistrate do not have jurisdiction to grant bail to a person, subject to certain exception referred in the 1st proviso, if there appears reasonable ground for believing that he has been guilty of the offence punishable for death or imprisonment for life. Thus, proper interpretation of this provision reveals that the Magistrate, before whom an accused is produced and there appears reasonable ground for believing that he has been guilty of an offence not punishable for the death or imprisonment of life, can grant him bail. However, the forth proviso to Sub-section (1) of Section 437 of the Code mandates that if a person is brought before a Magistrate with the allegation that he has committed an offence which is punishable with death, imprisonment for life or imprisonment for seven years or more, the person shall not be released on bail without giving an opportunity of hearing to the Public Prosecutor.