PADMA CHARAN Vs. S RAM MOHAN RAO

JUDGEMENT

(1.) The complainant is the petitioner who challenges the order of the learned Sessions Judge, Ganjam dated 12-3-1980 by which order the accused-opposite parties were released on bail obviously in exercise of powers conferred under S.438, Cr.P.C. since the accused persons apprehended arrest in course of the committal proceedings for being committed to the Court of Session. When the case was heard on 30-11-81, a learned single Judge of this Court was of the view that the case be heard by a Division Bench. Accordingly this revision has been placed before the Division Bench for disposal.

(2.) The short facts leading to the grant of bail by the impugned order are that on the basis of an F.I.R. lodged by the petitioner, the police registered a case and after completion of investigation submitted a final report on the ground that culprits could not be detected. The petitioner filed a protest petition which was treated as a complaint and the complainant's initial statement was recorded. Thereafter the Magistrate conducted an enquiry under S.202, Cr.P.C. and then took cognizance under Ss. 149/324/337 and 296, I.P.C. as well as under Ss. 3 and 4 of the Explosive Substances Act and issued summons against the accused persons. The accused persons appeared before the Magistrate on 18-2-80 and on their prayer, were released on bail. While the matter was thus proceeding before the Magistrate the opposite parties who are the accused persons apprehending that the case may be committed to the Court of Session and they may be again taken into custody filed an application before the learned Sessions Judge under S.438, Cr.P.C. praying for an anticipatory bail in case the matter is committed to the Court of Session for trial. By the impugned order the learned Sessions Judge allowed the prayer of the opposite parties and ordered that in the event of committal the accused persons would be released on bail of Rs. 2,000/- each with one surety each for the like amount to the satisfaction of the learned Magistrate, First Class, Surada. The complainant-petitioner has impugned the aforesaid order of the learned Sessions Judge in the present case.

(3.) The learned counsel for the petitioner contends that once the accused persons appeared before the learned Magistrate pursuant to summons and were released on bail, obviously the said order of release is one under S.437 of the Code of Criminal Procedure. In such circumstances, provisions of S.438 of the Code of Criminal Procedure cannot have any application and the learned Sessions Judge therefore, had no jurisdiction to grant an order of anticipatory bail invoking his jurisdiction under S.438, Cr.P.C.