SAMSUDDIN Vs. STATE OF ASSAM

JUDGEMENT

(1.) Heard Mr. Rajib Dev, learned counsel for the petitioner as well as Mr. B.S. Sinha, learned Additional Public Prosecutor, Assam. By this application under Section 438 of the Cr.P.C. the petitioners, namely, Md. Sumsuddin & Md. Gulaf Uddin, have prayed for pre-arrest bail in connection with C.R case No. 503 of 2010 under Section 307/426/34 IPC. The aforesaid complaint case was lodged by one Anowara Bigum wife of Jaynal Abedin alleging that the petitioner caused hurt on the neck of her son with a sickle resulting in cutting injury. It was further stated that the boy had to be shifted to Guwahati in view of his serious condition consequent to the assault. A medical certificate of injury was also annexed to the complaint to establish the offence. It was further alleged that the accused persons were exerting pressure on the complainant for withdrawal of the case. The said complaint was lodged on 18.09.2010 before the learned Sub-Divisional Judicial Magistrate at Sankardev Nagar, Hojai, who proceeded to hold inquiry in the case. Summon was issued to the petitioners and pursuant to the summons the petitioners became apprehensive that once they appear before the learned Magistrate they might be taken into custody in view of the fact, that the offence being alleged inter alia, under Section 307 IPC, which is exclusively triable by Session Court the learned Judicial Magistrate, Sankardev Nagar, may not grant them bail and in the process they would be seriously prejudiced.

(2.) Placing reliance on a Full Bench Judgment of this Court in the case of State of Assam Vs. State, 2007 1 GauLT 330, learned counsel for the petitioners submits that the learned Magistrate has jurisdiction to consider prayer for bail of persons accused of commission of non-bailable offence punishable with death or life imprisonment subject to the limitation that there is no reasonable ground to believe that the accused is guilty of an offence punishable with death or imprisonment for life and as such in view of the embargo provided under Section 437(1) Cr.P.C. the scope for granting bail by the learned Magistrate is very limited. On perusal of the aforesaid judgment of the Hon'ble Full Bench of this Court, it appears that there is no Bar on the part of the Magistrate to consider bail application in respect of a person accused of an offence which is exclusively triable by Session Court subject to the restriction imposed under the Section itself. Here in this case, the complaint case is at the stage of inquiry only. It is only after collection of materials by way of inquiry, if the ingredients of Section 307 IPC are found to exist, then the question of committing the case to Sessions shall arise. Until and unless, such question arises the power of the learned Magistrate who has issued summons to the petitioners, to grant bail on their appearance is very much there. On considering the totality of the circumstances referred to above, I do not feel that any order under section 438 Cr.P.C. is called for in the present case and accordingly, this application is closed. The petitioners shall be at liberty to appear before the learned Trial Magistrate on the basis of the summons served on them and on their such appearance they shall be at liberty to file appropriate application praying for regular bail and if such application is filed the learned Magistrate shall consider the same on its own merit