BALWANT SIGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS application has arisen as a result of counter cases pending between the parties for mutual exchange of violence on 24th of October, 1979. For the injuries of Balwant petitioner, First Information Report No. 161 dated 24th of October, 1979 was registered at Police Station Bhogpur, District Jullundur under section 307 etc. of the Indian Penal Code. After investigation the opposite party, accused of causing injuries to Balwant Singh petitioner, have been sent up for trial under section 307 of the Indian Penal Code and other allied offences to the Court of Session. On 7th January, 1980, Malkit Singh, respondent. No. 2, filed a complaint before Judicial Magistrate Ist Class Jullundur against the petitioners for the same incident under sections 307, 447 and 323 of the Indian Penal Code. After enquiry under section 200 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the, Code) the learned Magistrate under Section 204 of the Code issued non-bailable warrants for the arrest of the petitioners in the complaint case. The petitioners were not successful in their application before the learned Sessions Judge, Jullundur for anticipatory bail under section 433 of the Code. They have now approached this Court under that section for bail in anticipation apprehending their arrest. Notice was issued to the State and the complainant in this case.

(2.) AT the outset Mr. Sharma, on behalf of the complainant raised an objection that once the Magistrate issues a warrant for the arrest of any accused-person in a complaint after enquiry then he cannot approach the Court under section 438 of the Code for his release in anticipation of the apprehended arrest. He has cited Ram Lal v. The State of Punjab and others, 1976 C.L. R., (Pb. and Hry.) 38, to support his argument. For purposes of reference the reproduction of Section 439 of the Code, is necessary which is as under.

(3.) THE Magistrate, in the case in hand, in the first instance acted in complete disregard of this provision in issuing non-bailable warrants. The issuing of the non-bailable the warrants gives a cause in my view justifiably, to the petitioner to apprehend arrest and detention in custody in execution of the non-bailable warrants issued by the Courts. They were justified in making an approach to the Courts under section 438 of the Code for their release on bail.