WALAITI LAL ALIAS SURINDER KUMAR Vs. STATE

JUDGEMENT

(1.) THE petitioner who along with one Kharaiti Lal was accused of the commission of offence under Sections 392/397, Indian Penal Code and Sections 25/27 of the Arms Act, was arrested by the Chandigarh police on 6th February, 1985. The alleged occurrence had taken place on 23rd January, 1985. Before any progress could be made in the case, the petitioner escaped from the custody of the police on 21st/22nd February, 1985. He, however, was re-arrested on 26th August, 1986 and was then released on bail in recognition of his right under Section 167(2), Cr.P.C. on 9th December, 1986 as according to the Magistrate the police had failed to submit the challan within the requisite period of 90 days from the date of his arrest i.e. 25th August, 1986. It may be mentioned here that while he was absconding challan was submitted against him as well as his co-accused Kharaiti Lal on 20th September, 1985 and as a result of the trial that followed, said Kharaiti Lal was convicted on 23rd July, 1986. He is now stated to be on bail as allowed by this Court on appeal.

(2.) WHILE committing the petitioner to the Court of Sessions to face the trial the Magistrate on 15th December, 1986 directed him to be taken into custody. The petitioner then moved an application before the trial Court i.e. the Additional Sessions Judge, Chandigarh for the grant of bail during the pendency of the trial, but the same has been declined. The primary reason that weighed with the learned Judge for dismissing the petitioner's bail application was that he had wrongly been released on bail by the Magistrate under Section 167(2) of the Criminal Procedure Code, as according to the learned Judge the submission of the supplementary challan against the petitioner on 9th December, 1986 i.e. subsequent to his re-arrest dated 26th August, 1986 was of no consequence. The learned Judge was further of the view that as a matter of fact the challan had already been submitted against the petitioner on 20th September, 1985 while he was absconding. He, therefore, felt that the petitioner had rightly been committed to custody by the Magistrate and there was no ground to release him on bail. He thus has filed the present application under Section 439, Criminal Procedure Code, for the grant of bail to him.

(3.) I have given my thoughtful consideration to the entire matter in the light of the above noted submissions of the learned Counsel. I, however, find that the learned trial Court has erred in declining bail to the petitioner in the light of the reasoning adopted by it. In Chinder Kaur's case (supra) I had the occasion to examine all the judgments relied upon by the learned Counsel on either side. Therein I expressed the opinion that once an accused is on bail the committing Magistrate can only commit him to custody, at the time of his commitment to the Court of Session, if he is of the opinion that there are grounds to cancel the bail in the light of the provisions of Section 437(5) of the Criminal Procedure Code. He cannot cancel the bail arbitrarily. For this opinion, I had placed reliance on the following observations made by their Lordships of the Supreme Court in Kewal Krishan's case (supra).