BRIJ BALA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) The question which arises for consideration in the above . captioned cases is "whether or not, a person, who has been already granted anticipatory bail under Section 438 Cr.PC, is required to apply for fresh bail at the stage of committal by the magistrate?"

(2.) Before adverting to the factual matrix of the case, this Court deems it fit to take note of Section 209 Cr.PC and various pronouncements of the Hon'ble Supreme Court as well as High Courts, dealing with issue at hand, which read as follows:-

(3.) Bare reading of aforesaid provision of law clearly reveals that as per Section 209 Cr.P.C, it must 'appear' to the Magistrate that an offence is exclusively triable by a Court of Sessions and he has to commit the case to the Court of Sessions. When it does not disclose an offence exclusively triable by a Court of Sessions, the Magistrate has no jurisdiction or occasion to commit the case to the Court of Sessions. Even during . enquiry or trial relating to some other offence, if it appears to the Magistrate that there is an offence exclusively triable by a Court of Sessions, the Magistrate has to commit the case to the Court of Sessions under Section 209 Cr.P.C. In the matter of committal to the Court of Sessions, there is a vast difference between the New Code of 1973 and the Old Code of 1898. Under the Old Code, the Magistrate holds a preliminary enquiry and arrives at a conclusion that there is no offence exclusively triable by a Court of Sessions, it can discharge the accused from the case, but, if an offence is exclusively triable by a Court of Sessions, the Magistrate has to forward the accused to the Court of Sessions for trial, whereas as per new Code, if it appears to the Magistrate that there is an offence exclusively triable by the Court of Sessions, it shall commit the case to the Court of Sessions, meaning thereby, under the Old Code, Magistrate forwards the accused, whereas under the New Code, he forwards the case. Since under the old Code, the accused is forwarded to the Court of Sessions, there is no provision with regard to bail, but definitely, under new Code, since the case is committed to the Court of Sessions, there is a provision relating to bail (See Section 209(b) Cr.P.C). As per Section 209 (b) Cr.P.C, the committal of the case is "..subject to the provisions of the Code relating to bail.." This general provision is applicable to both type of Session cases, whether instituted on . a police report or upon a private complaint.