RAMA NAND DUSAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an application for bail. According to the prosecution case, the petitioner is alleged to have committed an offence under Section 395 of the Indian Penal Code, 1860 and has been identified by two witnesses at a test identification parade. He filed an application for bail before this Court earlier which was numbered as Criminal Miscellaneous case No. 4587 of 1976. That was permitted to be withdrawn by Birendra Prasad Sinha, J. The present application was again placed before Birendra Prasad Sinha, J. for admission. While admitting the application, he observed that he was not inclined to admit the petitioner to bail in Cr. Misc. 4587 of 1976 and, therefore, he permitted the petitioner to withdrawn that application. But he has admitted this application, because a ground has been taken in this case that since 29th of March, 1976 the petitioner has not been produced before the court in contravention of the provision of Section 309(2) of the Code of Criminal Procedure, 1973. The learned Judge while admitting the application also called for from the Chief Judicial Magistrate, Patna report with regard to the said statement that the petitioner has not been produced in court since 29th March, 1976. It appears that the Chief Judicial Magistrate, Patna has not submitted a report, but the record of the case does show that the petitioner has not been produced before the Court since 29th March, 1976.

(2.) A question arises, whether in a case where the petitioner has not been produced in court in contravention of Section 309(2) of the Code of Criminal Procedure, he is entitled to bail on that ground. Authorities do establish that he is entitled to be, released if he files a writ of habeas corpus. See (i)Babu Nandan Mallah v. State1971 B.L.J.R. 1058 (F.B.) and (ii) Jiwan Singh and Ors. v. The State of Bihar and Anr 1977 B.B.C.J. 173. There are two decisions, one is a Bench decision in Chandradeep Rat and Anr. v. The State of Bihar 1976 B.B.C.J. 645 and Anr. Jitendra Misra and Ors. v. The State of Bihar 1976 B.B.C.J. 644, of a learned single Judge in which the petitioners were granted bail on the ground of failure to produce them in court for more than fifteen days, as envisaged by Section 309 of the Code of Criminal Procedure. Speaking for myself, I doubt the correctness of these two decisions. An accused can claim bail only on the assumption that his detention is legal. Therefore, non-compliance of the provisions of Section 309 of the Code of Criminal Procedure should not be taken into consideration while examining the question whether a person is entitled to bail or not. The question of granting or refusing bail should be examined with reference to the merits of the case, namely, whether on the facts of the case the petitioner should be granted bail or not. In a case whether a person is released on a writ of habeas corpus on the ground of non-compliance of the provisions of Section 309 of the Code, he can again be taken into custoday by issuing a lawful warrant and if thereafter the procedure as stated in the section for not remanding for a period longer than fifteen days is followed, be shall have to remain in jail-in cases where it is considered that he should not be enlarged on bail. But if in a case where the accused is not entitled to bail on merits, he is released on bail on the ground that there has been non-compliance of the provisions of Section 309 of the Code of Criminal Procedure, then he will remain on bail during the trial, though really he should not be entitled to bail on the merits of the case and that may lead to some disastrous consequences, for instance, where the accused is a turbulent person, witnesses may be terrorised by him so that they may not dare to come and depose against him. The aforesaid two decisions, therefore, require reconsideration when proper occasion for that arises. In the instant case, however, since the petitioner has been in jail for a considerably long period, I am taking a lenient view of the matter and not referring the case to a larger Bench for consideration of the aforesaid question. Let the petitioner be released on furnishing bail bond of Rs. 10,000.00 with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Patna.

(3.) Perhaps, it is not the only case where the procedure laid down under Section 309 of the Code of Criminal Procedure is not followed by the Chief Judicial Magistrate, Patna. He should be vigilant and see that the procedure is followed in all cases pending before him.