ASHOK KHIRHAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner was granted Police bail under Section 169 Cr.P.C. Charge -sheet came to be submitted under Section 307 and other provisions of the Penal Code. His application for anticipatory bail was rejected that since he was already on Police bail; he must appear before the Magistrate and seek regular bail. The Magistrate issued him show cause notice as to why the bail be not cancelled in view of applicability of Section 307 of the Penal Code. The petitioner questioned the same in an application under Section 482 Cr.P.C. This Court in Cr. Misc. No. 46376 of 2005 quashed the show cause notice of the Magistrate and required the petitioner to appear when his application for bail shall be considered on the principles if there had been a misuse of the privilege of bail. He appeared before the Magistrate and was enlarged on bail. An application for cancellation was then filed that the Magistrate had no jurisdiction to grant bail in an accusation under Section 307 of the Penal Code triable by a Sessions Court. This Court in Cr. Misc. No. 1430 of 2006 noticed that it was virtually required to sit in judgment over the order of this Court in Cr. Misc. No. 46376 of 2005 and that it could not do so. The order in Cr. Misc. No. 1430 of 2006 was then assailed before the Supreme Court which set aside the order of the Magistrate granting bail as also the order of this Court. It directed the petitioner to approach the trial court for regular bail. His arrest was stayed for a period of 30 days from the date of the order to enable him to do so. The order of the Apex Court was then modified to substitute the Sessions Judge in place of Magistrate.

(2.) THE petitioner moved the Sessions Judge and appeared before him when the prayer for regular bail came to be rejected on 4.12.2007. Hence, the present application for bail.

(3.) COUNSEL for the petitioner relied upon a judgment of the Supreme Court in, A.I.R. 1980 Supreme Court 785 (Niranjan Singh & Another vs. Prabhakar Rajaram Kharote & Ors.) and, A.I.R. 1982 Supreme Court 1463 (Free Legal Aid Committee, Jamshedpur vs. State of Bihar).