DISTRICT AND SESSIONS JUDGE BHARATPUR Vs. RAM LAL

JUDGEMENT

(1.) The following two questions have been referred to the Division Bench vide order of Hon'ble the Chief Justice, dated 7/11/1994: Whether the Special Judge hearing the matters under SC/ST Act is empowered to hand over the accused in police custody?

(2.) Whether in the event of surrender by an accused under the orders of the High Court and the Sessions Judge considers that police custody remand is required in the case, he can grant the remand of police custody? If not, what procedure should be adopted so that the police may take the accused in custody and investigate the matter? FACTUAL MATRIX In connection with FIR No. 190/91, P.S. Kumer, Ram Lal and others filed an application under section 438, Cr.P.C. before this court. The learned Single Judge vide order dated 14.8.91 while dismissing the bail application, observed that if the accused petitioners surrendered before the learned Sessions Judge and applied for bail under section 439, Cr. P.C., the learned Sessions Judge considering the same on merits, will dispose of the same on the day, the accused petitioners surrendered. Thereafter on 17.8.91, the petitioners surrendered themselves before the court of Sessions, Bharatpur, and moved an application under Section 439 Cr. P.C. for bail. The learned Sessions Judge directed the accused to be sent in Judicial custody and produce them before the A.M.J.M. No.1 on 30.8.1991. At the same time, the learned Judge thought it proper to make a reference to this court setting out two questions which have been stated in the first para of this order. The matter was placed before the learned Single Judge, who noticing the cases of Niranjan Singh & another vs. Prabhakar Rajaram Kharote & others (1), Natabar Parida vs. State of Orissa (2) and Bablu vs. State of Rajasthan (3) thought it proper to place the matter before the Hon'ble Chief Justice for constituting Larger Bench for authoratative decision on the reference. This is how the matter has come up before us. REASON FOR REFERENCE TO THE LARGER BENCH

(3.) Hon'ble Mr. Justice N.L. Tibrewal (as he then was) in the case of Bablu (supra), while considering about the jurisdiction of the Sessions Judge to hear bail application pending investigation, held that he was competent to hear bail application if the accused appeared or surrendered before him. It was observed at para No. 14 of the report as follows:- "Whether a bail should be granted or not is a different matter, but the learned Additional Sessions Judge, Karauli, is not right when he observed that the Court of learned Additional Sessions Judge, was not a Competent Court, when the accused appeared before it and put himself in physical control of the said court. In such a situation, the learned Judge, should have decided the application on merits or passed necessary orders on the said application. The Court was free either to admit the accused on bail or remand to judicial custody or other custody." This case was cited before Hon'ble Mr. Justice N.C. Kochhar (as he then was) in the reference. He did not agree with the view taken in the case of Bablu (supra) in view of the decisions of the Apex Court in the case of Natabar Parida (supra) and Niranjan Singh and another (supra).