STATE Vs. NATHMAL

JUDGEMENT

(1.) This is a reference by the Learned District Magistrate, Bikaner.

(2.) On the 4th November 1960, the Sub-Inspector Deshnok detected two bags of rice with one Nathmal while he was travelling in a bus running from Bikaner to Nokha. On the 17th December 1930, an offence was registered against Nathmal for contravening the provisions of Notification No. 51 of 23rd December 1949 and thereby committing an offence under Section 7 of the Essential Supplies (Temporary Powers) Act, 1946. The intimation of the registration of the offence reached the Court of the Sub-Divisional Magistrate on 20th December 1950. On 26th December, the said Nathmal appeared before the Sub-divisional Magistrate Bikaner North and made an application, that although the police had registered the case against him, he had under the law not committed an offence as the law relied upon by the Police had since been repealed. He prayed that he may be allowed to remain on bail as he was prepared to stand the trial but the Police was bent upon disgracing him by effecting his arrest and harassing him in other ways. The learned Sub-divisional Magistrate allowed Nathmal to remain on bail on executing a personal bond of Rs. 5,000/- and producing a surety for the like amount. On behalf of the Police a revision was filed in the Court of the District Magistrate challenging the validity of the order releasing Nathmal on bail before his arrest. The learned District Magistrate has made a reference that the order of bail passed by the Sub-Divisional Magistrate be cancelled on the ground that he had no jurisdiction to direct the release of an accused on bail before he had been arrested and when no warrant had also been issued for his arrest.

(3.) Learned Deputy Government Advocate, who appears in support of the reference, relies on 'AMIRCHAND v. THE CROWN', AIR 1950 EP 53 FB. The conclusions arrived at ay the Full Bench in that case are mentioned in para (26) of the judgment and are as follows: