STATE OF SIKKIM Vs. ROLLAND CHRISTOPHER CHETTRI

JUDGEMENT

(1.) This revision is against the order dt. 5th Mar. 1988 passed by the learned Sessions Judge Incharge releasing the respondents on bail in a case registered against them under Ss.364, 302 and 201 read with S.34 of the Penal Code.

(2.) The respondents are police officials, first respondent being a Sub-Divisional Police Officer and the second, a sub-inspector. On 20th Feb. 1988, the officer-incharge, Naya Bazar Police Station, West Sikkim registered a first information report against them stating that it had been learnt from a reliable source that on 12-2-88 at about 1605 hrs., one Dharam Dutt Sharma of Timberbong busty was found absconded by the respondents and on way to Nayabazar the said Sharma was murdered at Zoom Busty, West Sikkim and thereafter his dead body was disposed of by them on the other side of the river falling under Bizan Bari Police Station in Darjeeling District, West Bengal. On that very date, the police started investigation and recorded the statement of one Shri Kishor Kumar Pradhan under S.161 of the Criminal P.C. After recording his statement both the respondents were arrested on 21-2-88. Thereafter statements of two other witnesses were recorded. On 21-2-88 itself, that is, the date on which the respondents were arrested, a bail application was moved before the learned Sessions Judge Incharge and after giving some time on two occasions to the police to complete investigation, the impugned order of bail was passed on 5th Mar. 1988. The petitioner challenges the validity of the bail order on two grounds. One is that the learned presiding officer failed to consider whether there were reasonable grounds to believe that the respondents were guilty of offences punishable with death or imprisonment for life which was the mandatory requirement under the provisions of S.497(1). The other is that the learned presiding officer did not give proper weight to the contention raised that there was apprehension of tampering with the witnesses by an order for bail

(3.) The Criminal P.C., 1973 has not yet been extended to Sikkim and the provisions of the Criminal P.C., 1898 are still applicable subject to the Government of Sikkim, Home Department Notification No. 73/H dt. 30th Aug., 1963 according to which in all cases where the Code of Criminal Procedure lays down the commitment proceedings, the Chief Magistrate's Court shall have the original jurisdiction and all such cases shall be filed before him directly for disposal. The Chief Magistrate's Court now means the Sessions Judge's Court. Sub-Section (1) of S.497 provides that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Proviso to that Sub-Section provides an exception. but that is not material for the instant case. Undoubtedly the mandate of the provision is that the Court does not have the jurisdiction to grant bail, if in the opinion of the Court there appear reasonable grounds for believing that such an offence had been committed. Under S.498, there is no such absolute bar regarding the jurisdiction of the High Court or the Court of Session, but the learned Advocate General contends that the expression 'a Court' in Sub-Sec. (1) of S.497 is wide enough to cover the Court of Session with the result that under that provision jurisdiction of the Session's Judge is barred if there were reasonable grounds for believing that the respondents were guilty of an offence punishable with death or imprisonment for life. He also urges that in the first instance an accused is expected to seek bail before a Magistrate and it is only when bail has been refused by the Magistrate and the case has made substantial progress that the accused is expected to approach the Court of Session or the High Court and, therefore, it is S.497 that is applicable at the initial stage of investigation and not S.498. I do not find myself persuaded to agree with the learned Advocate General that there is a jurisdictional bar for a Court of Session to grant bail at the initial stage of investigation for there are no such words of limitation in S.498 and S.497(1) should be read simultaneously with S.498. However, it is true that an accused is expected to approach a Court of Session or a High Court after investigation has made substantial progress so that a seasoned judicial mind may consider having regard to the evidence and the circumstances revealed whether bail should be granted under S.498 despite the bar provided by S.491(1). But if a person accused of such an offence approaches the Court of Session or the High Court at the initial stage of investigation, though there is no absolute bar for such a Court to grant bail, yet the Court for all practical purposes has to consider it to be bound by such bar. In Sikkim it is more so because of the aforesaid notification under which an application for bail which is supposed to be moved before a Magistrate in the first instance ordinarily in other States has to be moved before the Sessions Judge since there are no commitment proceedings and the Court of Session directly entertains such cases. In any case, the Court of Session cannot be oblivious of the fact that under S.497 no bail can be granted to any person accused of an offence punishable with death or imprisonment for life. The learned counsel for the respondents also concedes that bail should not have been granted if there were reasonable grounds for believing that the accused were guilty of such an offence.