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PATNA HIGH COURT
Chandramauli Kumar Prasad, J.
Usha Devi
Versus
State Of Bihar
Criminal Miscellaneous No. 10151 of 2006 ;
Decided On : JUNE 20, 2006
(Para 11)
Code of Criminal Procedure, 1973-Sections 437 and 439-From a conjont reading of sections 437 and 439 courts of Magistrate of different classes do not possess power to release such accused persons on bail for offence providing punishment of death or imprisonment for life or cognizable offence in which accused had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment of seven years or more convicted on two or more occasions of a non-bailable and cognizable offence-However there is no such instruction so far as the court of session or the High Court is concerned.
(Para 14)
Code of Criminal Procedure, 1973-Section 437-The purport of Section 437 of the Code is not that in every case registered for offence punishable with death or imprisonment for life the Magistrate is denuded of its power-In a case although registered for offence punishable with death or imprisonment for life or imprisonment for seven years or more but it appears to the Magistrate that reasonable ground does not exist for believing that the accused had committed offence punishable with death or imprisonment for life nothing prevents him to release much accused on bail-It is the substance of the accusation and belief of the Magistrate not the nomenclature under which the case is registered.
(Para 15)
Code of Criminal Procedure 1973-Sections 437, 439 and 167(2)-Bail under-Difference-An accused released on bail either under section 437 or 439 of the Code is released on fullfilment of certain conditions where as only condition required for release under Proviso (a) to Section 167(2) is that the investigation is not convected charge-sheet is not submitted within the prescribed period and the accused is prepared to furnish bail-Section 167 (2) ordains that every person released on bail shall be deemed to be so released under the provisions, Chapter XXXIII of the Code, but that does not "Ipso facto" mean that bail order assumes the content and character of the bail order of the kind conceived under sections 437 and 439 of the Code.
(Para 16)
Code of Criminal Procedure, 1973-Section 167(2)(a) read with sections 437(5) and 439(2)-Cancellation of bail-When bail granted otherwise than u/s 167(2)(a) can be cancelled-If investigation discloses commission of graver offence-There is no justification to hold that an accused released on bail on default his bail can not be cancelled on submission of charge-sheet-In case it discloses commission of graver offence, bail granted for default can not be put on a higher pedestal than the bail granted otherwise-Mere submission of charge sheet for graver offence only shall by itself be not the ground for cancelling the bail-Before cancelling the bail the court will have to be further, satisfied that the case is of such nature in which no court would have accepted the plea of bail-Grounds for cancellation of bail under sections 437(5) and 439(2) are illustrative and not exhaustive.
(Paras 18 & 20)
AIR 1987 SC 149 AIR 1993 SC 1- Relied upon.
Chandramauli Kr.Prasad, J.
1. A child aged about four and half years old, kidnapped for ransom was recovered from the house of the petitioner. Earlier case u/s. 363 and 365 of the Indian Penal Code was registered. According to the prosecution, the accused persons were demanding ransom of Rs. five lakhs for release of the child. During the course of investigation petitioner was found involved in the crime. She was arrested and on the failure of the Investigating Officer to submit charge sheet within 90 days she was released on bail in terms of Proviso (a) to sec. 167(2) of the Code of Criminal Procedure. Later on, charge sheet was submitted against the petitioner u/s. 364A, 363 and 365 of the Indian Penal Code and the learned Magistrate took cognizance of the offence and the case was committed to the Court of Sessions. After commitment of the case petitioner appeared before the trial Court and prayed that she may be allowed to continue on bail, which prayer has been rejected by the 5th Additional Sessions Judge, Fast Track Court, Vaishali by order dated 7.2.2005 passed in Sessions Trial No. 449 of 2004.
2. Aggrieved by the same, petitioner has preferred this application under Sec. 482 of the Code of Criminal Procedure and her prayer is to quash the aforesaid order and direct continuance of the petitioner on bail.
3. It is relevant here to state that aggrieved by the aforesaid order refusing to allow the petitioner to continue on bail, petitioner earlier filed application for grant of bail u/s. 439 of the Code of Criminal Procedure before this Court, which was registered as Criminal Misc. No. 7569 of 2005 Usha Devi V/s. State of Bihar and this Court by order dated 14.3.2005 rejected the prayer of the petitioner but while doing so it observed as follows:
Hence the learned Chief Judicial Magistrate took cognizance under Section 364-A of the Indian penal Code and gave the above direction and when the petitioner appeared before the learned Additional Sessions Judge and prayed to remain on previous bail, her prayer was rejected by order dated 7.2.2005. It seems that the order of the Additional Sessions Judge dated 7.2.2005 has not been challenged separately and the petitioner has filed this petition under sec. 439 of the Code for grant of bail.
Now when the petitioner was granted bail u/s. 167(2) of the Code, of course, it cannot be denied that her bail bond can be cancelled only under the provisions of sec. 439(2) of the Code but at the same time it is also clear that if during investigation prima facie evidence of graver offence is found, that is also a ground to cancel the bail already granted. In this case also the case was registered under Secs. 363 and 365 of the Indian Penal Code but during investigation, prima facie, evidence of graver offence under sec. 364A of the Indian Penal Code was found, Therefore, the learned Additional Sessions Judge could cancel the bail and as the victim boy was admittedly recovered from the premises of the petitioner, I do not feel inclined to release the petitioner on bail.
4. Petitioner thereafter filed another application for grant of bail which was registered as Criminal Misc. No. 31721 of 2005 Usha Devi V/s. State of Bihar and this Court by order dated 6.12.2005 again rejected the prayer of the petitioner but while doing so it gave liberty to the petitioner to assail the order impugned in the present application in the following words:
It, however, may be made clear that this order and the earlier order passed by this Bench rejecting prayer of the petitioner will not prejudice any Court while considering the legality of the order dated 7th February, 2005 by which the bail of the petitioner granted u/s. 167 (2) Cr. P.C. was cancelled.
5. Mr. Surendra Kishore Thakur, appearing on behalf of the petitioner contends that bail ones granted for not completing the investigation within stipulated time in terms of Proviso (a) to sec. 167(2) of the Code of Criminal Procedure, cannot be cancelled
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