P.K. Musahary, J.

1. Heard Mr. I. Basar, learned Addl. Public Prosecutor, for the Petitioner State of Arunachal Pradesh. Also heard Mr. P. Taffo, learned Counsel for Respondent accused and Mr. K. Jini, learned Counsel for Informant Intervener.

2. The short facts, involved in this case, are that a written FIR was lodged by one Smti. Tana Yame with the Doimukh Police Station which was registered as Doimukh P. S. Case No. 18/2010 under Sections 452/352/342 I.P.C. In the said FIR, an allegation was made to the effect that on 30.04.2010 at 11.30 P.M., the Respondent accused entered into her residence arid assaulted her including her family members without any provocation. The police investigated the matter and found sufficient incriminating evidence/materials against the Respondent accused. Abail petition being B.A. No. 56 (AP) 2010 was moved by the Respondent accused under Section 438 of the Code of Criminal Procedure, 1973, before this Court, for granting him pre-arrest bail. While calling for the CD; this Court, vide order dated 03.05.2010, granted him interim bail. By another order dated 12.05.2010, this Court, on perusal of the CD and having found sufficient incriminating materials, rejected his Bail Application No. 56 (AP) 2010. The Respondent accused wanted to surrender before the Court of Judicial Magistrate concerned and accordingly, on the prayer of his learned Counsel, this Court directed him to surrender before the Court of learned Judicial Magistrate, First Class, Yupia, within 3 days and file an appropriate application for bail and during the aforesaid period of 3 days, in the event of his arrest in connection with the aforesaid police case, he shall be enlarged on bail on furnishing a bail bond of Rs. 20,000/- with one local surety of like amount to the satisfaction of the arresting authority. Immediately, on the next day i.e. 13.05.2010, a bail application was moved before the Court of learned Judicial Magistrate, First Class, Papum Pare District, Yupia, for release of the Respondent accused on bail. The learned Judicial Magistrate, on 13.05.2010, passed an order releasing the Respondent accused on bail with certain conditions but without recording as to whether the Respondent accused surrendered or appeared before his Court prior to or at the time of granting him bail.

3. Mr. Basar, learned Addl. Public Prosecutor, Arunachal Pradesh, submits that the Respondents accused was not present before the Court of learned Judicial Magistrate, First Class, Yupia, and the bail application was moved on 13.05.2010, through a counsel and as such, the Respondent accused did not surrender before the Court of the said Judicial Magistrate as directed by this Court vide order dated 12.05.2010. The learned Judicial Magistrate, First Class, granted regular bail to the Respondent accused in violation of the order passed by this Court and as such, according to Mr. Basar, the said bail order is liable to be cancelled. According to him, under Section 437 of the Code of Criminal Procedure, 1973, there must be physical appearance by the accused before the Magistrate for granting regular bail as per decision of the Apex Court in Nirmal Jeet Kaur v. State of M.P. and Anr. reported in (2004)7 SCC 558.

4. Per contra, Mr. Taffo, learned Counsel appearing on behalf of Respondent accused, submits that the Respondent accused was physically present along with his counsel before the Court of learned Judicial Magistrate, First Class, Yupia, on 13.05.2010, and the learned Judicial Magistrate, on being satisfied with his surrender and on perusal of relevant CD, granted regular bail to the Respondent accused. To substantiate his submission, learned Counsel has drawn the attention of this Court to another order dated 13.05.2010 (Annexure-I to the counter affidavit filed by the Respondent accused) passed by the said Court of learned Judicial Magistrate, First Class, Yupia, wherein it has been recorded that:

Sri Chichung Chuku surrendered before my Court