Gurdeep Singh vs State of Punjab

S.S. Sudhalkar, J.

This bail application is filed by the accused in complaint case titled Naranjan Singh v. Gurdeep Singh, which is pending in the Court of Chief Judicial Magistrate, Kapurthala. It is for the offences under sections 420/467/468 and 471 of the IPC. On the complaint, the learned C.J.M., Kapurthala was pleased to issue nonbailable warrants against the petitioner. The petitioner thereafter filed anticipatory bail application before the learned Additional Sessions Judge, Kapurthala and the learned Additional Sessions Judge was pleased to reject the anticipatory bail application on 6.8.1996. Thereafter, the petitioner filed anticipatory bail application before his court which was granted on 9.8.1996. The said anticipatory bail application is Criminal Misc. No. 14102M of 1996. The anticipatory bail was granted by this Court subject to the directions that the petitioner within 15 days of his arrest shall file a regular bail application before the competent court. By a further order in connection with anticipatory bail application, the order of anticipatory bail was extended for a period of one week in case the regular bail application was declined by the competent court.

The petitioner thereafter filed a regular bail application before the learned C.J.M., Kapurthala before whom the complaint was pending. However, the learned C.J.M., Kapurthala was pleased to reject the same by order Annexure P3 because the offences alleged against the petitioner are punishable with life imprisonment. Therefore, the petitioner has approached this Court again for regular bail.

The question now remains is whether petitioner can be granted regular bail pending the trial of a case before the C.J.M., Kapurthala.

I have heard Mr. G.S. Sandhawalia, learned Advocate for the petitioner, Mr. G.S. Gill, learned A.A.G. for the State of Punjab and Mr. K.S. Ahluwalia, learned Advocate for respondent No. 2.

Mr. Sandhawalia has argued that police has not challaned the petitioner and that private case has been filed in the court of learned C.J.M., Kapurthala in which nonbailable warrants were issued. He has also argued that nothing remains to be investigated and nothing remains to be recovered from the petitioner and, therefore, the petitioner be released on bail.

The learned Advocate for respondent No. 2 has vehemently objected to the grant of this bail application. He has argued that petitioner should have filed a regular bail application before the learned Sessions Judge, Kapurthala under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the Code). He has further argued that learned Chief Judicial Magistrate has come to the conclusion that nonbailable warrants should be issued. The petitioner, according to Mr. Ahluwalia, has produced false certificates regarding qualification when he joined military service and thereafter the police service. Mr. Sandhawalia argued that petitioner is a constable in police. He was earlier serving in the Army and the moment he is arrested and kept in custody for more than 24 hours, he may be suspended.

The fact that requires to be seen is whether this is such a case where the petitioner deserves to be kept in custody irrespective of the fact that he is likely to be suspended from the service. Of course, if he has procured false certificates, he will bear the fruit of the same because the trial is still to proceed against him. However, I find that petitioner should not be subjected to a civil death before he is condemned. Therefore, on the facts, I find that this is a case where petitioner can be granted bail. The amount of bail, if granted, has to be a heavy one.

The next contention is regarding maintainability of this petition without any such petition being made before Sessions Judge.

Section 439 of the Code gives concurrent powers to the High Court and court of Session. The opening words of that Section are "(1) A High Court or Court of Session may direct xx xx". Therefore, when the bail application is made to the High Court it is not an appeal over the dismissal of the bail application, if made to the Sessions Court. But, it is an independent bail application provided before this court just as anticipatory bail can be granted by the High Court without person approaching the Sessions Court at the first instance. There can be no reason to hold that bail application under Section 439 of the Code cannot be granted by the High Court in the absence of any bail application being filed before the Court of Session.

The learned Advocate for respondent No. 2 has argued that Section 437 of the Code applies. However, as per subsection (1) (i) of Section 437 of the Code, the bail cannot be granted as per the said Section for the offences for which the petitioner is summoned. Of course, if the offence is of the nature of specific subsection (3) of Section 437 of the Code, then he can be released on bail with conditions. However, this provision has to be read along with Section 437 (1)(i) referred to above.

When bail could not be granted under Section 437 of the Code by the learned C.J.M. and he has declined the same, this petition to this Court cannot be said to be not maintainable without any order being obtained from the Court of Session.

Therefore, I hold that his bail application is maintainable.

Because of the above reasons, this bail application is allowed and petitioner is ordered to be released on bail on his furnishing bail bond of Rs. 15,000/ with one surety of the like amount.

Bail bond be furnished before the Chief Judicial Magistrate, Kapurthala.