Prithvi Raj vs State of Punjab

R.L. Anand, J.

Sarvshri Prithvi Raj son of Shri Chaman Lal and Shri Sham Lal son of Shri Chaman Lal, partners of M/s. Bharat Rice Mills, Jalalabad (W), District Ferozepur, were sought to be prosecuted in case FIR No. 81 dated 17th August, 1997 under Section 409 read with Section 34 of the Indian Penal Code, Police Station City, Jalalabad. They applied for bail under Section 437, Cr.P.C. The learned Magistrate Shri Roshan Lal vide order dated 9th September, 1997 exercising the powers of the Judicial Magistrate Ist Class (Annexure P2), and vide order dated 12th September, 1997 (Annexure P3) granted bail to both these persons by writing the orders fully enumerated in Annexures P2 and P3. I do not want to comment upon the orders of the learned Judicial Magistrate Ist Class at this stage. As to the propriety of these orders, I am leaving it to the Hon''ble Inspecting Judge of Ferozepur Sessions Division. His Lordship would examine the allegations which were levelled against these two persons. But suffice to mention that the offence under Section 409, Indian Panel Code, under which the F.I.R. was registered against the petitioners is punishable upto life imprisonment. In this view of the matter, the learned Magistrate should not have granted the bail to the petitioners. Be that as it may, the events proceed further when the learned Sessions Judge, Ferozepur, inspected the Court of Shri Roshan Lal on 22nd October, 1997 and on checking of certain bail orders, he found that the present two petitioners have been granted bail under an offence under Section 409 read with section 34, Indian Penal Code. The learned Sessions Judge exercised his powers under Section 437, Cr.P.C., and issued notice to the present petitioners and after hearing both the parties, set aside the orders passed by the learned Magistrate vide orders dated 9th September, 1997 and 12th September, 1997 and in the opinion of this Court, the order passed by the learned Sessions Judge was in accordance with law. Aggrieved by the said order, present revision petition has been filed by Shri Prithvi Raj and Shri Ram Lal.

This revision came up for hearing on 12th February, 1998 and the High Court issued notice to the Advocate General, Punjab. Interim directions were also granted to the Chief Judicial Magistrate, Ferozepur, to grant bail to the present petitioners. I have stated above that the orders passed by the learned Magistrate were not the desired orders and that is why the same had been set aside by the learned Sessions Judge, who exercised the powers for revision.

Now the question which arises for determination on my part is twofold: (1) Whether the orders passed by the learned Magistrate should be swallowed by the High Court or some action is required against the Judicial Magistrate, who has flouted the statutory provisions ? This aspect of the case I would like to leave open to the Hon''ble Inspecting Judge by bringing to his notice the orders passed by the Judicial Magistrate Ist Class and the order passed by the learned Session Judge. (2) The second aspect of the case is whether it would be appropriate on the part of this Court to dismiss the revision and direct the petitioners to surrender before the Magistrate and then apply for bail under Section 409 or under Section 406, Indian Penal Code, as the case may be ?

Learned Senior Counsel for the petitioners submits that in pursuance of the order dated 12th February, 1998 passed by the High Court, the petitioners have already been granted bail by the learned Chief Judicial Magistrate, Ferozepur, and moreover, the facts of this case at the most attract the offence under Section 406 of the Indian Penal Code and the said offence is triable by the Magistrate, as the petitioners are not public servants.

On the contrary it is submitted by the State that the petitioners are merchants and in that capacity they have committed an offence under Section 409, Indian Penal Code.

Keeping in view the facts of this case, specially the fact that at one point of time the petitioners availed bail at the hands of the Magistrate and also interim bail was granted to them by the High Court on 12th February, 1998, I do not want to cancel the bail granted to the petitioners. Certainly I do not see any infirmity in the order passed by the learned Sessions Judge.

Present petition stands disposed of in the light of the above observations and further with the directions to the Registry that the copy of this order as well as the copies of the two orders passed by the Magistrate and the copy of the order passed by the learned Sessions Judge be placed before the Hon''ble Inspecting Judge of Ferozepur Sessions Division, who may consider the propriety to initiate action on the departmental side against the Judicial Magistrate, who in the opinion of this Court has prima facie granted bail perhaps to two rich persons of the area, for the reasons best known to him. The Registry shall comply with the directions forthwith.