ORDER
P.K. Misra, J.
1. The petitioners who have been implicated in Cuttack Sadar P. S. Case No. 62 of 1991 corresponding to G. R. Case No. 331 of 1991 under Section 436/34, Indian Penal Code, in the file of the Judicial Magistrate First Class, Cuttack,. have filed this application under Section 438 of the Code of Criminal Procedure (hereinafter referred to as the “Code”).
2. The learned counsel for the petitioners has submitted that the petitioners have been falsely implicated end should be released on bail in exercise of power under Section 438 of the Code. Alteratively, he has submitted that the petitioners may be permitted to surrender before the Sessions Judge as the case is exclusively triable by the Court of Session and as such, the Judicial Magistrate First Class has no power to deal with the application for bail of the petitioners.
3. The incident is of the year 1991 and about five years have elapsed in the meantime. The petitioners have not been taken into custody as yet. As such it cannot be said that there is any reasonable apprehension that the petitioners may be arrested. Therefore, I am not inclined to entertain this application under Section 438 of the Code.
4. The alternate submission of the learned counsel for the petitioners is not tenable. Section 437 of the Code, so far as relevant is quoted hereunder :
“437. When bail may be taken in case of non-bailable offence.
(1) 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 other that the High Court or Court of Session, he may be released on bail, but-
(i) such person 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 ;
(ii)……
The submission of the Seamed counsel is apparently based on the provision of Clause (i) which says that the accused person shall not be so released on bail if there is reasonable ground for believing that the accused person has been guilty of an offence punishable with death or imprisonment for life. It has been nowhere laid down that in every case exclusively triable by the Court of Session, the power of the Magistrate to grant bail under Section 437 is excluded. There are many cases exclusively triable by the Court of Session where the offence is not punishable with death or imprisonment for life. In such cases, the power of the Magistrate to grant bail under Section 437 is exercisable. Even in respect of offences punishable with death or imprisonment for life, it cannot be said that the Magistrate has no power to deal with the bail application If the Magistrate comes to the conclusion regarding existence of reasonable ground for believing that the accused person has been guilty of an offence punishable with death or imprisonment for life, he is prohibited from releasing such accused person on bail under Clause (i) of Section 437(1). However, if there is no reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life, the power of the Magistrate to enlarge the accused on bail is not hampered. The scope of power of the Magistrate under Section 437 of the Code has been analysed in the case of Gurucharan Singh and Ors v. State (Delhi Administration); AIR 1978 SC 179, and it would be presumptuous on my part to elaborate any further on the point.
5. Relying upon the decisions reported in AIR 1880 SC 785 (Niranjan Singh and Anr. v. Prabhakar Rajaram Khereta and Ors.) and (1993) 6 OCR 566 (Bishnu Mallick v. State of Orissa and Anr.), the learned counsel for the petitioners submitted that the petitioners have a right to surrender before the Sessions Judge in cases exclusively triable by the Court of Session. It is, therefore, submitted that the petitioners may be permitted to surrender before the SessionsJudge. The aforesaid submission of the learned counsel for the petitioners is misconceived as well as self-contradictory. If according to the decisions in AR 1980 SC 785 and (993) 6OCR 566, it is the right of an accused person to surrender before the Sessions Judge in a case exclusively triable by Court of Session, the submission that the accused persons may be permitted to surrender before the Sessions Judge is meaningless. The petitioners can exercise their so-called right to surrender before the Sessions Judge and no permission is necessary. The decision in AIR 1980 SC 785 nowhere lays down that a person accused of having committed an offence exclusively triable by Court of Session can surrender before the Sessions Court as of right. In fact, the practice of surrendering before Sessions Court has been deprecated by the Division Bench decision of this Court reported in 1991(I) OLR 138 (Smt. Basanta Sahu v. Padma Charan Sahu and Ors.). The learned counsel, however submitted that the aforesaid decision in 1991 (I)OLR 138 has been taken note of in (1993) 6 OCR 566 and the principle of the latter decision should be followed. The latter decision [(1993) 6 OCR 566 proceeds under a basic misapprehension regarding the power of the Magistrate under Section 437 of the Code, as evident from the following observations in paragraph-7 of the decision :
“Mr. Dhal however submits that the offence being one under Section 436, IPC and being exclusively triable by a Court of Session, the SDJM has no power to allow bail to the petitioner. His further submission is that in view of such fact, even the discretion of the Assistant Sessions Judge was not properly exercised in refusing the surrender of the petitioner and rejecting his application for bail. This submission of Mr. Dhal has force. Since admittedly the application for bail of the petitioner even if he had surrendered before the SDJM was not available to be considered, it was a case to which the principles laid down in 1991 (I) OLR 138 need not have been applied…….”
(Underlining is mine)
The aforesaid decision without referring to the provision of Section 437, Clause (i) has proceeded on the footing that in cases exclusively triable by Court of Session, the Magistrate has no power to deal with the bail application. Moreover, in the said decision, it has been nowhere laid down that as a matter of right a person accused of having committed an offence triable exclusively by Court of Session can surrender before the Sessions Court. On the other hand, in paragraph-5 of the decision, it has been observed :
“The apex Court (in AIR 1930 SC 785) nowhere observed that once an application under Section 439, Cr PC is filed before the Sessions Court surrendering to its custody and moving it for bail, the Court comes under an obligation to accept the surrender of the accused and deal with his application for bail…….”
As a matter of fact, it has been observed by the Supreme Court in AIR 1978 SC 179, in paragraph-13 :
“……Under the new as well as the old Code an accused after being arrested is produced before the Court of a Magistrate. There is no provision in the Code whereby the accused is for the first time produced after initial arrest before the Court of Session or before the High Court. Section 437(1), Cr PC, therefore, takes care of the situation arising out of an accused being arrested by the police and produced before a Magistrate. What has been the rule of production of accused person after arrest by the police under the old Code has been made explicitly clear in Section 437(1) of the new Code by excluding the High Court or the Court of Session.”
If, as observed by the Supreme Court, a person in custody is to be produced before the Magistrate, it is not understood as to how the position would be different for an accused person who evades arrest. In fact, where power under Section 438 can be justifiably exercised, such a course is unnecessary and if the jurisdiction under Section 438 is not to be exercised, adoption of such a course is undesirable.
In view of the aforesaid, it cannot be said that the petitioners have unequivocal right of surrendering before the Sessions Judge on the ground that they have been accused of having committed an offence under Section 436, Indian penal Code, which is triable exclusively by the Court of Session.
6. In the fatcs and circumstances of the present case also, I do not consider it a fit case where the petitioners should be permitted to surrender before the Sessions Judge directly. Accordingly, I reject the petition filed by the petitioners. ft is, however, open to the accused persons to surrender before the Judicial Magistrate First Class (S), Cuttack, in connection with G.R. Case No. 331 of 1991 corresponding to Cuttack Sadar P. S. Case No. 62/91 on 13-5-1996 and move for ball. If bail application is filed, the same should be disposed of on the very day. All the relevant papers and records shall be made available on 13-5-1996. A copy of this order may be handed over to the learned Standing Counsel for information and compliance.
The Criminal Misc. Case is disposed of accordingly.