Manjit Kaur vs State Of Punjab on 9 October, 2009

Criminal Misc. No.M-25036 of 2009 (O&M)                             1

              IN THE HIGH COURT OF PUNJAB AND HARYANA
                           AT CHANDIGARH.

                                    Criminal Misc. No.M-25036 of 2009 (O&M)

                                    Date of Decision: 9.10.2009.

Manjit Kaur
                                                   ....Petitioner

              Versus

State of Punjab
                                                    ...Respondent

CORAM : Hon'ble Mr. Justice Rajesh Bindal

Present:-     Ms. Puja Chopra, Advocate
              for the petitioner.

              Mr. Mehardeep Singh, DAG Punjab.

RAJESH BINDAL J.

                       ****

The petitioner is before this Court for grant of regular bail in FIR

No. 34 dated 12.2.2009 under Sections 419,420,465,467,468,471/120-B IPC,

registered at P.S. Division No. 5, Ludhiana.

The facts of the present case are quite peculiar. Earlier the

petitioner had approached this Court for grant of anticipatory bail. While issuing

notice of motion on March 17, 2009 in Criminal Misc. No.M-7118 of 2009, this

Court granted interim stay of arrest. After hearing learned counsel for the State

on May 11, 2009 the interim bail granted to the petitioner was made absolute.

However, it was directed that after the presentation of challan, the petitioner will

seek regular bail. The challan was presented on August 12, 2009. Thereafter,

the petitioner filed application before the learned Additional Chief Judicial

Magistrate for acceptance of her bail bonds/surety bonds. The application was

rejected by holding that the allegations against the petitioner being under Section

467 IPC, which is punishable with life imprisonment, the court was not

competent to grant the bail. The petitioner was granted time till September 4,

2009 for producing orders from Sessions Court. Thereafter, the petitioner

approached the Court of learned Sessions Judge. However, the application for

bail filed there was withdrawn on August 31, 2009, which according to learned
Criminal Misc. No.M-25036 of 2009 (O&M) 2

counsel for the petitioner was on account of the fact that the petitioner was

directed to surrender before applying the regular bail as she was not in custody

anywhere.

Learned counsel for the petitioner submitted that once this Court

had granted anticipatory bail to the petitioner and thereafter she was to apply for

regular bail on presentation of challan, the regular bail to be filed by the

petitioner after presentation of challan was required to be considered by the

learned Magistrate on merits considering the material which was presented by

the Investigating agency along with the challan. However, the learned Magistrate

has dismissed the bail application holding that the Court was not competent on

account of the reason that the offence involved was under Section 467 IPC as

well, which was punishable with life imprisonment. Referring to proviso (2) of

Section 437 Cr.P.C., it was submitted that the learned Magistrate could very well

consider the prayer for grant of regular bail in case the applicant therein is under

the age of 16 years or a woman or sick or infirm. In view of the aforesaid

provisions, learned Magistrate in the present case had failed to exercise the

jurisdiction vested in it. Her only prayer is that learned Magistrate should

consider her regular bail application on merits. She submits that she will

surrender before the Magistrate on or before 14.10.2009 and file her bail

application, which may be considered on merits.

Learned counsel for the State could not dispute the fact that

learned Magistrate was required to consider the regular bail application filed by

the petitioner on merits in terms of provisions, referred to above.

Considering the peculiar facts of the present case and first proviso

to Section 437 Cr.P.C. which provides as exception to the main provision for

consideration of regular bail application in my opinion the learned Magistrate has

committed an error in not considering the regular bail application filed by the

petitioner on merits and dismissing the same by opining that the Court was not

competent. Section 437 (1) Cr.P.C. provides that 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
Criminal Misc. No.M-25036 of 2009 (O&M) 3

is brought before a Court other than High Court or the Court of Session, he may

be released on bail, but such person is not to 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;

However, first proviso to section 437(1) Cr.P.C. provides that the

Court may direct that a person be released on bail, if such person is under the

age of sixteen years or is a woman or is sick or infirm. The petitioner in the

present case is a woman. Considering the aforesaid facts the regular bail

application filed by the petitioner was required to be considered by the learned

Magistrate on merits.

In view of the aforesaid discussion the petitioner will now surrender

before the learned Magistrate on or before October 14, 2009 and file regular bail

application which shall be considered and decided by the Court on the same

date on merits.

Disposed of.

A copy of the order be given dasti under the signatures of Bench
Secretary.

                                                  (RAJESH BINDAL)
9.10.2009                                              JUDGE
Reema