JUDGMENT
Bhuvaneshwar Prasad, J.
Heard Shri U.K. Sarkar, Advocate for the petitioner and Shri G. P. Roy, A. P. P. for the State.
1. This is a case under Section 302/34 of the Indian Penal Code and also under Section 27/35 of the Indian Arms Act. From the prosecution case, it appears that while the informant constable Bijay Shankar Singh of Mango police station alongwith constable Arjun Singh was going to Mango police station for calling some officer, he found two vehicles one red Gypsy and an Ambassador car going on the road at high speed. When the informant reached near the K. P. Singh Bagan he heard the Chowkidar shouting that the occupants of the two vehicles had fired at and seriously injured two persons. When the informant went to injured persons he recognised them as one Md. Illias and Professor Kamal Uddin. Professor Kamal Uddin told the informant that Shafique and Sidique had assaulted them. On this the informant arranged for a vehicle for taking the injured to the hospital where both the injured were declared dead. The petitioner has contended that he is innocent and has committed no offence. He has been falsely implicated in this case only to harass and humiliate him. He has further contended that earlier by the order passed in Bail petition No. 101/87 the learned Sessions Judge was pleased to grant provisional bail to this petitioner on 3-11-1987 which was extended from time to time but was finally rejected on 12-1-1988, In the meantime the police had submitted charge-sheet against the petitioner and others on 2-1-1988. As per the direction of the learned Sessions Judge the petitioner has surrendered before the S. D. J. M., Jamshedpur on 19-1-1988 since then he is in custody.
2. Shri Sarkar, the learned Advocate appearing on behalf of the petitioner has submitted that the learned Sessions Judge has completely misdirected himself in refusing the prayer for bail of the petitioner while granting anticipatory bail to S. M. Shafique who was named by the deceased professor Kamal Uddin as one of the assailant in his dying declaration. The allegation against the petitioner is that he was one of the occupants of the white Ambassador car and on the self same allegation the police has submitted final report against one Imtiyaz. It has further been contended that the learned Sessions Judge has completely misdirected himself in failing to take into account that when S. M. Shaffique, who was named in the first information report and against whom there is a direct allegation of opening fire on the deceased was granted anticipatory bail by him, the prayer for bail of this petitioner should not have been rejected.
3. On behalf of the petitioner it has further been submitted that he is a business man and there is no criminal antecedent against him. During the period when he was on provisional bail there is no allegation against him of misuse of the privilege. On these grounds he has prayed for bail.
4. Shri Roy the learned A, P. P. has opposed the prayer on the ground that the petitioner is said to be the occupant of the Ambassador car from which also there was firing towards the deceased. He has submitted that since the allegations against the petitioner are serious, bail should not be granted to him.
5. It appears that the petitioner was granted provisional bail by the learned Sessions Judge on 3-11-1987. It further appears that be has not been named in the first information report. The only material against him could be found in paragraphs 41 and 53 of the case diary in which P. W. Bbaskar Singh has named him as one of the occupants of the car. It has further been submitted that ever since the petitioner was released on provisional bail by the learned Sessions Judge, there is no allegation of any misuse of this privilege against him.
6. Under these circumstances the petitioner namely Md. Sahid Hussain – Saiyad is ordered to be released on bail on furnishing bail bond of Rs. 5,000 with two sureties of the like amount each to the satisfaction of Sub-Divisional Judicial Magistrate, Jamshedpur in Mango P.S. Case No. 177/87.
7. Before concluding, however, I would like to make some observations with respect to the way in which the bail petition of S. M. Shaffique and another was entertained and disposed of by the learned Sessions Judge. In the course of his submission Shri Sarkar, the learned Advocate has drawn my attention to the fact that while S. M. Shaffique whose name has wrongly been typed as B. M. Shaffiqne in the order sheet of B. P. Case No. 100-A/87) against whom there was direct allegation of opening fire on the deceased Professor Kamal Uddin as a result of which he died, has been granted anticipatory bail by the learned Court below, the prayer for bail of this petitioner against whom the charges are not so serious was refused. In this connection, Shri Sarkar has taken me through the various orders passed by the learned Vacation Judge and the learned Sessions Judge in B. F. No. 100-A of 1987 on 6-10-1987, 7-10-1987, 3-11-1987 18-11-1987, 7-12-1987, and finally on 12-1-1988. He has pointed out that the learned Court below has completely misdirected itself while disposing of the prayer of anticipatory bail of S. M. Shaffique and his son Syed Asfaque Karim @ Javed. He has seriously contended in view of the fact that the provisions of law as laid down in the Code of Criminal Procedure have not been followed by the learned Court below he has been wrongly discriminated against in the matter of bail.
8. In view of these submissions of Shri Sarkar, I have perused the various orders mentioned by him. It appears to me that the provisions of law as laid down in the Code of Criminal Procedure and as interpreted from time to time by this Court and also by the Hon’ble Supreme Court have not been followed by the learned Court below and it is not clear why this departure has been made by the learned Sessions Judge so far as S. M. Shaffique and his sons are concerned.
9. To start with the order of 6-10-1987 in B. P. No. 100-A/87, bears the signature of Shri D. N. Chakravarty the learned Vacation Judge of Jamshedpur, it shows that it was on 6-10-1987 itself that the petition for anticipatory bail was filed before the court and on the same day this petition was taken-up for hearing. It further appears that on the same day the case diary was called for through the Special Messenger and the case was listed for hearing on the following day namely 7-10-1987, On this day, however, the case diary could not be received and Mango police station requested that 15 days time be allowed for the production of the case diary. However, it appears that the learned Vacation Judge, was in a great hurry to pass some order or the other on the petition and did not deem it fit to wait for the case diary even when he had himself called for it one day earlier. In paragraph 5 of his order, dated 7-10-1977 he has observed that “it was pointed out to him by the learned Public Prosecutor Incharge that there is no indication any where that any processes have been issued against petitioner No. 1, S. M. Shaffique or that he was wanted in this case. Accordingly, learned Public Prosecutor Incharge had prayed that he may be granted time to obtain the case diary”.
10. Paragraph 6 of this order, dated 7-10-1987, however, makes a very interesting reading. It has been observed by the Learned Vacation Judge that it was argued before him that the petitioners were apprehending their arrest and harrassmen at the hand of the police, even when this point has been denied by the learned Public Prosecutor Incharge as mentioned above and it appears that the petitioners also did not produce anything before the learned Vacation Judge to show that they had any reasonable apprehensions of their arrest. Even then the learned Vacation Judge has proceeded to pass the following order:
It is hereby ordered that in the event of their arrest or surrender, petitioner S. M. Shaffique and Syed Asfaque Karim alias Javed shall be released provisionally till 3-11-1987, on their executing bail-bonds of Rs. 10,000 with two sureties of the like amount each (to the satisfaction of the S. D. J. M. Jamshedpur in case of their surrender before court) with the condition that they must co-operate with the investigation. The petitioners to remain present before the Court of learned Sessions Judge, Singhbhum, Chaibassa on 3-11-1987. State to obtain the case diary by such date.
It appears that the learned Vacation Judge was not only in great hurry in passing this order and was not even prepared to wait for the case diary as called for by him but in this hurry has passed an order which is not warranted by law.
11. It appears that on behalf of the petitioners a prayer for anticipatory bail in terms of Section 438 of the Code of Criminal Procedure was filed. This section clearly provides that if any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the Court of Session for a direction under this section and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. Sub-section (3) of this section shows that if such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail. An order under Section 438 of the Code can be passed only in terms of this section. However, what the learned Vacation Judge has done in this regard ? He has gone one step ahead and has observed that in the case of surrender before the S. D. J. M. the petitioners shall be released on provisional bail of Rs. 10,000 with two sureties of the like amount till 3-11-1987.
12. As stated above, there is no provision for surrender or for that matter of fact for the grant of bail after the surrender in Section 438 of the Code. The moment an accused surrenders before a court he places himself in the custody of the court and thereafter the provisions of Section 436 or 437, as the case may be are attracted. Here the learned Vacation Judge has tried to produce a mixture of these sections by passing this order. In the hurry, it appears that he has not even used the words “provisional bail”. He has simply used they shall be released “provisionally”. Probably he did not have time even to check-up whether the expression “bail” has been used in his order or not.
13. In any event, it appears that this order as passed by the learned Vacation Judge is not in terms of Section 438 of the Code.
14. It appears that on 3-11-1987 was the date fixed when the matter came up before Shri Pradhan Umakant the learned Sessions Judge. On this date the learned Sessions Judge has extended the period of provisional bail till 18-11-1987. Probably the learned Sessions Judge did not think it necessary to scrutinize the order passed by the learned Vacation Judge and to see whether or not the earlier order was in terms of Section 438 of the Code. A Sessions Judge is considered to be the senior Judicial Officer and it is expected of him that before he passes any order, he must scrutinize the whole thing and must weigh its pros and cons. However, it appears that the learned Sessions Judge has treated this order of 7-10-1987 passed by the learned Vacation Judge to be proper and legal order for provisional bail and therefore he extended this period. As stated above, there was absolutely no prayer before the learned Vacation Judge for the grant of regular bail to the petitioners in as much as they had not surrendered before the court and their prayer was only for anticipatory bail under Section 438 of the Code.
15. Subsequently, this period of provisional bail was extended by the learned Sessions Judge from time to time on one ground or the other till he finally heard the matter on 12-1-1988 and confirmed the provisional bail granted to the petitioner No. I, S. M .Shaffique, It may be mentioned here that since the grant of provisional bail by the learned Vacation Judge was not in terms of Section 438 of the Code which does not contemplate of granting any provisional bail, whatsoever. It is not clear under what circumstances the learned Sessions Judge without examining the legality of the order has confirmed the provisional bail granted to petitioner No. 1.
16. Another important thing to be noted in this connection is that in this case the charge-sheet was submitted on 2-1-1988 in which petitioner No. 2 (Javed) was not sent-up for trial. Till the submission of the charge-sheet, the investigation was going on and it was not known if the police would be in a position to collect sufficient materials against petitioner No. 2, Syed Asfaque Karim alias Javed or not. However, the order, dated 3-11-1987 passed by the learned Sessions Judge Shri Pradhan Umakant shows that on this date itself he allowed the prayer of petitioner No. 2, Javed that since he is no longer required by the police nor the investigation is directed against him and therefore he should be allowed to withdraw his prayer for bail. Even without waiting to enquire from the learned Public Prosecutor Incharge whether or not this submission of Javed was correct the learned Sessions Judge allowed his prayer with the observation that he shall not be deemed to be on bail in this case.
17. Another interesting thing to be noted in this connection is that in the order, dated 7-10-1987 the learned Vacation Judge has clearly issued a direction to the petitioners including S. M. Shaffique to remain present before the court of learned Sessions Judge on 3-11-1987. It is, however, interesting to note that neither on 3-11-1987 nor on any other date subsequent thereto petitioner No. 1 namely S. M. Shaffique has appeared before the court and even then his provisional bail was confirmed. It is not clear under what considerations and for what reason the learned Sessions Judge even did not require the presence of the petitioner before confirming the so called provisional bail granted to him.
18. In this connection, it may be noted that the learned Prosecutor Incharge has all along been pleading before the learned Sessions Judge that S. M. Shaffique has been named in the first information report and the charge-sheet has also been submitted against him. He also made it clear before the learned Sessions Judge that S. M. Shaffique was named in the dying declaration as will appear from the first information report. However, relying on the statement of one P. W. Bhaskar Singh the learned Session Judge has brushed aside the submission of learned Public Prosecutor Incharge and has proceeded to confirm the provisional bail granted to S. M. Shaffique.
19. Paragraph 4 of the order, dated 12-1-1988 passed by the learned Sessions Judge clearly shows that when it was submitted before him that Shaffique was not named as an accused by any body and that Professor Kamal Uddin was not in a fit mental condition to make his statement, he readily believed it notwithstanding the fact that in the first information report there is a clear statement to the contrary.
20. The true scope of Section 438 of the Code of Criminal Procedure has come up for consideration before the Bench of this Court in the case of Durga Prasad v. State of Bihar, 1987 PLJR 364:1987 East Cr C 291 (Pat). It has been held that there is no provision in this section for granting provisional bail to the petitioner because such a conception is foreign to the language of this section. It has further been held that in terms of this section there is no power to stay the arrest of the accused pending the consideration of the application for anticipatory bail. At best it was held that in appropriate cases an order of interim anticipatory bail can be granted when the accused apprehends his arrest and for want of case diary or any other reason the State counsel wants time,
21. Notwithstanding this decision the learned Vacation Judge passed an order for provisional bail till 3-11-1987 when the prayer before him was for the grant of anticipatory bail. This is not all. He also directed that in the event of surrender before the S. D. J. M. Jamshedpur the petitioner shall be released on bail. The learned Sessions Judge also without applying his mind has not only extended the period of provisional bail from time to time but has also confirmed it, though there is no provision in law either for the grant of provisional bail in a petition under Section 438 of the Code nor for its confirmation. By doing so the learned Sessions Judge has displayed his total ignorance of law and the cavalier manner in which he has handled the whole thing shows that he has not applied his mind to the facts and circumstances of this case or to the provision of law as laid down in Section 438 of the Code, However, it is for the State to move for the cancellation of bail of these petitioners.
22. Let a copy of this order be sent to the learned Sessions Judge as well as to the learned Vacation Judge so that in future they should be careful in passing such order.