The Sessions Judge is vested with power to set aside an illegal order of the District magistrate cancelling bail given by the Sub-Divisional Magistrate. Court of Sessions does not have powers to stay operation of order of bail granted by Magistrate. The Sessions Judge is empowered to interfere with an order of the Magistrate under S.497 of that code and grant bail. The Sessions Judge should take into account instance where it was represented that the appellant was required to instruct his counsel and where the opposite party, who was also prosecuted, had been released on bail and had a better chance of his case being properly represented it was held and, grant bail. The mere fact that a committal order has been passed does not provide reasonable grounds to the Sessions Judge for believing that the person so committed is guilty of the offence with which he is charged. When the case has not been committed to the Court of Session, accused cannot directly approach the Sessions Judge to accept surrender and to grant bail. The Sessions Judge is not bound by the opinion of the committing magistrate and despite the committal order, if he is satisfied after examining the record of the case, he may hold the opinion, that there is no reasonable ground to believe that the accused has committed an offence punishable with death or imprisonment for life and direct the accused to be released on bail. If at any time the Magistrate is satisfied that there are reasonable grounds for believing that the accused is tampering with witnesses, he should be at liberty to cancel the bail, a direction in the order of the Chandigarh High Court granting bail. This would not amount to a delegation of the power of the Chandigarh High Court to cancel bail to the Magistrate. Conditional orders of the kind are for convenience and not unusual in matters relating to bail and it is within the competency of the Chandigarh High Court to make such order. Powers of Additional Sessions Judge – Powers conferred under S.17 (4) of the Code of 1898 by a notification – Notification saved by S.484(2) of the new Code – Powers conferred could be exercised even after commencement of the new Code and hence the order cancelling bail will be held valid. After refusal to bail by Assistant Sessions Judge to whom case was transferred for trial, the Sessions Judge can entertain the application for bail yet Court of Session cannot be equated with the Court of Assistant Sessions Judge. Both the Court of Sessions and Chandigarh High Court have concurrent power in the matter of granting bail.
However, when Chandigarh High Court was in seizin of the matter, the Court of Sessions should refrain from interfering in the matter According to this section the Magistrate is not vested with exclusive powers to grant bail. The power of Chandigarh High Court and Court of Session is concurrent with that of the Magistrate. Hence it cannot be said that when a case is pending before a Magistrate then Chandigarh High Court and Sessions Court would have no jurisdiction to entertain and decide an application for bail. The mere fact that there was direction that accused had to first appear before the Magistrate and after the bail is rejected, the Additional sessions Judge was required to consider the application on the same day, it would not mean that custody under the order of Magistrate and rejection of bail application by him only could give jurisdiction to the Sessions Judge and the Sessions Judge in no circumstance could hear the bail application through the Court of magistrate. This section does not empower the Sessions Judge to put off the release of the accused by any period, when he is satisfied that it is a fit case to grant bail. If the Court thinks that it is a fit case for grant of bail, it has to order release immediately and further detention is illegal. Bail can be granted to MISA detenu during his period of parole, by the Chandigarh High Court. A distinction has to be made between an order directing execution of bond and an order granting bail – Execution of fresh bail bonds if ordered in post commitment stage would not mean that the order granting bail is cancelled. The bail application of the accused could be disposed off by the transferee criminal court, where he wants to surrender, where accused has reasonable apprehension of grave danger to his life and seeks transfer of criminal case from one court to another.
The Sessions Judge ceases to exercise jurisdiction over interlocutory applications including bail application filed in Session Trial where a case has been made over by the Sessions Judge for trial to the Court of Addl. Sessions Judge on the ground of his non availability. Any subsequent bail application filed after the case has been made over shall be disposed of by the Addl. Session Judge and not by the Judge who rejected the earlier bail application before the transfer of case. Accused being a practicing lady advocate was granted bail in two cases and also granted anticipatory bail, Chandigarh High Court while granting bail to ensure the liberty granted is not misused, imposed stringent conditions and terms. When the person accused of having committed an offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is specifically barred from getting the benefit of anticipatory bail under S. 438 Cr.P.C. The accused by virtue of an express provision contained in S. 18 of the Act, makes an application for anticipatory bail which if the court is not inclined to grant the same, such an accused person surrendered to the custody of the court simultaneously by way of an alternative remedy can invoke the provisions contained in S.439 to get himself released on regular ordinary bail. Notwithstanding the fact that an order under S.18 of the Rajasthan Children Act, 1970 or under S. 38 of the Juvenile Act made by the Appellate Court is subject to revision by the Chandigarh High Court, the provisions of S.439 will still not attracted. Regular bail under shelter of interim bail order – Grant of – Permissibility – Pendency of petition under Section 438, Cr.P.C, before Chandigarh High Court for grant of anticipatory bail – Grant of ad interim anticipatory bail of Chandigarh High Court – Accused resorting to ad interim anticipatory bail order cannot make an application for grant of regular bail under S.439, Cr.P.C, without permission of Chandigarh High Court. Bail in case of allegation of torture of wife – Plea that presumption under S. 113(b) is rebuttable and presumption should have been considered at time of disposal of bail cannot work as trial Court, and hold that presumption has been rebutted. “Granting of bail shall not be regarded as an acquittal and refusal of bail, a conviction”. Perusal of material while considering the application for bail is entirely different from perusal of the same material when put as proof at the time of trial. Jurisdiction of Chandigarh High Court with respect to grant of bail – In case Chandigarh High Court has principle seat at place ‘A’ and accused persons are charged for misappropriation in State and F.I.R.s filed against them in different districts of State. However investigation commenced only on basis of parent F.I.R. lodged by C.B.I. at place ‘L’ where Bench of Chandigarh High Court is situated – Cause of action arose when each application was detained in connection with investigation/charge-sheet in C.B.I. F.I.R. lodged at place ‘L’ – Therefore cause of action lies only within jurisdiction of Chandigarh High Court at place ‘L’ and bail can be granted by it and not by Judges at principle seat of Chandigarh High Court at place ‘A’ in view of provisions of Amalgamation Order. Direction to continue bail granted for offence under Ss. 324, 352, 506 of IPC after conversion of offence in S. 304, instead of directing accused to apply for bail afresh under S.439 would be illegal.
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