Union Territory of Dadra and Nagar Haveli and Etc. Vs. Fatehsinh Mohansinh Chauhan and Another - Court Judgment

Excerpt:

.....magistrate - chief judicial magistrate while granting bail purported to act as in charge sessions judge - from wordings of section 10 (3) and order delegating power it is clear that power was delegated by then sessions judge during his absence at silvassa and same had elapsed after said sessions judge had ceased to be sessions judge - judge did not gave reasons as to why there was no ground for reasonable belief that accused was guilty of any offence punishable by death or life imprisonment - accused party were alleged to have committed offences under sections 147, 148, 149, 341, 302, 323, 506 and 171 - although prosecution has not shown that conditions for cancellation of bail exists yet impugned order has to be set aside as it was passed without jurisdiction. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the..........mohansinh chauhan on bail on 7-5-96 by the order passed by the chief judicial magistrate, dadra & nagar haveli, silvassa and for cancellation of the bail order passed in favour of the aforesaid accused fatesinh. the criminal application is filed by the union territory of dadra and nagar haveli for cancellation of bail while criminal writ petition is filed by the complainants impugning the same order dated 7-5-1996 releasing the said accused on bail. 2. these applications for cancellation of bail arise in the following manner. at the time of the general elections to parliament elections were to be held on 2nd may 1996. the complainants' party belonged to one political party while the accused party belonged to another political party. the incidents of rioting and murder and other offences had taken place on 29th april 1996 at about 5.30 p.m. in the evening due to political rivalry. 3. it appears from the prosecution case that the accused who are in large number came in several jeeps and intercepted the jeeps in which the complainant-party were going and one bapji bhoya was killed and one injured eye-witness by name jalal was injured. the accused party being in large number they.....

Judgment:

ORDER

1. The above criminal application and the criminal writ petition are filed challenging the order of release of the accused-Fatesinh Mohansinh Chauhan on bail on 7-5-96 by the order passed by the Chief Judicial Magistrate, Dadra & Nagar Haveli, Silvassa and for cancellation of the bail order passed in favour of the aforesaid accused Fatesinh. The criminal application is filed by the Union Territory of Dadra and Nagar Haveli for cancellation of bail while criminal writ petition is filed by the complainants impugning the same order dated 7-5-1996 releasing the said accused on bail.

2. These applications for cancellation of bail arise in the following manner.

At the time of the General Elections to Parliament elections were to be held on 2nd May 1996. The complainants' party belonged to one political party while the accused party belonged to another political party. The incidents of rioting and murder and other offences had taken place on 29th April 1996 at about 5.30 p.m. in the evening due to political rivalry.

3. It appears from the prosecution case that the accused who are in large number came in several jeeps and intercepted the jeeps in which the complainant-party were going and one Bapji Bhoya was killed and one injured eye-witness by name Jalal was injured. The accused party being in large number they intercepted the jeeps in which the complainant party was coming and started assaulting party was coming and started assaulting them. One person by name Bapubhai from the complainant party escaped and reported the matter orally to the Police stating that there was violence at the place of incident and, therefore, the Police should rush to the place of the incident. Accordingly Police came on the scene. In the meantime one Bapji was killed and another person by name Jalal was injured. Some of the accused persons were arrested. The others absconded. The names of the nine persons were mentioned in the FIR which was filed by one Damabhai Choudhari. That FIR came to be filed at about 8.30 p.m. on the same evening. There are about seven eye-witnesses whose evidence was recorded. Many accused persons were armed with swords, guptis and iron bars. The accused Fatehsinh was not armed with any weapon but he was instigating his co-accused to assault and kill the complainant party.

4. This accused Fatehsinh filed an application for anticipatory bail before the Chief Judicial Magistrate, Dadra and Nagar Haveli on 1st May 1996 by filing application being Anticipatory Bail Application No. 8 of 1996. That Court passed ad interim order granting anticipatory bail on the same day i.e. 1st May, 1996. The State, therefore, challenged that order in this Court on 2nd May, 1996 by filing Criminal Writ Petition No. 1143 of 1996. This Court on 2nd May, 1996 stayed the interim anticipatory bail order passed by the Chief Judicial Magistrate. That order was challenged in this Court, inter alia, on the ground that the Chief Judicial Magistrate was not empowered to grant anticipatory bail application, which power is vested in the Sessions Court and the High Court. As the High Court stayed that interim order the accused Fatehsinh came to be arrested on 2nd May, 1996. He filed an application for bail on 6th May, 1996 before the Chief Judicial Magistrate which came to be granted by the said Court on 7th May 1996. Besides this accused there are other accused persons and the prosecution was busy opposing several proceedings adopted by different accused in different Courts in the meantime and ultimately the present criminal application came to be filed by the Union Territory in this Court on 2nd August 1996.

5. Mr. Manudhane appearing for the respondent-accused Fatehsinh raised preliminary objection that the writ petition filed by the complainant for cancellation of bail is not maintainable.

6. The said writ petition was filed on 5th August, 1996 in this Court after filing of the criminal application by the Union Territory. Since the Union Territory has also filed the application challenging the impugned order and also for cancellation of bail, the criminal writ petition filed on behalf of the complainant is not of much significance, and, therefore, this objection raised by Mr. Manudhane will not be of any help to the accused. I have however heard both Mr. Agrawal as well as Mr. Mohite who have challenged the order of release of this accused on bail.

7. The first contention raised on behalf of the petitioners is that the Chief Judicial Magistrate of Dadra & Nagar Haveli had no power to release the accused on bail as that power is vested in the Sessions Court or the High Court and the Chief Judicial Magistrate is not empowered to release such accused on bail under Section 439 of the Criminal Procedure Code. Section 439 of the Criminal Procedure Code. Section 439 of the Cr.P.C. empowers only the High Court and the Sessions Court release the person accused of offences punishable with death or imprisonment for life only. In other words no Court other than the Court of Session and High Court, is empowered to release such person on bail. The learned Chief Judicial Magistrate while granting the accused bail has purported to act as an In Charge Sessions Judge, Dadra and Nagar Haveli, Silvassa. That power seems to have been derived by him on the basis of the power delegated to him by the Sessions Judge by the order dated 18/19th April 1984. This delegation of power is apparently made by virtue of Section 10(3) of the Criminal Procedure Code. It is argued on behalf of the petitioners that the said power conferred under Section 10(3) of the Cr.P.C. had lapsed long ago because the then Sessions Judge who had delegated that power had ceased to be the Sessions Judge long ago and ultimately he had retired also. Looking to the wording of Section 10(3) of the Cr. P.C. and the order delegating this power by the then Sessions Judge which is quoted hereinbelow leaves me in no manner of doubt that that power was delegated by then Sessions Judge during his absence at Silvassa and the same had elapsed after the said Sessions Judge had ceased to be the Sessions Judge. The said delegation of power is in the following words :-

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