Full Judgment
P.R. Sharma, J.
1. This order shall govern Criminal Misc. Petitions Nos. 116, 117. and 118 of 1960 also.
2. A case under Section 307, I.P.C. was registered by the Madhoganj police against the present petitioner Sukhlal and his three brothers Gulabsingh, Beharilal and Khuman. Before their arrest could be effected all the four persons named above applied to the Sessions Judge Gwalior Under Section 498 Cri. P. G. for being released on bail. Their applications were rejected on the sole ground that as they had not been put under arrest no order for bail could be granted.
The learned Sessions Judge has dealt with at some length the decision of Hemeon, J. in the case of State v. Hasan Mohammad AIR 1951 Nag 471 and a recent decision of this Court in Abdul Karim v. State, : AIR 1960 MP54 . He has preferred to follow the decision of Hemeon, J. I do not feel called upon in the present case to pro-nounce upon the propriety of the course adopted by the learned Sessions Judge. I would only like to impress on his mind that in dealing with matter of this type he should express his views in a manner which is not found to be lacking in form or propriety.
I am definitely of the opinion that the learned Sessions Judge has himself fallen into an error by allowing the accused to go back after they had surrendered to him. When a person, who is accused of an offence, presents himself before a Court with a prayer for being released on bail he has immediately to be placed in custody and be handed over to the authorities concerned. The application for release on bail can be coasidered only after this has been done. To say that a person who has not yet been arrested and is evading legal process cannot be released on bail and then to allow him to remain at large is to stultify oneself.
I do not feel called upon or even entitled, sit-itog as a Single Judge, to consider the correctness or otherwise of the view expressed by my learned brother Khan J. in Abdul Karim's case, : AIR 1960 MP54 (supra); unless I decide to refer the matter to a larger Bench I would be bound to follow his decision. The position of a Sessions Judge can in no way be put on a better footing. These are matters of judicial etiquette which it is always to be expected that Judges of co-ordinate as well as subordinate ranks would follow.
3. I found that a similar procedure was adopted before me by the learned Counsel for the petitioners when these petitions came up for hearing on the 18th of October, 1960. The petitioners were not present in court. The counsel was told that theapplications could not be considered till his clients had surrendered and been placed under arrest, I am told now they have surrendered at the Madhoganj Police Station.
4. Considering the applications on their merits it would be sufficient to observe that the accused have been charged for an offence Under Section 307, I.P.C. in respect of an assault in which only sticks are alleged to have been used. The medical report shows that only one grievous hurt on the head was caused. The other injuries, which were on different parts of the body, were simple in nature.
5. In this stage of things the material question which will arise for consideration of the trial court would be whether on the facts proved an offence Under Section 307 I.P.C. is constituted or such of the accused as are proved to have taken part in the assault are liable for some lesser offence. It is often noticed that resort to the provisions of Section 307 I.P.C. is had by the police in a large number of cases than is ultimately found to be justified. The accused should not except in cases where the facts alleged are such that if proved they would distinctly make out a case under Section 307 I.P.C. be denied benefit of the provisions regarding bail.
6. Without expressing any opinion on the merits of the case I would, therefore, order that the petitioners in all the cases mentioned above shall be released on their furnishing bail in the sum of Rs. 2000/- each, with one surety, to the satisfaction of the trial court. Each of the petitioners shall also furnish a personal bond in the like amount. A copy of this order be forwarded today to the Mahdoganj Police Station as also to the City Magistrate Lashkar.