G.L.OZA, J. - (1.) THIS revision petition has been filed by State against an order passed by the Chief Judicial Magistrate Jhabua releasing the non -applicants on bail on 17 -5 -1979. Aggrived by the same order the complainant has also filed Miscellaneous Criminal Case No. 26 -2 -1979.
(2.) THE main grievance urged in these two petitions is that the Chief Judicial Magistrate could not have entertained the application under section 439 for grant of bail in a case where the accused is charged with an offence under section 302 IPC. It was also brought to my notice that in fact the learned Chief Judicial Magistrate granted ball on the day on which the application was filed. But the order does show that the case diary was perused. The Sessions Judge Jhabua was directed by this Court to report if there was any authorization made in favour of the Chief Judicial Magistrate, authorizing him to entertain such urgent applications, either by the High Court under section 9 or by the Sessions Judge under section 10 of the Code of the Criminal Procedure. The Sessions Judge with his report has sent an order passed by the Sessions Judge Jhabua dated 16th June 1975 wherein he has ordered: "During my absence on leave or otherwise from the Head Quarters, I hereby authorise the Additional Sessions Judge and in the absence of both the Chief Judicial Magistrate, Jhabua to dispose of urgent Criminal Cases and applications for bail etc. as per Provisions of section 10 (3) of the Criminal P. C. (1973)." The Sessions Judge also was called upon to report as to whether on that date, i. e, 17 -5 -1979, any Additional Sessions Judge in the Division was on duty or not; and the Sessions Judge in his report has stated that on 17th May 1979 Shri A. K. Khare, Additional Sessions Judge was on duty in the Sessions division posted at Alirajpur. He has also mentioned that at the head quarters in Jhabua no Additional Sessions Judge was no duty.
(3.) SECTION 9 sub -section (5) of the Code of Criminal Procedure provides: "9. (5) Where the office of the Sessions Judge is vacant, the High Court may make arrangements for the disposal of any urgent application which is, or may be, made or pending before such Court of Session by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Sessions Judge, by a Chief Judical Magistrate in the Sessions division and every such Judge or: Magistrate shall have jurisdiction to deal with any such applications," This provision has been made for making arrangement for disposal of urgent applications when there is no Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge in the Sessions division; and in that event the High Court is authorized to make arrangement and in absence of Additional Sessions Judge or Assistant Sessions Judge in the Division even a C. J. Magistrate could be authorized to entertain any urgent application which otherwise the Sessions Judge is authorized to dispose of. Section 10 sub -section (3) of the Code of Criminal Procedure provides that the Sessions Judge may also by a suitable order authorize Additional Sessions Judge, Assistant Sessions Judge or the Chief Judicial Magistrate to deal with urgent applications in absence of the Sessions Judge, 10. (3) The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge, or, if there be no Additional or Assistant Sessions Judge, by the Chief Judicial Magistrate, and every such Judge or Magistrate shall be deemed to have jurisdiction to deal with any such application." Apparently, sub -section (5) of section 9 clearly provides that a Chief Judicial Magistrate can only deal with urgent applications which otherwise could be disposed of by a Sessions Judge, only if the Additional Sessions Judge or Assistant Sessions Judge in the division is not present. It is therefore clear that even the High Court can authorize a Chief Judicial Magistrate to hear urgent applications only in the event of the absence of Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge from the Sessions division as a whole.;