Harbans Lal, J. - (1.) This is a petition under section 439, Criminal Procedure Code, 1973 (hereinafter to be referred to as the new Code) for the grant of bail. The petitioner along with four others was arrested in a case under section 392, 323, 148, 149, 366 read with section 511, Indian Penal Code, on the basis )f First Information Report No. 189 dated Apr 12, 1976, lodged in Police Station Saddar, Hissar. The petitioner was arrested on April 7, 1976. The challan was put up in the Court of the Judicial Magistrate on June 4, 1976 The case was, however, adjourned to June 14, 1976, as the copies oi the statements and other relevant documents prepared for the purpose of being given to the accused were not ready. The case was then adjourned to July 2, 1976, for the supply of copies of those documents. So far, the order regarding committing the accused to the Court of Session for trial has not been passed.
(2.) According to the learned counsel for the petitioner, once the challan is put up the Magistrate has the power to remand the accused to custody only at the time of committing the case to the Court of Session under section 209 of the new Code, but if for any reason the order of commitment is not passed after the presentation of the challan, the Court has no jurisdiction to remand the accused to custody and has to release the accused on bail irrespective of the nature and gravity of the offence. The accused can be committed to the Court of Session under section 209 of the new Code, which is reproduced below ; - "When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall, (a) commit the case to the Court of Session ; (b) Subject to the previsions of this Code relating to bail, remand the ; accused to custody during, and until the conclusion of, the trial ; (c) send to that Court the record of the case and the documents and articles, if an}', which are to be produced in evidence ; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session." Under the Code Criminal Procedure 1898 (hereinafter called the old Code), there is no provision analogous to section 167 of the new Code and it was not necessary for the Magistrate to release the accused on bail if the challan was not put up within sixty days. Now under section 167 of the new Code, the Court has no option but to release the accused on bail if the investigation is not completed and the challan is not put tip within sixty days, provided the accused offers to furnish bail. The power to grant anticipatory bail has been conferred on the Court of Session and the High Court under section 438 of the new Code. The power to grant bail has also been conferred on the Magistrate under section 437 of the new Code and on the High Court and the Court of Session under section '39 of the new Code. Under section 209 of the new Code, in cases where the offence is exclusively triable by the Court of Session, the Magistrate has the power to commit the accused to the Court of Session for trial and while doing so, has also the power to remand the accused to custody during and until the conclusion of the trial. From a perusal of section 209 of the new Code, it appears that the Court has not been given any power under this section specifically to remand the accused to custody after the presentation of the challan and before the order of commitment is passed, and under the f scheme of the new Code, no enquiry is to be held by the Magistrate in cases exclusively triable by Court of session It ] was expected and presumed that the Magistrate would not be required to adjourn the case for the purpose of passing any order of commitment. For this power, we have to look to the other provisions and the overall scheme of the new Code. Sub-section (2) of section 209 of the new Code provides as to how a case should proceed after cognizance of an offence is taken by the Court and after commencement of the trial. It is reproduced below:- "If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of or adjourn, any inquiry of trial, it may, from time to time, for reasons to be recorded, post pone or adjourn, the same on such terms as it thinks fit for 11 time as it considers reasonable, and may by a warrant remand the accused if in custody. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time : Provided further that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. Explanation I - If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand this is reasonable cause for a remand. "Explanation 2 :- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." According to this provision, the Court is competent to adjourn the case from time to time for reasons to be recorded in two sets of eases, that is, - (1) After taking cognizance of an offence ; or (2) After commencement of the trial. The only restriction placed is that the accused shall not remanded to custody for a term exceeding 15 days at a time.
(3.) According to the learned counsel for the Petitioner, this clause is applicable only in those cases where some enquiry or trial is to be held by the Magistrate and that the same is not applicable to the cases in which the offences are exclusively triable by the Court of Session and no enquiry or trial is to be held by the Magistrate. Admittedly, in cases where tie offences are exclusively triable by the Court of Session, trial is not held by the Magistrate. It is also admitted that tie Magistrate is not to held any enquiry in such cases as was envisaged under the old Code inasmuch as no evidence required to he recorded before passing the order committing the accused to the Court of Session. However, before the stage regarding the passing of commitment order is reached as envisaged under section 20: of the new Code, a duty has been cast on the Magistrate to furnish the accused certain copies of the statements recorded during investigation, the Gist information report, the police report and other papers as envisaged under section 207 of the new Code and the s me have to be supplied without delay If, somehow, these copies are not ready, then it becomes necessary for the case to be adjourned may be for a few days. If it is held that after 11 challan is put up and immediately thereafter order committing the accused to Court of Session is not passed under section 20.9 of the new Code, the Magistrate must release the accused on bail, it can lead to very far reaching results. The Magistrate has no power to release an accused person on bail under section 437 of the new Code in a case involving an offence under section 302, Indian Penal Code, but he will be forced to pass the order of bail simply because for ore reason or the other, the accused is not committed to the Court of Session on the very day the challan is put up. This cannot possibly be the intention of the legislature in enacting section f 209 of the new Code.;