Kulwant Singh Tiwana, J. - (1.) JARNAIL Singh, Joginder Singh, Karman Singh, along with four others are accused in a double murder case which took place in village Shamshabad District Hissar, on 25th September, 1974. Jarnail Singh and Karman Singh were arrested on 26th September, 1974, while Joginder Singh was arrested on 1st October, 1974. The investigating agency did not produce the challan before the Judicial Magistrate having jurisdiction to commit the case within 60 days of the arrest of the Respondents. An application seeking the release of the Respondents under Section 167(2) of the Code of Criminal Procedure was rejected by the Magistrate as well as Sessions Judge, Hissar. Jarnail Singh, Joginder Singh and Karman Singh filed an application for bail in this Court, registered as Jarnail Singh and two Ors. v. State of Haryana Cr. M 562 -M/75 decided on 24th February, 1975, M.R. Sharma, J., ordered the release of these three Respondents on bail.
(2.) AFTER they were released on bail, the investigating agency at the time of presenting the challan to the Court of the Judicial Magistrate did not lay a charge sheet against them. As the prosecuting agency was not satisfied about the participation of the Respondents in the commission of the offence they showed their names in column No. 3 of the report under Section 173, Code of Criminal Procedure. After the presentation of the challan the learned Judicial Magistrate Sirsa, committed the Respondents and their co -accused to the Court of Sessions for trial, but allowed them to remain on bail. The prosecution then moved the Sessions Judge, Hissar for the cancellation of the bail of the Respondents on the ground that the learned Committing Magistrate was bound by law to cancel their bail and commit them to custody. According to the application the Judicial -Magistrate acted beyond his jurisdiction to commit these Respondents to the Court of Session on bail. The learned Sessions Judge Hissar, - -vide his order, dated June 7, 1975, dismissed the application for cancellation of the bail on the ground that as the Respondents had been released on bail by the High Court he had no authority to cancel it. The learned Sessions Judge placed reliance on a Full Bench decision of the Allahabad High Court in Seoti and Ors. v. Rex, A.I.R. 1948 All 368, and an unreported judgment of this Court in Jagdish Kumar v. Lal Chand Cr. 152/68 decided on September 11, 1968, decided by Jindra Lal J. In similar circumstances, as are in the case, Jindra Lal J did not cancel the bail of the accused who were committed on bail by the Magistrate observing that the decision in Seoti's case (supra) prima facie laid down the correct law. The State of Haryana has now approached this Court against the order of the Sessions Judge, dated 9th June, 1975, for cancellation of the bail, of course on the same grounds which were agitated before the learned Sessions Judge. It has not been alleged that the Respondents had misused the terms of the bail bond or had misconducted exposing themselves to the forfeiture of the concession of bail. I have heard the counsel for the parties at a considerable length. The order of bail passed by this Court on 24th February, 1975 was under the provisions of Section 167(2)(a), Code of Criminal Procedure (1973) because the investigating agency had failed to present the challan within the statutory period of 60 days provided in this section. Shri D.S. Bali, appearing on behalf of the State of Haryana, has urged that Section 209(b) Code of Criminal Procedure (1973) lays down the conditions in which the Magistrate has to commit the accused. The learned Counsel for the Respondent has also reclined against this provision of law to support an argument that this section does not empower the Committing Magistrate to cancel the bails of the accused placed in the circumstances as are the Respondents in this case.
(3.) BEFORE entering into the discussion on the points urged by the counsel for the parties it would be appropriate to reproduce the relevant provisions of Sections 167 and 209 of Code of Criminal Procedure (1973), which are as under: 167(1) * * * * * (2) * * * * *. Provided that - - (a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. 209. 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) * * * (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;;