YADAV, J. - (1.) HEARD the learned counsel for the accused petitioners, Shri Praveen Balwada as well as the learned Public Prosecutor, Shri Rajendra Yadav, assisted by Shri B. M. Gurjar.
(2.) FROM the arguments of the learned counsel for both the parties, it is revealed that the accused petitioners were enlarged on anticipatory bail by a Cordinate Bench of this Court on 6. 10. 1999, with a direction that the order grating per-arrest bail was to remain valid till the expiry of one months after submission of challan papers. Indisputably, in the present case, challan papers were submitted in Court on 15. 10. 1999. Thus, the order dated 6. 10. 99, granting pre-arrest bail to the accused petitioners, was valid till 15. 11. 99. As a matter of fact, charge-sheet was submitted by Investigating Officer against the accused petitioners under Sec. 304-B and 498-A IPC. It is to be noticed that office u/sec. 304-B, IPC is punishable with imprisonment of minimum 7 years, and it is extendible up to life imprisonment. Since the accusations made against the accused petitioners were triable by court of sessions and punishable with life imprisonment, therefore, a regular bail application ought to have been moved u/sec. 439 Cr. P. C. before the Sessions Judge, But instead of moving a bail application before the learned Sessions Judge, a bail application was moved before the learned Magistrate, who granted the same u/sec. 437 Cr. P. C. By impugned order, in exercise of its power under sub- sec. (5) of Sec. 437 Cr. P. C. the learned Magistrate recalled the order dated 15. 10. 99, and issued warrant of arrest against the accused petitioners. Looking into totality of the facts and circumstances of the present case, I am of the view that the accused petitioners were misled due to ill-advice which culminated in filing a bail application u/sec. 437 Cr. P. C. , instead of moving an application for bail under Sec. 439 Cr. P. C. before the learned Sessions Judge. I am of the view that that the accused applicants are illiterate villagers and should not be allowed to suffer due to ill advice, therefore, they are directed to remain present before the learned Sessions Judge on 21st May 2001. The execution of warrants of arrest, in pursuant of the order impugned dated 11. 8. 2000, shall remain stayed till 21st of May, 2001. The learned counsel for the accused petitioners gave an undertaking to move a regular bail application u/sec. 439 Cr. P. C. before the learned Sessions Judge. In case, such application is moved before the learned Sessions Judge, he is directed to dispose it of on merit in accordance with law.
(3.) WITH the aforesaid observations, the order impugned passed by learned Magistrate under sub-Sec. (5) of Sec. 437 Cr. P. C. dated 11. 8. 2000, is affirmed and the present petition moved u/sec. 482 Cr. P. C. is finally disposed of at admission stage. Office of registry is directed to remit the record of Court below forthwith. .;