- (1.) THIS is an application for quashing an order dated 23rd of February 1961 passed by Shri Sumernath Gurtu, the Sessions Judge of Merta. The facts giving rise to the application are as follows : -
(2.) A report was lodged at Police Station Nagaur in connection with embezzlement of certain funds belonging to the Khunkhuna Bahudhandhi Kisan Cooperative Society. On investigation the police found that Chainaram with Bhagirath, Shriram, Harisingh and Puran Ram entered into a conspiracy to commit embezzlement of the fund of the so called cooperative society and also forged certain valuable securities for that purpose. The allegation was that no such society existed and it was only for the purpose of misappropriating funds in the name of the society that certain documents were forged by the accused concerned to give the impression that there was such a society in existence. The police accordingly registered a case for the prosecution of the accused under sec. 467 read with sec. 409 of the Indian Penal Code. The police, however, could not arrest the accused and applied before the Sub-divisional Magistrate of Nagaur for issuing a warrant of arrest against the accused Chainaram. A warrant of arrest was accordingly issued by the learned Magistrate on 7th of Feb. , 1961. This, as I said, was a warrant of arrest issued by the Sub-divisional Magistrate of Nagaur under whose jurisdiction the accused resides and where the offence is alleged to have been committed. It is stated that Chainaram, on getting information of the issue of the warrant of arrest against him, ran up to Jodhpur where he applied to the City Magistrate there on 10th of Feb. , 1961 for releasing him on bail. A curious order was then passed by the City Magistrate. The Magistrate realised that he had apparently no jurisdiction to deal with the matter. The accused applicant belonged to village Badabra, district Nagaur, and the case appertained to an offence in regard to embezzlement of certain sums of money within the jurisdiction of the Magistrate at Nagaur. The application for bail, therefore, had to be considered, as conceded by the City Magistrate of Jodhpur himself, by the Magistrate concerned, that is, the Sub-divisional Magistrate of Nagaur. Therefore instead of forwarding the accused in custody to Nagaur as he should have done under the law he proceeded to grant interim bail to the accused. This order was in itself an entirely illegal order and should not have been passed by the City Magistrate of Jodhpur. When he realised that he had no jurisdiction in the matter, he should have left the accused to pursue his remedies in the appropriate court after forwarding him in custody to Nagaur. But what is still more surprising is that an order of this nature eventually received the sanction of the Sessions Judge of Merta, who proceeded to adopt it as a valid order for enlargement of the accused Chainaram on bad. It is true that the learned Sessions Judge had jurisdiction to grant or refuse bail to the accused. If he had himself exercised his judicial discretion in the matter and granted bail to the accused, I would have refused to interfere; but what he actually did was to lend his authority to the order for bail passed by an officer who had absolutely no jurisdiction to pass the same and under which order the accused was suffered to be released on bail. Therefore, I have no option but to interfere with the order passed by the learned Sessions Judge. In view of the order passed by the City Magistrate at Jodhpur, naturally the police who had been directed to execute the warrant of arrest issued by the Magistrate of Nagaur, felt diffident in the matter. An application was presented on the 14th of Feb. , 1961 before the Sub-divisional Magistrate, Nagaur. asking for a direction whether the warrant of arrest issued by him should or should not be executed against the accused. The Sub-divisional Magistrate maintained that the warrant for the arrest of the accused must be executed and his order carried out. The accused Chainaram then applied on the 22nd of Feb. , 1961 for bail before the learned Sessions Judge of Merta. This application was rejected by the learned Sessions Judge, though on observations to which exception could be taken. He says, "the learned City Magistrate, Jodhpur, has already vide his order dated 10. 2. 61 obtained a personal bond with a surety for Rs. 5,000/- for the appearance of the petitioner in the court of the learned Sub-divisional Magistrate Nagaur on 28. 2. 61. In view of this order, it is difficult to understand how police could arrest him at this stage. As contended by the learned counsel for the applicant, even if the police considers that the learned City Magistrate, Jodhpur had no jurisdiction to admit the accused to bail, the police could not itself ignore the orders and arrest the applicant as long as the order stood and was not set aside by a superior court. " There is some excuse for this observation of the learned Sessions Judge because his attention does not appear to have been drawn to the fact that on 14th Feb. 1961, when the police asked for a direction by the sub-divisional Magistrate, Nagaur, whether they should or should not execute the warrant against the accused, the sub-divisional Magistrate! passed orders that the warrant should be executed. In that event the police certainly had jurisdiction to execute the warrant, specially when the order of the City Magistrate, Jodhpur, was without jurisdiction. However, the application had been rejected by the learned Session Judge and, therefore the serious exception could be taken against his order dated 22nd of Feb. , 1961. But on the very next day on the 23rd, another order followed which is the order in question before this Court. It appears that on the 23rd of Feb. , an express telegram was sent to the Sessions Judge by the accused Chainaram Chowdhary. The learned Sessions Judge proceeded to act upon that telegram although there were no facts or allegations in support of it. In my opinion, it was quite improper to take any action on a telegram of this nature when a regular application for bail had not been presented before him supported by appropriate affidavits on behalf of the accused. In his order the learned Sessions Judge admits that a bail application has been presented before him by Chainaram and orally wild allegations were made against the sub-divisional Magistrate, Nagaur and the local police and he had asked the learned counsel for Chainaram to submit affidavits, but he avoided doing so. In those circumstances, the learned Sessions Judge should have been still more cautious in adopting the procedure which he bid without any affidavits before him. He then proceeds to observe that he did not conceive that inspite of the order of the City Magistrate, Jodhpur, the police would make attempts to arrest Chainaram. He says that the order of the City Magistrate may or may not be correct, but after all the petitioner Chainaram had bound himself under orders of the City Magistrate of Jodhpur to appear before the court of the sub-divisional Magistrate, Nagaur on 28. 2. 61 and it was difficult for him to understand this unusual hurry and despatch. Again it appears to me that the learned Sessions Judge was labouring under a misapprehension of the real factual position in the case, namely that on the 14th of Feb. , 1961 the sub-divisional Magistrate had confirmed his previous orders, directing execution of the warrant in question. In any case, it is difficult to understand how the learned Sessions Judge could lend his support to an order by the City Magistrate of Jodhpur, which was patently an order without jurisdiction and which he should not have passed in the circumstances stated by me earlier. If the learned Sessions Judge had been cautious enough to insist upon the production of appropriate affidavits and the filing of a proper application for bail before him, much of these facts which were not placed before him could not have been suppressed and then he would not have been persuaded to pass the illegal order which he did. The result of it was that he directed accused Chainaram to be released from custody on the strength of the bail bond which had been executed by him in pursuance of the order of the City Magistrate of Jodhpur. If an illegal procedure of this kind is countenanced, the result would be that an order for bail could be obtained from any part of the State and the processes issued by the Magistrate, who is competent to issue the relevant processes and has jurisdiction to deal with the case could easily be nullified by the machinations of the accused. I regret to say that the order of the learned Sessions Judge is altogether misconceived, as was the order of the City Magistrate of Jodhpur. In my opinion, both these orders must be quashed and Chainaram accused should be left to pursue his remedies in the appropriate court. I may observe that the quashing of the above orders will not affect any order for bail that may have been granted to the accused by the proper authorities. .;