Magistrate Can Grant Bail When Closure Report Is Filed Even If Earlier Plea Is Rejected By HC: Punjab & Haryana High Court

The Punjab and Haryana High Court has held that a Magistrate is empowered to grant bail to an accused when a closure report is filed by the police, even if a previous bail plea was rejected by the High Court or the Session Court.These observations were made while making an interim-bail absolute to an accused arrested for stealing a bicycle and a pair of shoes."In the cases where an accused is in judicial custody and the bail has either been rejected by the Sessions Court or High Court or pending before them, and in-between, the investigation either absolves such an accused, proposes to file a closure report, or reduces the offences to bailable one, then the concerned Magistrate has jurisdiction and is competent and must grant bail under Section 480 BNSS, or release such an accused under Section 478 BNSS, irrespective of earlier rejection of bail by higher court(s) or its pendency in the High Court or/and Sessions Court." the High Court said.In the pending bail petitions, it is the responsibility of the investigating agency to inform the Higher Courts about such a release, it added.In cases triable by the Magistrates, when the main or similarly placed accused has been granted bail by the Higher Courts, then the Magistrate has jurisdiction and is competent to grant similar bail on parity to all other similarly placed accused or with a lesser role, it added.The Court clarified that, Whenever all the victim do not oppose bail and rather state before the Chief Judicial Magistrate/Magistrate in the cases triable by them that they have no objection to bail, then, after taking affidavits from such victim, bail should generally be granted."In any case arising out of any FIR triable by Chief Judicial Magistrate/Magistrate, all the victims compromise the matter which is supported by the victim's affidavit(s), irrespective of whether the offences were compoundable or not, the said compromise is still relevant for bail, and in all such cases, where the accused is in custody, the bail should be granted," it added.The Court elucidated that, "In all cases triable by Chief Judicial Magistrate/Magistrate, i.e., based on FIR or Complaint, including cases under Section 138 of NI Act, when the matter has been compromised with all the victims, then even when accused has either been declared as a proclaimed person or the proclamation proceedings have already been initiated, in the event of surrender of the said person before the concerned Court, the proclamation stands satisfied because the non-appearance is a separate penal offence under Section 174-A IPC or Section 209 BNS, 2023.""Therefore, given the compromise in the primary offence, based on which proclamation was issued, such person should also be released on bail in the consequent FIR for commission of non-bailable offences punishable under Section 174-A IPC or 209 BNS, 2023," it added.The Court was hearing a regular bail under Section 331(4), 305, 112, 317(2), 238 BNS, 2023, lodged for stealing a bicycle, which was recovered during investigation, and a pair of shoes.The bench granted him interim-bail while noting, "the petitioner had already incarcerated for around four months of custody, for stealing a bicycle, which was recovered during investigation, and a pair of shoes, which he might be needing to wear and this Court granted interim bail to the petitioner, which remains in effect to date."It pointed that, penal offences under BNS, 2023 mentioned in FIR are Sections 331(4), 305, 112, 317(2), 238, and none of the allegations captioned above would attract any offence that provides for capital punishment; or ten years, and thus the concerned sub-section of Section 238 is impliedly S. 238(c), which is triable by a Magistrate. Thus, all the offences arraigned in the FIR were triable by the Magistrate, and despite that, the Counsel withdrew the bail application from the Court of CJM, and when he filed for bail before the Sessions Court, the Additional Sessions Judge dismissed the same, said the Court.Poor Person Spent 3 Months 20 Days In Jail For Allegedly Stealing Bicycle- Failure Of System "It is unbelievable that any Counsel would voluntarily withdraw bail in such a minor offence, and further, it would have been real justice had the CJM not permitted the Counsel to withdraw and instead granted bail," the Court observed.The judge said, "it is apparently poor person had to spend more than three months and twenty days in jail for stealing a bicycle and a pair of shoes, and the incarceration is much longer if he had pleaded guilty, based on one-sided, unproven allegations, all for the sake of early release because of the failure of system."Court Concerned With Fear That Plagues Magistrate From Granting BailThe Court further added that it is more concerned with the fear that plagues the Magistrates from granting bail. "Perhaps it is the lack of assurance and the requisite support from the higher judiciary that instills a lack of confidence and has created a tendency among...

Magistrate Can Grant Bail When Closure Report Is Filed Even If Earlier Plea Is Rejected By HC: Punjab & Haryana High Court

Aiman J. Chishti

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