Show more sensitivity in dealing with questions relating to fundamental rights: HC to Courts

19/04/2018

Jammu, Apr 18: While allowing petition seeking quashment of order of cancellation of bail, Justice Janak Raj Kotwal observed that the Presiding Officers of the courts at all levels are expected to show more sensitivity in dealing with questions relating to fundamental rights of the citizens like right to liberty.
In this case, even if the Magistrate was satisfied about the reason for which cancellation of bail was sought by the prosecution, cancellation of bail was not the only option to deal with the situation. There is no dearth in the criminal law of the provisions relating to preventive measures. Therefore, while allowing this revision petition, it is made clear that it shall remain open for the law enforcing agencies to take appropriate preventive measure in the matter, if the need still be.
In the petition filed by Kuldeep Raj Seeking quashment of order passed by Judicial Magistrate Akhnoor by virtue of which Judicial Magistrate Akhnoor allowed the application filed by prosecution seeking cancellation of bail of the petitioner. Justice Janak Raj Kotwal while allowing the petition observed that in bailable offences, cancellation of bail is not permissible, given the very nature of the offence. The only power available to the court under SubSection (2) of Section 496 of the Code is to refuse to release the accused, if he has failed to comply with the conditions of bail bond, 'as regards the time and place of attendance' when he appears before the court on a subsequent occasion or is brought in custody. This may be explained like this.
If during trial for a bailable offence, accused does not appear before the court on a date of hearing and court issues warrant of arrest for securing his appearance before the court, the court may refuse to release him when he appears or is brought in custody before the court on or before the next date in the case.
Justice Janak Raj Kotwal further observed that Magistrate has, therefore, erred in cancelling the bail. Revisional court has similarly erred in not taking note of this important aspect of the order passed by the learned Magistrate. It appears, the Revisional court was concerned more with the maintainability of the revision petition and had not even read the order impugned before him. The question of maintainability of the revision petition should not have been considered, shorn of consideration to the question as to whether the Magistrate had the jurisdiction to pass the order cancelling bail in a bailable offence.
With these observations Court allowed the petition and quashed the ordesr dated 12.3.2018 passed by the Magistrate and order dated 28.3.2018 passed by the revisional court and ordered that petitioner shall be released forthwith subject to his furnishing fresh bail bonds with one surety in the amount of 20,000 rupees each to the satisfaction of the trial court. JNF

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