JUDGMENT Barkat Ali Zaidi, J.
1. Petitioner and three others are being prosecuted in Case Crime No. 571 of 1993, Police Station Chhibramau District Kannauj by C.B.C.I.D. and his case is presently pending in the Court of chief Judicial Magistrate, Kannauj.
2. Subsequent to filing of the charge-sheet and before the Magistrate could take cognizance, the petitioner came in Section 482 Cr.P.C. (No. 1007 of 1998) for termination of the proceedings against him and also sought the stay of the proceedings on which, the Hon'ble High Court on 1.2.1999 passed the following order:
Heard Sri Pradeep Chauhan, learned Counsel appearing for the applicant.
On completion of the investigation in Crime No. 571 of 1993, the C.B.C.I.D. submitted the charge-sheet in the Court. Before the Magistrate could take cognizance of the offences against the accused-applicant under the orders of the State Government the C.I.D./CIS, Lucknow branch has been deputed to investigate further into the matter.
It is submitted by the learned Counsel appearing for the applicant that since the court has not taken cognizance of the case so far, the police is unnecessarily harassing the applicant and threatening to arrest him and send to jail.
Learned A.G.A. Prays for and is granted three week's further time to file counter affidavit.
In the meantime, the applicant shall not be arrested in case Crime No. 571 of 1993, under Sections 302 and 506 I.P.C. P.S. Chhibramau District Farrukhabad by the local police or by any other Agency.
Sd/- Bhagwan Din.
1.2.1999
3. The stay order granted by the Hon'ble High Court was never extended thereafter and on the application of the complainant, the Magistrate issued non-bailable warrants fixing 29.8.2006 for procuring the attendance of the petitioner and released the petitioner on bail after obtaining his personal bail bond and two sureties each to an amount of Rs. 25,000/-. The informant challenged this order by filing a Revision Application (No. 18 / 11 of 2006) before the learned Sessions Judge, Kannauj and the learned Sessions Judge set aside the order of the Chief Judicial Magistrate, holding that since the petitioner was an accused under Section 302 I.P.C., punishable with death or life imprisonment, the Magistrate could not enlarge him on bail under the provisions of Section 437 Cr.P.C. and the provisions of Section 88 Cr.P.C. were also not applicable in the matter of bail. That is how the petitioner has come here seeking relief under Art. 226 of the Constitution of India.
4. I have heard Sri V.P. Srivastava, learned Senior Advocate, Assisted by Sri Dilip Kumar Singh, learned Counsel for the petitioner; Sri Manish Trivedi, Advocate for the complainant and Sri R.K. Maurya, Addl. Government Advocate for the State.
5. It will appear from the above narrative that the Magistrate was not authorized to release the petitioner on bail because he was being prosecuted under Section 302 I.P.C. punishable with death or imprisonment for life and this could be done only by the Court of Sessions. The Magistrate released the accused on bail because of the order passed by the High Court as noted above, and since the Magistrate was of the view that the High Court has ordered that the accused should not be arrested.
6. The Magistrate, however, deliberately or inadvertently ignored the fact that the High Court had stayed the arrest only for three weeks, a fact which has been rightly highlighted by the Sessions Judge in his order.
7. The learned Senior counsel for the petitioner has relied on Section 88 Cr.P.C. for justifying the grant of bail by the Magistrate. Section 88 Cr.P.C. is as follows:
Power to take bond for appearance:- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other court to which the case may be transferred for trial.
8. It will appear there what has been said in Section 88 Cr.P.C. that it applies to persons other than a person who is being prosecuted by the police for a specific offence. It applies to a person who is not being prosecuted and is present in Court as well appear from the case of Madhu Limaye and Anr. v. Ved Murti and Ors. 1971 S.C. 2481. It does not authorize the Magistrate to grant bail to an accused who is being prosecuted for murder.
9. Section 88 Cr.P.C. will, therefore, have no application to the facts of the present case.
10. The Sessions Judge was justified in his interpretation of Section 88 Cr.P.C. and rightly held that the order of Magistrate was without jurisdiction, since he had no authority to grant bail to a person involved under Section 302 I.P.C. and when his case was not covered by proviso to Section 437 Cr.P.C. The contentions raised from the side of petitioner are, therefore, without foundation and the petition is accordingly dismissed. The petitioner shall be taken into custody in accordance with law and thereafter he may apply for bail in the prescribed manner.
11. Registry will send its copy to the District Judge Kannauj for information to the Magistrate concerned.