Criminal Misc. No.M-25036 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Misc. No.M-25036 of 2009 (O&M) Date of Decision: 9.10.2009. Manjit Kaur ....Petitioner Versus State of Punjab ...Respondent CORAM : Hon'ble Mr. Justice Rajesh Bindal Present:- Ms. Puja Chopra, Advocate for the petitioner. Mr. Mehardeep Singh, DAG Punjab. RAJESH BINDAL J. **** The petitioner is before this Court for grant of regular bail in FIR No. 34 dated 12.2.2009 under Sections 419,420,465,467,468,471/120-B IPC, registered at P.S. Division No. 5, Ludhiana. The facts of the present case are quite peculiar. Earlier the petitioner had approached this Court for grant of anticipatory bail. While issuing notice of motion on March 17, 2009 in Criminal Misc. No.M-7118 of 2009, this Court granted interim stay of arrest. After hearing learned counsel for the State on May 11, 2009 the interim bail granted to the petitioner was made absolute. However, it was directed that after the presentation of challan, the petitioner will seek regular bail. The challan was presented on August 12, 2009. Thereafter, the petitioner filed application before the learned Additional Chief Judicial Magistrate for acceptance of her bail bonds/surety bonds. The application was rejected by holding that the allegations against the petitioner being under Section 467 IPC, which is punishable with life imprisonment, the court was not competent to grant the bail. The petitioner was granted time till September 4, 2009 for producing orders from Sessions Court. Thereafter, the petitioner approached the Court of learned Sessions Judge. However, the application for bail filed there was withdrawn on August 31, 2009, which according to learned Criminal Misc. No.M-25036 of 2009 (O&M) 2 counsel for the petitioner was on account of the fact that the petitioner was directed to surrender before applying the regular bail as she was not in custody anywhere. Learned counsel for the petitioner submitted that once this Court had granted anticipatory bail to the petitioner and thereafter she was to apply for regular bail on presentation of challan, the regular bail to be filed by the petitioner after presentation of challan was required to be considered by the learned Magistrate on merits considering the material which was presented by the Investigating agency along with the challan. However, the learned Magistrate has dismissed the bail application holding that the Court was not competent on account of the reason that the offence involved was under Section 467 IPC as well, which was punishable with life imprisonment. Referring to proviso (2) of Section 437 Cr.P.C., it was submitted that the learned Magistrate could very well consider the prayer for grant of regular bail in case the applicant therein is under the age of 16 years or a woman or sick or infirm. In view of the aforesaid provisions, learned Magistrate in the present case had failed to exercise the jurisdiction vested in it. Her only prayer is that learned Magistrate should consider her regular bail application on merits. She submits that she will surrender before the Magistrate on or before 14.10.2009 and file her bail application, which may be considered on merits. Learned counsel for the State could not dispute the fact that learned Magistrate was required to consider the regular bail application filed by the petitioner on merits in terms of provisions, referred to above. Considering the peculiar facts of the present case and first proviso to Section 437 Cr.P.C. which provides as exception to the main provision for consideration of regular bail application in my opinion the learned Magistrate has committed an error in not considering the regular bail application filed by the petitioner on merits and dismissing the same by opining that the Court was not competent. Section 437 (1) Cr.P.C. provides that when any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or Criminal Misc. No.M-25036 of 2009 (O&M) 3 is brought before a Court other than High Court or the Court of Session, he may be released on bail, but such person is not to be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; However, first proviso to section 437(1) Cr.P.C. provides that the Court may direct that a person be released on bail, if such person is under the age of sixteen years or is a woman or is sick or infirm. The petitioner in the present case is a woman. Considering the aforesaid facts the regular bail application filed by the petitioner was required to be considered by the learned Magistrate on merits. In view of the aforesaid discussion the petitioner will now surrender before the learned Magistrate on or before October 14, 2009 and file regular bail application which shall be considered and decided by the Court on the same date on merits. Disposed of. A copy of the order be given dasti under the signatures of Bench Secretary. (RAJESH BINDAL) 9.10.2009 JUDGE Reema