Punjab & Haryana High Court directs Sessions Judge to study Supreme Court judgments on anticipatory bail, submit written notes

In an unusual move, the Punjab and Haryana High Court has directed an Additional Sessions Judge to submit written synopses on the exercise of jurisdiction by a judge under Section 438 Cr.PC after reading at least ten Supreme Court judgments related to the grant of anticipatory bail, including Constitution Bench judgments of Gurbaksh Singh Sibbia v. State of Punjab and Sushila Aggarwal v. State (NCT of Delhi)..The Court’s unique ‘imposition’ came in response to the failure of an Additional Sessions Judge and a Judicial First Class Magistrate to halt a 15-year-old murder trial after the person supposedly murdered was found alive..“A murdered man was found alive. Still the 15 years long agony of the petitioners is not buried by the Courts below,” the High Court remarked last week..Expressing displeasure, the Court lamented at the state of affairs that prevailed despite the Judicial Academies holding sessions on real and substantive justice."There is nothing illegal in the judicial system if in exceptional case, a Court, in quest of truth and justice passes an order acknowledging the constitutional right of a citizen, the Additional Sessions Judge,-I, Ludhiana and Judicial Magistrate Ist Class, Ludhiana, have failed to exercise jurisdiction vested with them,” the Court said..A Bench of Justice Arvind Singh Sangwan directed the Additional Sessions Judge to submit a written synopsis on a judge's exercise of jurisdiction under Section 438 within a period of a period of 30 days to the Director, Chandigarh Judicial Academy..What led to the unusual direction.The High Court was hearing a petition moved by three police officers who were booked for the murder of one Hardeep Singh, whom they arrested in a narcotics haul in 2005.After Hardeep was taken into custody, he escaped whilst being transported to a Magistrate Court. Receiving no word of his whereabouts, Hardeep’s father Nagender moved the High Court in Habeas Corpus proceedings, contending that Hardeep was being held illegally by the police..Thereafter, a body found in a pond was alleged to be Hardeep’s corpse and Nagender accused the police officers of murdering his son..After a police report was submitted before the High Court that the body was not Hardeep’s, the Court directed a second report by the Sessions Judge that concluded that the corpse was Hardeep’s. Accordingly, the Habeas Corpus proceedings were closed and the trial court directed to commence prosecution..However, another report, this time submitted by a Special Investigating Team before the trial court said that Hardeep was not dead and had escaped police custody while being transported to a Magistrate..Accordingly, a cancellation petition was filed in 2011 before the trial court (Judicial First Class Magistrate). Opposing this, Nagender filed a protest petition in January 2012..Treating the protest petition as a criminal complaint after recording Nagender’s statement as well as three others, the Magistrate in 2017 issued summons to the three petitioners to face trial in 2017..A challenge to the summons in the High Court was dismissed in 2018 taking into consideration that the trial was in the preliminary stages..In 2019, the petitioners were visited with non-bailable warrants by the Magistrate. In the same year, the petitioners moved an application in the trial court asserting that Hardeep was alive and was in fact in judicial custody. The petitioners moved the High Court again, and during a hearing, the Commissioner of Police confirmed the petitioners’ stance; that Hardeep was in fact alive and in custody.In view of this, the trial court was ordered to dispose of the protest petition..Meanwhile, apprehending arrest in light of the non-bailable warrants against them, the petitioners approached the Additional Sessions Judge seeking anticipatory bail. Despite Hardeep’s custody being pointed out to him, the Additional Sessions Judge proceeded to dismiss the application stating that the trial court was yet to dispose of the protest petition in terms of the High Court direction. The Magistrate court then dismissed the application moved before it to dispose of the protest petition, stating that it did not possess the power to dispose of the application since cognizance had already been taken and accordingly the matter would have to be tried by a court of higher jurisdiction..Aggrieved, the petitioners sought that the High Court dispose of their petition on merits, since the lower courts failed to exercise jurisdiction..What the High Court held.In its order, the High Court pointed out that the investigating officers consistently maintained that Hardeep was alive..On the question of the Magistrate’s reasoning, the High Court underscored that the Magistrate cannot say that it could not recall its summoning order, especially since it knew that the protest petition was a fraud played on the Court by Nagender.Therefore, the High Court concluded “nothing precluded the trial court to dismiss the protest petition”..The Court additionally noted that the Magistrate could have disposed of the petition in order to prevent injustice to the petitioners, even though the offences were triable by the Court of Sessions..The Court took specific exception to the fact that despite the fraud being discovered, the Magistrate issued non-bailable warrants while dismissing the petitioners’ plea for the disposal of the protest petition..Holding that the Additional Sessions Judge in his turn had passed a totally illegal order, the High Court allowed the petitioners’ prayer. Additionally, the Court set aside the protest petition as well as the summoning order and declared the petitioners to be discharged..Apart from the direction to the Additional Sessions Judge to submit a synopsis, the Court directed that a sum of Rs. 50,000 each be paid to each of the petitioners by the State Legal Services Authority, Punjab within 4 months..Allowing the prosecution leave to initiate prosecution against Nagender and the other witnesses for their false statements and recover the costs of compensation etc from them, the Court disposed of the petition..Advocate Aman Bansal appeared for the petitioners. DAG Joginder Pal Ratra appeared for the State of Punjab..[Read Judgment]