In an unprecedented move, Punjab and Haryana High Court directed an Additional Sessions Judge to submit a written synopsis on the exercise of jurisdiction by a judge u/s 438 of CrPC after going through at least ten Supreme Court judgements related to anticipatory bail including Gurbaksh Singh Sibia vs State of Punjab & Sushila Agarwal vs NCT of Delhi.
This direction came in response to an ASJ and Judicial Magistrate (first class) to stop a 15-year-old murder trial after the person who was supposed to be murdered, was found alive.
The High Court remarked that even though the murdered man was found alive, the Court did not end the 15-year long agony of the petitioners.
The Bench further remarked that Judicial Magistrate Ist Class, Ludhiana and Additional Sessions Judge,-I, Ludhiana failed to exercise jurisdiction vested in them.
How the situation arose:-
Hon’ble High Court heard a petition by three police officers booked for the murder of Hardeep Singh, who they had arrested in a narcotics case in 2005.
When the police were taking Hardeep to the Magistrate’s Court, he escaped. Hardeep’s father filed a Habeas Corpus petition in the High Court stating that police were illegally detaining his son.
After that, a body was found in a shallow pond, Hardeep’s father stated that it was his son’s corpse and accused the police officers of killing his son.
SIT submitted a report in the Court stating that the body was not of Hardeep and he had escaped police custody.
A cancellation petition was filed in the Trial Court by the police and Nagender(father of Hardeep) filed a protest petition.
The Trial Court summoned the three police officers to face Trial in 2017.
The petitioners filed a challenge to the summons in the High Court, but the Court dismissed the same.
In the year 2019, the Magistrate issued non-bailable warrants to the petitioners and in the same year, the petitioners submitted in the trial court that Hardeep was alive.
Before the High Court, the Commissioner of police confirmed that Hardeep was alive and had escaped police custody. After going through the evidence, the Trial Court ordered disposing of the protest petition.
Apprehending their arrest, the petitioners approached the Additional Sessions Judge and sought anticipatory bail. However, the Court dismissed their application. The Magistrate Court dismissed the application to dispose of the protest petition stating that they don’t have the power to dispose of the protest petition, and a court of Higher jurisdiction has to try the case.
Aggrieved, the petitioners moved the High Court.
High Court’s Decision:-
The High Court opined that the Magistrate could not refuse to recall the summoning order since it knew that Nagendar had filed a fraudulent protest petition. The Court also noted that that Magistrate could have disposed of the petition to provide justice to the petitioners even if the offences were triable by Sessions Court.
Hon’ble Court also expressed displeasure that the Magistrate Court had issued non-bailable warrants even though they were aware of the fraud. Court also held that the Sessions judge had passed an illegal order and discharged the petitioners while setting aside summoning orders and the protest petition.
Apart from directing the Additional Sessions Judge to submit a synopsis of the case laws, The Court ruled that the petitioners should get 50,000 from State Legal Services Authority, Punjab.
The Court allowed the prosecution to prosecute Nagendar and other witnesses for giving false statements.