Rajive Bhalla, J.@mdashPrayer in the present petition, filed u/s 439(2) read with Section 482 of the Cr. P.C., is for cancellation of bail/quashing of the order dated 20.6.2005, whereby the Chief Judicial Magistrate, Jhajjar, granted regular bail to respondent No. 2, in case FIR No. 191, dated 5.6.2005, registered under Sections 9, 39, 51 of the Wild Life (Protection) Act, at Police Station Jhajjar.
2. Counsel for the petitioners contends that for offences committed, under the Wild Life (Protection) Act, 1972 (for short herein after referred to as "the Wild Life Act"), jurisdiction to try cases, within the State of Haryana, has been conferred upon two Judicial Magistrates of the Ist Class, one at Faridabad and another at Hisar, pursuant to Notification No. SO.O.16/C.A.2/1974/S.14/97, dated 6.2.1997. Jurisdiction to try and inquire into offences, committed under the Wild Life Act, within the territories of District Jhajjar, vests in the Judicial Magistrate Ist Class, Faridabad and not the Magistrate at Jhajjar. On 6.2.1997, the date when the aforementioned notification was issued, District Jhajjar was a part of District Rohtak, and though carved out subsequently, as it was a part of District Rohtak on 6.2.1997, and as the Judicial Magistrate Ist Class, Jhajjar lacked jurisdiction to try and inquire into offences, committed under the Wild Life Act, the order granting bail to respondent No. 2 being void, is liable to be set aside, and as a consequence, bail granted to respondent No. 2, is liable to be cancelled.
3. In support of the aforementioned contentions, reliance is placed upon State of Bihar v. Braj Nandan Raut, 2001 (4) RCR(Cril) 769; State of Mizoram v. Zolina, 2002 (4) RCR (Cri) 429 and
4. Counsel for respondent No. 2, on the other hand, contends that as a dispute arose, before the Illaqa Magistrate, Jhajjar, as to whether he had jurisdiction to inquire into and try offences, arising under the Wild Life Act, the said Court, vide order dated 9.6.2005 made a reference, u/s 395 of the Code of Criminal Procedure (for short hereinafter referred to as "the Code"), to the High Court, praying for a clarification as to whether the Courts at Jhajjar or Faridabad would have jurisdiction in the matter. It is further contended that while or after making a reference, u/s 395 of the Cr. P.C., the Illaqa Magistrate is empowered, in the exercise of powers, u/s 395(3) of the Code to either commit the accused to jail or release him on bail, to appear as and when called upon. Respondent No. 2 was admitted to bail in exercise of powers, u/s 395(3) of the Cr. P.C. and, therefore, contention, raised by counsel for the petitioners that the order granting bail is without jurisdiction, merits rejection. It is further contended that as neither the State of Haryana nor the petitioners contend that bail was obtained by fraud, misrepresentation or such like similar acts, bail, granted to respondent No. 2, cannot be cancelled. It is further contended that Section 462 of the Cr. P.C. postulates that an order of a criminal Court cannot be set aside, merely on the ground that the inquiry, trial or other proceedings took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has occasioned a failure of justice. The pleadings do not disclose any averment that grant of bail to respondent No. 2 has occasioned a failure of justice. Similarly, it is contended that the petitioners have failed to address any argument that grant of bail to respondent No. 2 has, in any manner, occasioned a failure of justice.
5. Counsel for the State of Haryana supports the arguments, raised by counsel for respondent No. 2.
6. I have heard learned counsel for the parties and perused the record.
7. On 5.6.2005, FIR No. 191, registered under Sections 9, 39, 51 of the Wild Life (Protection) Act, was registered at Police Station Jhajjar. Respondent No. 2 filed an application for grant of anticipatory bail, which was declined. Thereafter, he approached this Court with a similar prayer, which was also declined. Respondent No. 2 thereafter surrendered before the Chief Judicial Magistrate, Jhajjar. He was remanded to police custody upto 20.6.2005. Thereafter, vide order dated 20.6.2005, respondent No. 2 was released on bail. Operative part of the order granting bail reads as follows :-
6. Taking into consideration the medical history of the accused, who is aged about 64 years old. The fact that prosecution has not made out any case for recovery or investigation against the accused. All the material evidences have already been collected by the police from the accused. Co- accused Madan has already been released on bail. The accused is in custody since 18.6.2005. There is likelihood that trial of the case will take long time in its conclusion and therefore, no useful purpose would be served by keeping the accused in judicial custody. The accused is neither a hardened criminal nor has any previous criminal record against him. Hence, the accused is admitted to bail subject to his furnishing bail-bonds in the sum of Rs. 50,000/- with one surety in the like amount. Requisite bail-bonds furnished accepted and attested. Now the case is adjourned to 15.9.2005 as the date already fixed for awaiting of challan and waiting of reply of the above stated reference from the Hon''ble Punjab and Haryana High Court.
8. A perusal of the aforementioned order reveals that merits apart, respondent No. 2 was released on bail, awaiting decision on the reference, made to this Court, vide order dated 9.6.2005.
9. As noticed herein before, bail was granted to respondent No. 2, pending adjudication of the reference, u/s 395 of the Code. A Court, making such a reference, even if lacks jurisdiction, may, while forwarding a reference or thereafter, adopt any of the courses, referred to in sub-section (3) of Section 395 of the Code i.e. either commit the accused to jail or release him on bail. Thus, the very foundation of the argument, advanced by counsel for the petitioners, fails in the face of the provisions of Section 395(3) of the Code.
10. Furthermore, Section 462 of the Code postulates, in no uncertain terms, that an inquiry, trial or other proceedings, which in my considered opinion would include the grant of bail, has taken place in a wrong sessions division, district, sub-division or other local area, would not be set aside, unless it appears that such error has occasioned a failure of justice. In order to successfully impugn the order granting bail, the petitioners were required, in the facts of the present case, to plead and establish, that the grant of bail had occasioned a failure of justice. The pleadings and the arguments, addressed by counsel for the petitioners, do not disclose even a rudimentary plea that would in any manner suggest directly or by inference that the grant of bail to respondent No. 2 occasioned a failure of justice.
11. The judgments, relied upon by counsel for the petitioners, have no applicability to the present case. The facts of these judgments disclose that no reference, u/s 395 of the Code, was pending and bail had not been granted, in exercise of powers, u/s 395(3) of the Code.
In view of what has been stated herein before, the impugned order, granting bail to respondent No. 2, being an order, passed in exercise of powers, u/s 395(3) of the Code, does not suffer from any illegality that would require interference. Consequently, the present petition is dismissed.
Petition dismissed.
