JUDGMENT : S.K. Ray, J. - This is an application by the State for cancellation of bail granted to the opposite parties by the Sessions Judge of Koraput-Jeypore while a committal proceeding against them was pending on a murder charge. 2. On the basis of a first information report dated 8-5-1970, G.R. Case No. 214 of 1970 was registered, and the two opposite parties were arrested for the murder of the deceased which took place at about 2.30 P.M. on 8-5-1970. Pending committal inquiry, the Sessions Judge was moved for bail. The sessions Judge enlarged them on bail of rupees five thousand each with two local sureties for the like amount. 3. The order granting bail passed by the Sessions Judge is an elaborate one. It appears that the-learned Sessions Judge entered into a discussion of the possible defence plea of a bonafide claim of right or a right of private defence of property on the basis of allegations made in the first information report, as if such allegations are substantive evidence in the case, and came to a tentative conclusion that such pleas are justifiable, having regard to the prima facie nature of the case, and accordingly, enlarged the Opposite parties on bail. This is what he states: For the limited question it is clear on the admitted facts patent from the F.I.R. that the possession of the land was with the accused persons, and the informant stated that by the time they went upon the land on 8-5-1970, i.e., on the date of occurrence, they knew that on the earlier occasion the accused persons came and sowed paddy over the land. In this context a plea of right of private defence to the property is thus urged,. The question is whether such a plea can justifiably be taken into consideration at this bail stage. The principles laying down for grant of bail are too clear and they are also very pointedly indicated in the sections of law under Code of Criminal Procedure, that there must be a prima facie case of offence u/s 302, Indian Penal Code. In order to construe that prima facie nature of the case, much scope is no doubt left and such scope may as well embrace a consideration of the plea of right of private defence either to the person of to the property. In order to construe that prima facie nature of the case, much scope is no doubt left and such scope may as well embrace a consideration of the plea of right of private defence either to the person of to the property. Such a plea may be loss to the accused, but if such a plea is indicated in the F.I.R. itself, i.e. on the basis upon which the prosecution starts its case and sets the law into motion, the accused persons are doubtless entitled to consideration of such a plea even at the bail stage. It has been brought to our notice by the learned Government Advocate for the Petitioner that the materials found in the case diary comprise often eye-witnesses, five post-occurrence witnesses, extra-judicial confessions, recovery of blood-stained wearing apparels from the person and house of the accused persons. The learned Sessions Judge confining himself to reading and re-reading of the first information report completely shut his eyes to an these materials while adjudging the question of grant of bail. In other words, he has not applied his mind to the various considerations which a Court, moved for bail, should take into account in deciding whether bail should be granted in a non-bailable offence like murder. The sole question is whether, in the facts and circumstances of the case, the Sessions Judge has acted according to the legal principles applicable to bail applications. 4. It is now well-settled that Section 498, Code of Criminal Procedure confers unfettered discretion upon the High Court and the Sessions Court in the matter of grant of Jail to a person accused of a non-bailable offence. They are not controlled by the limitation of Section 497 which prohibits enlargement of accused persons on bail if there are reasonable grounds for believing that they are guilty of an offence punishable with death or transportation for life. The discretion of the Sessions Court to grant bail u/s 498, Code of Criminal Procedure is wide and unrestricted, but it cannot be exercised arbitrarily and must be exercised judicially. A Judicial exercise of this discretion means that all considerations bearing upon the question must be weighed and the resultant conclusion must be reached before determining whether to grant or not to grant ban. This is what the Supreme Court has said in the case of The State Vs. Captain Jagjit Singh, . A Judicial exercise of this discretion means that all considerations bearing upon the question must be weighed and the resultant conclusion must be reached before determining whether to grant or not to grant ban. This is what the Supreme Court has said in the case of The State Vs. Captain Jagjit Singh, . If the offence is bailable, bail will be granted u/s 496 of the Code of Criminal Procedure without more ado; but if the offence is not bailable further considerations will arise and the Court will decide the question of grant of bail in the light of those considerations. 5. The effect of granting ban is-not to Bet the accused free, but to release him from the custody of law and entrust him to the custody of his sureties. So the relevant considerations for determining if it would be desirable to entrust the custody of an accused to his sureties are numerous, but Borne of them may be mentioned as illustrative of the nature of such considerations. They are : nature and seriousness of the offence, Character and strength of the evidence, circumstances which are peculiar to the accused, reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or the State, severely in degree of the punishment that might follow, opportunity to the accused to prepare his defense and the long period of detention of the accused and the probability of delay. 6. Section 497, Code of Criminal Procedure prohibits 80 Court, inferior to High Court or a Court of Sessions, from releasing an accused, if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life except in certain circumstances enumerated in the proviso to Sub-section (1) of the section. This prohibition has a nexus with the seriousness of the offence, and though it does not fetter the exercise of discretion in this regard by the High Court or the Sessions Court, is nevertheless, an element of outstanding importance for consideration along with the other considerations enumerated above, before a decision is taken in this matter. We are in agreement with the view expressed by the Special Bench of Allahabad High Court in the case reported in K.N. Joglekar Vs. We are in agreement with the view expressed by the Special Bench of Allahabad High Court in the case reported in K.N. Joglekar Vs. Emperor, that there is no foundation for the doctrine that the normal rule is to enlarge accused persons on bail while refuse to grant bail is an exception, if this dictum implies the idea that there is a right to bail until it is defeated by showing of exceptional circumstances by the prosecution. The legislature has classified offences for purpose of bail into bailable and non-bailable, and of the non-bailable offences Borne are punishable with either death or imprisonment for life. Right of bail has been accorded to the accused only in bailable offences. In cases of non-bailable offences, Courts subordinate to High Courts and Sessions Courts have been prohibited to grant bail in cases where there are reasonable grounds for believing that offences punishable with death or imprisonment for (sic) have been committed. Thus, such a doctrine does not follow either as a matter of construction of the relevant provisions in Chapter 39 of the Code of Criminal Procedure dealing with the subject of bail, nor does it follow as a necessary corollary from the object of keeping an accused in detention during the trial, which is not punishment, but is primarily to prevent repetition of the offence and to secure his attendance at the trial, and for other similar reasons. Thus, there being no right to bail in non-bailable offences, end having regard to the legislative prohibition to grant bail in cases of such offences of serious nature punishable with death or imprisonment for life, it is not usual for High Court or a Court of Sessions to grant bail, if there are reasonable grounds for believing that the accused is guilty of such an offence. It is appropriate to quote another passage from the judgment of the Supreme Court referred to above, at page 255 of the report, which runs thus: Among other considerations, which a Court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence ; and if the offence is of a kind in which bail should not be granted considering its seriousness, the Court should refuse ban even though it has very wide powers u/s 498 of the Code of Criminal Procedure. This usual practice of refusing bail, however, may be departed from on grounds enumerated in Section 497(1) proviso, which again is discretionary. In exercising that discretion, the Court should not automatically act by granting bail on finding that any of the grounds mentioned in the proviso exist, but must further take into account other relevant considerations aforementioned alongside it. The departure from the usual practice, which must be few and far between, can be made only when impliedly by very strong and cogent reasons reached after all relevant considerations. 7. In judging whether there were reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life, the Court is entitled to consider the evidence adduced by the prosecution or the evidence collected in course of police investigation. Where there is prima facie evidence of commission of an offence punishable with death or with imprisonment for life, even though the accused may have a possible defence, it has to be left to be decided by the appropriate forum at the appropriate stage, and should not enter into the determination of the question of bail. Whatever defence the accused may have can only be inquired into at the trial. That apart it has to be remembered that the averments in the first information report are not substantive evidence, and even if they are proved in the case, that would not, by itself, establish the defence of the accused. Such averments, indicative of any possible defence are therefore, not relevant or proper materials for determination of the question whether to grant bail or not. 8. The learned Sessions Judge, in the instant case has, as already stated, acted solely on the assumption that the accused persons, in the light of averments in the F.I.R. have a plausible foundation for their plea of private defence of person or property entitling them to an acquittal and has enlarged them on bail. He has omitted to notice that there is equally a possibility that the accused persons may have exceeded that right of private defence in which Case the offence would be one u/s 304, and punishable with imprisonment for life, though not with death. The Medical and other evidence collected in this case, if unreported, may prima facie indicate that the accused persons have exceeded their right of private defence, if any. The Medical and other evidence collected in this case, if unreported, may prima facie indicate that the accused persons have exceeded their right of private defence, if any. There is, thus, nothing in the nature and strength of evidence to countenance such assumption, and it will then be an offence of serious nature to which the legislative prohibition to grant bail will apply, and will be one of the relevant considerations. The Session Judge fell into all these errors, because, he ignored the evidence collected in this case, and failed to keep in his forefront the legal principles on the question of grant of ban, and to act accordingly. For the aforesaid reasons, we are of the opinion that the learned Sessions Judge was grossly erroneous in enlarging the accused persons on bail in the facts and circumstances of the case, and his (sic) granting bail is accordingly set aside. The revision is allowed. G.K. Misra, C.J. 9. I agree. Final Result : Allowed