Judgment : The petitioner herein is charged for an offence under section 379, Indian Penal Code, on the ground that he has committed theft of house hold utensils from various places. The petitioner was arrested or 10th March, 1981 by the Avadi Police Station. On the same day, the petitioner was produced before the Sub-Divisional Judicial Magistrate, potonamallee and the Magistrate has remanded the petitioner to custody. On 13th March, 1981, the Counsel for the petitioner filed a petition under section 437, Criminal, Procedure Code, before the Sub-Divisional Judicial Magistrate, who is the first respondent herein, to enlarge the petitioner on bail. The learned Magistrate on the said date has ordered notice to the second respondent herein, who is the Inspector of police. It is this order of the Magistrate in ordering notice to the second respondent, Inspector of police before releasing the petitioner on bail, that is Questioned by the petitioner under section 482, Criminal procedure Code. 2. The relevant averments of the affidavit filed by the father of the petitioner are as follows: "An application under section 437 of the Criminal Procedure Code, 1974, for enlarging the accused on bail was moved in the Court of the first respondent, on 13th March, 1981, on which date, the 1st respondent had Ordered notice to be issued to the 2nd respondent for the purpose of ascertaining whether the 2nd respondent has any objections for releasing the petitioner/accused on bail and posted the enquiry on the bail application to 19th. March, 1981. I am advised to state that the 1st respondent ought to have disposed of the bail application on the same date and his adjudication relating to the issuance to the 2nd respondent and the postponement of enquiry for a period of 6 days, is devoid of statutory sanction and not contemplated under section 437 of the Criminal procedure Code. I am further advised to state that as the offence with which, the petitioners accused is charged is not the one which is exclusively (sic.) triable by the Court of Sessions and that he is a person under the age of 16 years, the 1st respondent Ought to have disposed of the bail application without such kind of delay as mentioned hereinbefore. I state that nevertheless the 1st respondent’s failure to dispose of the bail application on 13th March, 1981, itself and keeping it alive for 6 days hence without any adjudication, has greatly affected the right of the petitioner/accused conferred under section 437 of the Criminal Procedure Code and the detention of the petitioner/accused even after filing of the bail application would amount to dental of his right to personal liberty." The Petitioner’s father further states in the affidavit filed by him that: "Hence, I state that the postponement of enquiry on the bail application from 13th March, 1981 to 19th March, 1981 and order in notice to the 2nd respondent if there for, is an instance of deliberate misuse of legal proceedings, and therefore falls within the ambit it of the expression, "abuse of the process of Court" as provided under section 482 of the Criminal Procedure Code". 3. The contention of the counsel appearing for the petitioner on the basis of the averments of the aforesaid affidavit are, that when once the petitioner/accused files a petition under section 437, Criminal Procedure Code, before the Magistrate to enlarge him on bail, the Magistrate, without issuing notice to the prosecution, ought to have passed an order either to enlarge petitioner on bail, and ordering notice to the Inspector of police on his bail petition is an abuse of process of Court. The further contention of the petitions V Counsel is that under section 437, Criminal Procedure Code, the Magistrate has no power to issue notice to the police nor has the Magistrate power to issue notice to the Public Prosecutor while enlarging the petitioner on bail except the High Court or Court of Sessions. It is on these grounds that the Counsel appearing for the petitioner contends that the issuance of notice by the Magistrate when the application for’ hail was filed by the petitioner before him, is illegal, contrary to law and sheer abuse of process of Court. 4. The learned Public Prosecutor, on the other hand, contends that section 437, Criminal Procedure Code, contemplates when bail has to be granted in case of non-bailable offence. Under section 437 (4; Criminal procedure Code, an officer or a Court releasing any person on bail under Sub-section (1) or sub-section (2) shall record in writing his or its reasons for so doing. Under section 437 (4; Criminal procedure Code, an officer or a Court releasing any person on bail under Sub-section (1) or sub-section (2) shall record in writing his or its reasons for so doing. In view of this sub-section (4) of section 437, Criminal Procedure Code, the learned Public Prosecutor contends, that the Magistrate on the bail filed by the accused petitioner, in order to satisfy himself and in order to record in writing his reasons as to why he is or is not, releasing the petitioner on bail, has to issue notice to the police or to the Public Prosecutor, as the case may be, as otherwise sub-section (4) to section 437, Criminal procedure Code, becomes redundant. It is under these cirmuwstances, the issuance of notice by the Magistrate to the Inspector of police is not irregular or contrary to law as alleged by the petitioner and this petition under section 482, Criminal Procedure Code, is without any substance and has to be dismissed. 5. The question for consideration is whether the Sub-Divisional Judicial Magistrate, poonamallee is justified in issuing notice to the police on the bail petition under section 437, Criminal Procedure Code, filed by the petitioner. 6. When a petition for bail is filed by an accused before Court, the points that have to be considered by the Court are pointed out in State v. Captain fagit Singh1, which are: "nature and seriousness of the offence, the character 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 witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence. - It is true that under section 498 of the Criminal Procedure Code, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted to a non-bailable offence." 7. Let us take the provisions of section 437, Criminal Procedure Code, where bail has to be granted in case of non-bailable offence. Let us take the provisions of section 437, Criminal Procedure Code, where bail has to be granted in case of non-bailable offence. Section 437 (1), Criminal Procedure Code, reads: "When any person accused of or suspected of the commission of non-bailable offence is arrested or detained without warrant by an officer in charge of a police-station Or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but be shall not be so released if there appear reasonable grounds for believing that be has been guilty of an offence punishable with death or imprisonment for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or a by sick or infirm person accused of such an offence be released on bail: "Provided further that the mere fact that an accused person may be required for being identified by witnesses further during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court". Section 437 (4), Criminal Procedure Code, contemplates: "An officer on a Court releasing any person on bail under sub-section (1), or sub-section (2) shall record in writing his or its reasons for so doing". 8. The petition for bail in the instant case was filed under section 437, Criminal Procedure Code. This section contemplates that when any accused 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 is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not 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. It has to be seen that the test to be applied under section 437, Criminal Procedure Code, in granting bail to the accused is, with reference to the nature of the accusation levelled against the accused, the nature of the evidence in support of the accusation, the severity of the punishment which conviction will entail and lastly, the character behaviour, means and standing of the accused. Equally, the larger interests of the State must also be kept in view in granting or refusing bail. The reasons mentioned above are not exhaustive catalogue of the factors which should weigh with the Courts. There may be either considerations which may be determinative. What is contemplated under section 437 (1), Criminal Procedure Code, is that the person accused of or suspected of the commission of any non-bailable offence may be released on bail, but such person should not be released if there are reasonable grounds that such person has been guilty of an offence punishable with death our imprisonment for life. As to when a person, who is accused of or suspected of the commission of any non-bailable offence has to be released on bail, is contemplated under section 437 (4), Criminal Procedure Code. This sub-section points out that an officer or a Court releasing any person on bail under section (1) or subsection (2) of section 437, Criminal procedure Code, shall record in writing his or its reasons, for so doing. That is to say if the officer or the Court comes to the conclusion that the person accused has to be enlarged on bail, he or it has to record his or its reasons in writing, for enlarging such person on bail. By recording his reasons to enlarge the accused person on bail, the Magistrate will be exercising his judicial discretion. "‘Discretion’ when applied to Court of Justice, means sound discretion guided by law. It must be governed by Rule and not by hum our; it must not be arbitrary vague and fanciful, but legal and regular" To arrive at such judicial discretion the Magistrate has to satisfy whether there is any reasonable possibility of the presence of the accused secured at the time of the trial if released and the Magistrate has also to be satisfied as to the nature and seriousness of the offence and whether there is any reasonable apprehension of witnesses being tampered with by the accused and the larger interests of the public or the State and similar other considerations. In order to ascertain such facts and considerations and the antecedents of the person accused which will usually and will always be insufficient and wanting in the bail petition projected by the accused persons before Courts, the Magistrate has to issue notice to the police or to the Public Prosecutor for the purpose of convincing himself about the character, behaviour, antecedents of the accused and the nature of accusation. For example, if the offence is a grave one like murder, or if the offence appeals to be serious fraud committed by the accused in some commercial transaction in which the accused has made large gains so that he is not an unlikely person to endeavour escape punishment by absconding and that he to is a person likely to abscond from the clutches of the law, the Court has to issue notice either to the police or to the Public Prosecutor in order to ascertain the true state of affairs and pass a reasonable and judicial order. Thus, it is the function to the Magistrate to enquire from the prosecution whether the grant of bail, as opposed to the arrest of the accused, might lead to the real danger of his absconding and not appearing to take his trial or whether there is any likelihood of the accused tampering with the witnesses. 9. The learned Public Prosecutor concedes that there is no specific provision for notice under section 437, Criminal Procedure Code, but argues that the Magistrate enquiries about the facts of the case on the materials placed or projected before him, and the Court cones to the conclusion and exercises its discretion whether the accused has to be released or should not be released on bail. In other words the Magistrate holds an enquiry as contemplated under section 2 (g) of the Criminal Procedure Code, and the trial in a warrant case starts with the framing of a charge and prior to it, the proceedings before the Magistrate are only in the nature of an enquiry and an enquiry by the Court without issuing notice to the prosecution to enquire about the character, commitments and antecedents of the accused will be no enquiry at all, either to grant or reject bail. That apart, section 437 (4), Criminal Procedure Code, contemplates ‘that the Officer or the Magistrate has to record reasons if he passes an order either under section 437 (1) or 437 (2), Criminal procedure Code and for this purpose, there must be materials before the Magistrate which would be supplied only by the prosecution on the issuance of notice to it and not by the petitioner, who somehow or other will try to wriggle out from the serious allegations and charges levelled against him. I agree with the contentions of the learned Public Prosecutor. The contention of the petitioner’s Counsel that when once papers are placed by the prosecution before the Magistrate levelling allegations against the accused person, the Magistrate has to pass orders and exercise his discretion to release the accused on bail without reference to the police, is putting the cart before the horse. The argument of the petitioner’s Counsel that notice should not be issued to the prosecution when once the accused person seeks bail before the Magistrate, would mean, that the Magistrate even to pass a reasoned order either to refuse or to grant bail to the accused person, should not even clarify from the prosecution the allegations levelled against the accused person at the stage of enquiry, is undoubtedly without any substance. if no notice is issued to the’ police by the Magistrate before exercising his judicial discretion, it will amount to be an exparte order behind the back of the prosecution. 10. I may further state that in this case, the Magistrate has committed the accused person herein to custody, which is a judicial order passed by a criminal Court of competent jurisdiction. The petitioner’s commitment to custody is not by reason of the fact that he is alleged to have committed a bailable offence, but on the other hand, his commitment to custody is the result of a judicial order passed on the ground that the petitioner has forfeited his bail and cannot be allowed to be at large, and such a person who is committed to Custody by the order of the Competent Court, cannot now contended at the time of applying for bail that he has an unqualified and indefeasible right to be released on bail either under section 437 (1) or 437 (2), Criminal Procedure Code, without notice to the prosecution. 11. 11. The Court may presume, as mentioned in section 114 of the Evidence Act, the existence of any fact from the records placed before it, which it may think likely to have happened. Whether or not the presumption can be drawn under the section in a particular case to enlarge the accused person on bail ultimately depends upon the facts of the case and the Court or the Magistrate cannot be a silent spectator by not clarifying or eliciting further facts from the prosecution to arrive at a definite conclusion and to exercise its discretion either to enlarge the petitioner on bail or to reject bail. Under those circumstances, I am of the view that the contention of the petitioner’s Counsel that no notice should be issued to the prosecution when the bail petition is taken up for enquiry by the Magistrate under section 437, Criminal Procedure Code, is untenable and is. without substance. 12. In so far as the averments of the affidavit filed by the petitioner’s father in the instant case are concerned, which are extracted supra, I find that the petitioner is a minor aged 16 years old. The trial Court will satisfy itself about the averments of the age of the petitioner and will take into account the first proviso to section 437 (1), Criminal Procedure Code, and pass orders according to law. Accordingly, this petition is dismissed.