V. P. MATHUR, J. ( 1 ) THE abovenamed revisionists were granted bail in a case under Sections 147, 148 and 302/149 of the Indian Penal Code by Mr. V. K. Jam, Chief Judicial Magistrate of Fatehpur on 12-7-1984. An application for cancellation of bail was moved before the Sessions Judge of Fatehpur by the State and the learned Sessions Judge, vide, his order dated 31-7-1984 cancelled the bail granted by the Chief Judicial Magistrate and took the five applicants into custody after canceling their bail bonds and surety-deeds. Against this order of the learned Sessions Judge, the present revision has been filed. ( 2 ) TO understand the matter better, facts of the case have to be shortly mentioned. One Sri Pannalal Gupta of Bindki town was allegedly murdered on 24-61. 984 at about 10 in the night. The report was lodged in the Police Station at Bandki at 4. 30 A. M. Eight persons were named as assailants. They include the present five revisionists, and one Sri Madan Singh, Station Officer, Bindki and one Sri Goreylal who is alleged to have fired the fatal shot with a gun. It was a case of spot death and the first informant Sri Kailash Nath Gupta a close relative of the deceased was allegedly accompanying him at the time of the occurrence. Besides the complainant, the other eyewitnesses are Om Dutt, Mandu and Aziz, and in their statements under section 161 Criminal Procedure Code, they have supported prosecution version completely naming all the eight accused persons including the five present revisionists. It is said that these persons encircled the deceased and while all of them challenged him and wanted that he should be done to death, Goreylal fired from his gun and killed Sri Pannalal Gupta. Then Sri Madan Singh is said to have said that the work was over and all should go. ( 3 ) IT is undoubted that the case is one in which the offence is punishable with death or imprisonment for life. The learned Sessions Judge is of the view that under Section 437 Criminal Procedure Code, bail could not have been granted and the learned Chief Judicial Magistrate transgressed his jurisdiction and authority in granting the bail. Only on this ground, the bail granted to the five applicants has been canceled. This order has been passed by Mr. The learned Sessions Judge is of the view that under Section 437 Criminal Procedure Code, bail could not have been granted and the learned Chief Judicial Magistrate transgressed his jurisdiction and authority in granting the bail. Only on this ground, the bail granted to the five applicants has been canceled. This order has been passed by Mr. N. K. Maheshwari, District and Sessions Judge, Fatehpur. ( 4 ) THE learned counsel for the applicants however contends that the bail once granted could not have been cancelled except under certain circumstances which he enumerates as hampering the investigation in any manner, tampering with the evidence by intimidating the witnesses and the possibility of the absconding or going underground of the accused or their attempt to escape from the country or fly from justice. ( 5 ) BEFORE we advert to the legal position, as to under what circumstances bail once granted could be cancelled, it will be better to look into the position of the provisions regarding grant of bail. Chapter XXXIII of the Criminal Procedure Code lays down the provisions as to bail and bonds. Section 437 is very relevant. It lays down that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officerincharge of the 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 will 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; and also if the offence is a cognizable offence and he had been previously convicted of an offence punishable with death, or imprisonment for life or imprisonment for seven years or more or had been previously convicted on two or more occasions of a non-bailable cognizable offence. Section 436 Criminal Procedure Code with which Chapter XXXIII of the New Code opens, makes a rule for bail in case of bailable offence, subject to specified exception under the sub-section 2 of that section. Section 437 Criminal Procedure Code provides as to when bail may be taken in a case of non-bailable offence. Sub-section (1) of Section 437 makes a dichotomy in dealing with non-bailable offence. Section 437 Criminal Procedure Code provides as to when bail may be taken in a case of non-bailable offence. Sub-section (1) of Section 437 makes a dichotomy in dealing with non-bailable offence. The first category relates to offence punishable with death or imprisonment for life, and the rest are all other non-bailable offences. With regard to the first category, the section imposes bar against grant of bail to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life; Provided there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore, at the stage of investigation unless there are materials to Justify the Court to believe that there are no reasonable grounds that the person accused of or suspected of the commission of such an offence has been guilty of the same, there is a ban imposed under Section 437 (1) against the granting of bail. On the other hand if there appear to the Court reasonable grounds to believe that the accused has been guilty of such an offence, there would be no question of granting bail to him. In all other non-bailable cases judicial discretion will always be exercised in favour of the granting of bail, subject to sub-section, (3) of section 437 with regard to imposition of conditions, if necessary. ( 6 ) SECTION 437 Criminal Procedure Code is concerned only with the Court of Magistrate. It expressly excludes High Court and the Court of Sessions. The language of Section 437 (1) may be contrasted with Section 437 (7 ). While under the first proviso the words are if there appear to be reasonable grounds for believing that he has been guilty; according to subsection (7) the words used are There are reasonable grounds for believing that the accused is not guilty of such an offence. This difference in language occurs on account of the stage at which the two sub-sections operate. This difference in language occurs on account of the stage at which the two sub-sections operate. ( 7 ) THIS being the legal position when we peruse the facts of this case we find that the learned Chief Judicial Magistrate who has passed a very short order, granted bail to the revisionists after coming to the following conclusions: (1) The case diary shows that the special Investigating Officer of the C. I. D. has recorded the statements of a number of persons of the locality, and except Kailash Chandra who is the real nephew of deceased, none else has spoken about the occurrence, and the neighbours namely Ishhaq, Anis, Beharilal, Pratap Narain, Krishna Kumar, Mohd. Yanus, Kali Charan, Ram Prasad, Abdul Majid, Sahu Agarwal etc. say that they did not see the occurrence. (2) On Dutt and Mandu however speak about the occurrence and give the entire story. (3) That mainly Madan Singh and Gorey Lal are the accused of the case, while about the rest it can not be said that they had gone to kill and have committed the offence under Section 302 Indian Penal Code. ( 8 ) NOW these conclusions are not all correct and will not lead us to any decisions. It is true that a large number of the people of the vicinity came out and said that they had not seen the occurrence. This is simply negative evidence. The occurrence took place late in the night at 10 p. m. and if these witnesses were either not present at the time when the occurrence took place, or did not see it, that will not in any way affect the prosecution case nor supports the defence version. There is clear cut testimony of three persons namely Kailash Chandra Mandu and Omdutt in support of the prosecution version and they clearly name all the accused persons including the present revisionists and their contention is that all the eight persons came together, one of them fired with the gun and committed the murder, another accused gave out that the work had been done and thus feeling satisfied that they have accomplished their purpose, all the eight persons went together. The conclusion drawn by the learned Chief Judicial Magistrate that mainly Goreylal and Madan Singh are the accused, and the others cannot be said to have gone on the spot with the intention to murder, is a very wrong conclusion. The provisions of Section 149 Indian Penal Code have been clearly ignored. When persons arrive on a scene of occurrence together, when they leave together, when they all exhort, when they all remain standing, when the occurrence is taking place, they prima facie make themselves members of an unlawful assembly and the intention becomes clear. This is the law regarding unlawful assembly. The Court will have during trial to find out whether the object of all these eight persons was the same, and if it comes to the conclusion that it was, they will all be equally responsible in view of Sections 147, 148 and 149 Indian Penal Code. Merely because one of them fired the fatal shot and the other expressed his satisfaction on the accomplishment of the deed, it cannot be said that the others are not responsible for what has been done. It is still too early to give a verdict on this matter, but what the law requires is that there should appear reasonable grounds for believing that the five applicants have been guilty of an offence punishable with death or imprisonment for life and once it so appears, the provisions of Section 437 will immediately come into play and the bail cannot be granted by the Magistrate. It is a different matter that under Section 439, question of grant of bail can still be considered by the Court of Sessions or the High Court. But so far as the learned Chief Judicial Magistrate was concerned, I am in agreement with the learned Sessions Judge that he has drawn wrong conclusions in order to justify his having taken action under Section 437 Criminal Procedure Code to grant bail to the five applicants. As a matter of fact in view of sub-section (1) he could not have granted bail and in this manner he has completely ignored the bar imposed by sub- clause (1) of Section 437 Criminal Procedure Code. ( 9 ) THIS means therefore that the order of the learned Chief Judicial Magistrate was not justified and he had entirely gone beyond his power and jurisdiction. ( 9 ) THIS means therefore that the order of the learned Chief Judicial Magistrate was not justified and he had entirely gone beyond his power and jurisdiction. ( 10 ) WITH this we come to the considerations of whether the Sessions Judge could have cancelled the bail on this qround alone. In the, case of Bhagirath Singh v. State of Gujarat. The Supreme Court was considering the-case in which the bail was granted by the Sessions Judge and this order was set aside by the High Court and it recorded its view that while examining the question for directing cancellation of bail, the High Court was actually interfering with a discretionary order made by the Sessions Judge and completely overlooked the fact that it was not for it to decide whether the bail should be granted, but the. Application before it was for cancellation of the bail and very cogent and over-whelming circumstances are necessary for an order justifying the cancellation of bail as the trend today is towards granting bail. These material considerations can be whether the accused would be readily available for his trial, whether he is likely to abuse the discretion granted in his favour by tampering with evidence. In case of Rom 2. Murti and another v. State, this Court had observed that once bail has been granted by the Court, it can be cancelled only for valid reasons. The normal grounds for cancellation of bail are: (i) chance of jumping the bail; (ii) threatening or influencing the witnesses; (iii) interfering with the investigation or prosecution; (iv) obstructing the judicial process; (v) otherwise misusing or abusing the bail. In the case of Maiku v. State of U. P. 3 some further norms for cancellation of bail were laid down as follows:(i) that the person already admitted to bail commits the very same offence for which he is being tried and proves, himself to be unfit to remain on bail; (ii) that subsequently new materials pointing to the guilt of the accused are discovered. (iii) that he commits any act of violence against the investigating agency or prosecution witnesses. ( 11 ) ALL these cases however do not lay down all the possible circumstances in which bail once granted can be cancelled. They are not exhaustive. (iii) that he commits any act of violence against the investigating agency or prosecution witnesses. ( 11 ) ALL these cases however do not lay down all the possible circumstances in which bail once granted can be cancelled. They are not exhaustive. All these cases refer to bail granted by the Sessions Court and cancelled by the High Court, none of them deals with cases covered under section 437 (i) Criminal Procedure Code i. e. the cases in which bail is granted by the Magistrate and then cancelled by the Sessions Court. In my opinion one of the circumstances to cancel the bail can be wrong exercise of jurisdiction by the Magistrate by ignoring the specific prohibition of law in granting bail in non-bailable offence, when there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life. If a Magistrate does so he clearly goes beyond his jurisdiction and that matter goes to the very root of the matter and the Sessions Judge will be justified in canceling the bail on that ground alone. Of course it will still be open in such cases, for those persons whose bails had been cancelled to move the Sessions Court for grant of bail under section 439, in accordance with the law. 3. 1984 (15) A. C. C. 4, Such an order has been passed by Mr. Maheshwari. The learned counsel who argued this revision, has also stated that a bail application was moved by these five applicants before the Sessions Judge and it has been rejected. That does not finish the remedy. It only shows that the learned counsel was conscious of the fact that the order of the learned Sessions Judge was justified, and hence the recourse to section 439 Criminal Procedure Code was made. ( 12 ) IN any view of the matter I am positively of the view that the bail has been rightly cancelled in this case as the learned Magistrate was not competent to grant bail in the special circumstances of the case and in view of the bar imposed by sub-section (1) of section 437 (i) Criminal Procedure Code. Revision has thus no force and is hereby dismissed. .