RAFUQUDDIN v. BASHIR AHMAD — 1985 DIGILAW 200 (ALL)

V. P. MATHUR, J. ( 1 ) THESE two petitions are directed against the same judgment passed by Sri K. M. Chaturvedi, VI Additional Sessions Judge, Agra, dated 20-7-1984, in Criminal Misc. Bail Cancellation Application No. 1800 of 1983. The learned Additional Sessions Judge allowed the application moved by Bashir Ahmad and cancelled the bail granted earlier by the Magistrate, to Rafiuddin, Salahuddin and Samiuddin. It is contended that this order was beyond the jurisdiction of the learned Additional Sessions Judge, who had no power to dispose of an application of this type in view of Section 10 of the Criminal Procedure Code, and who also could not cancel the bail once granted by the Magistrate without coming to the conclusion that the accused had abused the bailor were not justified to continue on bail that was granted. ( 2 ) SINCE both the cases raise the same point for determination, they have, on the request of the counsel on both the sides, been taken up together and are being disposed of by this order. ( 3 ) THE first point is about the capacity of an Additional Sessions Judge to dispose of an application for bailor for cancellation of the bail. ( 4 ) SECTION 10 (3) of the new Criminal Procedure Code reads as follows: The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge and every such Judge. . . shall be deemed to have jurisdiction to deal with any such application. ( 5 ) IN the case of T. V. Sarma v. Achuthuni Nagakoteswararao and others1 it has been held that the term inability to act means that the Sessions Judge is incapable of acting and under those circumstances can assign urgent application for disposal to Additional Sessions Judge not only when physically incapable of acting but otherwise also unable to act due to pressure of work. It has also been held that although mentioning of reasons is desirable but it is not essential and if reasons are not mentioned, the assignment will not be invalidated. It has also been held that although mentioning of reasons is desirable but it is not essential and if reasons are not mentioned, the assignment will not be invalidated. ( 6 ) SECTION 17 (4) of the old Act provided that the Sessions Judge could, when he himself was unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge. The change in the law is material. Now it is not only the unavoidable absence or incapacity of the Sessions Judge which is provided as a ground for assignment but absence or inability to act are also now the grounds and incapacity or inability are two different things. It is, therefore, not necessary that the Sessions Judge should only be physically incapable of acting when he assigns the work to an Additional Sessions Judge. He can do so on the ground of any inability which would also cover his inability due to pressure of work or any other similar cause. ( 7 ) IN the case of State v. Mohinder Singh Maghar Singh and others2, a similar question came up for consideration before the Punjab High Court. There the Sessions Judge had assigned bail application for disposal to the Additional Sessions Judge on the ground, that due to pressure of work he had no time to dispose of the application. It was held that the order was not incompetent. It was further, held that it was for the Sessions Judge to decide whether on account of the rush of work or otherwise he was rendered incapable of disposing of the bail application and his decision in this respect could not be questioned by the Additional Sessions Judge, who is under general control of the Sessions Judge. The matter came up before the High Court on a reference made by the Additional Sessions Judge, who recommended that the order of the learned Sessions Judge, whereby he had assigned the bail application- for disposal to him be held without jurisdiction. The recommendation was not accepted and the reference was rejected. The matter came up before the High Court on a reference made by the Additional Sessions Judge, who recommended that the order of the learned Sessions Judge, whereby he had assigned the bail application- for disposal to him be held without jurisdiction. The recommendation was not accepted and the reference was rejected. ( 8 ) IT means, therefore, that in view of the amended provisions of Section 10 (3) of the Criminal Procedure Code it is always open to the Sessions Judge to assign for disposal any urgent application to an Additional Sessions Judge in cases in which he feels unable to act or is absent and, as I have already mentioned above; inability to act may be physical inability or even inability due to rush of work or otherwise. Therefore, the first argument of the learned counsel does not appeal and is hereby repelled. ( 9 ) THE brief facts of the matter are that an F. I. R. was lodged in the Thana on 5-10-83 under Sections 147, 148, 149, 326, 307 I. P. C. In that report Rafiuddin, Salahuddin and Samiuddin were named as accused. They surrendered before the Magistrate concerned and on 22-10-83 the Magistrate enlarged them on bail. No application for cancellation of the bail was moved by the State. Bashir Ahmad, who the first informant, however, moved an application for cancellation of bail before the Sessions Judge of Agra. This application was directed for disposal to the VI Additional Sessions Judge, who after considering all the facts and circumstances of the matter came to the conclusion that since the case was covered by the provisions of Section 307, Indian Penal Code the Magistrate lacked jurisdiction to grant bail. He, therefore, cancelled the bail and directed that the accused be taken into custody. It may also be noted here that the order of the learned Additional Sessions Judge shows that the three revisionist were in court in the earlier part of the day but when after the passing of the order of cancellation of bail they were called upon to appear, it was found that they had left the court and were not available. Therefore, their non- bailable warrants were directed to be issued. The main question for decision, theref9re, is whether the bail could be cancelled under these circumstances. Section 437 of the Criminal Procedure Code is undoubtedly applicable to this case. Therefore, their non- bailable warrants were directed to be issued. The main question for decision, theref9re, is whether the bail could be cancelled under these circumstances. Section 437 of the Criminal Procedure Code is undoubtedly applicable to this case. This is a section which lays down the circumstances in which bail may be taken in the case of non-bailable offences. The main section makes a general rule to lay down that bail is to be granted but this general rule is subject to certain riders which have been provided by sub-sections (i) and (ii) and subject to certain provisions, which are given thereafter. The section lays down that when any person accused of, or suspected of, the Commission of any non-bailable offence is arrested or detained he may be released on bail but (i) such person 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, and (ii) such persons shall not be so released if such offence is an cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life, or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. Sub-section (i) is relevant for the present case, which makes it clear that the release will not be granted if there appear reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life. Section 307 Indian Penal Code can be divided into three parts. An offence under Section 307, Indian Penal Code is complete when a person does an act with such intention or knowledge and in such circumstances that if he by that act had caused death, he will be of attempt to murder. The punishment part is in three sub-parts. ( 10 ) THE general punishment is imprisonment of either description for a term which may extend to ten years with a liability to fine. This is applicable in the cases in which hurt is not caused. The punishment part is in three sub-parts. ( 10 ) THE general punishment is imprisonment of either description for a term which may extend to ten years with a liability to fine. This is applicable in the cases in which hurt is not caused. The second part is in respect of cases in which hurt has been caused to any person in which case the punishment provided is liability to imprisonment for life or to such punishment as has been earlier provided, i. e. imprisonment for a term which may extend to ten years. The third part is in respect of accused who are already undergoing sentence of imprisonment for life. In their case if hurt is caused, they may be punished with death. The use of word may shows that death is not the only sentence which should be awarded. It may be imprisonment for life or imprisonment which may extend to ten years also. ( 11 ) NOW so far as the first part of Section 307, Indian Penal Code is concerned, i. e. , the commission of the offence of an attempt to murder in which no hurt is caused, it will surely be covered by the general provision of section 437 of the Criminal Procedure Code and the court of the Magistrate will be competent to release such a man on bail because the offence is not punishable with, death or imprisonment for life, but the maximum punishment that can be awarded would be imprisonment for a term which may extend to ten years and fine, It is only in the remaining two circumstances, i. e. , when hurt is caused and when hurt is caused by a person, who is already undergoing life imprisonment, that the controversy arises whether the Magistrate can or cannot grant the bail. ( 12 ) MR. Palok Basu, learned counsel for the applicants, has drawn the attention of the Court to the fact that according to the Indian Penal Code various sentences have been provided for various offences, e. g. only the sentence of death can be awarded in a case covered by Section 303, Indian Penal Code. For offences punishable under Sections 121 and 302, Indian Penal Code death or life imprisonment only can be awarded. For offences under Sections 305 and 396 death, life imprisonment or imprisonment for -specified period has been provided. For offences punishable under Sections 121 and 302, Indian Penal Code death or life imprisonment only can be awarded. For offences under Sections 305 and 396 death, life imprisonment or imprisonment for -specified period has been provided. Only life imprisonment is to be awarded in the cases under Sections 311, 363-A (part II), 388c part II), and 389 (part II) and there is D. O other choice for the court, but in a large number of cases covered by Sections 121-A, 124-A, 125, 128, 130, 131, 132. 194, 222, 225, 232, 255, 304, 307, 3t3, 314, 326, 329, 364, 371, 376, 394, 400, 409, 412, 413, 436, 438, 449, 459, 469, 467, 474, (Part II), 477, 489, 489-A, and, 511, Indian Penal Code life imprisonment or imprisonment for a specified period has been provided as sentence to be awarded and while in cases in respect of, some of these offences Session Trial has to proceed in respect of others, Magistrate is competent to try the accused. It is argued with reference to this distinction that if a Magistrate is competent to try a case, say under sections 409, 349, and 389 Indian Penal Code, will it not be unjust to hold that since the sentence that can be awarded would be the sentence of life imprisonment or an. imprisonment for a specified period, he should not be entitled to grant bait to the accused. The argument advanced by the learned counsel is that Section 437 of the Criminal Procedure Code should be interpreted in a way which should bring about a antonymous interpretation of the provisions of the law. He submits, therefore, that sub-section (i) of Section 437, Criminal Procedure Code should be taken to mean that if offence is punishable with death or imprisonment for life only, then the Magistrate should not beheld to be entitled to grant bail but if in addition to the punishment with death or imprisonment for life some other punishment is also possible, then meanings of Section 437 Criminal Procedure Code should be widened and the Magistrate should be held capable of granting the bail in such cases. The learned counsel, in this context referred to Section 307 of the Indian Penal Code and his argument is that since this section provides that if hurt is caused, the offender wilt be liable to imprisonment for life or the punishment to a term of imprisonment which may extend to ten years and if hurt is caused-by one Who -is already undergoing imprisonment for life or imprisonment for a period of term which may extend to ten years, therefore, the Magistrate should be deemed empowered to grant bail in such cases; I am afraid it will not be possible to accept this argument. The basic principle of interpretation of the Statutes is that there should be no attempt by a Court of taw to transgress its limits and contestant the domain specifically - reserved for the Legislature. If the provisions be Section 437 (i) of the Code of Criminal Procedure are interpreted in the light, of, the will meat advanced by Sri, Palok Basu it; will mean at the hurt will have to add the work Tonly at the case of the sentence to say that the persons will not be released if there appear reasonable ground to the Court that he has been guilty of the offence punishable with been guilty of offence punishable with death or imprisonment for life only. There can be no addition in the language of this section because that is the domain of the Legislature and not of the Court. The provision of law is clear and unambiguous and howsoever it may appear to the learned counsel to be inconsistent with the entire Scheme, of the Criminal Procedure Code and the Indian Penal Code, so long as there is no ambiguity, no question of interpretation arises and the common meaning of the words have to be taken into consideration in order to come to an interpretation as to the limit of the Magistrates jurisdiction. Section 307, (parts I and II) of the Indian Penal Code, of which I have made a reference earlier, clearly lay down that the punishment that can be awarded will be an imprisonment for life or sentence of imprisonment upto ten years and in case of ODO who is already undergoing imprisonment for life, it may be death. Section 307, (parts I and II) of the Indian Penal Code, of which I have made a reference earlier, clearly lay down that the punishment that can be awarded will be an imprisonment for life or sentence of imprisonment upto ten years and in case of ODO who is already undergoing imprisonment for life, it may be death. Naturally both these provisions of law are covered by clause (i) of Section 437 of the Criminal Procedure Code because the offence is punishable with death or imprisonment for life although it may also be punishable with imprisonment for a period Which may extend upto ten years of that stage of the proceedings when the Court sits to grant bait under section 437, Cr. P. C. , it is not possible for it of assess beforehand the evidence that is likely to come during the course of trial and come to a conclusion as to what actual punishment will be awarded. It cannot even come to a conclusion whether any punishment would at all be awarded as a consequence of the trial. These things have to wait for the trial and the only criterion for the application of section 437 (i) of the Criminal Procedure Code will be a reasonable ground for believing that the accused has been guilty of the offence which way be punishable with death or imprisonment for life. ( 13 ) IN my opinion, therefore, if a Magistrate grants bail in the cases covered by the second and third parts of section 307, I. P. C. , namely, in the cases in which hurt has been caused and in the cases in which the offender is already undergoing imprisonment for life and has caused hurt, he goes beyond his jurisdiction and acts illegally. His order, of granting bail in such cases will, therefore, be beyond his powers. This brings us to the consideration of the fact whether the Sessions Judge or Additional Sessions - Judge could justifiably financed the bail an that ground alone. In a previous decision of this Court in the case of Birendra Singh v. State3. His order, of granting bail in such cases will, therefore, be beyond his powers. This brings us to the consideration of the fact whether the Sessions Judge or Additional Sessions - Judge could justifiably financed the bail an that ground alone. In a previous decision of this Court in the case of Birendra Singh v. State3. I had an occasion to note that material considerations which will weigh with the Court for cancellation of the bail can be (i) whether the accused would not be readily available for his trial, (ii) whether he is likely to abuse the discretion granted in his favour by tampering with the, evidence, (iii) whether there is chance of his jumping bail, (iv) whether he is threatening or influencing the witnesses, (v) whether he is interfering with the investigation or the prosecution, (vi) whether he is obstructing the judicial process, and (vii) whether he is otherwise misusing or abusing the bail. It was further held that in addition to this the further norms for cancellation of the bail may be laid down as under: (1) 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. (2) that subsequently new material pointing to the guilt of the accused are discovered (3) that he commits any act of violence against the investigating agency or prosecution witness as. It was further held that all these cases do not lay down all the possible circumstances in which bail once granted can be cancelled and they are not exhaustive. It was also held that in cases in which bail is granted by the Magistrate as a result of wrong exercise of jurisdiction by ignoring specific provision of the law and it appears that there are reasonable grounds for believing that the person has been guilty of the offence punishable with death or imprisonment for life, there will be valid circumstances for cancellation of the bail granted. This being the legal position, where we peruse the facts of the present case, we find that hurts were caused in this case as a result of the act of the present applicants to as many as 8 persons. Out of those eight, Anwar, Rashid, Mohammed Saeed and Attar Parvez have received grievous injuries and one Km. Shahida has lost her - left eye. Out of those eight, Anwar, Rashid, Mohammed Saeed and Attar Parvez have received grievous injuries and one Km. Shahida has lost her - left eye. All these accused applicants are said to have used fire arms to cause injuries. Their case will, therefore, be covered by the second part of section 301. I. P. C. since their acts had caused hurts and naturally they are liable to punishment which may be imprisonment for life of imprisonment for a term which may extend to ten years and they are also liable to fine. The case is squarely covered by clause (i) of section 437 of the Criminal Procedure Code and bail could not have been granted to them by the Magistrate. The Magistrate virtually went beyond his jurisdiction and the learned Additional Sessions Judge was justified in cancelling the bail on that ground alone, 14. In the result both the revision and the application under section 482 Cr. P. C. have no merit and are hereby dismissed. The stay order shall stand vacated. Revision dismissed. .