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1989 DIGILAW 72 (PAT)

Bhanumati Sao v. State Of Bihar

1989-02-22

L.P.N.SHAHDEO

body1989
Judgment L.P.N.Shahdeo, J. 1. This is an application filed under Sec. 439(2) and also under Sec. 482 of the Code of Criminal Procedure for cancellation of bail granted to all the eight opposite parties by Shri H. Hassan, Judicial Magistrate, 1st Class, Jamshedpur by his order dated 6-1-1986 in a case under Sec.302 read with other allied sections of the Indian Penal Code. 2. It appears that all the members of the opposite party were facing charges, at the initial stage, under Sections 364, 323 and 341 of the Penal Code. It appears that during the course of investigation when these opposite parties appeared before the learned Magistrate, he granted them bail by the impugned order dated 6-1-1986. It also appears that during the course of investigation it was detected that the deceased had been killed and, therefore, Sec.302 of the Penal Code was added to this case and charge-sheet has been submitted under Sections 364, 302, 341 and 323 of the Penal Code. 3. It appears that, thereafter, the petitioner, who is the informant in this case, had filed a petition under Sec. 437(5) of the Code of Criminal Procedure for cancellation of the bail granted to the members of the opposite party in view of gravity of the offence as charge-sheet was submitted under Sec.302 of the Penal Code along with other allied sections of the Penal Code, as indicated above. It appears that by the order dated 5-2-1988 the learned Magistrate declined to cancel the bail granted to the accused-opposite parties and against that order refusing to cancel the bail this application has been filed for a direction to the Court for cancelling the bail granted to the members of the opposite party and also for quashing the impugned order. 4. Mr. Gopal Choudhary, learned Counsel appearing on behalf of the petitioner-informant, has submitted that the learned Magistrate had absolutely no jurisdiction to grant bail to the opposite parties in a case where there was reasonable ground to believe that they had committed non-bailable offence punishable with death or imprisonment for life. 5. On the other hand, Mr. D, Dash, learned Counsel appearing on behalf of the opposite parties, has submitted that this case has become infructuous in view of the fact that the case has now been committed to the court of Sessions and the Magistrate is now ceased to have jurisdiction over this matter. 6. 5. On the other hand, Mr. D, Dash, learned Counsel appearing on behalf of the opposite parties, has submitted that this case has become infructuous in view of the fact that the case has now been committed to the court of Sessions and the Magistrate is now ceased to have jurisdiction over this matter. 6. The grant of bail or othewise done by the Magistrate has now become academic matter as the Magistrate is now ceased to have any jurisdiction over this case when he has committed the same to the Court of Sessions. 7. It also appears from the order-sheet that the petitioner filed an application in this Court stating that the case is now pending as Sessions Trial No. 77/88 before the Second Additional Sessions Judge, Jamshedpur, Singhbhum who has granted bail to these opposite parties when they appeared before him during the course of trial. 8. Mr. Choudhary, learned Counsel for the petitioner has further submitted that apparently the order was without jurisdiction and, therefore, he wants quashing of the impugned order only for academic reason. 9. Sec. 437 of the Code of Criminal Procedure lays down : When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of the police station or appears or is brought before a court other than the High Court or Court of Sessions.... but such person shall not be released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life. 10. From the perusal of the aforesaid section it will appear that a bar has been imposed under the proviso to Sec. 437 of the Cr.P.C. that the Magistrate before whom such person is brought who is accused of or suspected to have committed an offence for which punishment is either death or imprisonment for life, he ordinarily, shall not grant bail except as provided in Section 437(i)(ii), Cr.P.C. 11. Therefore, in this case the learned Magistrate could not have granted bail to the members of the opposite party who were accused of or suspected to have committed an offence non-bailable for which the punishment prescribed is either death or imprisonment for life. 12. Therefore, in this case the learned Magistrate could not have granted bail to the members of the opposite party who were accused of or suspected to have committed an offence non-bailable for which the punishment prescribed is either death or imprisonment for life. 12. The grant of bail in such cases is out of question by a Magistrate except in certain circumstances mentioned in the section itself. Therefore, the grant of bail by the Magistrate to the members of the opposite party, in the circumstance and in view of the nature of the allegations, appears to be without jurisdiction. 13. In this case, the learned Counsel for the petitioner-informant has relied upon two decisions reported in 1975 BBCJ and AIR 1978 Supreme Court. In the case of Baba Ajab Das and Anr. V/s. The State of Bihar and Anr. 1975 BBCJ 47 : 1975 PLJR 111 a Division Bench of this Court, in paragraph 13, has laid down that Section 437(1) says in unmistakable terms, "such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with dealth or imprisonment for life". In the case of Gurucharan Singh and Ors. V/s. State (Delhi Administration) AIR 1978 Supreme Court 179, it was held that Sec. 437, Cr. P.C. provides as to when bail may be taken in case of non-bailable offences and imposes a bar to grant of bail by the court or the officer in-charge of a police station to a person accused of or suspected of the commission of an offence punishable with death or imprisonment for life. Similarly in paragraph 23, at the end, it has been held that if the Magistrate is able to act under the proviso to Sec. 437(1) Cr.P.C., bail appears to be out of the question. 14. In view of the aforesaid rulings and the provisions itself the order of the Magistrate granting bail to the members of the opposite party appears to be without jurisdiction and must be held to be illegal. But, the matter does not rest here since the accused persons have been committed to the court of Sessions and the Sessions Trial has already commenced, as indicated above, and during the course of sessions trial the opposite parties have already appeared and they have been granted bail by the Sessions Judge. But, the matter does not rest here since the accused persons have been committed to the court of Sessions and the Sessions Trial has already commenced, as indicated above, and during the course of sessions trial the opposite parties have already appeared and they have been granted bail by the Sessions Judge. Therefore, whatever the Magistrate has done, either illegal or without jurisdiction, is no longer in question at this stage as the bail has been granted by the Additional Sessions Judge, as indicated above. 15. In this view of the matter, although the order of the learned Magistrate appears to be illegal and without jurisdiction but the question of cancellation of bail granted to the members of the opposite party by the Additional Sessions Judge, does not arise in this case. 16. With the aforesaid observations this application is, accordingly, disposed of.