Judgment P.K.Sinha, J. 1. This is an application for cancellation of bail granted by the learned Additional Chief judicial Magistrate, Rosera by order dated 1-12-1999 in Singhia P.S. Case No. 53 of 1998 to accused Shiv Shankar Singh. 2. The aforesaid case was registered under Section 364 read with Section 34 of the Indian Penal Code. The only point that has been urged by the learned counsel for the petitioner is that since the aforesaid offence is punishable with life imprisonment, the learned Magistrate under law was not empowered to grant bail to the accused which power was vested with the court of Sessions and in the High Court. 3. Learned counsel for Opposite Party No. 2 on the other hand has submitted that the order of the learned Magistrate is well reasoned one and he has mentioned the grounds from which it would appear that the accused was falsely implicated such as earlier enquiry made into the allegation by a police officer and the supervision note of S.D.P.O., Rosera in whicl he did not find the case supported by evidence. 4. Learned counsel for the State submits that this petition should have first been filed before the learned Sessions Judge, Samastipur. 5. From the reading of the impugned order it appears that the learned lower court had considered the documents produced by the accused which included the enquiry report as well the supervision note of the S.D.P.O., Rosera and has mainly based its order on the basis of such documents, also noting the delay in tiling of the complaint which was subsequently registered as F.I.R. 6. Obviously the offence alleged is punishable with life imprisonment. Under general law a Magistrate is debarred to grant bail in such a case. This does not mean that simply because a case has been instituted for offence which is punishable with life imprisonment" or capital punishment, under every circumstance, the Magistrate is debarred from granting bail. If on the face of the materials on record including the case diary it appears that the allegation was false or that there was no evidence whatsoever against the accused, in such exceptional case the learned Magistrate may exercise discretion in granting bail on the ground that no such case was made out against the accused. If on the face of the materials on record including the case diary it appears that the allegation was false or that there was no evidence whatsoever against the accused, in such exceptional case the learned Magistrate may exercise discretion in granting bail on the ground that no such case was made out against the accused. For example, as experience has shown, if a cast under Section 395 of the Indian Penal Code is registered, the Investigating Officer in many cases forwards persons suspected to be involved in such crimes virtually with no evidence words its name. Similarly in a case of assault where huri has been caused, many a times case is registered under Section 307 of the Indian Penal Code though the ingredients and evidence in the case diary on the face of it discard a case under Section 307 of the Indian Penal Code. Such are extreme cases in which the Magistrate can exercise his discretion in granting bail to the accused. But for exercising such discretion in such a case the Magistrate is supposed to go through all the materials that have come on the record which, in a case investigated by the police, could be seen only after perusal of the case diary. It does not appear that the learned Magistrate even called for the case diary and considered the materials that might have come in that. There are many instances in which even the police has filed final report but the judicial court, after going through the case diary, has found that the materials on record were sufficient for taking of cognizance. Therefore, it was necessary for the Magistrate to atleast go through the case diary to find out that if any case was made out against the accused. Not having done that, the impugned order does not appear to be proper keeping in view of the fact that under law ordinarily the Magistrate is not empowered to grant bail in such a case. 7. In view of the aforesaid, this application is allowed and the bail granted to Opposite Party No. 2, Shiv Shankar Singh, is hereby cancelled. The learned lower court may consider the prayer for bail again, if made, after going through the entire materials on record and then pass order in accordance with law. 7. In view of the aforesaid, this application is allowed and the bail granted to Opposite Party No. 2, Shiv Shankar Singh, is hereby cancelled. The learned lower court may consider the prayer for bail again, if made, after going through the entire materials on record and then pass order in accordance with law. However, in the circumstance of the case, and since the bail granted by the learned lower court has been cancelled on the ground of jurisdiction, in order to enable the Magistrate to consider the material on records the petitioner may, atleast one week before, he intend to surrender in the lower court, intimate the court in writing at which the learned lower court should procure the case diary, so that there is no delay in deciding the prayer for bail. If such a prayer for grant of regular bail is made, the learned lower court shall dispose of that on merits, taking into consideration the observations made in this order.