JUDGMENT By the Court.—Heard learned counsel for the petitioner and the learned AGA. 2. This petition has been filed to quash the FIR lodged at 10 p.m. on 10.3.2009 by S.I. Mool Krishna Gautam, under Section 307, IPC at Case Crime No. 64 of 2009, P.S. Chandaus and to stay the petitioner’s arrest meanwhile. 3. The allegations in the FIR were that at about 8.20 p.m. on 10.3.2009 the police team headed by the informant accosted three miscreants at the Pisawa bus stand, in Aligarh who were suspected to be carrying illicit fire arms. The usual story of firing being resorted on the police, but the police personnel escaping injury was narrated. One miscreant Narendra who was alleged to have been arrested with a country made pistol and a live cartridge is said to have disclosed the name of the petitioner and one other person as his companions who had fled from the spot. It was also mentioned in paragraph 13 of the writ petition that the petitioner does not have any criminal antecedents. 4. On a plain reading of the FIR it cannot be said that prima facie no cognizable offence is disclosed or that there are any legal fetters on the conduct of the investigation, hence no ground exists for quashing the FIR. 5. As on the facts of the present case, the final relief of quashing of the FIR cannot be granted, the ancillary relief of stay of arrest during investigation can also not be granted (vide the Constitution Bench decisions in State of Orissa v. Madan Gopal Rungta, AIR 1952 SC 12 (para 6) and “Under Article 143 of the Constitution of India; In the matter of,” AIR 1965 SC 745 (para 137). 6. However in the recent decision of the Supreme Court reported in 2009 (3) ADJ 322 (SC), Lal Kamlendra Pratap Singh v. State of U.P., which has been directed to be circulated in the High Court and in subordinate Courts in U.P. it has been observed that in appropriate cases the Courts concerned may consider releasing an accused on interim bail, pending consideration of his regular bail, and that arrest was not a must in each case when an FIR of a cognizable offence was lodged. 7. 7. The Full Bench of the Allahabad High Court in Amarawati v. State of U.P., 2005 Cri LJ 755, has been specifically approved in Lal Kamlendra Pratap Singh’s case. In this regard the Full Bench has held in Amarawati : 1. Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must, rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P., 1994 Cr LJ 1981, before deciding whether to make an arrest or not. 2. The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under Section 437, Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under Section 439, Cr.P.C. it is in the discretion of the learned Sessions Judge considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later. 8. In the light of the aforesaid observations of the Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. and the observations of the Full Bench of this Court in Amarawati it is provided that if a surrender application is moved before the competent Magistrate within 3 weeks, a date may be fixed for appearance of the petitioner in about a week thereafter. It is expected that after the petitioner applies for bail before the Magistrate concerned, the police officer concerned will refrain from taking him in custody without orders of the Magistrate. In the meantime the concerned Court may direct the Public Prosecutor to obtain instructions from the investigating officer and thereafter dispose of the bail application at the earliest in accordance with the decision in Amarawati’s case. In the meantime the concerned Court may direct the Public Prosecutor to obtain instructions from the investigating officer and thereafter dispose of the bail application at the earliest in accordance with the decision in Amarawati’s case. It will also be open for the Court concerned to release the petitioner on interim bail on such terms and conditions that the concerned Court deems fit and proper till the next date of hearing of the bail application, if the hearing of the case is adjourned or the Court for any reason is not in a position to finally dispose of the bail application on that day, or some further instructions are needed. 9. However we are disturbed to learn that in many cases, where orders containing similar directions as above have been passed, or where the attention of the Courts below are drawn to the directions for expeditious consideration of the prayer for bail and for release on interim bail in appropriate cases during the pendency of the bail application by both the Courts below in the light of the directions in the Full Bench decision in Amarawati, which was recently approved by the Supreme Court in Lal Kamlendra Pratap Singh (supra), and which was again reaffirmed in another Division Bench decision of this Court in Pradeep Tyagi v. State, 2009 (3) ADJ 697 , the orders wherein were to be circulated in the subordinate Courts, some Magistrates instead of complying with the said orders in letter and spirit, have sought to circumvent the directions by straightaway rejecting the applications for bail by mechanically describing the case to be of a grave nature or a Sessions triable matter. 10. In this context it is made clear as laid down in a Division Bench decision of this Court in Vijay Kumar and others v. State of U.P. and others, 1989(26) ACC 480, and the apex Court in Prahlad Singh Bhati v. N.C.T. Delhi, AIR 2001 SC 1444 , and Gurcharan Singh (Delhi Administration) v. State, AIR 1978 SC 179 , that the inhibition on the powers of the Magistrate to grant bail in view of Section 437, Cr.P.C applies to those Sessions triable cases which are punishable with imprisonment for life or with death. Thus the Magistrate is not incompetent to grant bails in appropriate Sessions Triable cases which are not punishable with imprisonment for life or death. 11. Thus the Magistrate is not incompetent to grant bails in appropriate Sessions Triable cases which are not punishable with imprisonment for life or death. 11. In similar circumstances as the present case, where a fire arm was alleged to have been used, but no fire arm injury was caused, in a single Judge decision given by one of us (Amar Saran, J) in Ram Bharoshi v. State of U.P and another, 2004(49) ACC 822, it was observed that a perusal of Section 307, IPC shows that when an act is committed with the intention or knowledge that it may cause death but no hurt is caused, the offence is punishable with imprisonment upto ten years and fine. Only when an injury is caused is the offence punishable with imprisonment up to life. The inhibition on the powers of the Magistrate to grant bail in view of Section 437, Cr.P.C. applies only to the latter class of cases. Paragraphs 10, 11, 12 and 15 of Ram Bharoshi’s decision may be usefully extracted here : “10. Furthermore, under Section 437, Cr.P.C. a complete bar has been imposed on any Court, other than the High Court or the Court of Sessions, i.e. the Magistrate to grant bails only in cases where reasonable grounds appear that the accused is guilty of an offence punishable with death or imprisonment for life. There is no such prohibition on the Magistrates to consider and grant bails in cases which are punishable by sentences lesser than death or imprisonment for life. In fact neither Section 437, Cr.P.C. nor any other provision in the Code of Criminal Procedure makes any distinction between a Sessions triable case and a case triable by a Magistrate. The distinction only relates to cases which are punishable with death or imprisonment for life, and offences which are punishable with a lesser sentence. 11. In this connection Section 437(1)(i) may be perused : “437. The distinction only relates to cases which are punishable with death or imprisonment for life, and offences which are punishable with a lesser sentence. 11. In this connection Section 437(1)(i) may be perused : “437. When bail may be taken in case of non-bailable offence.—(1) 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 a police station or appears or is brought before a Court other than the High Court or Court of Sessions, 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;” 12. Now the present case of injury less 307, IPC being one which is only punishable with imprisonment up to a period of ten years, I do not think there is any legal bar on the Magistrate to consider and grant bail, if he is satisfied that a case for bail is made out on merits. The Magistrate is of course expected to exercise this jurisdiction on well settled principles, and to consider the seriousness of allegations, whether they are corroborated in material particulars by some independent evidence or circumstances, and to take into account other attendant features such as criminal history of an accused, the likelihood of the accused co-operating with the investigation and trial and not absconding or tampering with the witnesses. 15.The result of this unhealthy practice is that a person against whom an FIR is lodged relating to any Sessions triable offence, which on a plain reading appears to be a case of false or malicious prosecution, uncorroborated by any independent material, the accused is left at the mercy of the police, in whose favour the Magistrate has virtually abdicated his jurisdiction. An accused may have to remain in jail for some time before his bail application is heard and granted by the Sessions Court, after the Magistrate’s routine rejection of his prayer for bail even in those minor Sessions triable offences where there may be no need for taking an accused in custody for the purpose of investigation, or where palpably he appears to have been implicated falsely, and there are no other attendant circumstances disentitling the accused of an order of bail. A stint in jail can be a source of great humiliation for a maliciously prosecuted accused who enjoys some social status.” 12. It was also pointed out in paragraphs 16 and 17 of the aforesaid law report in Ram Bharoshi that Sessions Courts which could have given their undivided attention to other important matters have unnecessarily to waste their time on such bail applications, because of the Magistrates’ refusal to consider bail applications in all Sessions triable cases, irrespective of the length of the punishment prescribed. Also there was no reason to doubt the efficiency or integrity of the Magistrates, who have been selected after a careful selection procedure to consider and grant bails in such matters in accordance with settled legal precedents. In case an order granting bail in a particular case is wrong it can always be corrected by the Sessions Court or the High Court in exercise of its judicial powers. 13. In view of a catena of decisions of the apex Court vide Matter of ‘K’ a Judicial Officer, AIR 2001 SC 972 ; Manish Dixit v. State of Rajasthan, AIR 2001 SC 93 ; R.C. Tamrakar v. Nidihi Lekha, AIR 2001 SC 3806 ; State of U.P. v. Mohammad Naim, AIR 1964 SC 703 ; Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1 et al we think that the Magistrates should have no undue apprehension when they fearlessly exercise their independent judicial minds and grant bails in appropriate Sessions triable cases and not fear censure even when they commit bona fide mistakes. In this context we should not forget the stirring words of Lahoti, J. in paragraphs 6 and 7 in Matter of ‘K’ a Judicial Officer, AIR 2001 SC 972 , which have been reiterated in Samya Sett v. Shambhu Sarkar, AIR 2005 SC 3309 and other decisions : “6. Several cases are coming to our notice wherein observations are being made against the members of subordinate judiciary in the orders of superior forums made on judicial side and judicial officers who made orders as presiding Judges of the subordinate Courts are being driven to the necessity of filing appeals to this Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes strictures passed against them behind their back. We would, therefore, like to deal with a few aspects touching the making of observations or adverse comments against judicial officers and methodology to be followed if it becomes necessary. 7. A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four-corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior Court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of a Judge.” 14. It is also time to recall the observations of the Supreme Court in the 1978 decision in Gurcharan Singh (Delhi Administration) v. State, AIR 1978 SC 179 , that in non-bailable offences other than grave offences punishable with imprisonment for life, save in exceptional circumstances the Magistrate can exercise his judicial discretion for granting bail. Paragraph 22 of Gurcharan reads as follows : “22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-sec. (3) of Sec. 437, Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437 (1), Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.” 15. Based on a long line of judicial precedents of the apex and this Court, some of the exceptional circumstances where the Courts below would be justified in refusing interim or regular bails could be : (i) Where the Magistrate concerned is not empowered to grant regular bail as there are reasonable grounds for believing his complicity in offences punishable with death or imprisonment for life or under the other circumstances enumerated in Section 437, Cr.P.C. (ii) There is prima facie material to suggest the involvement of the accused in a grave offence like murder, dowry death, dacoity, robbery, rape, kidnapping for ransom, rape etc., unless it appears to the Sessions Court at the stage of initial appearance itself that the accused appears to have been been falsely implicated for some mala fide reasons. (iii) The case involves an offence under the U.P. Gangsters Act and in similar statutory provisions, where there are restrictions on the Court’s power to grant bail. (iv) The accused is likely to abscond and evade the processes of law or where it is necessary to arrest the accused and bring his movements under restraint to infuse confidence among the terror stricken victims and society at large and for protecting witnesses. (v) The accused is given to violent behaviour, or is a habitual offender and is likely to commit further offences unless his movements are brought under restraint. (vi) There is prima facie material showing the involvement of the accused in offences which are in the nature of a scam, or in grave crimes against society or the nation such as dealing in counterfeit currency, or in narcotic, psychotropic drugs or spurious medicines etc. (vii) If the Public Prosecutor/investigating officer can satisfy the Magistrate/ Court concerned that there is a bona fide need for custodial interrogation of the accused regarding various facets of the motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime, or for obtaining information leading to discovery of material facts, it may constitute a valid ground for not granting interim bail, and the Court in such circumstances may pass orders for custodial interrogation, or any other appropriate order. (viii) If there is an apprehension that there may be interference with the investigation or for any other reason the competent Magistrate/Sessions Court feels that it is not a fit case for releasing the appellant on interim bail pending the hearing of the regular bail. The clarification of these exceptions are necessary as the need to grant plenary powers to the police to investigate and unravel the circumstances of a crime are as important as the need to protect a respectable person from being unnecessarily sent to jail or for restraining the police from taking persons in custody for minor isolated non-habitual offences where it may strictly not be necessary for the police to arrest an accused at the stage of investigation. 16. We accordingly direct the Magistrate concerned not to mechanically refuse bail by describing a matter as grave without giving a reasoned order on merit, or by simply declaring a case to be a Sessions triable matter where arrests may strictly not be necessary in the light of the observations in Joginder Kumar and Amarawati and hereinabove, or the nature of evidence against the accused is very weak and unreliable or there are no other attendant circumstances disentitling the accused from bail. This will protect respectable persons from being unnecessarily harrassed. 17. In a minor case covered under Section 437, Cr.P.C. which is not punishable with imprisonment for life or death, and the exceptional circumstances mentioned above are absent, if the Magistrate has mechanically refused to allow bail without any good grounds or simply on the ground that it is a Sessions triable case, it would be open to the Sessions Court to consider the prayer for bail expeditiously even on the same day if it is possible, or even to release the accused on interim bail as observed in the decisions in Amarawati and in Lal Kamlendra Pratap Singh. These directions should be read as additional to the earlier directions in this regard in Pradeep Tyagi’s case (supra) where inter alia it was held that in all cases where the Magistrates are not incompetent to grant bail in view of Section 437, Cr.P.C. if surrender applications are made, then the matter be postponed for about a week to enable the Court to seek instructions from the investigating officer through the public prosecutor. It was also clarified that once the bail application was pending consideration by the Magistrate the investigating officer should normally refrain from arresting an accused without permission of the Magistrate. In case on the date fixed, the Court for any reason is unable to finally dispose of the bail application, it could even consider releasing the applicant on interim bail, if the case does not fall among the exceptional matters where grant of interim bail is discouraged. 18. The advantage of such a procedure would lie in saving the accused from the harrassment of having to approach the High Court in its writ jurisdiction in a large number of cases seeking stays of arrest, even in minor matters, where they are being falsely implicated for extraneous considerations, or where arrests may strictly not be necessary in the light of the observations in Joginder Kumar and Amarawati, or the nature of evidence against the accused is very weak and unreliable or there are no other attendant circumstances disentitling the accused from bail. This will protect respectable persons from being unnecessarily harrassed. It would stem the flow of criminal writ petitions, whose large numbers have greatly reduced the disposal of division bench criminal appeals, including murder appeals by the High Court. Consideration of bails after giving time to the prosecution at the district level, gives an opportunity to the prosecution to raise its objections, which is preferable to ex parte orders staying arrests as are generally passed in writ petitions by this Court. 19. With these observations the petition is disposed of. The Registrar General is directed to circulate this judgment to all the Sessions Judges for guidance of the concerned Judicial officers, as a sequel to the earlier decision in Pradeep Tyagi’s case (supra) decided on 30.3.2009. ————