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CASE NO.: Appeal (crl.) 324  of  2001

PETITIONER: PRAHLAD SINGH BHATI

       Vs.

RESPONDENT: N.C.T., DELHI & ANR.

DATE OF JUDGMENT:       23/03/2001

BENCH: K.T. Thomas & R.P. Sethi.

JUDGMENT:

SETHI,J.

       Leave granted. L...I...T.......T.......T.......T.......T.......T.......T..J

   Respondent  NO.2,  who is alleged to have  murdered  his wife  and  against whom FIR No.566/92 was registered in  the Police  Station Lajpat Nagar under Section 302 of the Indian Penal  Code,  was  released  on  bail  by  the  Metropolitan Magistrate,  New  Delhi on 22nd August, 2000.  The  revision filed  against  the aforesaid order has been dismissed by  a learned  Single  Judge  of  the  High  Court  by  passing  a telegraphic  order to the effect "having considered the case before  me  I am of the opinion no ground has been made  for cancellation  of bail".  Not satisfied with the order of the Magistrate  and  that of the High Court, the father  of  the deceased has approached this Court in this appeal by special leave.

   The  deceased  and the respondent No.2 were  married  on 24.11.1984.   She  is  alleged  to have  been  subjected  to ill-treatment  on account of demand for dowry.  Huge amounts are stated to have been paid by the appellant to the accused on  various occasions.  On 18.3.1999 the respondent No.2  is alleged  to have brought the deceased to her parental  house on  Scooter No.DL 9SC-0680 where he poured kerosene oil  and burnt  her alive in the presence of her parents.  As no case was registered against the accused, the appellant approached higher  authorities  including the Prime Minister of  India, Home  Minister  of India and Commissioner of Police,  Delhi, with  the  result that Deputy Commissioner of Police  (South District)  directed the registration of case under  Sections 306  and  498A  IPC.   After registration  of  the  case  on 3.6.1999,  the investigating officer recorded the statements of  witnesses  under  Section 161 of the  Code  of  Criminal Procedure.   The accused-respondent moved an application for grant  of  anticipatory bail in terms of Section 438 of  the Code  of Criminal Procedure (hereinafter referred to as "the Code").   As the bail application was not seriously  opposed by  the Investigating Agency, the Additional Sessions Judge, New  Delhi granted interim bail on 16.6.1999.   Applications

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for  cancellation  of the anticipatory bail were  dismissed. However,  while dismissing such an application on 13.9.1999, the  Additional  Sessions Judge observed that if on facts  a case  under Section 302 is made out against the accused, the State  shall  be  at liberty to arrest him.  On  1.7.2000  a charge-  sheet was filed against the accused under  Sections 302, 406 and 498A IPC by the investigating agency and he was directed  to appear before the Metropolitan Magistrate,  New Delhi  on  8.8.2000.  As he did not appear on that  date  in that  court,  non bailable warrants were issued against  him for  22nd  August,  2000.  In the meanwhile  the  respondent filed a criminal miscellaneous application under Section 482 of  the  Code  in  the High  Court  without  impleading  the appellant  as a party.  The High Court kept the order of the Magistrate  dated  8.8.2000  in abeyance till  22nd  August, 2000.   In his petition filed in the High Court, the accused suppressed  the  fact that a charge-sheet under Section  302 has  been  filed against him.  Notice to the  appellant  was issued  on  17th  August,  2000  but  in  the  meantime  the respondent  moved  an application under Section 438  of  the Code  for  anticipatory bail before the Additional  Sessions Judge, Delhi for which no order was passed and direction was issued  to the accused to first appear before the Magistrate on  22nd  August, 2000 and pray for bail in accordance  with law.   When  he  appeared  before  the  Magistrate,  he  was admitted  on bail even in a case under Section 302 IPC.  The revision  petition filed in the High Court was dismissed  in the manner as noticed hereinbefore.

   From  the  facts, as narrated in the appeal, it  appears that  even for an offence punishable under Section 302  IPC, the respondent-accused was never arrested and he manipulated the  prevention of his arrest firstly by obtaining an  order in  terms  of  Section 438 of the Code  and  subsequently  a regular   bail  under  Section  437  of  the  Code  from   a Magistrate.

   Chapter XXXIII relates to the provisions as to bails and bonds.  Section 436 provides that when any person accused of a  bailable offence is arrested or detained without  warrant by  an officer incharge of the police station, or appears or is  brought before a court and is prepared at any time while in  the  custody  of  such officer or at any  stage  of  the proceedings  before  such  court to give bail,  such  person shall  be  released on bail.  Under Section 437 of the  Code when a 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, he may be released on bail  by  a  court other than the High  Court  and  Sessions subject to the conditions that he does not reasonably appear to  have been guilty of an offence punishable with death  or imprisonment  for life.  The condition of not releasing  the person on bail charged with an offence punishable with death or  imprisonment  for life shall not be applicable  if  such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.  It does  not, however, mean that persons specified in the first proviso to sub-section (1) of Section 437 should necessarily be  released on bail.  The proviso is an enabling  provision which confers jurisdiction upon a court, other than the High Court and the court of Sessions, to release a person on bail despite  the  fact that there appears reasonable ground  for believing  that  such person has been guilty of  an  offence punishable with death or imprisonment for life.  There is no

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gainsaying  that the discretion conferred by the Code has to be  exercised judicially.  Section 438 of the Code  empowers the   High  Court  and  the   Court  of  Sessions  to  grant anticipatory  bail  to a person who apprehends  his  arrest, subject  to  the conditions specified under sub-section  (2) thereof.

   Even  though  there is no legal bar for a Magistrate  to consider an application for grant of bail to a person who is arrested  for  an offence exclusively triable by a court  of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of  bail.  Even in a case where any Magistrate opts to  make an  adventure of exercising the powers under Section 437  of the  Code  in respect of a person who is, suspected  of  the commission of such an offence, arrested and detained in that connection,  such  Magistrate has to specifically  negtivate the  existence of reasonable ground for believing that  such accused is guilty of an offence punishable with the sentence of  death  or imprisonment for life.  In a case,  where  the Magistrate  has no occasion and in fact does not find,  that there were no reasonable grounds to believe that the accused had  not  committed  the offence punishable  with  death  or imprisonment  for  life, he shall be deemed to be having  no jurisdiction to enlarge the accused on bail.

   Powers  of  the  Magistrate,   while  dealing  with  the applications  for  grant  of  bail,  are  regulated  by  the punishment  prescribed for the offence in which the bail  is sought.   Generally speaking if punishment prescribed is for imprisonment  for life and death penalty and the offence  is exclusively triable by the Court of Sessions, Magistrate has no  jurisdiction to grant bail unless the matter is  covered by  the  provisos attached to Section 437 of the Code.   The limitations   circumscribing   the   jurisdiction   of   the Magistrate   are  evident  and   apparent.   Assumption   of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.

   The  jurisdiction  to grant bail has to be exercised  on the  basis  of well settled principles having regard to  the circumstances  of each case and not in an arbitrary  manner. While  granting the bail, the court has to keep in mind  the nature  of  accusations, the nature of evidence  in  support thereof,  the  severity of the punishment  which  conviction will entail, the character, behaviour, means and standing of the  accused,  circumstances  which   are  peculiar  to  the accused,  reasonable possibility of securing the presence of the  accused  at the trial, reasonable apprehension  of  the witnesses  being tampered with, the larger interests of  the public  or  State and similar other considerations.  It  has also  to  be kept in mind that for the purposes of  granting the  bail  the  Legislature has used the  words  "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as  to  whether there is a genuine case against the  accused and that the prosecution will be able to produce prima facie evidence  in support of the charge.  It is not excepted , at this  stage, to have the evidence establishing the guilt  of the accused beyond reasonable doubt.

   In  the instant case while exercising the  jurisdiction, apparently  under Section 437 of the Code, the  Metropolitan Magistrate  appears  to  have completely ignored  the  basic

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principles  governing  the  grant of bail.   The  Magistrate referred  to  certain facts and the provisions of law  which were  not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with  an  offence punishable with death or imprisonment  for life.   The  mere  initial grant of  anticipatory  bail  for lesser offence, did not entitle the respondent to insist for regular  bail  even  if  he was  subsequently  found  to  be involved  in the case of murder.  Neither Section 437(5) nor Section  439(1)  of  the Code was attracted.  There  was  no question  of  cancellation  of bail earlier granted  to  the accused  for an offence punishable under Sections 498A,  306 and  406  IPC.  The Magistrate committed a  irregularity  by holding that "I do not agree with the submission made by the Ld.Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is  altered or enhanced at any stage, which is certainly not the  spirit  of law".  With the change of the nature of  the offence,  the  accused  becomes disentitled to  the  liberty granted  to  him  in  relation to a minor  offence,  if  the offence  is  altered  for an aggravated crime.   Instead  of referring  to  the  grounds which entitled  the  respondent- accused  the  grant of bail, the Magistrate adopted a  wrong approach  to confer him the benefit of liberty on  allegedly finding  that  no grounds were made out for cancellation  of bail.

   Despite  the involvement of important questions of  law, the  High  Court failed in its obligation to adjudicate  the pleas  of law raised before it and dismissed the petition of the  appellant  by a one sentence order.  The orders of  the Magistrate  as also of the High Court being contrary to  law are liable to be set aside.

   While  allowing this appeal and setting aside the orders impugned  we  permit  the respondent-accused  to  apply  for regular bail in the trial court.  If any such application is filed,  the same shall be disposed of on its merits  keeping in  view  the  position  of law and  the  observations  made hereinabove.   We  would reiterate that in cases  where  the offence  is  punishable with death or imprisonment for  life which  is  triable exclusively by a court of  Sessions,  the Magistrate  may,  in  his wisdom, refrain  to  exercise  the powers  of  granting  the  bail and  refer  the  accused  to approach the higher courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has  been  guilty  of an offence punishable  with  death  or imprisonment for life.