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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.