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
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
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
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.
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
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
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
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.
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