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NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
Order Reserved on 27.01.2022
Order Delivered on 04.03.2022
CRMP No. 1731 of 2019
Daya Nayak (Banjara) S/o Amru Banjara Aged About 53 Years
Occupation Government Service (Sub Inspector Of Police At C R P F
Bilaspur), R/o Village Budhiya, Police Station And Tahsil Tamnar District
Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Station House Officer, Police Station
Tamnar, District Raigarh Chhattisgarh., District : Raigarh, Chhattisgarh
2. Sitaram Banjara S/o Amru Banjara Aged About 62 Years R/o Village
Budhiya, Police Station And Tahsil Tamnar District Raigarh
Chhattisgarh., District : Raigarh, Chhattisgarh
---- Respondent
For Petitioner : Shri Yogendra Chaturvedi, Advocate
For Respondent No.1 : Shri Vimlesh Bajpai, Govt. Advocate
For Respondent No.2. : Shri Ashutosh Mishra, Advocate
Proceedings through Video Conferencing
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
CAV Order
1. Challenge in this petition is to order dated 26.3.2019 passed by
Judicial Magistrate First Class, Gharghoda, District- Raigarh in
Criminal Case No.440 of 2017 whereby learned Magistrate
dismissed the application filed under Section 437 (5) of Cr.P.C.
2. Facts
relevant for disposal of this petition are that the petitioner filed a report to concerned police station of causing injury upon him and his wife by throwing hot boiling water upon them thereby they -2- suffered burn injury on their persons. Based on report, initially, FIR was registered for offence defined under Section 324 of IPC. After due investigation, police submitted charge sheet before the Court of competent jurisdiction for offence defined under Sections 452, 354, 326 on 25.9.2017. Respondent No.2 was granted bail by Judicial Magistrate First Class on 28.9.2017. Order of Judicial Magistrate First Class granting bail to respondent No.2 was challenged by the petitioner by way of filing Criminal Revision bearing No.653 of 2017 before Sessions Court at Raigarh. This revision petition came up for hearing on 26.12.2017 which was dismissed observing that the petitioner if alleges that order passed by Magistrate was without jurisdiction then application under Section 437 (5) of Cr.P.C. ought to have been filed first and if the application is dismissed then to file an application under Section 439 (2) of Cr.P.C. The order of Sessions Judge passed in revision was challenged by way of filing CRMP No.174 of 2018 which was disposed of by this Court observing that as Sessions Judge has granted liberty to move suitable application under Section 437 (5) of Cr.P.C., the petitioner may approach the Court below by way of filing application under Section 437 (5) of Cr.P.C.
3. Thereafter, petitioner moved an application under Section 437 (5) of Cr.P.C. which came to be dismissed vide impugned order dated 26.3.2019. Hence, this petition.
4. Learned counsel for petitioner would submit that offence charged against respondent No.2 is under Sections 452, 324, 326 of IPC and the offence under Section 326 of IPC is punishable for life -3- imprisonment. Judicial Magistrate First Class was not having jurisdiction to entertain and grant bail under Section 437 of Cr.P.C. to respondent No.2. The petitioner in his application under Section 437 (5) of IPC has raised the sole ground with respect to jurisdiction of Magistrate to grant bail to respondent No.2 when he was charged with an offence defined under Section 326 of IPC. He contended that as under the provision of Section 437 of Cr.P.C., there is bar of granting bail upon Magistrate in considering application and allowing the same, the Magistrate could have allowed the application filed under Section 437 (5) of Cr.P.C. It is also submitted that the Magistrate can, only for the exceptional reasons, as envisaged under first proviso to Section 437 (1) of Cr.P.C., exercise the powers and jurisdiction to grant bail when the offence charged is punishable with death or imprisonment for life. The reason assigned by the Magistrate in releasing respondent No.2 on bail is that applicant/respondent No.2 was aged 65 years. The ground on which Magistrate exercised its jurisdiction under Section 437 of Cr.P.C. is not the ground mentioned under the proviso to Section 437 (1) of Cr.P.C. for grant of bail. Hence, the order granting bail to respondent No.2 may be set aside.
5. Shri Vimlesh Bajpai, learned Govt. Advocate for the State would submit that Judicial Magistrate, exercising the discretion, has allowed application under Section 437 of Cr.P.C. The offence charged against petitioner is triable by Judicial Magistrate First Class, hence, the Magistrate acted in accordance with law.
6. Learned counsel for respondent No.2 would submit that when once -4- offence charged against respondent No.2 is triable by Judicial Magistrate First Class, then he is also having jurisdiction to entertain an application under Section 437 of Cr.P.C. and grant bail to persons charged for the offence punishable with death or with life imprisonment. There is no bar for entertaining and allowing application under Section 437 of Cr.P.C. even if the offence charged is punishable for life imprisonment, as in the case at hand. Respondent No.2 is charged with the offence defined under Section 326 of IPC along with other offences. He also submits that Magistrate has assigned reason of the age of respondent No.2/applicant to be 65 years, hence, it cannot be said that there is non application of mind on the part of Judicial Magistrate. He places reliance upon judgment passed in Ishan Vasant Deshmukh alias Prasad Vasant Kulkarni Vs. State of Maharashtra reported in 2010 SCC OnLine Bom 1593.
7. I have heard learned counsel for the parties.
8. The question raised in this petition is with regard to jurisdiction of Judicial Magistrate First Class in granting bail under Section 437 of Cr.P.C. to respondent No.2 where he was charged with the offence defined under Section 326 of IPC along with other offences. To appreciate submission of learned counsel for applicant, I find it appropriate to extract relevant provision under Section 437 of Cr.P.C, which read as under :-
"437. When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or -5- 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 Session, 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;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of [a cognizable offence punishable with imprisonment for three years or more but not less than seven years] Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also -6- direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason"
x x x
x x x
9. Under Section 437(1) (i) of Cr.P.C., rider has been made upon the jurisdiction of the Magistrate in granting bail to the person arrested for non-bailable offences. The bar under Section 437 (1) (i) of Cr.P.C. is not an absolute bar but discretion is granted to Magistrate to consider and grant bail in exceptional circumstances as envisaged in first proviso to Section 437 (1) of Cr.P.C. The exceptions are that the person is under the age of 16 years or is woman or is sick or infirm . Only under the above contingencies, the Magistrate can allow bail on the application of persons who is charged for offence punishable with death or imprisonment for life.
10.Section 437 (1) (i) of Cr.P.C. mentions that the Magistrate shall not release the person if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Reasonable ground for believing means that upon considering prima facie material placed before him and not to consider the evidence. Learned Magistrate while considering application under Section 437(5) of Cr.P.C. has only considered that from the document it is appearing that respondent No.2 is old aged person aged about 65 years and he has been granted bail looking to his old age. The Law Makers have considered the age as one of the ground under the proviso for considering an application of a child. Though age is considered for -7- one category of applicants but the Law Makers have not prescribed the age for considering the bail application of an applicant by Magistrate who has attained specific age of 16 years or above, but have used the words "woman or sick or infirm". The Magistrate could have exercised the jurisdiction envisaged under the first proviso to Section 437 (1) of Cr.P.C. Magistrate has not discussed in the order under Section 437 (5) of Cr.P.C. that respondent No.2 or applicant in application under Section 437 of Cr.P.C. is sick or infirm, nor at the time of considering application under Section 437 (5) of Cr.P.C, nor the said argument was advanced by respondent No.2 before Magistrate or before this Court. When the Law Makers have cautiously not find it appropriate to include any upper age also as one of the ground under the first proviso, then in the opinion of this Court, the Magistrate erred in granting bail considering the age only to be 65 years and further rejecting application under Section 437 (5) of Cr.P.C.
11. Though under Section 437 (1) (i), there is no bar in entertaining application by the Judicial Magistrate First Class for grant of bail under Section 437 of Cr.P.C. but under Section 437 (1) (i) of Cr.P.C., there is restriction in release if there appear reasonable grounds for believing that applicant is guilty of offence punishable with death or imprisonment for life.
12.In the impugned order, Magistrate considered the age of respondent No.2 at the relevant time of considering bail application, to be the reason for allowing his bail under Section 437 of Cr.P.C.
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13.Magistrate could not have considered any other specific reason for enlarging applicant therein on bail if that is not envisaged under the proviso by which the discretion for grant of bail has been clothe to the Magistrate if there appears to be reasonable grounds for believing a person to be guilty of an offence punishable with death or imprisonment for life.
14.The ruling relied upon by learned counsel for the respondent in the case of Ishan Vasant Deshmukh (supra), learned Judge of the High Court of Bombay considering the ruling of Hon'ble Supreme Court in case of Prahlad Singh Bhati Vs. NCT Delhi & Anr. reported in (2001) 4 SCC 280 has held that the Magistrate will have no jurisdiction to grant bail unless offence is also exclusively triable by the Court of Sessions. Provision under Section 437 of Cr.P.C. does not make any difference that the offence alleged to be triable by the Judicial Magistrate or by the Court of Sessions, but it only mentions the restriction upon the jurisdiction of Magistrate to enlarge the person on bail arrested for commission of non-bailable offence if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Under Section 437 of Cr.P.C. what has been made important is consideration of punishment prescribed for the non-bailable offence and not the offence to be triable by the Court of Judicial Magistrate or Sessions Court. In case of Prahlad Singh Bhati (supra), Hon'ble Supreme Court in paragraph-7 has held "Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the -9- offence in which the bail is sought."
15.From perusal of the ruling of Hon'ble Supreme Court, it appears that the observations made by Hon'ble Supreme Court is in the facts of that case where the offence alleged against person is also under Section 306 of IPC which is triable by the Court of Sessions. The provision under Section 437 of Cr.P.C. is very specific and is to be read as it is. The case of respondent falls under Section 437 (1) (1) of Cr.P.C. Under the proviso to Section 437 (1) of Cr.P.C., Magistrate has been given powers to exercise its discretion for grant of bail only if that person falls within the category prescribed therein. Learned Magistrate while passing the order has only considered the age of respondent No.2 to be 65 years which even otherwise from perusal of the cause title is not correct. There is no doubt that under the provision of Section 437 (1) of Cr.P.C. the Magistrate is having jurisdiction to entertain the application for grant of bail, but restrictions have been imposed for exercising the power for grant of bail to the person if there appears reasonable ground for believing that the person has been guilty of an offence punishable with death or imprisonment for life. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of jurisdiction.
16.In case at hand, the Magistrate erred in exercising the jurisdiction contrary to the provision under Section 437 (1) of Cr.P.C. specifically first proviso to Section 437 (1) of Cr.P.C.
17.For the foregoing reasons, in the opinion of this Court, Magistrate -10- committed error in granting bail only considering the age of respondent No.2 without there being any ground for grant of bail as envisaged under the first proviso to Section 437(1) of Cr.P.C. and further dismissing application filed under Section 437 (5) on the same ground.
18.Consequently, this petition is allowed. Impugned order dated 26.3.2019 rejecting application under Section 437 (5) of Cr.P.C. is set aside and further order dated 28.9.2017 granting bail to respondent No.2 is also set aside.
19.It is made clear that this Court has not considered the case on merits. Respondent No.2 is on bail by virtue of order passed by the Magistrate since 28.09.217. In view of the above fact, it is directed that respondent No.2 shall not be arrested for a period of 10 days from today. Respondent No.2 may file an application for grant of bail under Section 439 of Cr.P.C. before the Court of Sessions keeping himself present and the Court of Sessions shall consider the bail application deeming presence of respondent No.2 before the Court to be in judicial custody and thereafter the liberty of respondent No.2 will be governed by the order passed by learned Sessions Court on an application to be filed under Section 439 of Cr.P.C. by respondent No.2.
Sd/-
(Parth Prateem Sahu) Judge Praveen