Mr. Ishan Vasant Deshmukh vs The State Of Maharashtra
2010 Latest Caselaw 45 Bom

                                     1
    Anand


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                  
                     CRIMINAL APPELLATE JURISDICTION




                                          
                    CRIMINAL APPLICATION NO.4258 OF 2010
                                     WITH
                     CRIMINAL APPLICATION NO.511 OF 2010

            Mr. Ishan Vasant Deshmukh              ..Applicant




                                         
            alias Prasad Vasant Kulkarni
            Age : 38 years, Occu : Service
            Residing at C-404, Pinnac
            Sadhiccha, Rambag colony,




                                  
            Paud road,
            Pune   400 038.
                        
                      Versus
                       
            The State of Maharashtra               ..Respondent
            (At the instance of Inspector
            of Police, Swargate Police
            Station, Pune)
              


            Mr.A.P.Mundargi,      Senior      Counsel     with
           



            Mr.N.Mundargi, for the Applicant
            Mr.Nitin Pradhan with Mr.Subodh Desai, Mr.Manoj
            Mohite   and  Mrs.Vijayalaxmi   Kulkarni  i/b.Nanu
            Hormasjee & Co., Advocate, for the original





            Complainant/Intervener
            Mrs.P.P.Bhosale, APP, for the Respondent   State

            CORAM                     :     R.C.CHAVAN, J.





            JUDGMENT RESERVED ON      :     8TH OCTOBER, 2010

            JUDGMENT PRONOUNCED ON    :     18TH OCTOBER, 2010




                                          ::: Downloaded on - 09/06/2013 16:32:57 :::
                                           2

     JUDGMENT

. Criminal Application No.4258 of 2010 is

for bail by an accused in C.R.No.I-357 of 2009 for

the offence punishable under Sections 417, 420,

465, 468, 471 and read with Section 34 of the

Indian Penal Code, 1860 at Swargate Police

Station, Pune registered upon complaint of

M/s.ICICI Prudential ig Life Insurance Company

Limited. Criminal Application No.511 of 2010 is

for intervention by the first informant Company.

2. Applicant was licensed agent of the

M/s.ICICI Prudential Life Insurance Company

Limited. In 2008, applicant had introduced three

clients from Doddanavar family for policies in

respect of which annual premia were Rs.

1,50,00,000/-, Rs.10,00,000,00/- and Rs.

50,00,000/-. The applicant had received a hefty

commission of Rs.80,85,000/- and gift of Rs.

2,69,99,695/- from complainant for introducing

these policies. He transferred Rs.3,00,00,000/-

to the account of his wife. Complainant received

a request to cancel policies of client Pravin

Doddanavar and for refund of premium of Rs.

10,00,00,000/- on 25th October, 2008. On 6th

November, 2008, applications from Doddanavars were

received for conversion of their policies from one

plan to another. On 14th December, 2008, clients

complained that they had not requested for any

such new policies and that instead of refunding

Rs.12,00,00,000/-, in order to earn his

commission, applicant had invested the amount in

policies. The complainant Company refunded the

entire amount to clients and then filed a report

on which an offence was registered.

3. Applicant applied for and was granted

anticipatory bail by the Additional Sessions

Judge, Pune by his order dated 30th July, 2009.

The State sought cancellation of this order by

filing Criminal Application No.4356 of 2009. This

application was disposed of by an elaborate 22

page order dated 28th June, 2010, whereby the order

passed by the Additional Sessions Judge was

modified, limiting anticipatory bail till filing

of charge sheet and permitting applicant to

apply for regular bail before the concerned Court

which is seized of the matter .

4. Charge ig sheet was filed on 24th August,

2010 before Judicial Magistrate First Class, Pune.

The applicant applied to the Court of Sessions at

Pune for regular bail upon filing of charge sheet.

He also mentioned that he had a heart ailment

which required him to be bailed out. The learned

Additional Sessions Judge rejected this

application on 13th September, 2010. The applicant

was however not taken in custody. The applicant

has, therefore, filed the present Criminal

Application No.4258 of 2010 for bail under Section

439 of the Code of Criminal Procedure, 1978.

5. On behalf of intervenor, two objections

have been raised to the tenability of this

application. The first is that unless the

applicant is in custody, he cannot apply for bail

either under Section 437 or 439 of the Indian

Penal Code. The second objection is that this

Court, while disposing of the Criminal Application

No.4356 of 2009 by order dated 28th June, 2009, had

specifically directed that the present applicant

shall apply for regular bail before the concerned

Court which is seized of the matter, and that the

concerned Court shall deal with such application

for regular bail according to law. It was,

therefore, submitted that the applicant ought to

have approached the concerned Court which is

seized of the matter. Consequently, an

application should have been made before the Trial

Magistrate and not before the Court of Sessions or

even before this Court.

6. First, I would deal with the objection to

the tenability of applicant on the ground that the

applicant is not in custody and therefore, this

application should not be entertained. The

learned Counsel for intervenor relied on Judgments

of the Supreme Court in SUNITA DEVI Versus STATE

OF BIHAR AND ANOTHER, reported at (2005) 1 Supreme

Court Cases 608, D. K. GANESH BABU Versus

P.T.MANOKARAN igAND OTHERS, reported at (2007) 4

Supreme Court Cases 434 and VAMAN NARAIN GHIYA

Versus STATE OF RAJASTHAN, reported at (2009) 2

Supreme Court Cases 281. It was submitted that

the Supreme Court has categorically ruled in these

cases that an application for bail would not lie

unless the applicant concerned is in custody. In

SUNITA DEVI's case, the Supreme Court referred to

provisions of Sections 438 and 439 of the Code of

Criminal Procedure, 1978 and also referred to the

Judgment of the Supreme Court in NIRANJAN SINGH

AND ANOTHER Versus PRABHAKAR RAJARAM KHAROTE AND

OTHERS, reported at (1980) 2 Supreme Court Cases

559 and held in para 13 to 15 as under :-

13. In view of the clear language

of Section 439 and in view of the decision of this Court in Niranjan Singh v. Prabhakar Rajaram Kharote there cannot be any doubt that

unless a person is in custody, an application for bail under Section 439 of the Code would not be maintainable. The question when a

person can be said to be in custody within the meaning of Section 439 of the Code came up

for consideration before this Court in the aforesaid decision.

14. The crucial question is when is a person in custody, within the meaning of Section 439 of the Code ? When he is in duress either

because he is held by the investigating agency or other

police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself

to the court's jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the

realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section

439. The word is of elastic semantics but its core meaning is

that the law has taken control of the person. The equivocatory quibblings and hide-and-seek

niceties sometimes heard in court that the police have taken a man

into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other

like terminological dubieties are unfair evasions of the straightforwardness of the law.

15. Since the expression custody though used in various provisions

of the Code, including Section 439, has not been defined in the

Code, it has to be understood in the setting in which it is used and the provisions contained in

Section 437 which relate to jurisdiction of the Magistrate to release an accused on bail under certain circumstances which can be

characterised as in custody in a generic sense. The expression

custody as used in Section 439, must be taken to be a compendious expression referring to the events on the happening of which the

Magistrate can entertain a bail petition of an accused. Section 437 envisages, inter alia, that the Magistrate may release an accused on bail, if such accused

appears before the Magistrate. There cannot be any doubt that such appearance before the Magistrate must be physical appearance and the consequential surrender to the jurisdiction of the court of the Magistrate.

7. In para 18 of the Judgment, the Court

also referred to the question as to which Court

ought to be moved. It was observed that an

application under Section 439 of the Code of

Criminal Procedure, 1978 must be made in a manner

in accordance with law and the accused seeking

remedy under Section 439 must ensure that it would

be lawful for the Court to deal with this

application.

ig Thereafter, in para 20 to 23 of the

order the Court held as under :-

20. For making an application under Section 439 the fundamental requirement is that the accused

should be in custody. As observed in Salauddin case the protection

in terms of Section 438 is for a limited duration during which the regular court has to be moved for bail. Obviously, such bail is

bail in terms of Section 439 of the Code, mandating the applicant to be in custody. Otherwise, the distinction between orders under Sections 438 and 439 shall be

rendered meaningless and redundant.

21. If the protective umbrella of Section 438 is extended beyond what was laid down in Salauddin case the result would be clear by

passing of what is mandated in Section 439 regarding custody. In other words, till the applicant

avails remedies up to higher courts, the requirements of

Section 439 become dead letter. No part of a statute can be rendered redundant in that manner.

22. These aspects were recently highlighted in Nirmal Jeet Kaur v. State of M.P. Therefore the order of the High Court granting

unconditional protection is clearly ig untenable and is set aside. However, the petitioner is granted a month's time from today to apply for regular bail after

surrendering to custody before the court concerned which shall deal with the application in accordance with law. We express no opinion

about the merits of the case.

23. Respondent 2 would surrender to custody as required in law so that his application under Section 439 of the Code can be taken for

disposal.

8. In D. K. GANESH BABU Versus P.T.MANOKARAN

AND OTHERS, the Supreme Court again re-iterated

the distinction between anticipatory bail and

regular bail. It also quoted from Judgment in

Salauddin Abdul Samad Shaikh Vs. State of

Maharashtra, reported at 1996(1)S.C.C.667 and K.

L. Verma v. State, reported at (1998) 9 SCC 348.

The observations in K. L. Verma's case to the

following effect seem to have been highlighted by

the Supreme Court.

In other words, till the bail application is disposed of one way or the other the court may allow

the accused to remain on anticipatory bail. To put it differently, anticipatory bail may

be granted for a duration which may extend to the date on which the bail application is disposed

of or even a few days thereafter to enable the accused persons to move the higher court, if they so desire.

9. In para 13 the Court re-iterated that in

view of the clear language of the Section 439 and

decision in NIRANJAN SINGH's case unless a person

is in custody, an application under Section 439

would not be maintainable.

10. In VAMAN NARAIN GHIYA Versus STATE OF

RAJASTHAN, reported at (2009) 2 Supreme Court

Cases 281. In para 11 of the Judgment the Court

quoted extensively from previous Judgment in K. L.

Verma's case. In para 13 the Court observed that

in view of language of Section 439 and the

Judgment in NIRANJAN SINGH's case there could be

no doubt unless a person is in custody, an

application under Section 439 would not be

maintainable.

11. In PARVINDERJIT SINGH AND ANOTHER Versus

STATE (UNION TERRITORY CHANDIGARH) AND ANOTHER,

reported at (2008) 13 Supreme Court Cases 431 the

Supreme Court re-iterated that there could be no

doubt unless a person is in custody, an

application under Section 439 would not be

maintainable.

12. The learned Counsel for the applicant

submitted that there could be no doubt that a

person cannot apply for bail unless he had been

arrested or was in custody. However, the learned

Counsel submitted that this does not imply that

person must actually be arrested and should be in

custody before he could apply for bail. He

submitted that a person surrendering before the

Court and seeking bail has been held to be a

person in custody. He relied on Judgment of the

Supreme Court in NIRANJAN SINGH AND ANOTHER Versus

PRABHAKAR RAJARAM KHAROTE AND OTHERS, reported at

(1980) 2 Supreme Court Cases 559 which has been

referred to in all the Judgments on which the

learned Counsel for the intervener informant and

the learned APP for the State place reliance. The

observations of the Supreme Court in para 6 to 9

of the Judgment may be usefully reproduced as

under :-

6. Here the respondents were accused of offences but were not

in custody, argues the petitioner so no bail, since this basic condition of being in jail is not fulfilled. This submission has been rightly rejected by the courts below. We agree that, in one view, an outlaw cannot ask for

the benefit of law and he who flees justice cannot claim justice. But here the position is

different. The accused were not absconding but had appeared and

surrendered before the Sessions Judge. Judicial jurisdiction arises only when persons are already in custody and seek the

process of the court to be enlarged. We agree that no person accused of an offence can move the court for bail under Section 439 CrPC unless he is in custody.

7. When is a person in custody,

within the meaning of Section 439 CrPC ? When he is in duress either because he is held by the

investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial

order, or having offered himself to the court's jurisdiction and

submitted to its orders by physical presence. No lexical dextercity nor precedential profusion is needed to come to the

realistic conclusion that he who is under the control of the court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section

439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man

into informal custody but not arrested him, have detained him for interrogation but not taken

him into formal custody and other like terminological dubieties are

unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are

satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose.

8. Custody, in the context of

Section 439, (we are not, be it noted, dealing with anticipatory bail under Section 438) is

physical control or at least physical presence of the accused in court coupled with submission to the jurisdiction and orders of

the court.

9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or

other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In the present case, the police officers

applied for bail before a Magistrate who refused bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to move the Sessions Court. This direction of the Magistrate

was wholly irregular and maybe, enabled the accused persons to circumvent the principle of

Section 439 CrPC. We might have taken a serious view of such a

course, indifferent to mandatory provisions, by the subordinate magistracy but for the fact that in the present case the accused

made up for it by surrender before the Sessions Court. Thus, the Sessions Court acquired jurisdiction to consider the bail application. It could have

refused bail and remanded the accused to custody, but, in the

circumstances and for the reasons mentioned by it, exercised its jurisdiction in favour of grant of

bail. The High Court added to the conditions subject to which bail was to be granted and mentioned that the accused had submitted to

the custody of the court. We, therefore, do not proceed to upset

the order on this ground. Had the circumstances been different we would have demolished the order for bail. We may frankly state

that had we been left to overselves we might not have granted bail but, sitting under Article 136, do not feel that we should interfere with a discretion

exercised by the two courts below.

13. The learned Counsel, therefore, submitted

that when a person surrenders before the Court and

submits to its directions, the person could be

said to be in judicial custody. The learned

Counsel pointed out that this has been followed by

our High Court in Ritesh Prem Gayal & anr. Versus

Senior Inspector of Police & anr, reported at

2008(2) Bom.C.R.(Cri.)128. Similar view was taken

in Judgment in CRIMINAL APPLICATION NO.3380 OF

2004 in Kiran Vasant Achrekar versus State of

Maharashtra decided on 12th October, 2004.

14. I have carefully considered the arguments

advanced by the learned Counsel for the parties.

15. It may be seen that the recent Judgments

of the Supreme Courts on which the learned Counsel

for the informant intervener places reliance

refer to the observations of the Supreme Court in

NIRANJAN SINGH's case. It is not that subsequent

Benches take any different view from the one taken

in NIRANJAN SINGH's case. They follow the law

laid down in NIRANJAN SINGH. Hence, it will not

be appropriate to read observations in NIRANJAN

SINGH's case selectively. There can be no doubt

as held in para 6 of the Judgment in NIRANJAN

SINGH's case that no person accused of an offence

can move for bail under Section 439 of the Code of

Criminal Procedure, 1978 unless he is in custody.

But it is also clarified in para 9 that when a

person surrenders before the Court and submits to

its directions, he is said to be in judicial

custody and therefore, an application for bail

would lie. Therefore, as far as challenge to the

tenability of the application of this Court is

concerned, it has to be rejected. The applicant,

by submitting himself to the jurisdiction of this

Court must be taken to have submitted himself to

the custody of the Court. In fact, the learned

Sessions Judge while rejecting the application

should have seen this and should have remanded the

applicant to custody, if he felt that the

applicant was not entitled to bail. However, it

is worthy of note that the learned Sessions Judge

has not rejected the application for bail on the

ground that the applicant was not in custody but

has rejected it on merits. Therefore, if he was

rejecting the application for bail, he could have

taken the applicant in custody which could have

obviated this debate.

16. Next, the learned Counsel for the

intervener and the learned APP object to the

tenability of the application on the ground that

the applicant had been directed by this Court to

apply for regular bail before the concerned Court

which was seized of the matter, and since the

Court which is seized of the matter is that of

Judicial Magistrate First Class, Pune, it was

incumbent upon the applicant to apply before that

Court for bail. He submitted that it was

impermissible, in the face of this judicial

direction, for the applicant to approach the Court

of Sessions and now this Court.

17. The learned Counsel for the applicant

submitted that this Court had directed the

applicant to apply for regular bail before the

concerned Court. He submitted that since the

offence which the applicant is alleged to have

committed is one punishable under Section 467 of

the Indian

Penal Code for which punishment of

imprisonment for life is prescribed, a Judicial

Magistrate First Class would not at all have been

entitled to entertain an application for bail. He

submitted that provisions of Section 437 of the

Code of Criminal Procedure, 1973 enable a

Magistrate to grant bail only in cases other than

those in which there are reasonable grounds for

believing that the person is guilty of an offence

punishable with death or imprisonment for life.

He submitted that this Court in The State of

Maharashtra Versus Kaushar Yasin Qureshi and

another, reported at 1996(5) Bom.C.R.473 had so

held. In that case, however, the question was of

offence punishable under Section 302 of the Indian

Penal Code, for which minimum punishment itself is

imprisonment for life.

18. The learned Counsel for the applicant

next submitted that in State of Maharashtra Versus

Rajkumar

Kunda Swami, reported at 2002(Supp.

2)Bom.C.R.79, this Court had again held that a

Magistrate was not entitled to grant bail in

offence punishable with imprisonment for life. In

that case, the offence complained was one

punishable under Section 409 of the Indian Penal

Code. While so holding the learned Single Judge

had placed reliance on the Judgment in The State

of Maharashtra Versus Kaushar Yasin Qureshi and

another, reported at 1996(5) Bom.C.R.473. The

observations of the Court in para 21 of the

Judgment may be usefully reproduced as under :-

21. From the facts and circumstances of this case, it is crystal clear that there are

reasonable grounds to believe that respondent-accused is

involved in the offence specially offence punishable under section 409 of the I.P.C. and apart from that the fact that whether a

prima facie case is made out.

Some of the factors which are to be borne in mind in deciding the question of grant of bail are the gravity/magnitude of the offence

and whether there is any likelihood of the accused person

absconding. In the instant case, both the considerations militate against the respondent-accused.

19. The learned Counsel for the applicant

therefore, submitted that since the Magistrate

does not have jurisdiction to entertain an

application for bail, his client was justified in

approaching the Court of Sessions, and now this

Court, for grant of bail, since irrespective of

what orders were passed by this Court in Criminal

Application No.4356 of 2009, the applicant could

not have been ordered to seek exercise by a

Magistrate of jurisdiction which did not vest in

him. He submitted that the jurisdiction cannot be

conferred by judicial orders, even if it were to

be presumed that this Court had directed the

applicant to approach the Court of Judicial

Magistrate First Class. The learned Counsel

submitted that considering the lack of

jurisdiction in the Magistrate to entertain

application for bail, since the offence alleged is

punishable igwith imprisonment for life, the

reference to concerned Court which was seized of

the matter in the order in Criminal Application

No.4356 of 2009, must be read as reference to the

Court of Sessions which had the jurisdiction to

entertain bail application.

20. The learned Counsel for the intervener

submitted that another learned Single Judge of

this Court had held in Ambarish Rangshahi

Patnigere Vs. State of Maharashtra, reported at

2010 ALL MR (Cri) 2775 that a Magistrate would

have the jurisdiction to grant bail even in

offences punishable under Sections 467 and 409 of

the Indian Penal Code, 1860 though the offences

are punishable with imprisonment for life or

imprisonment for ten years. While deciding this

case, the Judgments of the learned Single Judge in

The State of Maharashtra Versus Kaushar Yasin

Qureshi and another and State of Maharashtra

Versus Rajkumar Kunda Swami had not been brought

to the notice of the learned Single Judge. After

considering the relevant provisions the learned

Judge observed in para 17 and 18 as under :-

17. It may be noted here that

the learned Counsel for intervener contended that the

Magistrate did not have jurisdiction to grant bail because the offences under Section 467 and 409, IPC, carry

punishment which may be life imprisonment. According to the learned Counsel, if the offence is punishable with sentence of death or life imprisonment, the

Magistrate cannot grant bail under Section 437(1), Cr.P.C.

unless there are special grounds mentioned therein. He relied upon certain authorities in this respect including Prahlad Singh

Bhati Vs. NCT, Delhi & Anr., JT 2001(4) SCC 116. In that case, offence was under Section 302

which is punishable with death sentence or life imprisonment and

is exclusively triable by Court of Sessions. The offence under Section 409 is punishable with imprisonment or imprisonment for

10 years and fine. Similarly, the offence under Section 467 is also punishable with imprisonment for life or imprisonment for 10

years and fine. Even though the maximum sentence which may be awarded is life imprisonment, as

per Part I of Schedule annexed to Cr.P.C., both these offences are triable by a Magistrate of First

Class. It appears that there are several offences including under sec. 326 in the Indian Penal Code wherein sentence, which may be

awarded, is imprisonment for life or imprisonment for lesser terms

and such offences are triable by Magistrate of the First Class. If the Magistrate is empowered to try the case and pass judgment

and order of conviction or acquittal, it is difficult to understand why he cannot pass order granting bail, which is interlocutory in nature, in such

cases. In fact, the restriction under Sec. 437(1), Cr.P.C. is in respect of those offences which are punishable with alternative sentence of death or life imprisonment. If the offence is punishable with life imprisonment

or any other lesser sentence and is triable by Magistrate, it cannot be said that Magistrate

does not have jurisdiction to consider the bail application.

In taking this view, I am supported by the old Judgment of Nagpur Judicial Commissioner's Court in Tularam & Ors. Vs.

Emperor, (1926)27 Cr.L.J.1063 and also by the Judgment of the Kerala High Court in Satyan Vs. State, 1981 Cr.L.J.1313. In

Satyan, the Kerala High Court considered several earlier Judgments and observed thus in

paras 7 and 8 :-

7. According to the learned

Magistrate Section 437(1) does not empower him to release a person on bail if there are reasonable grounds for believing

that he has committed an offence punishable with death or an

offence punishable with imprisonment for life. It other words the learned Magistrate has interpreted the expression

offence punishable with death or imprisonment for life in Section 437(1) to include all offences where the punishment extends to imprisonment for life. This

reasoning, no doubt, is seen adopted in an old Rangoon Case H. M. Boudville Vs. Emperor, AIR 1925 Rang. 129 : (1925)26Cri.L.J. 427 while interpreting the phrase an offence punishable with death or transportation for life in

Section 497, Cr.P.C., 1898. But that case was dissented from in Mohammed Eusoof Vs. Emperor, AIR

1926 Rang. 51:(1926)27Cri.L.J.

401). The Rangoon High Court

held that the prohibition against granting bail is confined to cases where the sentence is either death or alternative

transportation for life. In other words, what the Court held was that the phrase death or transportation of life in Section 497 of the old Code did

not extend to offences punishable withig transportation for life only, it will be interesting to note the following passage from the above judgment:

        
       It is difficult to see what
      principle,    other      than    pure
      empiricism    should      distinguish
      offences       punishable        with
      


      transportation     for    life   from
      offences   punishable     with   long
   

terms of imprisonment; why, for instance, the detenu accused of lurking house trespass with a view to commit theft, for which

the punishment is fourteen years imprisonment, should be specially favoured as against the individual who has dishonestly received stolen property, knowing

that it was obtained by dacoity, for which the punishment happens to be transportation for life ? It cannot seriously be argued that the comparatively slight difference in decree of possible punishment will render it morally

less likely that the person arrested will put in an appearance in the one case rather

than the other. On the other hand the degree of difference is

so great as between transportation for life and death as to be immeasurable. A prudent Legislature will, therefore,

withdraw from the discretion of the Magistracy cases in which, if guilt is probable, even a man of the greatest fortitude may be willing to pay a material price,

however, exorbitant, for life. Theig above decision has been followed by the Nagpur High Court in the case reported in Tularam Vs. Emperor, AIR 1927 Nag. 53:

(1926)27Cr.L.J.1063).

8. The reasoning applies with equal force in interpreting the

phrase offence punishable with death or imprisonment for life

So long as an offence under section 326 is triable by a Magistrate of the First Class there is no reason why it should

be viewed differently in the matter of granting bail from an offence under Section 420, I.P.C. for which the punishment extends imprisonment for 7 years or any

other non-bailable offence for which the punishment is a term of imprisonment.

It would be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment of acquittal or

conviction for the offences punishable with sentence of life imprisonment or lesser term of

imprisonment, for example in offences under Ss. 326, 409, 467,

etc., cannot consider the application for bail in such offences. In fact, it appears that the restriction under Sec.

437(1)(a) is applicable only to those cases which are punishable with death sentence or life imprisonment as alternative sentence. It may be noted that

in Prahlad Singh Bhati (supra), in para 6, the Supreme Court held

that 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 session, yet it would be proper

and appropriate that in such a case the Magistrate directs the

accused person to approach the Court of Session for the purposes of getting the relief of bail. This may be applicable to many

cases, wherein the sentence, which may be awarded, is not even life imprisonment, but the offence is exclusively triable by court of Sessions for example

offences punishable under Sections 306, 308, 314, 315, 316, 399, 400 and 450. Taking into consideration the legal position, I did not find any substance in the contention of Mr.Bhatt, learned Counsel for the

intervener that merely because the offence is under Secs.409 and 467, IPC, Magistrate did not have

jurisdiction to hear and grant the bail.

18. Even though I find that the learned Magistrate had jurisdiction to consider the bail

application and to grant bail, still taking into consideration seriousness and gravity of the matter, it was highly improper on the part of the learned

Magistrate to show such haste in considering ig the application immediately and making endorsements on the bail application minute to minute and

refusing reasonable opportunity to the investigating agency to oppose that application, I find that the order passed by the

Magistrate granting bail was without application of mind to

the facts of the case. By granting bail and refusing police custody of the accused, who were not in police custody even for a

day, the learned Magistrate practically prohibited the investigating agency from making proper investigation to the case which, in fact, required in-depth

investigation and which could not be possible without the police custody. Therefore, while the order refusing the police custody could be challenged under revisional jurisdiction under sec. 397, the order granting bail

could be cancelled by the superior courts, including the Sessions Court, by virtue of the

powers under sec.439(2), Cr.P.C.

21. The learned Counsel therefore submitted

that since the learned Judicial Magistrate First

Class did have jurisdiction to decide application

for bail, in view of specific directions of this

Court in Criminal Application No.4356 of 2009, the

proper

course open to the applicant was to

approach the learned Magistrate. The learned

Counsel for the complainant submitted that this

Court may not entertain an application for bail in

the face of these directions, since this Court

considering applications for bail on its own

merits may result in loss of valuable right to

both the parties to question the order of the

Magistrate should it go against them.

22. Since both the learned Counsel have

sought to rely on Judgments of this Court which

take a dimetrically opposite view about the powers

of the Magistrate to grant bail in cases where

punishment prescribed is one which can extend to

imprisonment for life, but is not the minimum

prescribed punishment for the offence, the

question as to whether a reference to a Division

Bench is necessary arose.

23. The learned Counsel for the applicant had

also placed reliance on Judgment of the Supreme

Court in Prahlad Singh Bhati Versus N.C.T., Delhi

& another, reported at 2001(5)Bom.C.R.727 where

the Supreme Court had held that regular bail under

Section 437 could not be granted when accused was

found to be involved in graver offence of murder

under Section 302 of the Indian Penal Code. In

this context, the Supreme Court observed in para

6, 7 and 11 as under :-

6. 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 Session 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 negate the existence of reasonable

ground for believing that such an 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.

7. 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, the 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.

11. While allowing this appeal and setting aside the orders impugned we permit the respondent-accused

to apply for regular bail in the trial ig 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

Session, 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.

In fact, this Judgment would show that it is not

that the Magistrate cannot grant bail in cases

where the offence is punishable with imprisonment

for life, if the offence is triable by the

Magistrate. The observations of the Supreme Court

that generally speaking if the punishment

prescribed is that of imprisonment for life or

death penalty, and the offence is exclusively

triable by the Court of Sessions, the Magistrate

has no jurisdiction to grant bail, unless the

matter is

covered by the provisos attached to

section 437 of the Code. Thus, merely because an

offence is punishable when imprisonment for life,

it does not follow a Magistrate would have no

jurisdiction to grant bail, unless offence is also

exclusively triable by the Court of Sessions.

This, implies that the Magistrate would be

entitled to grant bail in cases triable by him

even though punishment prescribed may extend to

imprisonment for life. This Judgment in Prahlad

Singh Bhati's case had not been cited before

Judge, who decided State of Maharashtra Versus

Rajkumar Kunda Swami. Had this Judgment been

noticed by the Hon'ble Judge deciding that case,

the observation that the Magistrate may not decide

an application for bail if the offence is

punishable with imprisonment for life would

possibly would not have been made. In view of the

observations of the Supreme Court in Prahlad Singh

Bhati's case, it is clear that the view taken by

J.H.Bhatia, J. in Ambarish Rangshahi Patnigere Vs.

State of Maharashtra, reported at 2010 ALL MR

(Cri) 2775 is in tune with the Judgment of the

Supreme Court and therefore, the Magistrate would

have jurisdiction to grant bail.

24. In view of this, there should be no

difficulty for the applicant to approach learned

Magistrate, as had been directed by this Court,

for seeking regular bail since it is the Court of

the Magistrate which would be seized of the matter

and which would eventually try the case.

25. As held by the Supreme Court in K. L.

Verma v. State, reported at (1998) 9 SCC 348,

portion whereof has been quoted in earlier part of

the Judgment, though the applicant had approached

the wrong Court i.e. Court of Sessions for bail

rather than approaching the learned Magistrate who

is seized of the matter, in terms of directions of

this Court given on 28th June, 2010 in Criminal

Application No.4356 of 2009, and though this Court

had directed that the anticipatory bail granted

would be effective till filing of the charge

sheet, the order granting anticipatory bail to the

applicant till filing of the charge sheet could be

extended for a period of 15 days to enable the

applicant to approach the Court of Judicial

Magistrate First Class seized of the matter and by

a further period of 15 days from the date of order

by the Magistrate should it be against the

applicant, to enable the applicant to approach

Court of Sessions or this Court. If the applicant

does not approach the concerned Court within a

period of 15 days, the order would lapse. The

learned Judicial Magistrate First Class shall

decide the applicant's application, uninfluenced

by order passed by the Additional Sessions Judge

rejecting applicant's application.

26. Criminal Application is accordingly

disposed of.

(R.C.CHAVAN, J.)