Daya Nayak (Banjara) vs State Of Chhattisgarh
2022 Latest Caselaw 1149 Chatt

                                     -1-




                                                                         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

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

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

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

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

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

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.

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

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

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