Suo Motoin The Matter Order ... vs The State Of Bihar
2021 Latest Caselaw 806 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                           CRIMINAL REVISION No.2 of 2021
          Arising Out of PS. Case No.-725 Year-2020 Thana- TURKAULIYA District- East
                                           Champaran
     ======================================================

SUO MOTO with regard to order dated 07.12.2020 passed by C.J.M., Motihari in Turkauliya P.S. Case No.-725/2020.

... ... Petitioner Versus

1. The State of Bihar

2. Sahid Raza Son of Late Nurul Hoda Resident of Village - Raghunathpur, P.S. Raghunathpur, O.P., District - East Champaran.

... ... Opposite Parties ====================================================== Appearance :

For the Petitioner/s :

     For the State          :         Mr. Ajay Mishra, APP
     For the Opp.Party No.2 :         Mr. Rajesh Ranjan, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT Date : 10-02-2021

Heard Mr. Rajesh Ranjan, learned counsel for the

Opposite Party No. 2 and Mr. Ajay Mishra, learned APP for the

State.

2. Vide order dated 07.12.2020, the learned Chief

Judicial Magistrate, East Champaran, Motihari, granted bail to the

Opposite Party No. 2 in Turkauliya (Banjariya) P.S. Case No. 725

of 2020 registered for the offences punishable under Sections 302

read with 34, 120-B of the Indian Penal Code and Section 27 of the

Arms Act.

3. The matter came to the knowledge of this Court in

administrative side, pursuant to which, the Court took suo motu Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

cognizance of the aforesaid order dated 07.12.2020 passed by the

learned Chief Judicial Magistrate, East Champaran, Motihari in

exercise of its powers under Sections 397 and 401 of the Code of

Criminal Procedure (for short "Cr.P.C") for the purpose of calling

for and examining the records of the proceedings of the aforesaid

Turkauliya (Banjariya) P.S. Case No. 725 of 2020 and the matter

was assigned to this Bench under the orders of Hon'ble the Chief

Justice.

4. First of all, it would be apposite to take note of

Sections 397 and 401 of the Cr.P.C. which are set out as under:-

"397(1).The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Sessions Judge for the purposes of this sub-section and of section 398.

401. High Court' s Powers of revisions.

(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.

(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

application for revision as a petition of appeal and deal with the same accordingly.

5. It would be apparent from the statutory provision

prescribed under Section 397(1) of the Cr.P.C. that the High Court

or any Sessions Judge may call for and examine the record of any

proceeding before any inferior court situated within its jurisdiction

for the purposes of satisfying itself as to the correctness, legality or

propriety of any order recorded or passed and as to the regularity

of any proceedings of such inferior court.

6. The revisional power conferred on the High Court by

Section 397 of the Cr.P.C. has been held by a catena of decisions to

enable the High Court to consider not only the legality but even

propriety of an order passed.

7. Further, Section 401 gives every High Court powers

of revisions. Sub-section (1) of Section 401 provides that in case

of any proceeding, the record of which has been called for by

itself, or which otherwise comes to its knowledge, the High Court,

may, in its direction, exercise any of the powers conferred on a

Court of Appeal by Sections 386, 389 and 391 of the Cr.P.C. and

on a court of session by Section 307.

8. Thus, apart from the express power under Section

397(1) of the Cr.P.C., the High Court has been vested with suo Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

motu revisional powers under Section 401 of the Cr.P.C. If the

High Court decides to exercise suo motu revisional powers under

the Cr.P.C. and calls for a record, it also gets the power of an

appellate court by virtue of the provisions prescribed under Section

401 of the Cr.P.C.

9. Hence, by virtue of Section 401 of the Cr.P.C., the

High Court is vested with the power even to examine the case with

reference to its facts.

10. The revisional power under Section 397 read with

Section 401 of the Cr.P.C. has been conferred upon the High Court

with the object of having continuous supervisory jurisdiction upon

the courts below so as to prevent miscarriage of justice or to

correct irregularity of the procedure or to meet out justice.

11. Keeping in mind the object of the aforesaid statutory

provisions and the facts and circumstances of the case, when the

matter was taken up by this Court in judicial side vide order dated

05.01.2021, the records of Turkauliya (Banjariya) P.S. Case No.

725 of 2020 were summoned from the court of Chief Judicial

Magistrate, East Champaran, Motihari and the matter was directed

to be listed on 08.01.2021.

12. After receipt of the original records of Turkauliya

(Banjariya) P.S. Case No. 725 of 2020, Mr. Ajay Mishra, learned Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Additional Public Prosecutor for the State was handed over a copy

of the first information report of the case, a copy of the bail

petition filed on behalf of the Opposite Party No. 2 before the

court of learned Chief Judicial Magistrate, East Champaran,

Motihari and a copy of the entire order-sheet of the aforesaid case

vide order dated 08.01.2021.

13. By the same order, Registry was directed to implead

the accused Sahid Raza as Opposite Party No. 2 in the case and the

matter was adjourned to 11th January, 2021.

14. After going through the records of the case, Mr. Ajay

Mishra, learned Additional Public Prosecutor for the State

submitted that the order dated 07.12.2020 passed by the learned

Chief Judicial Magistrate, East Champaran, Motihari in Turkauliya

(Banjariya) P.S. Case No. 725 of 2020 is perverse. He contended

that the order in question has been passed in utter disregard of

judicial norms and the statutory provisions prescribed under

Section 437 of the Cr.P.C. According to him, the prosecution case

was registered under Section 302 read with 34 and Section 120-B

of the Indian Penal Code and Section 27 of the Arms Act for brutal

murder of the brother of the informant, namely, Manoj Singh and

there was ample material in the case diary to show the culpability

and complicity of the accused Sahid Raja in commission of the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

crime. He also contended that the allegations made in the first

information report were sufficient for the learned Chief Judicial

Magistrate to hold that the case was not covered by the proviso

attached to Section 437(1)(i) and (ii) of the Cr.P.C.

15. Having heard Mr. Mishra and perused the materials

available on record and being prima facie satisfied with the

submissions made by learned counsel for the State that the learned

Chief Judicial Magistrate had not validly exercised the power

conferred under Section 437 of the Cr.P.C, vide order dated

11.01.2021, notices were issued to the Opposite Party No.2 as to

why the bail granted to him vide order dated 07.12.2020 in

Turkauliya (Banjariya) P.S. Case No. 725 of 2020 be not cancelled.

16. After notices were served to the Opposite Party No.

2, Mr. Rajesh Ranjan, learned counsel appeared on his behalf. He

made his submissions in part on 5.02.2021 and, at his request, the

matter was adjourned to 09.02.2021. He has also filed a reply to

the show cause on behalf of the Opposite Party No.2.

17. Turkauliya (Banjariya) P.S. Case No. 725 of 2020

was registered under Section 302 read with 34 and 120-B of the

Indian Penal Code as also Section 27 of the Arms Act on the basis

of the written report of the informant, namely, Ranjit Kumar Singh

@ Bablu Singh. In his written report, he has stated that on Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

10.10.2020 at 06:00 a.m., he himself, his brother Abhay Tiwary

and some other persons were strolling. He was 5-6 steps behind his

brother Manoj Singh. When Manoj Singh and Abhay Tiwari went

past Chanchal Baba temple, four persons riding on a red colour

Apache motorcycle and a Pulsar motorcycle came from southern

side and slowed down. When they reached near his brother, pillion

riders of both the motorcycles fired upon his brother from their

respective pistols. His brother fell down and the motorcycle riders

fled away opening fire in the air towards Chailahan. He claimed

that he could identify the miscreants, who were involved in the

commission of the offence. He took his injured brother to

Rahmania Hospital where he was declared dead. Thereafter, he

brought the body to Sadar Hospital, Motihari where police came

and further actions were taken. The postmortem examination on

the body of his brother was conducted whereafter he took the body

of his brother to his native village where cremation took place. He

claimed that his brother was killed in a planned manner under a

conspiracy by the four miscreants, who came on motorcycles and

some other unknown criminals.

18. From the original record of Turkauliya (Banjariya)

P.S. Case No. 725 of 2020 summoned from the court of the Chief

Judicial Magistrate, East Champaran, Motihari, it would be evident Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

that the first information report (for short 'FIR') dated 11.10.2020

was transmitted to the court and was seen by the learned Chief

Judicial Magistrate on 12.10.2020. It further appears from the

record that an application was filed by the investigating officer in

the court on 23.11.2020, which was seen by the learned Chief

Judicial Magistrate on 24.11.2020. A perusal of the said

application would demonstrate that the investigating officer had

informed the court that the opposite party no.2 and one Chhotu

Sah, whose name transpired during investigation of the case, were

arrested on 27.10.2020 in connection with Turkauliya (Banjariya)

P.S. Case No. 770 of 2020 dated 26.10.2020 registered under

Section 25(1-B)(a), 26 and 35 of the Arms Act. A prayer was made

to remand them to judicial custody in connection with Turkauliya

(Banjariya) P.S. Case No. 725 of 2020 dated 11.10.2020 registered

under Sections 302/120-B read with 34 of the Indian Penal Code.

For clarity, the application dated 23.11.2020 filed by the

investigating officer of the case is reproduced as under :-

" lsok esa]

ek0 eq[; U;kf;d n.Mk0 egksn;

iwohZ pEikj.k "eksrhgkjh"

izlax%& rqjdkSfy;k catjh;k Fkkuk dkaM la0&[email protected] fnukad 11-10-20 /kkjk 302/120(B)/34 Hkk0 n0 fo0

fo'k;%& vizkFkfedh vfHk;qDr lkfgn jtk firk Lo0 u:y gksnk ¼2½ NksVq lkg firk eksrhyky lkg nksuksa lk0 j?kqukFkiwj Fkkuk j?kqukFkiqj ftyk iwohZ pEikj.k dks [email protected] ls fjek.M djus ds laca/k esaA

egk"k;] Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

mijksDr izlax ,oa fo'k; ds laca/k esa lknj lqfpr djuk gS fd bl dkaM ds vizkFkfedh

vfHk;qDr lkfgn jtk firk Lo0 u:y gksnk ¼2½ NksVq lkg firk eksrhyky lkg nksuksa lk0 j?

kqukFkiwj Fkkuk j?kqukFkiqj vks0 ih0 ftyk iwohZ pEikj.k fnukad Øe"k% 27-10-2020 dks fxjQrkj

U;kf;d fgjk"kr esa Hkstk x;k gS rFkk NksVq lkg fnukad 03-11-2020 ek0 U;k0 esa nksuksa vfHk0

rqjdkSfy;k oatjh;k Fkkuk dkaM [email protected] fn0 26-10-2020 /kkjk&25¼1&b½ [email protected]@35 vkElZ ls

rqjdkSfy;k otjh;k Fkkuk dkaM la0 [email protected] fn0 11-10-2020 /kkjk [email protected]¼B½@34 Hkk0 n0 fo0

esa fjek.M djus dh vko";drk Gsa

vr% Jheku~ ls uez fuosnu gS fd dkaM la0 [email protected] ls rqjdkSfy;k oatjh;k Fkkuk dkaM

la0 [email protected] esa fjek.M djus dh d`ik fd;k tk;A

fo"oklHkktu izekn dqekj ikloku 23-11-20 iq0 v0 fu0 otfj;k Fkkuk "

19. When the aforesaid application of the investigating

officer of the case was taken up by the learned Chief Judicial

Magistrate on 24.11.2020, he allowed the prayer made by the

investigating officer and directed the office clerk to issue

production warrant against the opposite party no.2 and Chhotu Sah.

The order dated 24.11.2020 passed by the learned Chief Judicial

Magistrate, Motihari is reproduced as under :-

"24.11.2020 I.O. of this case files a petition praying there in that remand the non F.I.R. named accused Sahid Raja S/o Late Nurul Hoda and (2) Chhotu Sah, S/o Motilal Sah both of village Raghunathpur P.S. Raghunathpur O.P. Dist East Champaran as they are in jail custody in connection with Turkauliya (B) 725/20. seen.

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Prayer of I.O. is allowed.

O.C. to issue P/w against aforesaid accused persons fixing 26.11.2020."

20. After 24.11.2020, the matter was taken up by the

learned Chief Judicial Magistrate, Motihari on 26.11.2020 when

the accused opposite party no.2 Sahid Raza and Chhotu Sah were

produced before the court from the Central Jail, Motihari on the

basis of production warrant issued on 24.11.2020. The learned

Chief Judicial Magistrate vide order dated 26.11.2020 expressed

his satisfaction on the basis of materials collected during

investigation by the police and remanded the opposite party no.2

and Chhotu Sah to judicial custody in connection with Turkauliya

(Banjariya) P.S. Case No. 725 of 2020. The order dated 26.11.2020

passed by the learned Chief Judicial Magistrate, Motihari is

reproduced as under :-

"26.11.2020 Accused persons Sahid Raja aged 22 years S/o Late Narul Hoda & Chhotu Sah aged 20 years, S/o Motilal Sah, both of Vill. Raghunathpur, P.S. Raghunathpur OP., Dist. East Champaran, produced from Central Jail, Motihari on the basis of issued P/W on 24.11.2020.

Accused are not named in the FIR but their named surfaced during investigation of wanted for the offences u/s 302, 120(B)/34 IPC & 27 Arms Act.

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Accused are remanded to jail custody till 10.12.20.

O/c to issue custody warrant."

21. It would be evident from the record that there is no

mention of filing of any bail application on 26.11.2020 or on any

other date prior to 07.12.2020, but surprisingly, when the matter

was taken up on 07.12.2020, the learned Chief Judicial Magistrate

recorded in his order that the opposite party no.2 has pressed his

application for bail filed on 26.11.2020. He then recorded the

submissions made on behalf of the opposite party no.2 in support

of his prayer for bail and allowed his prayer on certain conditions

mentioned in the order. The order dated 07.12.2020 passed by the

learned Chief Judicial Magistrate, Motihari is reproduced as

under :-

In the Court of Chief Judicial Magistrate GR+CIS 7710 of 2020 Motihari Turkoliya (B) P.S. Case No. 725/2020 07.12.2020 कारगत अभभयु कत/आवे दक शाभहद रजा का जमानत आवे दन भदनांक 26.11.2020 आज सं चाभलत भकया गया । आवे दक भदनांक 26.11.2020 से कारा esa।

आवे दक के भवदान अभधवकता का कहना है भक आवे दक भवलकू ल भनदररष है , झठ ू ा फसाया गया है एवं उसने करई अपराध नहीं भकया है । आवे दक का करई आपराभधक इभतहास नहीं है । पु भलस के पास अभभयु कत कर फसाने हे तु करई lkexzh नहीं है भकनतु उसका पु भलस ने तु रकौभलया, बं जभरया 770 सन् 2020 मे उससे पु भलस ने जबरदसती सं सवकृभत कथन भलया है । घटना का करई izR;{k साकी नहीं है । सी.सी.टी.भी. फुटे ज मे फरटो आने का यह अथर नहीं है भक आवे दक ने ही अपराध भकया था। तथाकभथत घटना रे लवे के रै क पवांट के पास हुआ था एवं आवे दक वहां हमे शा आया-जाया करता है । उसने अपराध नहीं भकया है । प्राथभमकी मे अपाजी तथा पलसर गाडी का उलले ख है । भजसके सवार के दारा कहा जाता है भक गरली चली थी। आवे दक का नाम izkFkfedh मे अं भकत नहीं है । जमानत पर छरडने का भनवे दन भकया गया।

DPO महरदय एवं सूचक के भवदान अभधवकता जमानत आवे दन का izcy भवररध करते हुऐ कथन भकये भक gR;k का मामला है । भनमन नयायालय कर जमानत दे ने का {ks=kf/kdkj नहीं है । यभद सं देह भी हरगा तर जमानत का अभधकारी वह नहीं है । वादी का दस ू रा पु नः पूनबरयान केश दै नकी के पारा - 28 मे अं भकत है भक एक हरनडा साईन गाडी पर एक वयभकत Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

आया एवं मरबाईल से भकसी से बात भकया भफर आगे चला गया। ततपशचात् एक लाल रं ग का अपाची गाडी आया भजसके सवार ने सूचक के भाई पर तीन गरली चलाई थी। भजसकी मृ तयु वहीं हर गयी| उसने भी सी.सी.टी.भी कैमरा दे खा है । भजससे वहा शाभहद की उपभसथभत izfrr हरता है और अपाची सवार ने गरली चलाई थी। आवे दक हतया मे सभललपत है । जमानत न भदये जाने की याचना की गयी ।

अभभले ख का अवलरकन भकया। izkFkfedh मे अं भकत है भक लाल रं ग अपाची एवं पलसर गाडी के सवार ने हतया भकया है । वादी का पारा- 6 मे जर पूनबरयान है उसमे भी सभी izkFkfedh की बाते आयी है । भकनतु पारा -28 मे वादी का पु नबरयान पु नः भलया गया है भजसमे सपले णडर गाडी गायब हर गयी है एवं हरणडा साईन की उपभसथभत आ गयी है । इतना तर सपषट है भक आवे दक ने गरली नहीं चालाई है । केश दै नकी के पारा- 42 मे आवे दक का सं सवीकृभत कथन पु भलस ने भलया है । भजसमे अं भकत है भक गरली चलाने वाला मु नना भसं ह एवं छरटू लाल अपाची बाईक से भकया है । भजसमे आवे दक कर सं भललपत कहा गया है । भकनतु पूरे सं सवकृभत कथन मे हतया का दुराशय सपषट नहीं है भक हतया से आवे दक कर कया लाभ हरगा। पु भलस के समक भकया गया सं सवकृभत कथन साकय मे नहीं भलया जा सकता है तथा अभभले ख पर पु भलस अनु संधान मे ऐसा करई साकय नहीं है भजसके आधार पर यह कहा जाए भक आवे दक शाभहद इस घटना मे सं भललपत है अथवा घटना मे सं देहातमक रप से भी सं भललपत नहीं है | यह भी मै पा रहा हँ ू भक धारा- 120 बी. भा.द .भव. के अनतगरत भी 'kM;a= का भी अनु संधान अभभले ख पर नहीं है । धारा- 27 vkElZ एकट का मामला आवे दक के भवरद नहीं है ।

उपररकत पभरभसथभतयो मे सं भललपतता ना पाकर आवे दक कर इस शतर पर जमानत भदया जाता है भक वह v.MjVsd करे भक अनु संधान मे सहयरग करे गा तथा पु नः ऐसे अपराधर मे सं भललपत नहीं रहे गा । ;fn वह दर जमानतदारो दारा 10000/- रपये के izfrHkq पृ थक-पृ थक भरवाता है तर उसे जमानत की सु भवधा दी जा सकती है ।

¼ys[kkfir½

eq[; U;kf;d n.Mf/kdkjh eksfrgkjhA

22. A perusal of the aforesaid order dated 07.12.2020

would demonstrate that while preferring the bail application,

submissions were made that the accused is not named in the FIR.

He is innocent and has been falsely implicated. He has got no

criminal antecedent. The police have no evidence to show his

culpability but the police extracted his confessional statement in

Turkauliya (Banjariya) P.S. Case No. 770 of 2020 under duress. It

was further submitted that there is no eye-witness to the

occurrence and from the image of the accused captured on CCTV,

it cannot be said that he had committed the offence. It was also Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

argued that the said incident had taken place near Railway Rack

Point where the accused used to visit quite frequently.

23. It would further appear that the District Prosecution

Officer had vehemently opposed the prayer for bail. He had argued

that the case relates to commission of the offence of culpable

homicide amounting to murder and in such a case the court of

Magistrate has no jurisdiction to grant bail. He had contended that

in such cases even if there is suspicion, the accused would not be

entitled for bail. He argued that the motorcycle borne criminals

had opened fire on the brother of the informant as a result of which

he died. The photo of the accused was captured on CCTV installed

near the place of occurrence when the incident had taken place.

24. It would appear from the order dated 07.12.2020 that

having heard the parties, the learned Chief Judicial Magistrate

granted bail to the accused (opposite party no.2) vide his order

dated 07.12.2020 on the following grounds:-

(a) It is apparent that the accused had not opened fire.

(b) Though the confessional statement of the accused has

been recorded in para 42 of the case diary in which the

persons, who opened fire, were named as Munna

Singh and Chhotu Lal, who had come on a Apache

Motorcycle and the accused himself was also an Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

accomplice, the motive for commission of the crime

was not explained in the confessional statement.

(c) It is also not explained as to what benefit to the

accused would derive from the murder of the

deceased.

(d) There is nothing on record to suggest that the accused

was also an accomplice in the commission of the

offence.

(e) There is nothing to attract the ingredients of Section

120-B of the Indian Penal Code as there is no material

in the case diary to suggest that it was a case of

conspiracy.

(f) The ingredients of Section 27 of the Arms Act would

not be attracted against the accused.

25. In the show cause reply filed on behalf of the

opposite party no.2, a plea has been taken that the opposite party

no.2 is not privy to the materials collected in the case diary which

formed the basis for the submissions made by the learned

Additional Public Prosecutor in support of cancellation of bail.

26. On 09.02.2021, when the matter was taken up, on the

request of learned counsel for the opposite party no.2, he was Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

permitted to go through the copy of the case diary available on

record of the court below.

27. Having perused the materials available in the case

diary, Mr. Rajesh Ranjan, learned counsel for the opposite party

no.2 has tried to persuade the Court that the order passed by the

learned Chief Judicial Magistrate is justified, valid and in

accordance with law. He contended that the FIR was instituted

after an inordinate delay of 34 hours and there is no plausible

explanation for the delay caused in institution of the FIR. He urged

that the informant, who was barely 5-6 steps behind his deceased

brother at the time of occurrence, was the most competent witness,

but he did not name the opposite party no.2 in the FIR. He also

contended that neither in the FIR nor from the materials collected

during investigation there is any hint of motive behind the alleged

occurrence. According to him, there is no bar upon grant of bail by

the court other than the High Court or the court of Sessions in a

case where the accused is charged with an offence punishable with

death or imprisonment for life. He contended that in Dinesh

Parwat Vs. The State of Bihar & Another, since reported in

2007(4) PLJR 62, this Court has held that the provision prescribed

under Section 437(1)(i) of the Cr.P.C by itself may not be

sufficient for refusing the prayer for bail. He urged that the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

opposite party no.2 was entitled for grant of bail as the case was

squarely covered by the provisions as contained in Section 437(1)

(i) of the Cr.P.C.

28. On the other hand, Mr. Ajay Mishra, learned

Additional Public Prosecutor appearing for the State submitted that

the order in question passed by the learned Chief Judicial

Magistrate is not only erroneous but perverse. He contended that

from the records it would transpire that even though no application

for bail was filed on 26.11.2020, for the reasons best known to the

court, it granted bail to the accused opposite party no.2 on

07.12.2020 after wrongly recording the fact that the application for

bail filed on behalf of the accused on 26.11.2020 has been pressed.

He contended that when a court of Magistrate considers the

application for bail for an offence punishable with death or

imprisonment for life, the Magistrate is required to refuse bail

unless the case falls under any of the exceptions like the accused

being below 16 years of age or is a woman or is sick or infirm.

Since there was no exceptional circumstance in the instant case,

the prayer for bail of the opposite party no.2 ought to have been

rejected. He contended that from the materials collected during

investigation, as recorded in the case diary, which was available

before the learned Chief Judicial Magistrate, it would appear that Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

the accused was an active participant in the commission of the

offence. Right from the beginning, he was conspiring together with

the other co-accused persons. It was he, who was informing the

assailants, the whereabouts of the deceased. He contended that the

complicity and culpability of the accused opposite party no.2

would also be evident from the fact that he was sent back by the

assailants, who had opened fire to the place of occurrence to see as

to whether the brother of the informant had succumbed to the

injuries or not after being shot at. He also contended that the

learned Chief Judicial Magistrate, while granting bail to the

opposite party no.2, conveniently ignored the fact that he was

accused in two other cases.

29. I have heard the parties and carefully scrutinized the

materials available on record.

30. Since the order in question dated 07.12.2020 has

been passed by the learned Chief Judicial Magistrate, Motihari in

exercise of powers conferred under Section 437 of the Cr.P.C, at

this stage, this Court is required to analyse whether there was a

valid exercise of power conferred by Section 437 of the Cr.P.C.

31. The Code of Criminal Procedure, 1973 empowers

the court of Magistrate to exercise its discretion in reference to bail

even in non-bailable offences. Out of various other Sections under Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

the Cr.P.C, Section 437 vests the power to the court of Magistrate

to exercise its judicial discretion in cases of non-bailable offences.

It is discretionary for the court to grant bail. In certain

circumstances mentioned in sub-section (1) of Section 437 of the

Cr.P.C, bail is not to be granted and in certain circumstances

mentioned in sub-section (2) of Section 437 of the Cr.P.C, bail has

to be granted by the court of Magistrate.

32. At this stage, it is apposite to set out Section 437 of

the Cr.P.C, which reads 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 Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

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:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:]

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub- section without giving an opportunity of hearing to the Public Prosecutor.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446-A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions,--

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary.

(4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing.

(5) Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

without sureties for his appearance to hear judgment delivered."

33. On a careful perusal of Section 437(1)(i) of the

Cr.P.C, it would be manifest that it mandates that if there appear

reasonable grounds for for believing that an accused has been

guilty of an offence punishable with death or imprisonment for

life, he shall not be released on bail.

34. It is important to note here that sub-section (1) (i) of

Section 437 Cr.P.C refers to the term "reasonable ground for

believing". Section 437(1) Cr.P.C does not speak about the

evidence. Hence, at the initial stage, even if there is a prima facie

material to suggest the complicity of an accused in the commission

of a crime punishable with death or imprisonment for life, the

court of Magistrate will have no jurisdiction to grant bail.

35. While referring to the term "Reasonable Grounds",

in Keshav Vasudeo Kotihar Vs. Emperor, since reported in AIR

1933 Bombay 492, it has been held :

"When an application for bail is made in the initial stage of the case, the Magistrate may expect the prosecution to satisfy him that there is a genuine case and that it will be able to produce prima facie evidence in support of the charge, but he cannot expect at that stage to have evidence establishing the guilt of the accused beyond reasonable doubt."

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

36. While dealing with the powers of the Magistrate

under Section 437 of the Cr.P.C, the Supreme Court in Prahlad

Kumar Bhati Vs. NCT Delhi & Anr., since reported in 2001(2)

PLJR SC 205 held that if a Magistrate makes an adventure of

exercising the powers under Section 437 of the Cr.P.C in respect of

a person suspected of the commission of an offence punishable

with the sentence of death or imprisonment for life, such

Magistrate has to specifically negative the existence of reasonable

ground for believing that such accused is guilty of an offence

punishable with death or imprisonment for life. Paragraph 6 of the

said judgment reads 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 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 Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

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.

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, 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.

8. 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 Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

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." (emphasis mine)

37. Similarly, in the case of Arun Kumar Vs. State of

Bihar, since reported in 2008(3) PLJR 369, this Court has held as

under :-

"13. A magistrate may exercise his jurisdiction of grant of bail in a case under Section 307 of the penal code or in respect of offence which are exclusively triable by court of session only when Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

it can specifically negate the existence of reasonable ground for believing that there is no genuine case against the accused in respect of it and prosecution will not be able to produce prima facie evidence in support of charge for such offence, otherwise it would not be proper for it to exercise jurisdiction relating to grant of bail.

14. The aforesaid proposition of law could be illustrated by an example. If a person X assaults another person with a lethal weapon on head and Y assaults below the leg (knee) with a stick or a knife. As per definition of Section 307 of the penal code the offence as against X could be one of attempt to commit murder as the person attacking with lethal weapon on head would be having knowledge that such act would cause death. In such case (identified by accused X) the magistrate should refrain from exercising power of grant of bail as there is reasonable ground for believing that the accused is prima facie guilty of an offence under Section 307 of the penal code which is exclusively triable by the court of session. However as far as assault by Y is concerned the same is aimed below the knee by lathi or knife. In such a situation it cannot be said that person Y would be having intention to cause death. The offence as relating to accused Y may come under Section 325 or 326 of the penal code as the case may be."

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

38. Section 437(1) (ii) of the Cr.P.C provides that no

accused persons, who is suspected to have committed a cognizable

and non-bailable offence shall be released on bail if such a person

has been convicted of offences punishable with death or offences

punishable with imprisonment for life or imprisonment for seven

years or more or has two prior convictions of three or more years

but less than seven years.

39. The second proviso to Section 437(1) of the Cr.P.C

provides that if the court is satisfied that it is just and proper to

grant bail in such cases, then bail may be granted for any other

special reason which would mean that when any person accused of

an offence punishable with life imprisonment or death is

surrenders or produce before a court, ordinarily bail must be

denied. It is only in a case of exceptional circumstances when the

Magistrate believes on reasonable grounds that the accused person

is not guilty of such offence bail can be granted for which he

would be required to state exceptional reasons.

40 Furthermore, the 4th proviso to Section 437 of the

Cr.P.C mandates that no person shall, if the offence alleged to have

been committed by him is punishable with death, imprisonment for

life or imprisonment for seven years or more be released on bail by Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

the court of Magistrate without giving an opportunity of hearing to

the Public Prosecutor.

41. On the point of reasoning for grant or refusal of bail

applications, the Supreme Court in the case of Puran Vs.

Rambilas and Anr., since reported in (2001) 6 SCC 338 held as

under :-

"...Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. What the Additional Sessions Judge had done in the order dated 11-9-2000 was to discuss the merits and demerits of the evidence. That was what was deprecated. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated."

42. In Dinesh Parwat Vs. The State of Bihar & Anr.,

since reported in 2007(2) PLJR 62, relied upon by the learned

counsel for the opposite party no.2, it has been held as under :-

"8. On a careful consideration of the language of Clause (i) what appears is that for releasing an accused on bail there could not be many considerations except the reasonable grounds for believing that the accused was guilty of an offence punishable with death or imprisonment Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

for life. What appears to me is that the offence of the case in which release of the accused on bail is sought for should be punishable with death or imprisonment for life. That by itself may not be sufficient for refusing the prayer for bail. There must be reasonable grounds appearing from material placed before the Magistrate so as to forming an opinion of the level of belief that the accused has indeed committed an offence punishable as indicated above. Mere commission of the offence, thus, may not be sufficient. The nature of the material creating 'belief' in the mind of the Court must be of such quality as to creating definite impression about the accused being guilty of committing such an offence. Mere allegation of dealing assault may not be sufficient in the light of the above discussion unless the grounds reasonably raise an inference regarding the ultimate guilt into the mind of the Court.

9. When the provision talks about the existence of 'reasonable grounds for believing' in the mind of the Court it definitely rules out 'suspicion' about the guilt of accused. This has always to be borne in mind that there is vast difference between the 'belief and 'suspicion'. Belief to me is an opinion concrete and definite regarding the existence of a fact or a situation arising out of set of facts ruling out any other inference. Whereas 'suspicion' is simply a state of fearful apprehension not concretizing itself into an acceptable reasonable Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

inference about the existence/non-existence of any reasonable grounds as to be treated in the realm of belief."

43. In Deepak Shubhashchandra Mehta Vs. CBI &

Anr., since reported in 2012(2) PLJR (SC) 136, the Supreme

Court held that the Court granting bail should exercise its

discretion in a judicious manner and not as a matter of course. It

held that though at the stage of granting bail, a detailed

examination of evidence and elaborate documentation of the

merits of the case need not be undertaken, there is a need to

indicate in such orders reasons for prima facie concluding why bail

was being granted, particularly, where the accused is charged of

having committed a serious offence. The Court granting bail has to

consider, among other circumstances, the factors such as (a) the

nature of accusation and severity of punishment in case of

conviction and the nature of supporting evidence; (b) reasonable

apprehension of tampering with the witness or apprehension of

threat to the complainant and; (c) prima facie satisfaction of the

court in support of the charge. In addition to the same, the Court

while considering a petition for grant of bail in a non-bailable

offence apart from the seriousness of the offence, likelihood of the

accused fleeing from justice and tampering with the prosecution

witnesses, have to be noted.

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

44. In Gurcharan Singh Vs. State (Delhi Admn.), since

reported in (1978) 1 SCC 118, the Supreme Court held as under :--

"...The principle underlying Section 437 is, therefore, towards granting of bail except in cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and also when there are other valid reasons to justify the refusal of bail. ... It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC. ..."

45. In Central Bureau of Investigation Vs. V.Vijai Sai

Reddy, since reported in 2013(3) PLJR SC 140, the Supreme

Court observed that while dealing with the grant of bail it is not

expected to have evidence establishing the guilt of the accused

beyond reasonable doubt. At this stage, the court has only to

satisfy itself 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 held as under :-

"While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

punishment which conviction will entail, the character 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/State and other similar considerations. It has also to be kept in mind that for the purpose of granting 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 itself 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 expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

46. By now, it is well settled that though the grant of bail

involves exercise of discretionary power of the court, it has to be

exercised in a judicious manner and not as a matter of course.

47. In Ram Govind Upadhyay Vs. Sudarshan Singh,

since reported in (2002) 3 SCC 598, the Supreme Court laid down

the factors that would guide the exercise of power to grant bail in

the following terms:-

"3. Grant of bail though being a discretionary order -- but, however, calls for exercise of such a Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case. While placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.

4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

48. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and

Anr, since reported in 2010 (14) SCC 496, the accused was facing

trial for an offence punishable under Section 302 of the Indian

Penal Code, his bail application was dismissed by the court of

Additional Chief Judicial Magistrate and the Court of Sessions.

However, the High Court allowed the bail application filed by the

accused in exercise of powers conferred under Section 439 Cr.P.C.

In appeal, while setting aside the order of High Court, the Supreme

Court observed:-

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

"9. ... It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused.

However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail."

10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal. ..."

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

49. In Gurcharan Singh and Ors. vs. State (Delhi

Administration) since reported in AIR 1978 SC179, the Supreme

Court held that the overriding considerations in granting bail

which are common both in the case of Section 437(1) and 439(1)

Cr.P.C are the nature and gravity of the circumstances in which the

offence is committed, the position and the status of the accused

person with reference to the victim and the witnesses; the

likelihood of an accused fleeing from justice; the likelihood of

repetition of the offence; the likelihood of jeopardizing one's life,

the likelihood of tampering with witnesses; the history of the case

as well as of its investigation etc which can not be exhaustively set

out.

50. In Kalyan Chandra Sarkar vs. Rajesh Ranjan @

Pappu Yadav and Anr., since reported in AIR 2005 SC 921, the

Supreme Court made it mandatory to justify the court's decision

for granting bail. However, it did not place such requirements for

denial of bail.

51. The 8th Law Commission of India, in its 78 th report,

stated that the law on bail is broadly established on the following

norms:-

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

"(i) In bailable offences, bail is a matter of right;

(ii) Bail is discretionary if the offence is non- bailable;

(iii) Bail shall not be granted by the Magistrate if the alleged offence is punishable by death or imprisonment for life and;

(iv) Court of Sessions and High Courts have wider discretion in granting bail even when the alleged offence is one i.e. punishable by death or imprisonment for life."

52. In Gudikanti Narasimhulu and Ors. vs. Public

Prosecutor, High Court of Andhra Pradesh, since reported in

AIR 1978 SC 429, the Supreme Court has held that public justice

is central to the whole bail law and a developed jurisprudence on

bail is integral to a socially constituted judicial process wherein

sound judicial discretion guided by laws plays a special role. Such

judicial discretion must be governed by law and not by caprice and

it cannot be arbitrary, vague and fanciful.

53. After analyzing and discussing Section 437 of the

Cr.P.C and the guiding principles in the matter of bail laid down by

the Supreme Court and this Court in the judgments discussed

above, one may reach to the conclusion that when the Magistrate

considers the application for bail for offences punishable with Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

death or life imprisonment, ordinarily he is required to refuse bail

unless the case falls under any of the exceptions such as accused

being below 16 years of age, woman, sick or infirm. Further, sub-

section (4) of Section 437 of the Cr.P.C requires that where any

accused is being released on bail under sub-section (1) or sub-

section (2) reasons or special reasons shall have to be recorded by

the Magistrate if he uses his discretion to grant bail. Once the law

requires recording of the reasons or the special reasons for

granting bail by a Magistrate, it goes without saying that he will

have to justify his order by referring to the grounds on the basis of

which he is finding justification for releasing the accused on bail to

whom he cannot normally grant bail.

54. Having discussed the facts of the case, the relevant

provisions for grant of bail under Section 437 of the Cr.P.C and the

principles laid down by the Supreme Court in the matter of bail,

when I test the order dated 07.12.2020 passed by the learned Chief

Judicial Magistrate, Motihari on the anvil whether there was

improper or arbitrary exercise of discretion in granting bail to the

opposite party no.2, I unhesitantly come to the conclusion that the

order was not only illegal and unjustified but was also perverse for

the following reasons :-

Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

(i) Firstly, from the order-sheet of the court of Chief

Judicial Magistrate, I find that there is no mention that any

application for bail was filed on behalf of the opposite party no.2

on 26.11.2020. By order dated 26.11.2020, the opposite party no.2

and another accused, namely, Chhotu Sah were remanded to

judicial custody on the basis of an application filed by the

investigating officer of the case after being satisfied with the

materials collected during investigation. In case, any application

for bail was filed on 26.11.2020, the same was required to be

mentioned either by the office clerk or by the court itself in its

order-sheet. Hence, there appears no justification for passing an

order on an application, which was not filed in accordance with

law and the prevalent practice.

(ii) Secondly, though a submission was made on behalf of

the opposite party no.2 while pressing the application for bail that

no criminal case is pending against him, the learned Chief Judicial

Magistrate has conveniently ignored to deal with the said

submission. The record of the case clearly speaks that the opposite

party no.2 was accused in at least two other cases.

(iii) Thirdly, because the investigation of the case was at its

initial stage and at this stage it was not required to discuss as to Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

whether disclosure made by the opposite party no.2 before the

police are admissible or not.

(iv) Fourthly, because even though there was ample

material to suggest the complicity of the opposite party no.2 in the

commission of the offence, the learned Chief Judicial Magistrate

has held in his order that no material was collected by the police

during investigation to suggest that he was in any manner involved

in the commission of the murder.

(v) Fifthly, because from the case diary it appears that there

is a strong case of prior meeting of mind amongst the accused

persons for commission of murder of the deceased, but the learned

Chief Judicial Magistrate has recorded in his order that there is

nothing to suggest that the offence attracted the ingredients of

Section 120-B of the Indian Penal Code.

(vi) Sixthly, as it is not a case of circumstantial evidence,

there was no occasion for the learned Chief Judicial Magistrate to

record in his order that there was no motive for the opposite party

no.2 to have committed the murder.

(vii) Seventhly, the learned Chief Judicial Magistrate ought

not to have observed in his order that the ingredients of Section 27

of the Arms Act are not attracted against the opposite party no.2. Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

(viii) Eighthly, because of the fact that the CCTV footage

of the opposite party no.2 captured in the cameras installed nearby

the place of occurrence were also prima facie material to suggest

the complicity of the opposite party no.2 in the commission of the

crime.

(ix) Ninethly, there are materials to suggest that the

opposite party no.2 was engaged as a spy by the main shooter and

was watching the movement of the deceased and disclosing the

whereabouts of the deceased to the shooters over phone and the

case diary reflects numerous telephonic conversation between the

opposite party no.2 and the main assailant, who fired causing death

of the deceased.

(x) Tenthly, because it was a case punishable with sentence

of death or imprisonment for life and there were no reasonable

grounds to believe that the opposite party no.2 was not involved in

the offence.

(xi) Eleventhly, because while granting bail the learned

Chief Judicial Magistrate ignored the nature of accusation, the

nature of evidence in support thereof, the severity of punishment

and the character of the accused.

55. It is a settled position in law that in a case, if the

relevant factors have not been considered and order granting bail is Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

passed on irrelevant considerations, the superior Court has a duty

to set aside such an erroneous order.

56. Thus, it is manifest that where a court considering an

application for bail, fails to consider relevant factors, which should

have been taken into consideration while dealing with the

application for bail and is founded on irrelevant considerations, the

superior court may justifiably set aside the order granting bail.

57. For the reasons recorded above, I am of the opinion

that the order dated 07.12.2020 passed by the learned Chief

Judicial Magistrate, Motihari in Turkauliya (Banjariya) P.S. Case

No. 725 of 2020 granting bail to the opposite party no.2 cannot be

sustained.

58. Accordingly, the said order granting bail to the

opposite party no.2 is set aside. The bail bonds furnished by the

opposite party no.2 in the court of Chief Judicial Magistrate,

Motihari stand cancelled. The opposite party no.2 shall be taken

into custody forthwith.

59. It is clarified that the order passed in the present case

shall not be construed as the expression of any opinion on the

merits of the case at the trial.

60. Let a copy of this order be forwarded to the court of

District Judge, Motihari, Chief Judicial Magistrate, Motihari, the Patna High Court CR. REV. No.2 of 2021 dt.10-02-2021

Superintendent of Police, East Champaran at Motihari and the

Officer-in-Charge of Turkauliya Police Station, Motihari to secure

compliance.

61. Registry is directed to send back the original lower

court records called for from the court of Chief Judicial

Magistrate, Motihari through special messenger forthwith.

(Ashwani Kumar Singh, J)

Pradeep/-

AFR/NAFR                      NAFR
CAV DATE                      N.A.
Uploading Date             19.02.2021
Transmission Date          19.02.2021