On 14 June, a single-judge bench of the Delhi high Court consisting of Justice Subramonium Prasad while dismissing a petition challenging the granting of bail by the Metropolitan Magistrates held that in matters of grant of bail under section 437 crpc, the magistrate has been given an undoubted discretion which has to be judicially exercised by him. The court further held that once the magistrate has exercised his discretion, it is not for the High court to substitute its own discretion to that of the Magistrate’s.
Facts of the case:
The petitioner was approached by the respondents herein to purchase an apartment unit from the defendant. She also paid more than 50% of the total sale consideration. It was stated that since the project was not complete even after three years of the promised date a legal notice was sent by the petitioner.
A petition was filed under Section 482 Cr.P.C is directed against the order dated 18.03.2021, whereby the learned Metropolitan Magistrate, Saket Courts, Delhi, granted bail to the accused Vijender (respondent No.2 herein) and Brij Kishor (respondent No.3 herein) and exempted the other accused namely Anil Bhalla, Gautam and Gaurav from appearance. The order granting bail was challenged under the present petition.
Contention of the Petitioner:
Mr. Rakesh Kumar Singh, learned counsel for the petitioner submitted the following contentions:
- It was stated that even after the petitioner had paid more than 50% of the total sale consideration the project was not complete even after three years of the promised date a legal notice was sent by the petitioner herein on 22.04.2017, demanding refund of the total amount paid by the petitioner with interest at the rate of 18% per annum. However no reply was received.
- It was argued that after cognizance has been taken there was no reason for one of the accused not to appear before the learned Metropolitan Magistrate.
- It was submitted by the learned counsel for the petitioner that there were serious allegations against the respondent No.2 and 3 and other accused
persons and therefore the Court cannot grant bail to the accused for their asking.
Contentions of the defendants:
- It was stated the building was complete and the petitioner herein has not made more than 50% of the payment of the property.
- Further, no material had been produced before the Court to show that the accused who had been granted bail by the order impugned had criminal antecedents or that they would flee from justice. Hence, it cannot be said that the order impugned herein suffers from non application of mind.
Observation and Judgement of the court:
The Hon’ble bench made the following observations:
- Once the Magistrate has exercised his discretion under Section 437 Cr.P.C. in granting bail it is not for the High Court to substitute its own discretion to that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused.
- The learned Metropolitan Magistrate while considering the petition was justified in holding that the question as to whether the accused persons had dishonest intention right at the time of entering into agreement with the complainant/petitioner herein or not is a matter of trial.
- It is trite law that when bail is granted, an appellate Court must be very slow to interfere and when it is found that there is proper application of mind by the Court below in granting bail,
Keeping in mind the above, the court denied any interference with the decision of the Metropolitan Magistrate in granting bail to the accused.
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