Chandra Prakash vs Mohan Lal

M. Wahajuddin, J.—Opposite party has been granted bail by the Magistrate. It would appear that earlier the report was u/s 324 IPC and not u/s 307 IPC and the bail was granted but charge sheet was received u/s 307 IPC and the bail was cancelled and thereafter the Magistrate again granted bail. The learned Counsel for the applicant relied upon two cases, namely, Gurcharan Singh v. State AIR 1978 SC 179 and Shyam Lal v. State 1983 ACR 414 and urged that the Magistrate had no jurisdiction to grant bail u/s 307 IPC. The learned Counsel for the opposite party has argued at length and a large number of pronouncements have been cited. It is being urged that an order cancelling the bail is an interlocutory order so revision does not lie and the case of Shyam Lal is without jurisdiction. Reliance in that connection is also placed upon the case reported in 1977 SC 215 and 1979 ACC 155, a Division Bench case. I am afraid that this Court cannot say that an earlier pronouncement of this Court is without jurisdiction. I may also observe that so far as matter of revision is concerned there are different views taken by the Supreme Court. However, this controversy is off the point. The present application for cancellation of bail is not by way of revision and I would not enter into any such discussion. Reliance was further placed upon the case of Phool Chand Upadhya v. State 1981 ACR 328 . In that case Sessions Judge passed an order concerning a truck and the High Court though it held that the revision was not maintainable by the Sessions Judge, still maintained that order on merits observing that u/s 482 Code of Criminal Procedure the Court had inherent powers. So far as the matter of inherent powers is concerned, it is an exception and the Court has been vested with wide powers as to exercise the same in suitable cases. The matters granting bail or refusing to grant bail are covered in the general provisions of Code of Criminal Procedure and the legislature has taken full care not only to lay down the powers but also to make a distinction between powers conferred upon the Magistrate u/s 437 Code of Criminal Procedure and the powers conferred upon the Sessions Court and the High Court u/s 439 Code of Criminal Procedure. In fact, powers of the Magistrate and that of the Sessions Judge and the High Court cannot be treated at par. Sessions Court and the High Court have much wider powers and the tendency on the part of the Magistrate to treat their powers at par with the Sessions Court or the High Court must be discouraged. There is one more important point which I must touch. The amended new Code of Criminal Procedure also bears out such interpretation as in the case of Shyam Lal (supra). Earlier the Magistrate used to frame charge and if the offence is triable by the court of Sessions he has to commit it otherwise he proceeded himself with the trial. That process has been reversed by the amended Code of Criminal Procedure. The Magistrate has to commit the case and Sessions Court frames charge and if Sessions Judge after framing the charge finds that prima facie such charges are framable which are triable by the Magistrate he returns back the case to the Magistrate. When this is the position the Magistrate will find himself in difficulty at the time of commitment. If he commits the case u/s 307 IPC the question will arise how he could grant bail. It was urged that the Magistrate has well exercised his mind and on the authority of certain pronouncements including Sarju Prasad Vs. State of Bihar, and Jai Narain Mishra and Others Vs. State of Bihar, the case will fall u/s 324 IPC. I may simply observe that Section 307 deals with the three important ingredients that is intention, knowledge and circumstances. A court vested with wider powers that is Sessions Court and the High Court may enter into such question also and at the stage of bail may, making prima facie aspects grant bail, rather the Sessions Judge in this case also may take such view if he finds such position. He has the powers and the discretion vested in him by the Legislature but not the Magistrate. The Magistrate has also not exercised his mind. He says that the injuries are not on vital part, while in one of the pronouncements of the Supreme Court relied upon by the very opposite party''s counsel it has been observed that injuries on abdomen caused by any sharp weapon are on vital part and it cannot be said that injuries are not on vital part. When that is the position and the Magistrate has not exercised his mind I would not say that the order of the Magistrate does not overstep his powers and does not exceed jurisdiction. An order without jurisdiction cannot be maintained by this Court as such. In fact, if such a practice is adopted, the Magistrate may be tempted to abuse his powers in this manner which I must disapprove. At the same time I must also observe that as soon as the opposite party surrenders after cancellation of bail by this Court and prefers an application before the Sessions Judge, the Sessions Judge would with the independent mind also taking into account that his powers are much wider and also after taking into consideration certain pronouncement which are being cited and considering the implication of simple injuries or otherwise, decide the bail matter without any delay. With these observations the bail of the opposite party is cancelled. I may again observe that this would not mean that I have in any way found that on merits it is not a fit case for bail. I have cancelled it simply because I feel that the order of the Magistrate was without jurisdiction. I do not want that such tendency should in any way be encouraged.

In the result, the bail of opposite party Mohan Lal granted by Sri D.K. Sharma, Judicial Magistrate, Jaunpur is cancelled. A copy of this order shall be sent to Sri Sharma for his future guidence. I may again repeat that the Sessions Judge, as soon as the opposite party surrenders and moves a fresh application for bail, shall consider it without undue delay and with an independent mind also keeping in view that his powers are wider and unfettered.