Mohd. Haroon vs State of U.P. and Another

M. Wahajuddin, J.—The applicant was remanded to judicial custody on 21-10-1984 by the Magistrate. On the same day after having given remand, the Magistrate passed two orders. The order Annexure II is on the application of the applicant of that date to the effect that the application be kept on record and though the case is not fit for remand, the remand is still being given before hearing all papers; hence bail granted. There is another order of that date giving reasons and providing points for enlarging the applicant on bail. It remains a mystery what occasioned the two orders of bail. However, dealing with further facts I may mention that a revision was preferred by the complainant and revisional court, namely the District and Sessions Judge, cancelled the ball of the applicant holding that the Magistrate had no jurisdiction to grant a bail for an offence u/s 307 IPC, and the order is without jurisdiction, also directing the accused person to surrender. The applicant has now preferred this petition praying that the order of the revisional court is bad and it may be quashed.

It is urged that there were no materials before the Magistrate, so he was well entitled to grant bail. It is also urged once the Magistrate granted bail, the revisional court could not interfere in this matter. It is further submitted that the consideration for cancelling bail is very different with the consideration for granting bail and once bail was granted, the revisional court could not and should not cancel the bail.

I have given my anxious consideration to the arguments advanced. Once question of jurisdiction is involved and there is want of jurisdiction of the court granting bail, such order would be per se bad and those considerations, which arise for cancellation of bail granted by a competent court of jurisdiction, would not arise.

I have gone through the judgment of the revisional court and I have also considered the arguments advanced. The revisional court has rightly held that once a remand has been made, the remand matter comes to an end. Obviously, after having remanded the accused person to the judicial custody for certain period, as provided under the Code of Criminal Procedure the Magistrate cannot review that order. The matter would arise for consideration again only when any further remand is sought. This being the position, the Court will necessarily have to examine whether the independent order granting bail to the applicant was without jurisdiction, as held by the revisional court, or not. I have already referred to the two orders passed by the Magistrate on the same day concerning bail, which is somewhat a mystery. However, it is the order Annexure III which deals with the matter of bail in some details. It is urged by the learned Counsel for the applicant that there was no material before the Magistrate, so naturally he could come to a coclusion that there is no case u/s 307 IPC as to exercise jurisdiction and grant bail. This, however, is not the correct factual position. The very observations of the Magistrate at the very inception would show that the copy of the first information report was before him and the copy of the G.D. regarding the arrest of the applicant was before him. The Magistrate should have necessarily examined the first information report to find whether a prima facie case u/s 307 IPC is disclosed and made out as to oust his jurisdiction. The argument of the learned Counsel for the applicant that how could the Magistrate be sure that this first information report was lodged at the police station and was authentic does not appeal to me at all. The police official had come for seeking remand of the accused. The APO was appearing and arguing the matter and the first information report and the G.D. entry was there. What else would be required. Naturally, the presumption would be regarding authenticity then making a conjecture or act of imagination that it is not authentic. I may further observe that if this type of approach is adopted then it will become immpossible to deal with the bail matters. Every day in the courts below as well as in this Court the first information reports are produced and, if produce, they are taken as genuine, unless it is proved otherwise.

I may now refer to the first information report itself. The first information report clearly recites that the accused persons, namely, the husband, throttled the neck of the victim and when she some how managed to release herself she was thrown to the ground floor. What else would be required to disclose a prima facie case u/s 307 IPC. In fact, this Court exercises inherent powers to serve the ends of justice and not to defeat it. The injury report concerning the victim has also been filed as Annexure II to the counter affidavit showing the injuries on the neck of the victim.

The learned Counsel for the applicant has relied upon the case of Bhagirathi 1984 CriLJ 34. That ruling deals with different situation and is distinguishable. I am not considering a case where a court of competent jurisdiction should or should not have granted bail. I am considering a case where the Magistrate is said to have exercised jurisdiction not vested in him. If the Magistrate had no jurisdiction, he could not by any stretch of imagination grant bail. For determining the question of jurisdiction in first information report is most vital and the first information report definitely disclosed a prima facie case u/s 307 IPC. The offence u/s 307 IPC is punishable with life imprisonment as well and it is the Sessions Judge who would have jurisdiction to consider the prayer for bail, when the offence is punishable with life imprisonment. There are also direct authorities of this Court cited by the counsel for the opposite side, namely 1976 ACC 132. It was held in that case that the order of bail granted by the Magistrate for an offence u/s 307 IPC is without jurisdiction, because the Magistrate has no such jurisdiction.

In the case of State v. Jaspal Singh Gill AIR 1984 SC 1211 the Supreme Court cancelled a bail granted by the High Court, so that jurisdiction is always there. I would not dwell upon the matter further because if the applicant later moves any application for bail before the competent court, i.e. the Sessions Judge, he would be embarrassed by any observation of this Court. I am simply referring it as an authority for the proposition that bail granted by any inferior court could be cancelled by any superior court. In the present case when prima facie the Magistrate has no jurisdiction to grant bail for an offence u/s 307 IPC, prima facie case disclosed by the perusal of the first information report, the revisional court was fully competent to cancel it.

The learned Counsel for the applicant also relied upon Section 437(2) Code of Criminal Procedure. This sub-clause is by no stretch of imagination attracted. The material before the Magistrate was the first information report and it certainly disclosed a prima facie case u/s 307 IPC and the Magistrate had no other materials before him to find that there are no reasonable grounds for believing that the accused has committed a non bailable offence u/s 307 IPC.

Reliance was further placed by the learned Counsel for the applicant upon AIR 1964 Mani 39. Firstly, the facts of that case are distinguishable. Secondly, there is a direct authority of this Court on the point. In fact, if orders passed without jurisdiction are not interfered with, it would amount to encouraging the tendency to assume jurisdiction, which the Magistrate does not have. There is a later direct authority on the point by this Court, namely, Shyam Lal v. State of U.P. 1983 CriLR 449.

I, therefore, do not find any force in this petition u/s 482, Code of Criminal Procedure and it is dismissed. The stay order if any is vacated.

I, may, however, observe, that after the applicant surrenders and complies with the order of the revisional court, of course there would be no bar for making an application for bail before the Sessions Judge, which would necessarily be considered on merits. I may in the end also add that offence u/s 307 IPC is exclusively triable by the Sessions Judge and not by the Magistrate.