Rajesh, Rakesh And Ors. @APPELLANT@Hash State Of Rajasthan & Anr.

This Court on 7.3.2018 pertaining to case FIR No. 137/2016 registered at Police Station Lalsot, District Dausa, had passed the following order:-

“Present petition has been filed under Section 482 Cr.P.C. praying that the impugned order dated 11.10.2017 passed by Additional Sessions Judge,

Lalsot, District Dausa (Raj.) be set aside.

Counsel for the petitioner has submitted that Investigating Agency initially opined that the offences under Sections 147, 148, 149, 323, 341 and 380 IPC

are made out and accepted the bail bonds of the petitioner.

Counsel for the petitioner submitted that subsequently an opinion given by Additional Director of Prosecutor offence under Section 308 IPC was

added.

Counsel for the petitioner further contends that on the application filed by the complainant under Section 439(2) Cr.P.C., bail bonds accepted by the

police were canceled by Additional Sessions Judge, Lalsot, District Dausa vide impugned order dated 11.10.2017.

Having heard counsel for the parties, this court is of the view that order dated 11.10.2017 passed by Court of Additional Sessions Judge, Lalkot,

District Dausa, under Section 439(2) Cr.P.C. is without jurisdiction and is liable to be set aside as rightful course after addition of offence under

Section 308 IPC for the accused-petitioner was to be apply for bail qua the said offence. There was no ground for cancellation of the bail bonds

already accepted by the police.

In the present case, the occurrence had taken place in year 2016. Petitioner is enjoying his liberty since then. A coordinate Bench on 15.11.2017 had

passed the interim order in favour of the petitioner.

Taking totality of the circumstances, this court is of the view that at this juncture it shall be highly unjust to send the petitioner behind the bars.

Consequently, it is ordered that in case petitioner appear before the trial court within two weeks from today, the said court shall accept personal bonds

of the petitioner and the bonds to be furnished by the sureties to its satisfaction. The bail bonds and surety bonds so furnished shall enure during the

course of the trial. â€​

In the order dated 7.3.2018, offences and name of parties were also noted, when the order was presented, in utter disregard to the order passed by

this Court, on 20.3.2018, Additional Chief Judicial Magistrate, Lalsot, Dausa stated that since in the order passed by the High Court, number of FIR

and name of court was not mentioned, therefore, the order could not be complied with.

The learned counsel for the applicant has submitted that till today, since charge-sheet has not been committed to the court of Sessions, the court of

Additional Chief Judicial Magistrate, Lalsot, Dausa was the trial court. The right course for the Additional Chief Judicial Magistrate, Lalsot, Dausa

was to call for records and comply with the order passed by this Court. Additional Chief Judicial Magistrate, Lalsot, Dausa for above reasons could

not disobey the order of this Court. At this stage, the learned counsel for the applicant has submitted that the court of Additional Chief Judicial

Magistrate, Lalsot, Dausa had not accepted the bail bonds because offence was triable by the court of Sessions.

The learned counsel for the applicant has relied upon the case of Ramji vs. State of Punjab, 2001 (1) RCR (Cr) 538, wherein it has been held as

under:-

“3. Ordinarily, this application would have been disposed of by merely modifying the order dated 9.11.2000 and directing the petitioners to

surrender before the Sessions Judge on any other date but since the question as to whether the Court of Judicial Magistrate 1st Class is entitled to

grant bail in cases punishable with imprisonment for life, though it is the trial Court, would arise in a large number of cases, notice of this application

was given to Advocate General, Punjab and arguments have been heard in detail.

4. The issue which is raised in the present case is that though the offencespunishable with imprisonment for life are triable by the Court of Judicial

Magistrate 1st Class, the difficulty which is being faced by the Courts, according to the counsel forthe petitioners, arises out of the interpretation that

they are placing on the provisions of Section 437 Cr.P.C. which spells out the power of Court other than the High Court or the Court of Sessions to

admit a person accused of committing non-bailable offence on bail. The relevant portion of Section 437 Cr.P.C. reads as under:

437(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.

5. A perusal of this Section indicates that the restriction on the power ofthe Court is in relation to the application of bail filed by a person in whose

case there appears to be a reasonable ground for believing that he is guilty of an offence punishable with death or imprisonment for life. While

analysing the scope of the words 'death' or 'life imprisonment' in Mohammed Eusoof v. Emperor, AIR 1926 Rang 51, the Court had held that the

prohibition against granting bail is confined to cases where the sentence is either death or alternatively transportation for life and did not extend to

offences punishable with transportation for life only. Their Lordships while coming to this conclusion had observed :

It is difficult to see what principle, other than pure empiricism, should distinguish offences punishable with transportation for life from offences

punishable with long terms of imprisonment; why, for instance, the detenu accused of lurking house trespass with a view to commit theft, for which

the punishment is fourteen years' imprisonment should be specially favoured as against the individual who has dishonestly received stolen property,

knowing that it was obtained by dacoity, for which the punishment happens to be transportation for life.

6. The above decision was cited with approval in Tularam v. Emperor,AIR 1927 Nag 53

7. In Satyan v. Stale, 1981 Crl.L.J. 1313, the Kerala High Court afteranalysing the aforesaid Section observed that :

A scrutiny of the several Sections of the Indian Penal Code will reveal that there is only an offence viz., the one under Section 303 for which death

alone is the punishment. There are three offences for which the sentence is death or imprisonment for life and fine (See Sections 121 and 302). The

offences mentioned in Sections 132, 305, 307 and 396 are punishable with death or imprisonment for life or imprisonment for 10 years and fine. All

these offences are to be tried only by the Court of Session. There are other offences wherein the punishment is either imprisonment for life or

imprisonment for a term and fine. Incidentally it is noted that under Section 363A for the offence of maiming a minor for being employed or used for

purposes of begging the punishment is imprisonment for life with liability to fine also. Section 389 provides for imprisonment for life where the offence

punishable is under Section 377, Indian Penal Code. It is significant to note that while most of the offences for which imprisonment for life is provided

as a punishment are triable by the Court of Session, there are some where the trial is to be by a   Magistrate of the First Class (See

Sections 326, 389, 394, 409, 467, 472, 474 and 477 IPC). A Magistrate of the First Class is not competent to pass a sentence of imprisonment

exceeding three years. In case the Magistrate feels that an accused ought to receive a more severe punishment he may submit the proceedings to the

Chief Judicial Magistrate as provided in Section 325Cr.P.C. The Chief Judicial Magistrate is not competent to sentence an accused for imprisonment

exceeding seven years. (See Section 29, Cr.P.C.). It follows that in cases where the offences are to be tried by a Magistrate of the First Class or the

Chief Judicial Magistrate, even if the maximum punishment is imprisonment for life the legislature does not ordinarily except the imposition of the

sentence."" and after noticing the aforesaid judgments concluded that :

The reasoning applies with equal force in interpreting the phrase ""offence punishable with death or imprisonment for life."" So long as an offence

under Section 326 is triable by a Magistrate of First Class, there is no reason why it should be viewed differently in the matter of granting bail from an

offence under Section 420 IPC for which the punishment extends to imprisonment for 7 years or any other non-baitable offence for which the

punishment is a term of imprisonment.

8. This judgment was relied upon by the Calcutta High Court in Sudarsan Base v. State of West Bengal, 1997(4) All India Criminal L.R. 154 and by

the Andhra Pradesh High Court in Ashireddygari Narasimhareddy v. State of A.P., 2000(3) RCR (Crl.) 573 which had taken the same view.

9. During the course of arguments, the judgment State v. Sayan Singh, AIR 1953 Pepsu 146 was also cited in support of the submission that the

Court which is competent to try the matter would impliedly also be empowered to grant bail in the case, which interpretation, to my mind will have to

be accepted in view of the fact that none of the cases which are punishable alternatively with death or life imprisonment are triable by any other Court

than the Court of Sessions.

10. In view of the aforesaid discussion, it has to be held that the barcontained in Section 437(1)(i) of the Code will have to be restricted to only

those cases where the offence which the accused is alleged to have committed is punishable alternatively with 'death' or 'life imprisonment' and not in

cases in which the offence is punishable with life imprisonment.â€​

In view of the judgment relied, and reproduced above since offence under Section 308 IPC is not punishable with life imprisonment, court of

Additional Chief Judicial Magistrate, Lalsot, Dausa, even though cannot try offence under Section 308 IPC, yet can accept bail bonds. Hence,

Additional Chief Judicial Magistrate, Lalsot, Dausa is directed to comply with the order dated 7.3.2018 within a period of two weeks from today.