State vs Vijay Kumar Khojuria and Another

I.K. Kotwal, J.—The controversy in this revision petition lies in a narrow compass.

The counter-petitioners have been arraigned before Addl. Sessions Judge, Jammu, to stand their trial u/s 302 read with Section 34, R.P.C. for

having committed the murder of the wife of counter-petitioner No. 1. The challan was originally put up before Sessions Judge, Jammu, who

transferred the same for trial to Addl. Sessions Judge, Jammu. An application was moved before the Addl. Sessions Judge, on behalf of counter-

petitioner No. 2 Shrimati Bimla Devi, for grant of bail to which one of the objections raised by the prosecution was, that the Court had no

jurisdiction to entertain the application. The objection was overruled by the Court and the prosecution has come up in revision against this order.

Mr. Sethi, appearing for the State has argued, that an application for bail not being one relating to a matter ancillary to the main trial, the Addl.

Sessions Judge had no jurisdiction to entertain the bail application, unless the same was transferred to him by the Sessions Judge under Sub-

section (4) of Section 17 of the Cr. P.C. Mr. Goni appearing on behalf of the counter-petitioner, has on the other hand contended that the bail was

a matter ancillary to the trial, and the Addl. Sessions Judge had thus ample power to entertain and dispose of the application made on behalf of the

counter-petitioner No. 2. In my opinion, it is wholly unnecessary to go into the question whether or not grant of bail was ancillary to the main trial.

The controversy can be at once resolved if only some of the provisions in the Code relating to grant of bail are noticed.

Bail may be granted to an accused during investigation, enquiry, or trial. An accused convicted of an offence may also be enlarged on bail by the

appellate or revisional Court, as the case may be. u/s 496, Cr. P.C. the accused shall be released on bail either by the Officer-in-Charge of the

Police Station, who has arrested him, and the same power may also be exercised during investigation, enquiry or trial by the Court before whom

the accused appears or is brought, provided he is prepared to give bail and the offence with which he has been charged is bailable. The officer or

the Court, once the accused expresses his willingness to give bail, have no power to refuse bail to him.

Section 497, Cr. P.C. deals with non-bailable offences. Non-bailable offences under this section fall under two categories, namely, offences

punishable with death or transportation for life, and offences for which the sentence provided is less than death or transportation for life. Under

Sub-section (1) where a person is either accused or suspected of having committed a non-bailable offence, which is not punishable with death or

imprisonment for life, the Court alone in which he is brought or himself appears has discretion to release him on bail. The words ""death"" and

imprisonment for life"" occurring in this sub-clause have to be read disjunctively so that whether the offence of which a person is accused or

suspected, is either punishable with death or is punishable with only imprisonment for life, the Court shall have no power to bail him out. What the

Court in such a case has to see is, whether or not there are reasonable grounds for believing that the accused is guilty of an offence punishable with

death or imprisonment for life. Mere allegations of the prosecution against the accused are not enough. The Court has to apply its own mind to the

facts and circumstances of the case, to find out whether or not any such grounds exist. If it finds that no such grounds exist it may enlarge the

accused on bail even if there may be grounds for believing that he is guilty of a non-bailable offence punishable with a lesser sentence. This

discretion may be exercised by the Court at all times during investigation, enquiry or trial. Exception is, however, made in the case of an accused

who is either under the age of 16 years, or is otherwise sick or infirm or is a woman, who may be released on bail by the Court, even though there

may be grounds for believing that he or she is guilty of an offence punishable with death or imprisonment for life. But, in no case shall the Officer-

in-Charge of a Police Station who has arrested or detained the accused, himself release him on bail.

Sub-section (2) provides that whenever it appears during investigation, enquiry or trial that there are sufficient grounds for believing, that the

accused has committed any non-bailable offence, he shall be released on bail. This power can be exercised by the Offlcer-in-Charge of the Police

Station, who has arrested him, as well as by the Court before whom he appears or is brought at any time during investigation, and by the Court

holding enquiry, or trial at any time during such enquiry or trial. It shall be again obligatory on the officer or the Court to release the accused on bail

once he or it is of the opinion, that there are no reasonable grounds for believing that the accused is guilty of a non-bailable offence and that further

enquiry into the matter is necessary to hold him guilty of a non-bailable offence. The accused in such circumstances shall be treated in the same

position as the accused charged with a bailable offence.

Sub-section (3) ordains that if the trial of a person accused of non-bailable offence does not conclude within a period of 60 days from the date

fixed for recording of the evidence in the case, the accused shall be released on bail, unless there are reasons for not doing so, provided the

accused is being tried by a Magistrate who also records his reasons for refusing the bail. By implication, no such right shall accrue in favour of an

accused, who is being tried by any other Court. Cases are triable by the High Courts, Courts of Session, Courts of Magistrates and Courts

constituted under any law other than the Cr. P.C. as provided u/s 6 of the said Code. Consequently, no obligation to enlarge an accused on bail

shall be cast on any other Court under this sub-clause, except the Courts of Magistrates. Sub-section (4), however, casts an obligation on every

Court including the Court of Session, to enlarge on bail the accused being tried by it, if at the conclusion of the trial it is of the opinion, that there

are no reasonable grounds for believing that he is guilty of a non-bailable offence.

A combined reading of Sections 496 and 497, Cr. P.C. reveals that unlike a person, who can claim bail as of right when accused of a bailable

offence, bail to a person accused of a non-bailable offence is granted only as a matter of concession. This concession under Sub-section (5) may

be withdrawn either by the Court which has granted the bail or by the High Court or the Court of Session.

A careful reading of Section 497 shows that any Court holding an enquiry or trial or before whom the accused appears or is brought has power

to release him on bail at any time during investigation, enquiry or trial. Exercise of this power has not been made dependent upon fulfilment of any

further requirements other than those mentioned in the section itself. That a Court competent to try or commit for trial the accused alone has power

to release him on bail, is further borne out from Sub-section (2) of Section 167, Cr. P.C. which provides that no Magistrate shall have power to

release an accused on bail, whose custody is sought by the police, unless he is competent to try or commit the accused for trial. Viewed thus, the

Court mentioned in Sections 496 and 497, Cr. P.C. before whom the accused appears or is otherwise brought must be a Court competent to try

the accused or commit him for trial.

An Addl. Sessions Judge to whom a case has been made over by the Sessions Judge for trial under Sub-section (2) of Section 193, Cr. P.C.

acquires all the powers of a Court competent to try the accused, when he presides over the Court of Session in the concerned Sessions Division,

and has consequently power to release the accused on bail under the provisions of Section 497. If, at any time during the trial, he comes to the

conclusion that there are reasonable grounds for believing, that the accused is guilty of non-bailable offence which is not punishable with death or

imprisonment for life, he may release him on bail under Sub-section (1), whereas, if he is of the opinion that there are no reasonable grounds for

believing that the accused is guilty of any non-bailable offence at all, he must release him on bail, which is the mandate of sub-ss (2) and (4) of

Section 497. The legislature has advisedly used the word ""Magistrate"" in Sub-section (3-a) in contradistinction to the word 'Court' occurring in

Sub-sections (1), (2), (3), (4) and (5) only to indicate that whereas besides the Court of Magistrate, power to release an accused on bail u/s 497

may be exercised even by the High Court or the Court of Session presided over by either the Sessions Judge or an Addl. Sessions Judge or an

Assistant Sessions Judge. Yet, no power under Sub-section (3-a) shall vest in any other Court except that of a Magistrate. The reason behind

enacting sub-section(3-a) is quite understandable. By and large the cases triable by the High Court or the Court of Session are of a serious nature

wherein it may not be advisable to release the accused on bail if the trial does not conclude within 60 days.

Reliance of the learned Counsel for the State on Sub-section (4) of Section 17 to build the argument that bail application in a case exclusively

triable by a Court of Session can be made to the Sessions Judge or the High Court alone, is clearly misplaced. Section 498, Cr. P.C. will apply to

those cases only where the accused is not being tried by the High Court or a Court of Session. Where the High Court or a Court of Session grants

bail to an accused being tried by it it shall be deemed to have exercised its power u/s 497 and not u/s 498. This inference is further fortified by the

insertion of Sub-section (2) in Section 498 vide Act No. XLII of 1956. Prior to 1956, the High Court or the Court of Session had no power to

cancel bail granted by it to the accused in exercise of its powers u/s 498. Consequently it could cancel the bail granted by any other Court while

exercising power under Sub-section (5) of Section 497 but not the one granted by itself. To remove this lacuna Sub-section (2) was added to

Section 498 in 1956. If the power to release the accused on bail who was being tried by an Addl. Sessions Judge or an Assistant Sessions Judge,

vested exclusively in the High Court or the Sessions Judge, then where was the necessity of adding Sub-section (2) to Section 498 when that

power under Sub-section (5) of Section 497 already vested in the High Court and the Court of Session ? This clearly indicates that the High Court

or the Court of Session exercises power to cancel bail under Sub-section (5) of Section 497 which has been granted either by it or by any other:

Court including an Addl, Sessions Judge, The expression ""and, in the case of a person released by itself, any other Court"" occurring in Sub-section

(5) of Section 497 is too distinct to include in its ambit even the Court presided over by an Addl. Sessions Judge or an Assistant Sessions Judge.

Interpreted thus Sub-section (4) of Section 17 will apply to those cases only where the accused is not being tried by an Addl. Sessions Judge. The

interpretation sought to be placed by Mr. Sethi will bring Sub-section (4) of Section 17 in conflict with the provisions of Section 497, both of

which are independent provisions, neither of them being subject to the other. The case would be, however, different where an Addl. Sessions

Judge or an Assistant Sessions Judge is not trying the case himself, In that case Section 497 will not apply and the application for bail in a case

exclusively triable by a Court of Session shall have to be made either to the Court competent to try or commit for trial or enquiring into or trying the

case or to the High Court or to the Court of Session as the case may be; an Additional Sessions Judge or an Asstt, Sessions Judge neither being a

Magistrate nor having power to make enquiry into the case himself.

In Kamleshwar Singh Vs. Dharamdeo Singh, , the Assistant Sessions Judge had received and decided an appeal against an order of conviction

recorded by a Magistrate having Second Class powers, a question arose as to whether he could receive and decide the appeal without the same

being made over to him by the Sessions Judge or the Government. The Full Bench held that even though he had the powers of a Sessions Court in

such matters under Sub-section (3) of Section 9 of the Cr. P.C. yet he could not exercise those powers unless the appeal was transferred to him

either by the Government or the Sessions Judge, under Sub-section (2) of Section 409, Cr. P.C. Obviously, therefore, a question whether or not

an Additional Sessions Judge was competent to receive and dispose of an application for bail made to him in a case being tried by him did not

directly arise in this case. Mr. Sethi has however, invited my attention to some observations made by Sahai, J. in this case only to emphasize that

unless an application for bail was first made to the Sessions Judge and transferred by him to the Addl. Sessions Judge, the latter had no jurisdiction

to entertain it. The observations occurring in the judgment are contained in Para 21 which read thus:

Sub-section (4) of Section 17 lays down that the Sessions Judge may when he is absent or incapable of acting, provide for the disposal of any

urgent application by an Addl or an Assistant Sessions Judge or, in the absence of any such Judge, by the District Magistrate,. This sub-section

makes two points perfectly clear. Firstly, all applications which are required by law to be filed in the Court of Session, e. g, an application under

Sub-section (5) of Section 497 for cancellation of bail or an application under Sub-section (1) of Section 498 for grant of bail, must be filed before

the Sessions Judge. He has full powers to dispose of all such Applications and he has also power, in the circumstances referred to in Sub-section

(4) of Section 17 to authorise a particular Officer to dispose of only urgent applications. Secondly, an Addl. or an Assistant Sessions Judge, has, in

the absence of authorisation by the Sessions Judge under the sub-section no power to receive or dispose of an application which is filed in the

Court of Session unless it is an application filed in connection with any matter which has legally come within his seisin.

I have already observed that Sub-section (5) of Section. 497 and Sub-section (1) of Section 498 will apply to only that case which is not being

tried by the Sessions Judge himself. The observations made by Sahai J. have to be understood in that sense alone. The concluding observations

made by him leave no room for doubt that an Addl. Sessions Judge who is seized of a case is as much competent to grant bail to the accused as

the Sessions Judge himself would be. The facts of this case are clearly distinguishable and the observations made by Sahai J. too have been

explained.

The other case namely Kalu and Others Vs. State, relied upon by Mr. Sethi also has no application in this case the Asstt. Sessions Judge had

cancelled the bail of the accused granted by the Sub-Divisional Magistrate. The court held that he had no power to do so unless the application

was transferred to him by the Sessions Judge under Sub-section (4)of Section 17. Similarly the last case Ba Maung v. Emperor AIR 1930 Rang

335 top has no application to the facts of the present case. In this case also the bail granted to an accused by a Magistrate was cancelled by the

Assistant Sessions Judge having jurisdiction in the Sessions Division. The High Court held that unless the application was transferred to him by the

Sessions Judge he could not have exercised power under Sub-section (5) of Section 497, which vested in the High Court and the Sessions Judge

alone. These two cases are clearly distinguishable on the ground that the bail had been cancelled by an Assistant Sessions Judge without being

seized of the case.

For the foregoing reasons, I find no merit in this petition, which is accordingly dismissed.