Surendra and Others vs State of U.P.

H.N. Kapoor, J.—This revision has been filed by Surendra, Mahavir and Sita Ram against the order of the Sessions Judge, Meerut dated 26th August, 1975 cancelling the bail granted to them by the Magistrate.

It appears that bail had been originally granted by the Magistrate treating the case to be one under Sections 147, 323 and 324 IPC only. An application for cancelling the bail was moved before the learned Magistrate on the ground that the case was in fact u/s 307 IPC. He rejected that application by his order dated 27-7-1975 observing that the proper forum for applying for cancellation of bail was the Sessions Court. He has also observed that the bail already granted would be deemed to have been granted u/s 307 IPC also. It appears from his order dated 21-7-1975 that the details of the injuries were not available at the time when he had granted the bail earlier. The learned Sessions Judge took the view that there was clearly an intention to kill because there were 36 injuries out of which 10 were on the head and there were four fractures. He did not cancel the bail of some persons who were said to have been armed with Ballam and Jeli as there was no injury with these weapons but he cancelled the bail of the present Applicants.

Learned Counsel for the Applicants has argued that the bail once granted could have been cancelled for valid reasons only such as "there were chances of jumping the bail, threatening or influencing the witnesses, interfering with the investigation or prosecution, obstructing the Judicial process or otherwise misusing or abusing the bail" as was held by a learned Judge of this Hon''ble Court in the case of Ram Murti and Another Vs. State, .

The powers of a Magistrate in granting bail are limited u/s 437(1) Code of Criminal Procedure. In a case where there appears reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, a Magistrate has no power to grant bail unless the case is covered by the proviso to that sub-section, that is, the accused is under the age of 16 years or is a woman or is a sick or infirm person. The Magistrate obviously acted without jurisdiction in granting bail to a person against whom the offence was u/s 307 IPC. From the order dated 21-7-1945 passed by the Magistrate, it appears that the entire data was not before him when he had granted the bail. The learned Sessions. Judge was justified in cancelling the bail only on the ground that the Magistrate had acted beyond his jurisdiction.

A preliminary objection was also raised in this case that the order cancelling bail was an interlocutory order and no revision lies u/s 397(2) Code of Criminal Procedure. Reliance has been placed on the case of Tota Ram v. State 1976 AWG 197. Learned Counsel for the Applicants has, however, placed reliance on the case of Ram Murti v. State 1975 AWG 479 in which a revision was entertained and allowed against the order cancelling bail, but it appeals that the point that it was an interlocutory order was not considered in that case. However, I have already held above that the learned Sessions Judge could have cancelled bail if he was satisfied that the Magistrate had acted beyond his jurisdiction.

In the present case, there is an alternative remedy as it is open to the Applicants to move a fresh application for bail in the High Court u/s 439 Code of Criminal Procedure which can be considered on merits.

There is no force in this revision. It is accordingly dismissed.