Vishnuprasad Dahyabhai Brahmbhatt vs State and Others

V.V. Bedarkar, J.—This is an application against the order of the learned Judicial Magistrate, First Class, Kaira at Matar, issuing bailable

warrant for the amount of Rs. 1,500/- against each of the accused (present opponents Nos. 2 to 6) though they were accused of an offence of

murder.

The allegations are that the present petitioner had filed a complaint against opponent Nos. 2 to 6 under Sections 307, 302 and 34 of the Indian

Penal Code for the offence of murder of two persons who were allegedly shot dead by Police Officers (the accused). Because the allegations were

against the police, as per the grievance of the petitioner, though the complaint was filed before the Police, they asked for Summary and, therefore,

he was required to file a private complaint. The learned Magistrate inquired into the matter by taking evidence u/s 202 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as ''the Code'') and ultimately came to the conclusion that there was a prima facie case involving the

accused before him for the offences punishable under Sections 302, 307 and 34 of the Indian Penal Code and, therefore, directed to issue process

of bailable warrant of Rs. 1,500/- against each of the accused-police officers.

Being aggrieved by the said order of the learned Magistrate, the petitioner has come to this Court with a grievance that the learned Magistrate

had no jurisdiction to order issue of bailable warrants. For this, reliance is placed on Section 437(1) of the Code, which is to the following effect:

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 incharge 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 he 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.

According to this provision, a person suspected of commission of any non-bailable offence shall not be released on bail by a Magistrate if there

appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. It is the submission

that when the learned Magistrate after preliminary inquiry u/s 202 of the Code came to the conclusion that there is prima facie case; it would mean

that he belived that the accused had been guilty of an offence punishable with death or imprisonment for life and, therefore, he had no jurisdiction to

release them on bail.

As against this, Mr. A.J. Patel learned Public Prosecutor for the State as well as other opponents, submitted that the learned Magistrate who

issued process could issue process either of bailable warrant or non-bailable warrant and, therefore, when the learned Magistrate has exercised his

jurisdiction, this Court should not interfere.

Apparently looking, the argument of Mr. A.J. Patel is quite attractive. But the question that is posed for consideration of this Court is whether

the learned Magistrate has jurisdiction to issue such process of bailable warrant, if he had no jurisdiction to release those very accused on bail if

they had appeared before him or were brought before him. In terms, the position to be considered is that if any person is arrested by the police

involving him in an offence of murder and when he is produced before the learned Magistrate, the learned Magistrate would see whether there are

reasonable grounds to believe that the accused brought before him has been guilty of an offence punishable with death or imprisonment for life or

not, and then shall consider whether he should release such a person on bail or not. Merely because the police have accused a person of an

offence punishable with death or imprisonment for life, the Magistrate''s jurisdiction to release such a person on bail does not cease. At that time,

the learned Magistrate shall have to appreciate the police paper and consider whether there are reasonable grounds to believe that the person is

accused of such an offence. If reasonable grounds exist, then bail will be refused, and if they do not exist, then even though he may be a

Magistrate, he has jurisdiction to release such a person on bail. So, if the police would have brought an accused person before the Magistrate and

the Magistrate has come to the conclusion that he has reasonable grounds to believe that the accused person has been guilty of an offence

punishable with death or imprisonment for life, could he release him on bail? Certainly not, u/s 437(1) of the Code. If that is so, according to Mr.

N.K. Barot, learned Advocate for the petitioner, and rightly, this is still a stronger case because the learned Magistrate himself has inquired into the

matter, and on evidence led before him, has come to the conclusion that there is a prima facie case, meaning thereby, there appear reasonable

grounds for believing that the accused persons have been guilty of an offence punishable with death or imprisonment for life. If that is so it was not

open for the learned Magistrate to release opponent Nos. 2 to 6 on bail.

Mr. Barot cited before me the decision of the Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote 1980 CLJ 426. In that case

also police officers were involved as accused. A private complaint was filed by the brother of the person who was allegedly killed by the police.

The learned Magistrate ordered an inquiry u/s 202 of the Code, took oral evidence of witnesses at some length and held that taking an over-all

survey of the evidence produced before him, he was of the opinion that there were sufficient grounds to proceed against all the accused for the

offences under Sections 302, 323, 342 read with Section 34 of the Indian Penal Code, as is done in the instant case before me. In that case also

the learned Magistrate issued non-bailable warrants for the production of the accused. Still, however, the learned Magistrate who refused bail,

stayed the issuance of the warrants. The Supreme Court, therefore, observed:

...we are unable to find any provision to enable him to do so.

Thereafter, the accused moved the Sessions Court, and the Sessions Court granted bail subject to certain conditions. The High Court did not

interfere with that order, but only added additional condition to ensure that the bail was not abused and the course of justice was not thwarted.

Therefore, the original complainant moved the Supreme Court. On consideration of all these aspects, in the last portion of paragraph 9 the

Supreme Court observed:

...We may frankly state that had we been left to ourselves we might not have granted bail but; sitting under Article 136, do not feel that we should

interfere with a discretion exercised by the two Court below.

This was on appreciation of facts before that Court. Supreme Court also observed:

Grant of bail is within the jurisdiction of the Sessions Judge but the Court must not, in grave cases, gullibly dismiss the possibility of police-accused

intimidating the witnesses with cavalier case. In our country, intimidation by policemen, when they are themselves accused of offences, is not an

unknown phenomenon and the judicial process will carry credibility with the community only if it views impartially and with commonsense the pros

and cons, undeterred by the psychic pressure of police presence as indictees.

An argument was advanced before the Supreme Court that the learned Sessions Judge had no jurisdiction to release the accused on bail because

they were not in custody. The Supreme Court observed that custody, in the context of Section 439 is physical control or at least physical presence

of the accused in Court coupled with submission to the jurisdiction and orders of the Court. He can be in custody not merely when the police

arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he

surrenders before the Court and submits to its directions. The Supreme Court further observed that in the case before it, the police officers applied

for bail before a Magistrate who refused the bail and still the accused, without surrendering before the Magistrate, obtained an order for stay to

move the Sessions Court. This direction of the Magistrate was wholly irregular and enabled the accused persons to circumvent the principle of

Section 439 of the Code. The Supreme Court, however, considered that the Sessions Court acquired jurisdiction to consider the bail application.

It could have refused bail and remanded the accused to custody, but, in the circumstances, and for the reasons mentioned by it exercised its

jurisdiction in favour of grant of bail. It is, therefore, the submission on behalf of the opponents, that if this Court orders, they are ready to

approach the learned Sessions Judge and get the bail, but no useful purpose will be served by granting this petition and cancelling the order of bail.

Feasibility of this request will be considered at the relevant time.

The next ground advanced by Mr. A.J. Patel is that opponent Nos. 2 to 6 have moved the Sessions Court by a revision against the order of

issuance of process by the learned Magistrate. Therefore, unless that is decided, entering into the details of this dispute by this Court would be

futile. I am not concerned, in fact, with the outcome of the revision application before the Sessions Court. I am here concerned with the inherent

jurisdiction of the Magistrate to issue a bailable warrant.

From the discussions made above, it is very clear that the learned Magistrate came to the conclusion that there is prima facie case for the offence

of murder against opponent Nos. 2 to 6. If that is so, it was not open for him to issue a bailable warrant. Therefore, that order of the learned

Magistrate deserves to be set aside and the order granting bail to opponent Nos. 2 to 6 deserve to be cancelled.

As considered by the Supreme Court in case of Niranjan Singh (supra), if opponent Nos. 2 to 6 appear before the Sessions Court in view of

Sections 437 or 439 of the Code, and apply for bail, it will be open for the learned Sessions Judge to consider whether to grant or refuse the bail

on merits of the case.

In the result, the petition is allowed and the order of the learned Magistrate is set aside as he had no jurisdiction, and the bail order issued by him is

cancelled. Rule is made absolute.