Prahlad Singh Bhati
N.C.T., Delhi & Anr.
Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code.
In respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, In a case, where such Magistrate has to specifically negative the existence of a reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life.
The rate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.
Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking, if punishment is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.
The mere initial grant of anticipatory bail for a lesser offence did not entitle the respondent to insist on regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437 (5) nor Section 439 (1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused of an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed the irregularity by holding that “I do not agree with the submission made by the Ld. Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of the law”.