The magistrate has the power to recall a Non-Bailable Warrant and release the accused on bail under Section 437 Cr. P. C. even in cases exclusively triable by the Court of Session.

V. BHASKARA RAO, J.

( 1 ) THIS is a petition filed to quash the order of the XVII Metropolitan magistrate, Hyderabad, in C. C. No. 77/89 recalling the Non-Bailable warrant issued against the respondent under Sec. 70 (2) of the Criminal procedure Code.

( 2 ) THE brief facts of the case are: The petitioner herein filed a private complaint against the respondent alleging that the Respondent kidnapped him with the aid and asistance of some others, kept him in illegal custody for over one week and therefore liable for punishment under Sections 324, 395, 379, 343, 365, 367 and 368 I. P. C. The Magistrate took cognizance of the offence and since the process could not be served, the N. B. W. was issued by the Magistrate against the respondent for execution through an advocate-Commissioner. However, the Advocate-Commissioner returned the N. B. W. on 3-8-1989 unexecuted. While so on 4-8-89 the respondent appeared before the Court and filed a petition, to recall the N. B. W. which was ordered. It is this order of recalling the N. B. W. , that is questioned in these proceedings under Sec. 482 Cr. P. C.

( 3 ) THE contention of the learned counsel for the petitioner is that the magistrate having taken cognizance of the offence triable by a Sessions court, has no jurisdiction to recall the N. B. W. , issued and that he has alone to commit the accused to judicial custody, and that if at all the accused could move the Sessions Court for bail under Sec. 437 Cr. P. C. The learned counsel for the respondent-Accused, on the other hand, contended that the Magistrate in appropriate cases has power to recall the N. B. W. issued by him. Even if there is no power, to recall the N. B. W. , he submitted, the Magistrate could release the accused on bail under Section 437 cr. P. C.

( 4 ) THERE is no dispute in this case that the maximum punishment for the most grievous offence taken cognizance of in this case is imprisonment for life , that the N. B. W. , issued to the Advocate-commissioner was returned unserved on 3-8-89 and that on 4-8-1989 the respondent appeared before the Court. It must be noted that the respondent in this case is an inspector of Police, Railway Protection Force and that a case filed by him regarding theft of railway property is pending against the petitioner. As submitted by the learned counsel for the respondent even taking that the magistrate has no power to recall the warrant issued under Sec. 70 (2) cr. P. C. , still under Section 437 Cr. P. C. he has power to release the accused-respondent on bail. Then the question is whether in a case exclusively triable by the Court of Session, the Magistrate could release the accused on bail under Sec. 437 Cr. P. C. This question was considered by the Kerala High Court in Satyam vs. Stated. It was held therein that the magistrate is not justified in holding that he had no power to grant bail to the accused before him, who was involved in an offence punishable with imprisonment for life , solely on the ground that the offence is exclusively triable by a Court of Session. It further held that the prohibition aiainst grant of bail is confined to the cases where the sentence prescribed is either death or alternatively imprisonment for life and that the expression occurr- ing in Sec. 437 viz. , . . offence punishable with death or imprisonment for life does not extend to an offence punishable with imprisonment for life only. The Kerala High Court further observed:"the legislature has made a liberal approach in the matter of granting bail and has shown its disapproval in the matter of keeping an accused person in custody in cases where he is ordinarily entitled to bail. The purpose of keeping a person in custody is to ensure his appearance in Court at the time of trial and that he is also made available for the purpose of execution of the sentence. The purpose is not penal in character. "this judgment of the Kerala High Court was followed by this Court (Patnaik, J) in Crl. M. P. 3011/89, dt.

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