Chand Mohamad Noor mohamad vs Mohammed Faruk Mohamad Umarbhai & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1988 Supreme(Bom) 342

IN THE HIGH COURT OF BOMBAY
A.D. Tated, J.
Chand Mohamad Noor mohamad ... Petitioner.
Versus
Mohammed Faruk Mohamad Umarbhai others.... Respondents.
Criminal Application No. 1914 of 1988, decided on 30-9-1988.
Advocates appeared :
S.V. Marwadi, for petitioner.
V.S. Vanjara and Miss K.R. Chavan, for respondents Nos. 1.
P.M. Vyas, A.P.P., for respondent No. 5-State.

Headnote:Sections 437 and 439-Bail-Relevant - Factors consideration for granting bail-Involved in serious non-bailable offence-Held - Not in every case involving non-bailable offence-Not permishable with death or imprisonment for life-Bail should as a rule be granted-Factors should be taken into consideration for granting bail.
       It is not that in every case involving a non-bailable offence which is not punishable with death or imprisonment for life that the bail should, as a rule, be granted to the accused.
       This Court fully agreed with the learned Judge of the Gujarat High Court that the above factors should be taken into consideration while granting bail to the accused involved in serious non-bailable offences.
       Section 437 (1)-Bail-Granted by Magistrate-Accused guilty of an offence of murder-Validity-Held-Magistrate could not have released the accused on bail-Order of Magistrate granting bail is set aside.
       On the facts of the present case as disclosed from the prosecution papers, there did appear reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life. When that is the case, the learned Additional Chief Metropolitan Magistrate could not have entertained the bail application under Section 437 (1), Cr. P. C. and could not have released the accused Nos. I to 4 on bail. The learned Additional Chief Matropolitan Magistrate assumed jurisdiction to entertain the bail application by wrongly finding that the offence disclosed was under the second part of Section 304, 1. P. C., which was not punishable with death or imprisonment for life.

JUDGMENT - A.D. TATED, J.:---This criminal application under section 482 Cri.P.C. has been filed by one Chand Mohamad Noor Mohamad for quashing the order dated 19th September, 1988 passed by the Additional Chief Metropolitan Magistrate, 2nd Court, Mazgaon, Bombay [Shri S.A. Merchant], whereby he granted the application of the respondents Nos. 1 to 4- accused Nos. 1 to 4 for bail and directed that the said respondents be released on bail in the sum of Rs. 5,000/- each, with one surety in the like amount or a cash security deposit of 5,000/- plus P.R. in the sum of Rs. 5,000/- in lieu of the surety. Mr. P.M. Vyas, the learned Additional Public Prosecutor, supports the petition.

2. The facts giving rise to the application by the respondents Nos.1 to 4- accused Nos. 1 to 4 for releasing on bail have been stated by the learned Additional Chief Magistrate thus:-

"4. On 16-6-88 at about 6.45 P.M. the complainant's [that is, the petitioner's) father Noor Mohd. was assaulted by accused Nos. 2 and 4. According to him, accused No. 2 was having a knife with him, while accused No. 4 had a Khanjjr with him, as stated by him in his F.I.R. Noor Mohd, was assaulted by accused No. 2 and 4 with these weapons. Noor Mohd. was severely injured and he fell down on the road. It appears accused Nos. 2 and 4 continued to assault him. At that time accused Nos. 3 and 1 were seen running by the complainant with weapons in their hands towards the shop. At that time accused No. 1 was shouting that Noor Mohd. was assaulted and now his son Mansoor should not be spared. Thereafter it appears the complainant's brother Mansoor was also caught and he was assaulted by accused Nos. 3 and 1. They were having weapons like khanjir and kookery and with those weapons Mansoor was assaulted by them. The complainant seeing all this tried to intervene to save his brother Mansoor. At that time accused No. 1 picked up an iron bar which was lying nearby and with the same iron bar he gave a blow on the head of the complainant. Due to this, the complainant started feeling giddy and he sat down. All the accused persons ran away from the place. Thereafter it appears the injured Noor Mohd. and Mansoor and the complainant were removed to J.J. Hospital. Prior to admission Noor Mohd. and Mansoor were declared dead. The complainant Shri Chand Mohd. was treated in the hospital and later on his F. I. R. was recorded. The further investigation thereafter started. As mentioned in the charge-sheet, accused Nos. 1, 2 and 3 were arrested on 17-6-88, while accused No. 4 was arrested on 1-8-88. The accused No. 5 came to be arrested on 20-6-88." (Bracketed portion supplied.)

3. The incident took place on 16th June, 1988 at about 6.45 p. m. The matter was reported to Dongri Police-Station, Bombay, at about 7.40 p.m. The police registered the crime for the offence under section 302 read with section 34 I. P. C. and section 25(1)[b] read with section 27 read with section 35 of the Indian Arms Act, 1959, read with section 37(a) of the Bombay Police Act, 1951. As stated earlier, the respondents Nos. 1 to 4 accused Nos. 1 to 4 and the accused No. 5 were arrested. The weapons were recovered, the bloodstained clothes were seized from the person of the accused and after completing investigation charge-sheet was submitted in the Court of the learned Additional Chief Metropolitian Magistrate on 2nd September, 1988. The accused No. 5 was released on bail on 24th June, 1988 by the Metropolitan Magistrate, 15th Court, Mazgaon, Bombay. The accused Nos. 1 to 4 applied for their release on bail on 19th August, 1988. The prosecution opposed the bail application on the ground that the papers of investigation disclosed that the accused Nos. 1 to 4 committed an offence under section 302 I. P. C. and as such they could not be released on bail by the learned Metropolitan Magistrate. It was also submitted before the learned Metropolition Magistrate that there appeared reasonable grounds for believin

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