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1996 Supreme(Bom) 191
IN THE HIGH COURT OF BOMBAY
V. Sahai, J.
.... Petitioner.
Versus
Kaushar Yasin Qureshi and another.... Respondents.
Criminal Application No. 1256 of 1992, decided on 3-4-1996.
Advocates appeared :
R.P. Behere, for the petitioner.
A.P. Mundargi, for the respondents.
(5) Bom.C.R. 473
The court emphasized that the Magistrate should not enter into a meticulous analysis of the offence at the bail stage and should only examine whether there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or life imprisonment.
Headnote:
Bail - Offence under section 302 r/w 114 I.P.C. - Secs. 437, 439 Cr.P.C. - The bail order passed by the Additional Chief Metropolitan Magistrate in favour of respondent No. 1 was without jurisdiction, untenable in law and hence, has to be set aside.
Fact of the Case:
The respondents were granted bail by the Additional Chief Metropolitan Magistrate in a case under section 302 r/w 114 I.P.C. The prosecution alleged that the respondents assaulted the deceased, leading to his death.
Finding of the Court:
The court found that the bail order passed by the Additional Chief Metropolitan Magistrate in favour of respondent No. 1 was without jurisdiction and untenable in law, leading to its cancellation. However, the bail order in favour of respondent No. 2 was sustained and affirmed.
Issues: The main issue was whether the bail granted to the respondents was within the jurisdiction of the Additional Chief Metropolitan Magistrate.
Ratio Decidendi: The court held that the bail order in favour of respondent No. 1 was without jurisdiction as there were reasonable grounds to believe that he was guilty of the offence of murder, punishable with life imprisonment or death. The court also emphasized that the Magistrate should not enter into a meticulous analysis of the offence at the bail stage.
Final Decision: The bail order in respect of respondent No. 1 was set aside, and his bail was cancelled. However, the bail order in respect of respondent No. 2 was sustained and affirmed.
2. The prosecution case in brief is that the deceased Mohd. Jaffar was having a grocery shop in Bandra, Bombay. On 21-12-1991, at about 1 p.m., the two respondents went to his shop as respondent No. 1 wanted to purchase some mince-meat. It appears that since it was a Friday the deceased told respondent No. 1 that as he had to go for prayers, it was not possible for him to give him mince-meat. This is alleged to have infuriated the respondent No. 1 (Kaushar Yasin Qureshi) who, thereupon picked up a iron bar which was lying in the shop of the deceased and to have assaulted the deceased with the same on his head. At that time, respondent No. 2 (Chuttan Amir Ahmed) was standing there and was abusing the deceased. As a consequence of the assault made by respondent No. 1, Mohd. Jaffar is said to have sustained four injuries. He was immediately rushed to a hospital.
On the basis of the F.I.R. lodged by eye witness Mohd Hanif, a case under section 323/326/114 I.P.C. was registered against the respondents.
Mohd Jaffar is said to have succumbed to his injuries on 31-12-1991 and thereafter the case was converted to one under section 302 read with 114 I.P.C.
3. The respondents moved an application for bail and the learned Additional Chief Metropolitan Magistrate vide the impugned order was pleased to grant bail to them. The main ground which weighed with him was that the incident happened on the spur of the moment when the deceased refused to give mince-meat to respondent Kausar Yasin Qureshi. It also weighed with him that the two respondents had not gone armed with any weapon; that initially an offence under section 323/326 read with 114 I.P.C. was registered; and the deceased succumbed to his injuries, ten days after the incident. He has also observed in his order that the only role attributed to the respondent No. 2 in the incident was of giving abuses.
4. Mr. R.P. Behere, learned A.P.P. for the petitioner strenuously urged that in view of the provisions contained in section 437 Cr.P.C. it was not open to the learned Additional Chief Metropolitan Magistrate to have granted bail to the two respondents because, the offence of section 302 I.P.C., was punishable with death or imprisonment for life. He urged that in respect of such an offence, he only had the jurisdiction to grant bail if the person seeking bail was either below 16 years of age, or a woman or sick or infirm.
5. To appreciate the submission of Mr. Behere a perusal of the provisions contained in section 437 Cr.P.C. would be necessary. Section 437 Cr.P.C. reads thus :---
"When bail may be taken in case of non-bailable offence
(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-in-charge 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---
(i) such person 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;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence;
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman
