JUDGMENT - R.K. BATTA, J.:---The applicant, who is the son of the deceased, seeks cancellation of bail granted by the Judicial Magistrate First Class, Kelapur to respondent Nos. 2 and 3, vide order dated 20th October, 2000.

2. The respondent Nos. 2 and 3 were arrested in connection with an attempt to murder under section 307 I.P.C. on 19-10-2000, in respect of an offence which had taken place on 17-10-2000. The bail application was filed on 20-10-2000 and on the same day, respondent Nos. 2 and 3 were ordered to be enlarged on bail even though A.P.P. was not available in the Court. The victim died on 20-10-2000 at about 3.00 P.M. and in view of the same section 302 I.P.C. would be attracted. The charge-sheet under section 302 I.P.C. has already been filed.

3. Learned Advocate for the applicant has urged before me that the Magistrate acted very hastily in granting bail in serious matter without even waiting for the say of the A.P.P. or hearing A.P.P. The exercise of power by the Magistrate, in the circumstances, accordingly, the learned Advocate for the applicant is arbitrarily in the light of the dying declaration of the deceased prima facie offence under section 307 read with section 34 of the I.P.C. and now 302 read with section 34 I.P.C. is made out. After relying upon the judgment of this Court in (B.S. Rawat, Assistant Collector of Customs v. Andre Christopher Mydlarz and others)1, 1988(1) Bom.C.R. 607 : 1988(2) Crimes 581, it was urged that it is not obligatory on the Court to release the accused only on the count that she is a woman and that word 'may' appearing in the provision does not mean 'shall' and 'must' and that all other considerations have to be weighed. He, therefore, contends that the bail granted to respondent Nos. 2 and 3 be cancelled.

4. The learned Advocate for respondent Nos. 2 and 3 urged before me that on the basis of material on record, offence under section 302 is not disclosed and that in view of the proviso to section 437(I), the Magistrate has jurisdiction to enlarge the respondents who are women on bail. It is also urged that the applicant has approached the Court with great delay and in the circumstances, the bail granted to the respondent Nos. 2 and 3 be not cancelled. Reliance has been placed on the judgments of the Apex Court in (Bhagirathsinh Judeja v. State of Gujarat)2, 1984 Cri.L.J. 160 and (The State through the Delhi Administration v. Sanjay Gandhi)3, A.I.R. 1978 S.C. 961.

5. Learned A.P.P. after relying upon the dying declaration of the deceased urged that prima facie offence under section 302 I.P.C. is made out and the Magistrate acted illegally by granting bail in a serious matter without even hearing the A.P.P. He pointed out that the Magistrate has no power to grant bail in respect of the offences which fall within the bar of section 437 I.P.C. He also relied upon the judgment of (Rajendra Nath Srivastava v. State of U.P. and others)4, reported in 1998 Cri.L.J. 639 in this respect. Learned A.P.P. also pointed out that any person can apply for cancellation of bail and in this connection reliance was placed on (R. Rathinam v. State by DSP)5, reported in 2000 Criminal 178. Relying on (Imamuddin v. Ayub Khan and others)6, reported in 1984 Cri.L.J. 117, it was urged that the bail has been granted in an arbitrary and capricious manner. Learned A.P.P. also pointed out that there are threats to witnesses and applicant. In this respect, complaints have already been made by the complainant to the police. He, therefore, contends that the bail granted to the respondent Nos. 2 and 3 is required to be cancelled.

6. Section 437 Cri.P.C. provides that person accused of, or suspected of, the commission of any non-bailable offence shall not be released on bail by the Magistrate, if there appears reasonable ground for believing that he has been guilty for offence punishable with death or imprisonment for life. The scope and ambit of expression "punishable with death or imprisonment for life" occu

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