2010 Supreme(Bom) 1507

High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE R.C. CHAVAN
Ishan Vasant Deshmukh
Versus
The State of Maharashtra
CRIMINAL APPLICATION NO.4258 OF 2010 WITH CRIMINAL APPLICATION NO.511 OF 2010
Decided On : 18-10-2010

Headnote:Criminal Procedure Code, 1973 - Section 437-Bail-Grant of-Powers of Magistrate-Bail can be granted by Magistrate in cases triable by him even though punishment prescribed may extend to imprisonment for life-High Court directed applicant to apply for regular bail before concerned Court, Magistrate while seized of matter.-The counsel for the applicant had also placed reliance on judgment of the Supreme Court in Prahlad Singh Bhati v. NCT Delhi and another reported at 2001 (5) Bom CR 727 : 2001 All MR (Cri) 739 (SC) where the Supreme Court had held that regular bail under Section 437 could not be granted when accused was found to be involved in graver offence of murder under Section 302 of the Indian Penal Code. In this context the Supreme Court observed in para 6, 7 and 11 as under :

       "6. 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 Session yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session 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 such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case where the Magistrate has no occasion and infact does not find, that where 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.

       7. 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 prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the proviso 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.

       11. While allowing this appeal and setting aside the orders impugned Court permit the respondent-accused to apply for regular bail in the trial Court. If any such application is filed the same shall be disposed of on its merits keeping in view the position of the law and the observations made hereinabove. Court would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Session, the Magistrate may in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher Courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.’’

       In fact, this judgment would show that it is not that the Magistrate cannot grant bail in cases where the offence is punishable with imprisonment for life, if the offence is triable by the Magistrate. The observations of the Supreme Court that generally speaking if the punishment prescribed is that of imprisonment for life or death penalty and the offence is exclusively triable by the Court of Session the Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to Section 437 of the Code. Thus merely because an offence is punishable with imprisonment for life, it does not follow a Magistrate would have no jurisdiction to grant bail, unless offence is also exclusively triable by the Court of Session. This implies that the Magistrate would be entitled to grant bail in cases triable by him even though punishment prescribed may extend to imprisonment for life. This judgment in Prahlad Singh Bhati’s case had not been cited before Judge, who decided State of Maharashtra v. Raj Kumar Kunda Swami. Had this judgment been noticed by the Hon’ble Judge deciding that case, the observation that the Magistrate may not decide an application for bail if the offence is punishable with imprisonment for life would possibly would not have been made. In view of the observations of the Supreme Court in Prahlad Singh Bhati’s case, it is clear that the view taken by J.H. Bhatia, J in Ambarish Rangshahi Patnigere v. State of Maharashtra reported at 2010 All MR (Cri) 2775 is in tune with the judgment of the Supreme Court and therefore the Magistrate would have jurisdiction to grant bail.

       In view of the Court there should be no difficulty for the applicant to approach Magistrate, as had been directed by the Court for seeking regular bail since it is the Court of the Magistrate which would be seized of the matter and which would eventually try the case.

       Criminal Procedure Code, 1973 - Section 439-Grant of bail-Application for-Maintainability of-Held-No person accused of an offence can move for bail under Section 439 of Code unless he is in custody-However when a person surrenders before Court and submits himself to its jurisdiction-He is said to be in judicial custody-Application for bail maintainable.-It may be seen that the recent judgment of the Supreme Court on which the counsel for the informant intervener places reliance refer to the observation of the Supreme Court in Niranjan Singh’s case. It is not that subsequent Benches take any different view from the one taken in Niranjan Singh’s case. They follow the law laid down in Niranjan Singh. Hence it will not be appropriate to read observations in Niranjan Singh’s case selectively. There can be no doubt as held in para 6 of the judgment in Niranjan Singh’s case that no person accused of an offence can move for bail under Section 439 of the Code of Criminal Procedure 1978 unless he is in custody. But it is also clarified in para 9 that when a person surrenders before the Court and submits to its directions he is said to be in judicial custody and therefore an application for bail would lie. Therefore as far as challenge to the tenability of the application of the Court is concerned it has to be rejected. The applicant by submitting himself to the jurisdiction of the Court must be taken to have submitted himself to the custody of the Court. In fact, the Sessions Judge while rejecting the application should have seen this and should have remanded the applicant to custody, if he felt that the applicant was not entitled to bail.