Compliance with the provisions of Section 437 Cr. P.C is essential when granting bail in cases involving serious offences, such as those punishable under Section 376 IPC.

SUNITA GUPTA, J.

1. This is a petition u/s 482 read with Section 439(2) of the Code of Criminal Procedure, (hereinafter referred as Cr. P.C), 1973 against the order for grant of bail dated 26.04.2014 passed by the learned Metropolitan Magistrate in case FIR No.549/2013, P.S. Uttam Nagar u/s 354/376/506/34 IPC.

2. The FIR in the instant case was registered on the basis of a complaint made by the petitioner regarding commission of rape upon her by respondent no.2 which resulted in registration of the aforesaid FIR.

3. It is submitted by learned counsel for the petitioner, that pursuant to the complaint made by the petitioner, respondent no.2 moved an application for anticipatory bail before the Sessions Court which was dismissed vide order dated 08.10.2013. Thereafter bail application no. 1945/13 was moved before this Court and the same was dismissed vide order dated 31.10.2013. Respondent no.2 filed an SLP(Crl.No.10133/2013) before Hon’ble Supreme Court. While issuing notice, Hon’ble Supreme Court passed an interim order not to arrest the petitioner (respondent no.2 herein). After completion of service, when the SLP was called up for hearing on 03.07.2014, counsel for respondent no.2 made a statement that respondent no.2 has already been granted regular bail by the competent Court. In view of this statement, the SLP was dismissed as infructuous. It is submitted that thereafter counsel for the petitioner inspected the judicial file which revealed that on 09.04.2014, the Investigating Officer filed charge sheet before the learned Metropolitan Magistrate, New Delhi. The Court took cognizance of the offence. The learned Metropolitan Magistrate noted in the order that all three accused persons are stated to be not arrested but this fact was not verified by the learned Metropolitan Magistrate. The accused persons were summoned for 26.04.2014.

4. On 19.04.2014, there was no order from any Court regarding stay of arrest of accused Bhanwar Pal and Anmol nor were they on bail. An incorrect statement was made by the Investigating Officer on that day. On 26.04.2014, respondent no.2 appeared along with his counsel. However, the remaining two accused Bhanwar Pal and Anmol did not appear and were granted exemption from personal appearance. Without filing a bail application by respondent no.2 and without notice to the State, by completely ignoring the bar u/s 437(1)(i) Cr. P.C, the Metropolitan Magistrate, Delhi granted regular court bail to respondent no.2 for offences punishable u/s 354/376/506/34 IPC. The learned Metropolitan Magistrate did not even deem it proper to impose any condition on respondent no.2 while admitting him on regular bail nor recorded any reasons for granting regular bail. On 01.05.2014, the learned Metropolitan Magistrate also granted regular bail to accused Bhanwar and Anmol without filing any bail application. The learned Metropolitan Magistrate thereafter committed the matter to the Sessions Court as offence is exclusively triable by the Sessions Court.

5. It is submitted that the bail order passed by the learned Metropolitan Magistrate is illegal, improper, contrary to law and has caused fragrant miscarriage of justice inasmuch as Section 376 IPC is punishable with rigorous imprisonment for not less than 7 years but which may extend to imprisonment for life and with fine. Section 437(1) restrains the Magistrate from granting bail in cases where a reasonable ground appears for believing that a person is guilty of offence punishable with death or imprisonment for life. Further proviso attached to Section 437(1)(i) Cr. P.C restrains the Court from granting bail without giving an opportunity of hearing to the Public Prosecutor for the State. The Magistrate can exercise powers u/s 437 Cr. P.C only on filing a proper application for grant of bail. The learned Metropolitan Magistrate failed to assign any reasons for admitting respondent no.2 to regular court bail. Even no condition was imposed on respondent no.2 while