The court emphasized the liberal approach of the legislature in granting bail and clarified that the purpose of custody is not penal but to ensure appearance in court and for the execution of the sentence.

1. The petitioner is an accused in C. C No. 112 of 1981 on the file of the Judicial Magistrate of the First Class, Adoor, wherein offences under S.324, 326, 379 read with S.34 of the Indian Penal Code are alleged against him and others. When the petitioner moved for bail the Magistrate dismissed the petition. The court proceeded on the footing that since an offence under S.326 of the Indian Penal Code is punishable with imprisonment for life the court has no power to grant bail except in cases where the first proviso to S.437 can be invoked. Aggrieved by the order refusing bail the petitioner has come,up before this Court with an application under S 439 of the Code of Criminal Procedure. He has been granted interim bail till the disposal of this petition.

2. Ordinarily a petitioner is expected to move for bail in this court only after approaching the Sessions Judge. But it is noted that the learned Magistrate has given a wrong interpretation to S.437 (1). It is reported that in some other similar cases also he has refused bail on the ground that he had no power to grant bail. It is only proper that the matter is set right.

3. S.437 (1) reads:

"437(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 he 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:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:

Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court."

The section puts some restriction on the power of the Court to release a person on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

4. A scrutiny of the several sections of the Indian Penal Code will reveal that there is only an offence viz., the one under S.303 for which death alone is the punishment There are three offences for which the sentence is death or imprisonment for life and fine (See S.121 and 302). The offences mentioned in Ss. i32, 305, 307 and 396 are punishable with death or imprisonment for life or imprisonment for 10 years and fine. All these offences are to be tried only by the Court of Session. There are other offences wherein the punishment is either imprisonment for life or imprisonment for a term and fine. Incidentally it is noted that under S.363-A, for the offence of maiming a minor for being employed or used for purposes of begging the punishment is imprisonment for life with liability to fine also. S.389 provides for imprisonment for life where the offence punishable is under S 377 IPC. It is significant to note that while most of the offences for which imprisonment for life is provided as a punishment are triable by the Court of Session, there are some where the trial is to be by a Magistrate of the First Class (See S.326, 389, 394, 409, 467, 472, 474 and 477 IPC.). A Magistrate of the First Class is not competent to pass a sentence of imprisonment exceeding three years. In case the Magistrate feels that an accused ought to receive a more severe punishment he may submit the proceedings to the Chief Judicial Magistrate as provided in S.325 of the Code of Criminal Procedure. The Chief Judicial Magistrate is not competent to sentence an accused for imprisonment exceeding seven years (See S.29, Code of Criminal Procedure