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1996 Supreme(Raj) 639
Rajasthan High Court
Honble R.R. YADAV, J.
Smt. Panki - Appellant
Versus
State of Rajasthan - Respondents
S.B. Cr. Misc. Application No. 848 of 1996
Decided On : October 30, 1996
Shokat Ali, for Applicant S.K. Vyas, Public Prosecutor
Headnote:Criminal Procedure Code, 1973 – Section 437 – Petitioner approached the Magistrate court to surrender herself and with an application for bail – Application was not entertained as the Magistrate was not empowered to grant bail due to the offences mentioned in the case – The Sessions Court also did not entertain as the order was mentioning the magistrate court – Petitioner approched the High Court for correction in the order – Held – Case re-directed to obtain a clear order from the Magistrate and then to approach the Sessions Court – The provisions were considered which enabled bail. (Paras 12 and 13)
Magistrates are not precluded considering bail applications even in cases where the offence is exclusively triable by the court of Session in view of the mandatory provisions envisaged under Sub- sec. (3) of Sec. 441, Cr.P.C. under which bail can be granted to an accused so as to bind him to appear before the court of Session in which even on committal he would not have to be re- arrested and brought before the Court of Session. It is also clear from Sec. 209(b), Cr.P.C. that the Magistrate has discretion to release the accused on bail ``during and until completion of trial even in cases where the offence is triable by the court of Session. (Para 12)
(2). It is alleged that the applicant filed a misc. petition for quashing the FIR before this Court which was dismissed on 16.5.1996 with a direction to her to surrender before the learned Magistrate and in case any bail application is moved on her behalf then the learned Magistrate was directed to decide the same expeditiously on merits.
(3). It is argued before me that when the applicant moved an application for surrender before the learned Magistrate, he declined to hear the case as it was not falling within his power and jurisdiction to hear the case. It is also alleged that the learned Magistrate obser4ved that such application of surrender can be moved before the learned Sessions Judge only.
(4). It is further argued by the learned counsel for the applicant that thereafter the applicant moved bail application before the learned Sessions Judge but he also refused to entertain her bail application on the plea that since in my order dated 16.5.96 the expression `learned Magistrate has been used, therefore, he was not prepared to decide the bail application of the application on merits unless the order passed by this Court on 16.5.96 is corrected and in place of `learned Magistrate the expression `learned Sessions Judge is substituted.
(5). A pointed question was asked to the learned counsel for the applicant as to why the instant application is not supported with an affidavit and as to why it is not accompanied with the application for surrender and order passed thereon by the learned Magistrate? It is also asked from the learned counsel for the applicant about surrender application, alleged to have been moved by the applicant before the learned Sessions Judge, and order passed thereon.
(6). The learned counsel for the applicant is not in a position to answer the aforesaid question. No where it is alleged in the application whether the case has been committed to the court of Session or it is still pending before the learned Magistrate. The learned counsel for the applicant is not in a position to say anything about the actual state of affairs regarding pendency of enquiry before the learned Magistrate or about its committal proceeding.
(7) In the present facts and circumstances of the case on hand I have no hesitation to hold that legitimately the High Court and the court of Session will be approached by an accused-applicant only after she has failed before the Magistrate under Section 437 Cr.P.C. The relevant considerations in granting or refusing bail under new Section 437(1) and 439(1) Cr.P.C. are common. Granting or refusing bail under Sec. 437(1) and under Sec. 439 (1) Cr.P.C. depends on the nature and gravity of circumstances in which offence is committed, likelihood of the accused jumping bail, chances of accused to repeat the offence or likelihood of tampering prosecution witnesses. It is true that it is not practically possible for this Court to enumerate a complete list of variable factors exhaustively which are to be taken into account while rejecting or granting bail either under Sec. 437(1) or under Sec. 439 (1) Cr.P.C.
(8). My aforesaid views are buttressed from a decision rendered by their lord- ships of Honble Supreme Court in the case of Gurcharan Singh and Ors. vs. State (Delhi Administration) (1).
(9). I am not impressed with the argument of the learned counsel for the applicant that moving an application before a Magistrate under Sec. 437 (1) Cr.P.C. is an empty formality, if offence is punishable with death or imprisonment for life or such offence is a cognizable offence and he had been previously convicted of an offence punishable for death or imprisonment for life or imprisonment with seven years or more or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence.
(10). In my considered opinion, ordinarily in the first instance bail applications are to
