Order.- This petition is one under section 439 of the Code of Criminal Procedure, 1973 (II of 1974) (hereinafter referred to as the “New Code”) by the petitioner Sangappa who is A-1 in Session Case No. 46 of 1977 on the file of the Sessions Judge, Bidar, for admitting him to bail during the pendency of the sessions trial.

2. The few facts relevant for the disposal of this petition may be stated as under:

3. Deceased Baburao is the younger brother of the petitioner. They belong to Jaknal village of Aurad Taluk in Bidar District. There was enmity between the petitioner and the deceased on account of the partition of their family properties. On 16th June, 1977 between 4 and 5 p.m., the petitioner and 8 others formed themselves into an unlawful assembly with the common object and pre-planned intention to commit the murder of Baburao, attached him in the nala of Jaknal village with sickles, axes and sticks and inflicted fatal injuries. The occurrence in question is said to have witnessed by Joteppa the father of the deceased and two others by Vaijinath and Nagashetty. Shamarao, who is the dalapathi and police patil of Jaknal village, on hearing hues and cries from the scene of occurence, ran towards the nala along with other villagers. He saw about 10 to 12 persons attacking a person fallen on the ground with weapons and by the time he reached the place of occurence, the assailants ran away with the weapons. On reaching the spot, he found Baburao lying dead with multiple injuries. He proceeded to Aurad police station which is about 12 miles away from the village and lodged a complaint at about 9 p.m. on the same day. A case was registered by the Aurad police and F.I.R. was submitted to J.M.F.C’s Court at Aurad which reached the Court at 4-20 a.m. on 17th June, 1977. After completing the investigation, the police have filed a charge-sheet against the petitioner and 8 others for offences punishable under sections 143, 147, 148, 394, 302 read with 149 and 120-B of the Indian Penal Code. The case is committed to the Court of Session at Bidar where it is pending trial.

3. The petitioner and two others filed an application for bail in Misc. Case No. 34 of 1977 before the learned Sessions Judge. The learned Sessions Judge, rejected the bail application by recording a considered order on 17th December, 1977. Being aggrieved by the said order of the learned Sessions Judge, the petitioner has filed this petition for admitting him to bail on the same grounds on which he and two others moved the Sessions Judge for bail.

4. The state has filed written objections opposing the bail.

5. Shri M.M. Jagirdar, learned advocate appearing for the petitioner, made a two-fold submission. His first submission is that the scope and ambit for granting bail under section 439 of the new Code is wider than that under the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘old Code’) and the provisions of section 437 of the new Code are no consideration for the High Court and the Court of Sessions while granting bail under section 439 of the new Code. The second leg of his submission is that the petitioner is entitled for bail on merits for more than one reason. I shall deal with these contentions in the order in which they are formulated during the course of the arguments.

6. Now coming to the first submission, I shall refer to the relevant provisions of both the codes. Section 437 of the new Code provides for granting bail in the case of non-bailable offence by a Court other than the High Court of the Court of Session. It is provided therein that 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 then 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 a

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