Where offence is punishable with death sentence or imprisonment for life, bail cannot be granted by Judicial Magistrate.

Aggrieved over the order, dated 3.12.2004, of the Principal Sessions Judge, Thanjavur, passed in Crl.M.P.No.4339 of 2004, the petitioners have preferred this petition to quash the said order, as it is not maintainable, or sustainable in the eye of law.

2. The petitioners have been arrayed as accused for the occurrence that took place on 12.11.2004 in between Thanjavur and Papanasam and a case was registered against them under Secs.147, 148, 341 and 307, I.P.C. read with Sec.3(1) of P.P.D.Act. There are 21 accused in the case and there is also a counter case. The allegation against the present petitioners is that they formed into an unlawful assembly, prevented a bus with passengers and started attacking the inmates of the said bus. The driver of the said bus was complainant. Some of the accused filed bail application before the Judicial Magistrate III, Thanjavur in Crl.M.P.No.2991 of 2004 under Sec.437(1) of Crl.P.C. and bail was granted on 18.11.2004. At the time when they were about to execute the sureties on 22.11.2004, the respondent police has preferred an application on the same day, before the said Magistrate praying for cancellation of the bail already granted. The said case was adjourned to 23.11.2004. Notwithstanding that, the respondent police has also approached the Principal Sessions Judge, Thanjavur in Crl.M.P.No.4341 of 2004 in Crl.M.P.No.4339 of 2004 and obtained stay over the grant of bail. Finally, the learned Sessions Judge by his order, dated 3.12.2004, made in Crl.M.P.No.4339 of 2004, cancelled the bail granted by the Judicial Magistrate in Crl.M.P.No.2991 of 2004. It is against the same, the present petition is filed.

3. The learned Counsel appearing for the petitioners submitted that even the order granting stay of operation of the bail order is erroneous in law as decided in Rameshwar Prasad v.State, 1975 Crl.L.J.658. Be that as it may, we are now only concerned with the order of cancellation of bail, which is assailed in this petition. A perusal of the impugned order would go to show that the cancellation has been done on three grounds. One is considering the gravity of the nature of the offence. The second one is that there is every probability of riot to get erupted in the event of releasing the accused and the third point was that the offence is exclusively triable by the Court of Session.

4. One of the grounds on which the Principle Sessions Judge cancelled the bail granted by the Judicial Magistrate is apparently the offence alleged against the petitioners is exclusively triable by a court of session. The major offence involved in this case is under Sec.307, I.P.C. and by stretch of time, even now, we find no person is injured in the case. Therefore, it may come only under Part-I of Sec.307, I.P.C. which will carry a punishment of imprisonment for a period upto 10 years. The Judicial Magistrate has considered the bail application and granted bail to petitioners under Sec.437(1) of Criminal Procedure Code. The Apex Court in the decision reported in Prahlad Singh Bhati v. N.C.T. Delhi and another, 2001 S.C.C. (Crl.)674 has held that powers of the Magistrate, while dealing with the application for grant of bail, are regulated by the punishment prescribed for the offence on which the bail is sought and 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 provisos attached to Sec.437 of the Code

5. Here, in the present case, as discussed above, even if the offence alleged against the petitioners comes under Part I of Sec.307, I.P.C. the punishment prescribed is imprisonment only upto 10 years and in such a case, the learned Government Advocate could not also invoke any provisos attached to Sec.437, Crl.P.C. and therefore the learned Magistrate is right in exercising his jurisdiction under Sec.437 of the Code in