A Magistrate lacks jurisdiction to grant bail in cases where the offence is punishable with death or imprisonment for life, as per Section 437(i) of the Code of Criminal Procedure.

( 1 ) THESE two petitions are directed against the same judgment passed by Sri K. M. Chaturvedi, VI Additional Sessions Judge, Agra, dated 20-7-1984, in Criminal Misc. Bail Cancellation Application No. 1800 of 1983. The learned Additional Sessions Judge allowed the application moved by Bashir Ahmad and cancelled the bail granted earlier by the Magistrate, to Rafiuddin, Salahuddin and Samiuddin. It is contended that this order was beyond the jurisdiction of the learned Additional Sessions Judge, who had no power to dispose of an application of this type in view of Section 10 of the Criminal Procedure Code, and who also could not cancel the bail once granted by the Magistrate without coming to the conclusion that the accused had abused the bailor were not justified to continue on bail that was granted.

( 2 ) SINCE both the cases raise the same point for determination, they have, on the request of the counsel on both the sides, been taken up together and are being disposed of by this order.

( 3 ) THE first point is about the capacity of an Additional Sessions Judge to dispose of an application for bailor for cancellation of the bail.

( 4 ) SECTION 10 (3) of the new Criminal Procedure Code reads as follows: The Sessions Judge may also make provision for the disposal of any urgent application, in the event of his absence or inability to act, by an Additional or Assistant Sessions Judge and every such Judge. . . shall be deemed to have jurisdiction to deal with any such application.

( 5 ) IN the case of T. V. Sarma v. Achuthuni Nagakoteswararao and others1 it has been held that the term inability to act means that the Sessions Judge is incapable of acting and under those circumstances can assign urgent application for disposal to Additional Sessions Judge not only when physically incapable of acting but otherwise also unable to act due to pressure of work. It has also been held that although mentioning of reasons is desirable but it is not essential and if reasons are not mentioned, the assignment will not be invalidated.

( 6 ) SECTION 17 (4) of the old Act provided that the Sessions Judge could, when he himself was unavoidably absent or incapable of acting, make provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge. The change in the law is material. Now it is not only the unavoidable absence or incapacity of the Sessions Judge which is provided as a ground for assignment but absence or inability to act are also now the grounds and incapacity or inability are two different things. It is, therefore, not necessary that the Sessions Judge should only be physically incapable of acting when he assigns the work to an Additional Sessions Judge. He can do so on the ground of any inability which would also cover his inability due to pressure of work or any other similar cause.

( 7 ) IN the case of State v. Mohinder Singh Maghar Singh and others2, a similar question came up for consideration before the Punjab High Court. There the Sessions Judge had assigned bail application for disposal to the Additional Sessions Judge on the ground, that due to pressure of work he had no time to dispose of the application. It was held that the order was not incompetent. It was further, held that it was for the Sessions Judge to decide whether on account of the rush of work or otherwise he was rendered incapable of disposing of the bail application and his decision in this respect could not be questioned by the Additional Sessions Judge, who is under general control of the Sessions Judge. The matter came up before the High Court on a reference made by the Additional Sessions Judge, who recommended that the order of the learned Sessions Judge, whereby he had assigned the bail application- for disposal to him be held without jurisdiction. The recommendation was not accepted and the reference was rejected.

( 8 ) IT means, therefore, that in view of the amended provisions of Section 10 (3) of the Crim