The main legal point established in the judgment is the competency of the Court to consider regular bail applications for offences punishable with death or imprisonment for life, and the maintainability of the application under Section 439 of the Code.

A.K. Saxena, J.

1. This is an application under Section 439 read with Section 439(1)(b) of the Code of the Criminal Procedure, 1973 (hereinafter referred to as 'the Code') for regular bail in connection with M.J.C. No. 02/07 of the Court of Chief Judicial Magistrate, Jabalpur and crime no. 546/06 of the Police Station Ranjhi, Jabalpur.

2. According to the facts of the case, the prosecutrix lodged the FIR in the Police Station Ranjhi, Jabalpur and the Crime No. 546/06 was registered under Section 376 of the Indian Penal Code against the applicant, but during investigation, the police found that no case is made out against the applicant and, therefore, a 'Khatma' report was submitted by the concerned Police Station. The Chief Judicial Magistrate issued the notice to the prosecutrix on this 'Khatma' report and thereafter, the statements of the prosecutrix and her witnesses were recorded and then the Court took the cognizance against the applicant. Thereafter, the non-bailable warrant was issued against the applicant.

3. An anticipatory bail application was filed by the applicant before the Court of Session but it was dismissed as not pressed because a revision petition was filed against the order of the Chief Judicial Magistrate. After rejection of revision petition, another application for anticipatory bail was filed in the Sessions Court and the same was allowed vide order dated 12.10.2007 with the conditions that the order shall remain in force for 30 days and in the meanwhile, the applicant, if so desires, may move an application for regular bail. Thereafter, the applicant moved an application under Section 439 of the Code, but the same was rejected by the Sessions Court vide order dated 2.11.2007 on the ground that this application is not maintainable directly in the Sessions Court because an application under Section 437 of the Code should have been filed in the Court of Chief Judicial Magistrate before filing an application under Section 439 of the Code.

4. After rejection of bail application which was filed under Section 439 of the Code, the Sessions Court extended the anticipatory bail period upto 12.11.2007 vide order dated 6.11.2007 and, therefore, the application for regular bail has been filed before this Court.

5. The learned Counsel for the applicant has submitted that since, the Magistrate was not empowered to grant bail under the provisions of Section 437 of the Code, as the case has been registered for the offence punishable under Section 376 of the I.P.C. and under this Section, the sentence of imprisonment for life has been provided, therefore, it was not necessary to file an application under Section 437 of the Code before the Court of Chief Judicial Magistrate and the applicant was at liberty to file regular bail application before the Sessions Court, directly as the Sessions Court was the competent Court for consideration of this bail application. He placed his reliance on the cases of Sadiq Hussain Rizvi v. Sri Santosh Kumar Trivedi and Ors. 1987 (2) Crimes 604, Shyam Lal and Ors. v. State of U.P. and Rafuquddin and Ors. v. Bashir Ahmad and Ors. 1985 (1) Crimes 1076.

6. The learned Counsel for the objector has contended that there are discretionary powers of the Court other than the High Court or Court of Session to consider as to whether there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life and if there are no reasonable grounds for believing such facts, the person can be granted bail by the Magistrate under Section 437 of the Code and, therefore, it was necessary for the applicant to file an application under Section 437 of the Code, rather filing an application under Section 439 of the Code directly before the Court of Session. He also placed his reliance on the cases of Prahlad Singh Bhati v. N.C.T., Delhi and Anr. 2001CriLJ1730 , Nirbhay Singh and Anr. v. State of MP 1995 JLJ 21 and Gurcharan Singh and Ors. v. St