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HIGH COURT OF MADHYA PRADESH
SHIVDAYAL, J.
State of M.P.
Vs.
Kailashchandra & another
Cr. Revn. No. 374 of 1968 against order passed by Shri Syed Israr Ali, II Addl. Sessions Judge, Bilaspur;
Decided on : 28-8-1968
While dealing with an application under section 497, Criminal Procedure Code, whether under the first category or the second, the Court has to exercise its discretion judicially, as any other discretion. It is neither possible nor expedient to categorise the classes of cases in which the discretion of the Court is properly exercised by refusing bail; the only safe rule for exercise of the discretionary power is that each case must be considered on its own merits with the sole view of the public interest and to securing the ends of justice. Abuse on liberation by absconding, is only one of a number of ways in which the ends of justice may be defeated. Another ground would be, the apprehension that the accused would. if liberated, intend to defeat the ends of justice by tampering with the evidence. Thirdly, in cases such as brutal domestic assault, there may be apprehension of grave consequences to ensue from the return of the accused to his home pending trial. Fourthly, the accused may not be acting alone but may be in association with others, and his liberation may leave him free to continue in association and co-operation with those persons for the very same criminal objects, participation in which has brought him to justice. The last one is by far an important class of cases. [Para 10]
On the other hand, there are certain considerations which are in favour of avoiding pre-trial detenti0n, such as, (1) the presumption of innocence; (2) the accused" is unable to persue his normal vocation or to earn his living and this affects not only himself but also his dependents, which may entail serious economic consequences; (3) detention, while awaiting trial, may adversely affect the accused's chances of acquittal; and (4) pre-trial custody may, in some cases, decrease the chances of the accused receiving jail sentence on conviction, or he may be awarded unwittingly lesser sentence. [Para 11]
In addition to these considerations, and before the Court applies its mind to them, where the accusation is of an offence punishable with death or imprisonment for life, it is bound to consider the entire material placed before it at that stage and see whether there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. If the Magistrate comes to the conclusion that there are such grounds, he must reject that application on the ground that he has no jurisdiction to grant bail; otherwise, he must proceed to consider the application on merits by applying the above tests. [Para 13]
The following are the guiding principles in considering an application for bail-
(i) While dealing with any application under section 497, Penal Code, the Court must bring its mind to bear upon the various considerations stated above, and on that basis grant or refuse bail;
(ii) When a Magistrate deals with such an application he has first of all to see whether it appears that there are reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life; and, if it so appears, he has no jurisdiction to grant bail;
(iii) For that purpose, the Magistrate has to apply his mind to the material made available by the prosecution to satisfy him primafacie that it will be able to produce good evidence, which may establish the guilt of the accused of such an offence.
(iv) At that stage, the Magistrate cannot enter into niceties nor into the details Primafacie satisfaction is the only test.
(v) He cannot go at a tangent in order to find out possible excuses for granting bail.
(vi) The mere fact that the charge sheet is for an offence punishable with death or imprisonment for life does not take away the jurisdiction of the Magistrate to grant bail. [Para 19]
Shivdayal, J.-
1. The respondents, Kailash Chandra and Narendra Kumar, and two others (Sushir Kumar and Ratnam) were arrested on 16th March 1968 on the accusation that they had committed the murder of one Basant Kumar in the night intervening the 14th and 15th March 1968.
2. Case for the prosecution appears to be that Keshav, Sajandas, Hasmat Rai and Jadhav, while they were sitting and talking together, heard some sound as if some articles were being thrown from the terrace of their house where they had stocked fuel. Jadhav went to the terrace. He saw two persons there. They jumped away from the terrace on seeing him. He raised an alarm, Keshav, Sajandas and Hasmat Rai rushed to the public lane in front of their house. Jadhav also came down to join them. They found that some of their fuel had been thrown in the lane from the terrace and Sushir and Ratnam were trying to take it for being used in the “Holi” pyre nearabout. Sajandas forbade them and also threatened them to report the matter. They did not listen to him and retorted that they did not care for any report. Saj1ndas proceeded to make a report to the Police. Meanwhile, Basant Kumar arrived at the scene followed by Kiran and Madhav. Basant Kumar prevented Sushir Kumar, Ratnam and others from lifting the fuel. This resulted in grappling between Basant Kumar and Sushir Kumar. The latter picked up a log of wood which was lying nearby and dealt some blows on the head of Basant Kumar, who fell down unconscious. Kiran went to the rescue of Basant Kumar but was beaten by Sushir Kumar. Madhav was also assaulted when he tried to intervene. He also fell down unconcious. In order to save Kiran, Hiralal, who reached the spot, assaulted Sushir Kumar with another piece of wood lying there.
3. Further allegation of the prosecution appears to be that Kailash Chandra and Narendra, who were present on the scene during the above incident, also actively participated in the marpit from the side of Sushir Kumar. Kailash Chandra caught hold of Hasmat Rai and Keshav, and assaulted them by fists and slaps. Ratnam, Kailashchandra and Narendra went on shouting maro maro throughout the melee. Narendra also assaulted Madhav by fists blows, when the latter wanted to intervene.
4. Basant Kumar, Madhav and Kiran were removed to the hospital. Basant Kumar succumbed to his injuries.
5. On 16th March 1968, Kailashchandra applied for bail. The Additional District Magistrate (Judicial), Bilaspur, allowed that application on 19th March 1968 and released him on bait Likewise, by his order dated 22nd March 1968, the said learned Magistrate released Narendra on bail.
6. The State made an application under section 497 (5), Criminal Procedure Code, for cancellation of the bail but the learned 2nd Additional Sessions Judge, Bilaspur, rejected it on 5th April 1968. Applications made by Sushir Kumar and Ratnam for bail were rejected by the 3rd Additional Sessions Judge Bilaspur, to whom the case had been transferred. That order was upheld by this Court.
7. Aggrieved by the order dated 5th April 1968 passed by the 2nd Additional Sessions Judge, Bilaspur, refusing to cancel the bail, which had been granted to Kailashchandra and Narendra by the Additional District Magistrate this revision was filed by the State. A separate application has been filed by Keshavdas for cancellation of the bail granted to Kailashchandra and Narendra. The prayer being the same, both the matters were heard together. It is un necessary to enter into the question whether a private party is entitled to move this Court for cancellation of bail granted in a challan case. This order will govern Miscellaneous Criminal Case No. 162 of 1968 as well.
8. It is contended for the petitioner-State and for Keshavdas petitioner that the Additional District Magistrate had no jurisdiction to grant bail.
9. The language of section 497, Criminal Procedure Code. admits of no doubt that where the offence is one punishable with death or imprisonment for life, the ac
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