Pawan Ahmad J:

The respondent in both these cases was a woman charged with the offence of murder punishable under s. 302 of the Penal Code and the only punishment for such an offence is death.

When her case came up for mention in the Magistrate's Court on 28 December 1966 before the learned president who was sitting as a Magistrate, an application for bail was made on her behalf by her Counsel and her application was granted subject to a bail of $2,000 in two sureties.

The learned Deputy Public Prosecutor filed an appeal against the said order

On 3 February 1967 when this case came up for mention before another Magistrate, an application was made by the learned Deputy Public prosecutor under s. 388 (v) of the Criminal Procedure Code (Cap. 6) to remand the accused in custody The learned Magistrate held the view that he had no power to over-rule the decision of the learned president and therefore decided that the case should be further argued before the president and in the meantime, he extended the bail.

The learned Deputy Public Prosecutor also appealed against the order of this Magistrate.

As both these appeals are on the same subject matter, it is convenient to deal with them together The general rule under s. 388(v) of the Criminal Procedure Code is that the Court should not grant bail to a person charged with an offence punishable with death. One of the exceptions to this rule is that the Court may grant bail to a woman accused. In my view this exception is a discretion which should be exercised sparingly and judiciously depending on the reasons of each particular case. Sectionpenser Wilkinson J in the case of R v. Ooi Ah Kow [1952] MLJ 95 at p. 97 states as follows:

Again, following the case of Re KS Menon, I was of the opinion that in cases punishable with death and in cases punishable with penal servitude for life the High Court ought not to grant bail, except for exceptional and very special reasons

The criterion by which a Magistrate should allow bail in cases of this type, in my view, is only in those cases where he is convinced that the reasons put forward by the applicant are said to be exceptional and very special reasons.

In the present case the only grounds on which this application for bail was granted by the Magistrate's Court appear to be as follows:

The accused is a mother of ten children and youngest of them is still under breast feed.

In my opinion the reasons put forward in this application fall far short of being exceptional and very special reasons and, therefore, the application should have been refused by the Magistrate's Court.

In the above circumstances, I allow both the appeals by the learned Deputy Public Prosecutor Bail cancelled, and respondent to be put back on remand.

Appeal allowed.

Bail cancelled.