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Judgment
Sadhana S. Jadhav, J.—The applicant herein is the original complainant in C.R. No. 292/2012 registered at Andheri Police Station. Respondent No. 2 is the original accused No. 1.
(a) On 15.9.2012, Dr. Jyoti Kaur wife of the present respondent No. 2 lodged a report at the Andheri Police Station alleging therein that she was married to the present respondent No. 2 on 29.5.2010. It is alleged that on 27.5.2010, the mother-in-law of the complainant had called upon her mother and had demanded a four-wheeler car for her son. They could not withdraw the proposal since the people in the society were knowing that the marriage of the complainant is fixed with the present respondent No. 2. Her father had purchased a car (No. MH-02-BY-4128) to be gifted and he had assured the respondent No. 2 that after he repaid the instalments of the loan, he would transfer the car in his name. At the time of marriage, the mother of the complainant had allegedly gifted her golden ornaments weighing about 75 tolas and a cash of Rs. 2 lakhs. She was also given gifts worth Rs. 4,28,000/-.
The complainant has further alleged that on the very first night after the marriage, her husband was behaving abnormally. He suspected the virginity of the complain-ant. On 30.5.2010, she informed her mother about the conduct of her husband. She has alleged that after marriage, she was made to work as domestic servant. She was compared with the wives of friends of respondent No. 2. In June 2010, they went to Goa. They stayed at Neelam Resort. Her husband used to continuously talk to a girl friend i.e. Mamta Jain. He used to insult her, suspect her chastity. She had informed her mother-in-law about the behaviour of her husband, however, she asked her to bear with it as she is a woman. The complainant has given several instances to demonstrate that she was subjected to harassment and ill-treatment. On 24.5.2011, she had been to Mauritius. At that time, the respondent No. 2 had unnatural sex with the complainant. There was a demand of Rs. 7 lakhs. She was ill. She was admitted in the hospital and on 11.4.2012 was discharged on 16.4.2012. Finally, she decided to return to her maternal house and thereafter lodged the report. On the basis of her report, Crime No. 292/2012 is registered against the respondent No. 2 at Andheri Police Station for the offences punishable under sections 498-A, 323, 377, 354, 506(II) read with section 34 of IPC.
The respondent No. 2 was arrested on 15.9.2012. He was produced before the Metropolitan magistrate on 16.9.2012 and was remanded to police custody till 20.9.2012. On 20.9.2012, the police custody was extended upto 24.9.2012. On 24.9.2012, the respondent No. 2 was remanded to judicial custody. He had filed an application seeking bail on the same day. The Investigating Officer through Public Prosecutor had filed his say. The prosecution had opposed the grant of bail on the ground that (i) the cash amount of Rs. 2 lakhs is to be recovered, (ii) accused No. 2 is alleged to have forcibly performed unnatural sex with the complainant and she has to be medically examined for the same and if he is enlarged on bail, he would threaten the complainant, (iii) the statements of the witnesses are to be recorded and (iv) in the eventuality of being enlarged on bail, the accused may flee from justice and not be available for trial.
On 25.9.2012, the Metropolitan Magistrate granted bail to the respondent No. 2 in the sum of Rs. 25,000/- with one or more solvent sureties and also granted provisional cash bail for a period of 30 days.
The applicant herein is seeking cancellation of bail granted by the Metropolitan Magistrate and seeking the relief that he be taken into custody. One of the grounds raised for seeking cancellation of bail is that the offence punishable u/s 377 of IPC is punishable with life or for ten years or fine and that the Metropolitan had granted bail by observing that the offence u/s 377 of IPC was committed at Mauritius and had occurred about a year back and there was a delay in levelling those allegations.
The Counsel for the applicant submits that section 3 of IPC contemplates as follows :-
Any person liable, by any (Indian law) to be tried for an offence committed beyond (India) shall be dealt with according to the provisions of this Code for any act committed beyond (India) in the same manner as if such act had been committed within India.
He has further drawn the attention of this Court to section 4(1) of IPC which contemplates "the provisions of this Code apply also to any offence committed by any citizen of India in any place without and beyond India.
The Metropolitan Magistrate, Railway Mobile Court, Andheri, Mumbai, by an order dated 25.9.2012 has been pleased to grant bail to the accused Harpalsingh imposing certain conditions. The learned Metropolitan Magistrate has observed that the offence u/s 377 of IPC is punishable upto life imprisonment or for ten years or fine but triable by Magistrate and rest of the offences under sections 498-A, 406, 323, 354, 506(II) of IPC are punishable upto three years, one year and two years respectively. It is also observed that the offence had occurred prior to one year of the lodging of the complaint and that the complainant had not lodged any complaint till the lodging of the present complaint. The Magistrate has proceeded on a footing that there is no plausible explanation for the inordinate delay in loading the FIR.
The learned Magistrate has lost sight of the fact that the complainant had made allegations of offence punishable u/s 377 of the Indian Penal Code. That section 377 of the Indian Penal Code is punishable with an imprisonment for life or with imprisonment of either description for a term which may extent to ten years and shall also be liable to fine. The Magistrate has found that although the offence punishable u/s 377 contemplates imprisonment for life, it is triable by a Magistrate of the First Class and has therefore, proceeded to grant bail. At the stage of bail, it was not necessary to determine as to whether the offence was made out or not or that there was a delay in filing the FIR and that the complainant had not lodged the FIR promptly. In fact, the investigation was just set in motion and only after completion of investigation, it could be ascertained as to whether an offence punishable u/s 377 of the Indian Penal Code was made out.
In the case of State of Maharashtra Vs. Kaushar Yasin Qureshi and another (Coram: Vishnu Sahai, J.) this Court has held that if there are reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life then only the High Court or the Court of Sessions will have jurisdiction to grant bail to the person unless the person is below sixteen years of age or is a woman or is a sick or infirm person.
The learned Counsel appearing for the applicant submits that in fact, the learned Metropolitan magistrate was not empowered to grant bail to the present respondent since there we allegations of commission of offence punishable u/s 377 of the Indian Penal Code. To appreciate the submission of the learned Counsel for the applicant, it is necessary to consider the provisions contained in section 437 of Cr.P.C. which reads thus :-
When bail may be taken in case of non-bailable offence-
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a Police Station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years.;
Provided that the Court may direct that a person referred to in Clause (I) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released: on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this subsection without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such Officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, (the accused shall, subject to the provisions of section 446-A and pending such inquiry, be released on bail], or, at the discretion of such Officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
Justice Vishnu Sahai in the case of Kaushar Yasin Qureshi (cited supra) has held that the jurisdiction to grant bail should be exercised by the Magistrate after the greatest circumspection. In arriving at a conclusion whether there are reasonable grounds to believe that a person is guilty of an offence punishable with death or imprisonment for life the Magistrate should examine the question whether a prima facie case is made out or not. He should not enter into a threadbare analysis of the prosecution case. It is only in those cases where no prima facie case is made out would it be open to the Magistrate to grant bail on the ground that there are no reasonable grounds to believe that a person is guilty of an offence punishable with death or life imprisonment. This Court has further held that "at the stage of bail, it was not open for him (Magistrate) to have entered into a meticulous analysis as to what offence would be made out because that question can only be charged upon after the evidence had been adduced in the trial Court. What the Addl. Chief Metropolitan Magistrate had to do is only examine as to whether there were reasonable grounds to believe that the respondent No. 1 was guilty of murder or offence which is punishable with death or life imprisonment he erred in granting bail on the ground that the offence ultimately would not be murder." Hence, this Court had held that the order passed by the Addl. Chief Metropolitan Magistrate in favour of the accused was without jurisdiction, untenable in law and hence ought to be set aside. The Hon''ble Judge had cancelled the bail of Kaushar Qureshi on the ground that the said order was without jurisdiction.
The learned Counsel appearing for the respondent has placed reliance upon the judgment of this Court in the case of Ambarish Rangshahi Patnigere and Others Vs. The State of Maharashtra, This Court (Coram: J.H. Bhatia, J.) has held that "even though the maximum sentence which may be awarded is life imprisonment as per Part I of Schedule annexed to Cr.P.C. both these offences are triable by a Magistrate of First Class. It appears that there are several offences, including the one u/s 326 of IPC wherein sentence which may be awarded is imprisonment for life or imprisonment for lesser terms and such offences are triable by Magistrate of First Class. If the Magistrate is empowered to try the case and pass judgment and order of conviction or acquittal, it is difficult to understand why he cannot pass order granting bail which is interlocutory in nature in such cases. In fact, the restriction u/s 437(1) of Cr.P.C. is in respect of those offences which are punishable with alternative sentence of death or life imprisonment. If the offence is punishable with life imprisonment or any other lesser sentence and is triable by Magistrate, it cannot be said that the Magistrate does not have jurisdiction to consider the application for bail.
The Counsel appearing for the respondent relies upon the judgment of this Court in the case of Mr. Ishan Vasant Deshmukh alias Prasad Vasant Kulkarni Vs. The State of Maharashtra, (Coram: R.C. Chavan, J.). This Court has considered several judgments passed by this Court including the judgment passed by the Nagpur Bench in the case of AIR 1927 53 (Nagpur) This Court has agreed with the judgment passed by Justice Ambarish Rangshahi Patnigere (cited supra) and has held that "it would be illogical and incomprehensible to say that the magistrate who can hold the trial and pass judgment of acquittal or conviction for the offences punishable with sentence of life imprisonment or lesser term of imprisonment, for example in offences under sections 326, 409, 467, etc. cannot consider the application for bail in such offences. In fact, it appears that the restriction u/s 437(1)(a) is applicable only to those cases which are punishable with death sentence or life imprisonment as alternative sentence. It may be noted that in Prahlad Singh Bhati Vs. N.C.T. Delhi and Another, the Supreme Court held that even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail."
It is ultimately held by Justice R.C. Chavan that the Metropolitan Magistrate had jurisdiction to consider the bail application.
Clause (I) of sub-section (1) of the section 437 of the Code of Criminal Procedure, 1973 takes away the power of Magistrate to grant bail if there appears to be a reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
The question is whether notwithstanding the bar created by Clause (I) of sub-section (1) of section 437 of the Code of Criminal Procedure, 1973. A Magistrate can consider application for bail on merits merely because he has jurisdiction to try the offence. This question arises only in a case where the offence alleged is punishable with imprisonment for life which is triable by the Court of Magistrate. A bail application in case of an offence which is not triable by Magistrate and which is punishable with death or imprisonment for life, will be governed by the law laid down by Paragraph 6 of the case of Pralhad Singh (supra).
Paragraph 6 of the Judgment in the case of Pralhad Singh Bhan is as under:-
It may be noted that in Pralhad Singh Bhati (supra), in para 6, the Supreme Court held that even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes for getting the relief of bail.
In the case of (Virendra Singh, A. Chandok Vs. State of Maharashtra), 2005 (Supp.) Bom. C.R. (Cri.) 151 : 2005 All.M.R.(Cri.) 296 this Court (Coram: A.M. Khanwilkar, J.) has held that "I have no hesitation in accepting the submission canvassed on behalf of the applicant that the Magistrate could not have granted bail to the respondents 2 and 3, on the reasoning stated in the impugned order. The applicant has rightly relied on the decision of our High Court in the case of State of Maharashtra Vs. Kaushar Yasin Qureshi and anr." The Court has further relied upon para 7 of the decision in Prahlad Singh Bhati Vs. N.C.T. Delhi and Another, which has held :
generally speaking, if punishment prescribed is for imprisonment for life, and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to section 437 of the Code. The said view is also followed by Justice V.K. Tahilramanai in the case of The State of Maharashtra Vs. Rajkumar Kunda Swami, Justice V.K. Tahilramani has placed reliance upon the judgment in the case of (Akil Anand Arya Vs. K.V. Satya Murthi and another), reported in 1987 (1) Bom.C.R. 473 wherein this Court had held that the Magistrate has no power to release the person accused of offence punishable with death or life imprisonment. The Court has concluded that the Magistrate did not have the jurisdiction to grant bail in a case where the accused was arrested in an offence punishable u/s 409 of IPC.
The Counsel for the applicant has also placed reliance on the judgment of the Apex Court in the case of Dinesh M.N. (S.P.) Vs. State of Gujarat, wherein the Hon''ble Apex Court has held that even though reappreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail u/s 439(2) Cr.P.C. can consider whether irrelevant materials were taken into consideration. The irrelevant materials should be of a substantial nature and not of a trivial nature." It is submitted that the Magistrate ought not to have considered the delay in filing FIR or that the offences were not committed in India.
The Counsel for the respondent has placed reliance upon the judgment in the case of AIR 1927 53 (Nagpur) wherein the Court has held as follows :-
I accordingly hold that the phrase "death or transportation for life" in section 497 does not extend to offences punishable with transportation for life only and means only those offences for which death and transportation for life arrest alternative sentences; and that the Magistrate improperly refused to exercise the discretion vested in him by law of granting bail in the present case.
It was further held that "section 497 of Cr.P.C. (section 437 of Criminal Procedure Code, 1973) leaves ample room for exercise of discretion in the matter of granting bail and the intention of the amendment made by section 136 of the Act of 1823 in that section was to vest thenceforth in the Courts a discretion less fettered then before. The intention of the Legislature is that an accused person should be brought before a Magistrate competent to try him with as little delay as possible, and that occasions for remand to jail custody of under-trial prisoners should be as few as possible as section 344, Criminal P.C. Clearly shows."
The Counsel for the respondent has also placed reliance upon the judgment delivered by the Full Bench Rangoon in the case of AIR 1927 205 (Rangoon) wherein the Court has held that the amended section 497 does not limit the powers of Magistrates in granting bail in case of non-bailable offences except in cases punishable with transportation for life or with death. It is further held that the amendment as a matter of fact enlarge the powers of Magistrates in granting bail in non-bailable cases except death or imprisonment for life.
The Counsel for the respondent has placed further reliance on the judgment of this Court in the case of Santosh Bhaurao Raut Vs. State of Maharashtra, , wherein this Court (Coram: S.M. Daud, J.) has held that "for the purposes of entitlement to bail it is not the maximum punishment that if relevant. The offender who is accused of a non-bailable offence is not deprived of the entitlement to bail merely because the offence is punishable with life imprisonment. Such a disability is occasioned where the offence allegedly committed by the offender is punishable only with death or imprisonment for life. To put it differently, section 437(1)(i) of the Cr.P.C. cannot be applied to the case of a person who can be punished with a sentence of imprisonment less than imprisonment for life."
The view taken by the learned Single Judges in the cases of Ambarish Rangshahi (supra) and Ishan Vasant Deshmukh needs reconsideration to the extent it is held that a Magistrate gets power to grant bail in case of an offence punishable with imprisonment for life when the offence is triable by him.
Hence, the following questions need to be considered by a Larger Bench :-
(i) Whether the powers to grant bail in non-bailable offences, where the punishment is life imprisonment or offences for which the punishment extends upto imprisonment for life can be exercised only within the limited purview of section 437(1)(i) of Cr.P.C. and the proviso to section 437 of Cr.P.C.?
(ii) Whether a Magistrate is empowered to grant bail in an offence punishable with imprisonment for life or the punishment prescribed may extend to imprisonment for life, only on the ground, that he has jurisdiction to try the offence?
Registry to submit the papers before the Hon''ble Chief Justice for orders.