Vijay Kumar and Others vs State of U.P. and Others

R.K. Saksena, J.—A report was lodged at police Station Fatehpur district Barabanki by the father of Neelam Kumari on 5-1-89 against the Petitioner, three in number. Shortly put, the report recites that Neelam Kumari, aged about 13 years, was forcibly taken away at pistol point by the Petitioners from the lawful custody of her father on 2-1-1989 while she was going with him. The crime was registered at the police station against the Petitioners Under Sections 363 and 366 of the Indian Penal Code and is under investigation.

This petition under Article 226 of the Constitution has been moved for quashing the report and the proceedings incidental thereto, on, the ground that the report is false and incorrect. The main assertion of the Petitioners is that Neelam Kumari is the legally wedded wife of the first Petitioner, Vijay Kumar, who is brother of the other two Petitioners. It is their further contention that she is major and in support thereof a marriage certificate, medical certificate and X-ray report have been filed.

The learned Counsel for the Petitioners contended that because Petitioner No. 1 and Neelam Kumari are not minors and their marriage has been solemnised according to law in respect of which a certificate has also been issued by a competent authority, the First Information Report and the investigation going on in that respect be quashed. The Petitioners thus want a finding from this Court on the real controversy as to whether the said couple has crossed the prescribed age of minority or Neelam Kumari is still in her teens, as alleged by her father in the complaint. This is not possible; it is well-settled that if the allegations in the report are clear and unambiguous and prima facie make out an offence, its correctness cannot be tested or looked into in a petition under Article 226 of the Constitution. As a matter of fact, the assertions of the Petitioners can safely be categorized as their ''defence'' which cannot be probed here. As the contents of the report prima facie disclose certain offences, the relief sought by the Petitioners for quashing the First Information Report cannot be granted. In a situation like this, the prayer of the Petitioners that they be not arrested pending investigation is also not acceptable. They should seek redress by moving application for nail before the competent Court.

The apprehension of the Petitioners is that if the Petitioner surrender before the Magistrate of the area in which the police station falls and move an application for bail, it will be rejected for the reason that the case registered u/s 366 of the Indian Penal Code is triable by the Court of Session. The apprehension, in all probability, is based on the practice generally adopted by Magistrates. The impression that in case triable by Court of Session, Magistrate has no power to grant bail, is unwarranted by law. There is no provision in the Code of Criminal Procedure requiring a Magistrate not to grant bail in cases triable by Court of Session; the only prohibition that we find is embodied in Section 437(1) of the Code. The relevant words are:

If there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. If the framers of the Code intended to take away Magistrate''s powers of granting bail in cases exclusively triable by Court of Session, they would have used the words, ''if it appears that the case is exclusively triable by the Court of Session'', for the words reproduced above. It can, therefore, be legitimately concluded that the requirement of the law is that if such an offence reasonably appears to have been committed where punishment for life imprisonment can be inflicted or death penalty can be awarded, the Magistrate has no jurisdiction to grant bail, except in cases which fall within the ambit of the proviso added to the said section. A perusal of the First Schedule of the Code would show that certain offences are triable by a Court of Session although the punishment provided therein is not what is contemplated in Section 437 of the Code, i.e. life imprisonment or death penalty. Likewise, Magistrate is competent to try some such offences where life imprisonment can be awarded.

To sum up the powers of magistrate in the matter of disposal of bail application depend upon the nature and quantum of punishment prescribed, and not upon the original jurisdiction for trial of the offence.

In the instant case, the crime has been registered u/s 363 and 366 of the Indian Penal Code for which life imprisonment or capital punishment is not provided. It follows that although the offence punishable u/s 366 of the Indian Penal Code is triable by a Court of Session, the Magistrate is empowered to grant bail. If a bail application is moved by the Petitioners in a competent Court, the Magistrate would do well to dispose it of on the same date, as far as possible.

The petition is dismissed. The stay order dated 20-1-1989 is discharged.

Copy of this order may be given to the learned Counsel for the Petitioner on payment of necessary charges, if possible within three days.