Hari Swarup, J.
1. This is an application for bail in a pending case. The accused has already been committed to the Court of Sessions. He is being tried for an offence under Section 302, I.P.C. In the first information report it was alleged that Guru Prasad the brother of the informant was sleeping in the same house along with him and two other persons when the accused Ram Sewak along with one other person entered the house and gave knife blows to Guru Prasad. The informant ran out and called the people Of the village and also called one Dr. Brijnandan. When Dr. Briinandan and other villagers arrived. Guru Prasad made a dying declaration that Ram Sewak and his companion had caused injuries.
2. Learned Counsel has contended that there exists no prima faice case against the applicant because the first information report had been lodged in the morning, Dr. Brijnandan had subsequently given a statement before the. police that the dying declaration had not-been made in his presence but that when-he reached, the deceased was already dead (this averment is not supported by any material on record), the prosecution witnesses are partisan, and inimical two of them had no valid reason to be present at the house during the night, and at least some of the injuries were more-likely to be caused by axe than knife.
3. Section 437. Criminal P.C. indicates when and how bail should be normally granted. Sub-section (1) of Section 437 provides:
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, he may be released on bail. But he 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.
No doubt, Section 437 deals with the powers of the Magistrate and not with the powers of the High Court or Court of Session; but the principle remains applicable, and the words 'he shall not be so released.' in the case of High Court and the Court of Sessions will be read as 'he may not be so released.' Although there is no bar to the exercise of discretion by the High Court, it would be just and proper to exercise the discretion on the guideline provided in Section 437(1). Criminal P. C
4. The test for determining whether a prima facie case exists or not at a time prior to the stage of evidence, is not that if the prosecution witnesses are shattered in cross-examination or the witnesses named in the F. I. R. do not support the story when the trial proceeds, the case will end in acquittal but, that if at the trial the witnesses depose as averred in the first information report, will the guilt of the accused stand proved beyond reasonable doubt. The probability or improbability of the prosecution version is to be judged on the basis of the material available to Court On the date the Question of bail is considered and not on the basis of what might appear through cross-examination of witnesses or, from defence evidence. When the law says in Section 437. Criminal P.C. 'if there appear reasonable grounds for believing...', it means to refer to the grounds appearing from the material available and not what may be unfolded later. The Court cannot enter into surmises.
5. In the present case evidence hag not yet been recorded. Allegations in the F. I. R. are that three persons had seen the accused giving deadly knife blows to the deceased, that dying declaration had been made by the injured implicating the accused and at least a large number of inquires are such which were undeniably caused by knife. Expert evidence has not yet come on the nature of injuries. There is no material before the Court that during investigation the witnesses had not supported the F. I. R. version.
6. From the material aforesaid which is on record it appears, prima facie, that reasonable grounds exist for believing that the applicant has committed an offence punishable with death. No extenuating circumstances have been brought out.
7. In these circumstances bail cannot be granted to the applicant this stage. The application is rejected.