A.P. Ravani, J.
1. These two applications have been filed against an order dated July 4, 1983 passed by the learned Metropolitan Magistrate, Court No. 9, Ahmedabad, directing that opponents herein-original accused Nos. 1 and 2 charged for offences under Sections 302, 337, 324 426 and 114 of the Indian Penal Code be released on bail. The impugned order was passed below an application for bail which was submitted on July 1, 1983 by the accused. Misc. Criminal Application No. 1513 of 1983 has been filed by the State of Gujarat while Misc. Criminal Application No. 1363 of 1983 has been filed by the original informant Smt. Prakash Kaur, widow of Ajitsing Harnamsing. In both the applications it is prayed that the order passed by the trial Court granting bail be cancelled.
2. It is neither necessary nor it is advisable to go into the minute details of prosecution case at this stage. As per the F.I.R. given by the widow of the deceased victim Ajitsing Harnamsing within about four hours' time after the alleged commission of the offence, it becomes clear that when the deceased was taking food at his place he was dealt with by a sword blow alleged to have been given by Tarasing alias Avtarsing Sohansing - accused No. 2. It is further alleged that immediately before Tarasing gave sword blow, there was exchange of words between Sohansing and the victim Ajitsing. It is also alleged that Sohansing gave a push with a bucket on the head of Jogendar and it is also alleged in the F.I.R. that Bhupendrasing had also rushed and beaten Jogendar with an iron rod. It is further alleged that Sohansing was pelting stones. After narrating the incident in details the motive for the commission of the crime has been narrated and details as to how the deceased was taken to the hospital, etc. are mentioned in the F.I.R.
3. The opponents herein - original accused were arrested on June 20, 1983 and they preferred an application dated July 1,1983 before the learned Metropolitan Magistrate, Court No. 9, Ahmedabad,praying that they may be released on bail. The learned Magistrate passedorder below the bail application granting bail to the opponents on July 4, 1983. This order of the learned Magistrate is challenged here both by theState and by the original informant Smt. Prakash Kaur, widow of Ajitsing.
4. Prima facie it does appear that the offence alleged against the accused is under Sections 302, 324 and 114 of the Indian Penal Code. Even in the bail application submitted by the accused it is mentioned by them that as far as accused No. 1 is concerned, the offence would be under Section 337 of the Indian Penal Code and as far as accused No. 3 is concerned, that offence would be under Section 324 of the Indian Penal Code. Despite this position and despite the fact that a strong motive is alleged in the F.I.R. which suggests family feud between the parties, it is not understood how the learned Megistrate came to the conclusion that there are no reasonable grounds to believe that opponents-accused have not participated in the commission of the alleged offence of murder and that the opponents-accused cannot be said to have abetted the said offence. To say the least, the order passed by the learned Magistrate is laconic and the same has been passed without application of mind. The learned Magistrate has not even looked at the application filed by the opponents-accused. As stated hereinabove, if one looks at the application, it is clear that both the accused have actively participated in the commission of the offence. The learned Magistrate appears to have taken the view that only the person who may have given the fatal blow to the victim can be held liable for offence under Section 302 of the Indian Penal Code and other persons, though may be present and though might have inflicted injuries on other persons, i.e. persons other than the deceased victim, cannot be made liable for abetment of the offence. At this stage it is not understood as to how the learned Magistrate has become oblivious of the provisions of Sections 114 and 34 of the Indian Penal Code.
5. It appears that the learned Magistrate has not read the provisions of Section 437 of the Criminal Procedure Code properly. Chapter XXXIII of the Criminal Procedure Code contains provisions with regard to bail and bonds. Section 436 of Criminal Procedure Code deals with bail in respect of bailable offences. Section 437 of the Code provides as to when bail may be taken in case of non-bailable offences. There is a dichotomy dealing with non-bailable offences. There are two types of non-bailable offences - offences punishable with death or imprisonment for life and the rest of the non-bailable offences. As far as the first category of non-bailable offences is concerned, provisions of Section 437(1) of the Criminal Procedure Code impose a bar to grant of bail by the court or the officer in charge of a police station to an accused person if there appear reasonable grounds, for believing that he has been guilty of an offence punishable with death or imprisonment for life. At this stage the court or an officer in charge of a police station has only to see as to whether there appears to be reasonable grounds that the accused has been guilty of such an offence or not. It is to be noted that what is required to be seen is the reasonable grounds and not the evidence. In this connection the Supreme Court in the case of Gurcharan Singh and Ors. v. State (Delhi Administration) reported in A.I.R. 1978 S.C. 179 has stated to the effect that the words 'or suspected of the commission of were introduced in the provisions of Section 497 of Old Criminal Procedure Code by an amendment in 1955. These words have been retained in the new Criminal Procedure Code in Section 437. In this background the Supreme Court has observed:.It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (Section 41, Cr.P.C. of the new Code) and forwards him to a Magistrate (Section 167(1), Cr.P.C. of the new Code) the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1), Cr.P.C. bail appears to be out of the question.
The only limited inquiry may then relate to the materials for the suspicion....
6. If one looks at the order passed by the learned Magistrate he has not approached the question from this angle and he has not posed the question as to whether there was materials for the suspicion that the accused had committed the offence in question or not. Instead the learned Magistrate has entered the forbidden field and has appreciated the evidence and has evaluated the role played by each of the accused and the injury caused on the persons of other side. While doing so the learned Magistrate has become totally oblivious of the provisions of Sections 114 and 34 of the Indian Penal Code. First of all, it was not permissible to make such an inquiry and appreciate the evidence and thereafter to evaluate the role placed by each of the accused in indicting injuries on the persons of other side. Secondly, assuming that he could do this, even then, he did not take into consideration the provisions of Sections 114 and 34 of the Indian Penal Code. It also appears that he was not aware of the aforesaid decision of the Supreme Court and it is not even the case of the opponents-accused nor it has been the basis for the order of the learned Magistrate that the case of the accused is covered under the proviso to Section 437(1) of the Criminal Procedure Code. That is to say, the accused are under the age of 16 years or are sick or infirm. Moreover, no special reason is assigned to invoke the second proviso to Section 437(1) of the Criminal Procedure Code. Therefore, as per the law laid down by the Supreme Court it is clear that the learned Magistrate has acted improperly and exceeded his jurisdiction in passing the impugned order.
7. It is not also understood as to why and how the learned Assistant Public Prosecutor who appeared on behalf of the State, has not raised any contention objecting to the grant of bail. At least this is the position which emerges from the order passed by the learned Magistrate. The order does not disclose that any objection whatsoever was taken by the learned Assistant Public Prosecutor who appeared on behalf of the State.
8. The counsel for the opponent-accused submitted that accused No. 1 i.e., Sohansing Khadaksing, is aged about 70 years and opponent No. 2-accused No. 3, i.e., Bhupendrasing Sohansing, is a young boy of aged about 17 years and there are other circumstances also which can be pointed out to the Court on the basis of which a good case for releasing the accused on bail can be made out. However, at this stage, I do not propose to enter into the merits of the case and pronounce my opinion as to whether the accused are required to be released on bail or not. In the present applications, I am required to decide the question with regard to the legality and propriety of the order granting bail passed by the learned Magistrate. As discussed hereinabove it is clear that the learned Magistrate has not acted properly and has clearly exceeded his jurisdiction in passing the order granting bail to the opponents-accused. The order is certainly not in accordance with law and the same requires to be quashed and set aside and the bail granted by the learned Magistrate requires to be cancelled.
9.Before I part with this order, I cannot refrain from observing that the appropriate authority in the Legal Department of the State Government may, if thought fit, seek explanation from the learned Asst. Public Prosecutor who appeared on behalf of the State before the court of Metropolitan Magistrate, Ahmedabad, in the case. The points which emerge for being explained by the learned Asst. Public Prosecutor who appeared in the case before the learned Metropolitan Magistrate are as follows:
1. Why did he not object to the grant of bail?
2. If he did take objection, why did he not approach the learned Magistrate after the order was passed and point out to the learned Magistrate as to why the objections raised by him were not considered in the order?
3. Why did he not move the Government or other appropriate authorities for challenging the order granting bail?
It may be noted that the Government filed the application after the private party preferred the application for cancellation of bail and the Government was rather constrained to move in the matter.
10. If the authority concerned thinks fit, the explanation on the aforesaid points may be sought. It is hoped that the explanation as suggested above will be called for within a period of fortnight from the date of receipt of the simple copy of this order by the learned Assistant Public Prosecutor who appeared in this case in the High Court. It is further hoped that such an explanation if sought may be placed before the court as soon as practicable. To avoid such incidents would it not be better for the Legal Department to envisage a course of action so that such failures and consequent possible miscarriage of justice can be avoided in future? The aforesaid suggestion is made only as a recommendation and if, and only if, the Government thinks it proper, the same may be implemented and this Court may be informed about the actions taken in this behalf.
11. In the result, the order passed by the learned Metropolitan Magistrate, Court No. 9, Ahmedabad, below bail application dated July 1, 1983 granting bail to opponent Nos. 1 and 2 - original accused Nos. 1 and 3, i.e., Sohansing Khadaksing and Bhupendrasing Sohansing, is quashed and set aside and the bail granted to them is ordered to be cancelled and the accused are directed to surrender to custody immediately. However, it is clarified that in the facts and circumstances of the case, it will be open to the accused to prefer an application before the Court of Session and pray that they be released on bail. In the event of such an application being made, the Court of Session may dispose of the same on merits and in accordance with law. Rule made absolute to the aforesaid extent.