D.D. Thakur, J.
1. The respondent in this application is being tried by the learned-Sessions Judge, Kathua, for an offence of murder under Section 302 of the R.P.C., pursuant to his commitment by the learned Munsiff Judicial Magistrate, Hiranagar. The trial is still at the initial stage. After his commitment the respondent applied for bail and the learned Sessions Judge bailed him out holding that there did not appear reasonable grounds for believing that the respondent was guilty of an offence punishable with death or imprisonment for life. The State has applied under Sub-section (5) of Section 497 of the Cr. P. C., for setting aside the order of the learned Sessions Judge and for commitment of the respondent to custody.
2. I have heard the Additional Advocate-General on behalf of the State and the counsel for the respondent. The record of the case has also been perused.
3. In the process of taking a decision whether or not the learned Sessions Judge was right in holding that there did not appear reasonable grounds for believing that the respondent was guilty of an offence punishable with death or imprisonment for life, I started thinking as to when can we say that there appear reasonable grounds for believing that a person is guilty of an offence punishable with death or imprisonment for life and then what is the guiding principle for such a belief. A further question stared at me that was : What is the difference, if any, between a belief which a court is required to have under Sub-section (1) of Section 497 of the Cr. P, C. regarding a person being guilty of such an offence and a belief sufficient to warrant e conviction on the conclusion of the trial. Is the court to use the same angle, approach and touchstone while dealing with either situation? The thought has detained me for pretty long and provoked application of mind. I proceed to say how. I resolved the conflict.
4. Sub-section (1) of Section 497 of the Code of Criminal Procedure reads as under:
497. (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 incharge 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:Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
5. This sub-section clearly contains an unmistakable interdiction for a court that it shall not release an accused person on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, A clear classification of offences into those in which a bail may be granted and those in which it shall not is discernible from this provision.
6. The words 'there appear reasonable grounds' suggest not that the evidence and the circumstances of the case do not admit of any possibility of an acquittal of the accused of such an offence but that the circumstances and the evidence might result in a conviction of the accused for such an offence. The words 'reasonable grounds for believing' to my mind mean such grounds as are based on reasons and logic and are not bereft of reasons. The grounds should be such as may lead one to believe that the accused is guilty of such an offence. It is not only the probability of the ground being creative of a belief but even the possibility of such a belief which is sufficient to give rise to the interdiction referred to in the said sub-section. The angle of consideration and the approach under Sub-section (1) of Section 497 of the Cr. P. C. in my opinion must be wholly different from tine angle and the approach of the consideration to be adopted while finding a man guilty or not guilty. In the former case the degree of certainty of belief is far less than the degree of conviction which a court is required to possess while finding a man guilty of an offence. In one case it is with a view to determine whether or not the accused shall remain at large during the trial and in the other whether a man has to go to gallows or be at large for his life. It is the degree of enormity of the consequence of an order finally convicting a person of such an offence and an order under Sub-section (1) of Section 497 of the Cr. P. C. which is creative of the corresponding difference in the approach and the angle of consideration in the two cases. To put it differently in one case the belief must exclude every reasonable doubt of its correctness whereas in the other even the presence of a possibility of a conviction must bring forth a refusal from the court to enlarge a person on bail. The principle behind the provision is that a person who is accused of an offence, the sentence in which can extend to death or life imprisonment the accused with ordinary human instinct for avoiding death or loss of liberty for life is most likely to make a choice whether he should be available to receive sentence or should abscond to escape it. The prohibitory dictate from the legislature to the court to grant hail in cases of capital sentence or life imprisonment, is therefore, to disable an accused to make a choice. It is true that an accused is presumed to be innocent unless he is proved to be guilty and that the detention of an under-trial is only to procure his attendance in the court and make him receive the sentence but in cases in which there is the least possibility of the trial being rendered infructuous and the rigour of the penal law being rendered emasculated the safer course is to refuse bail as an error otherwise is most likely to result in the total frustration of the trial and avoidance of the penal consequences. It is this stage of thinking which reinforces the view that the presence of some material which may ultimately be even insufficient to warrant a conviction for a capital offence must be deemed to be sufficient for holding that there are reasonable grounds for believing that the accused is guilty of .such an offence.
7. The word 'appear' preceding the words 'reasonable grounds' also in my opinion has some significance, The word 'appear' it appears to me, suggests that reasonable ground is available for believing that the accused is guilty. It is not. however, necessary that a belief must universally and unfailingly be created that the man is guilty of such an offence. The words 'if there appear reasonable grounds for believing' convey a substantially different meaning than the words, 'if the court believes' that he has been guilty of such an offence. In the latter case it is the actual belief which is determinative of the decision on the question of bail whereas in the former it is the existence of a reasonable ground to believe that the accused is guilty of such an offence which is decisive of the question of bail. The court has to address itself to the question : Is there anything on the record which can be said to be a reasonable ground for believing that the accused is guilty, the court in such a case does not reach the stage of believing or disbelieving but arrives only upto the stage where it can be seen whether there are reasonable grounds for believing that the accused is guilty. It is in every case therefore the triability of the issue regarding the guilt of the person which provides the touchstone to decide whether a person is entitled to a bail or not. After having examined the material before it if the court unhesitatingly and unmistakably comes to the conclusion that the accused is not guilty of such an offence, it is a case where the court can say that there do not appear any reasonable grounds for believing that the accused is guilty of such offence but if on an examination of the material before the court is put to thought and that thought detains the court even for a while in my opinion such a situation is one in which it can be said that there are reasonable grounds for believing that the accused is guilty of such an offence. It is not necessary that the court must believe the reasonable grounds to be suggestive of the guilt of the accused. It is sufficient if there is a possibility of believing the accused to be guilty of the offence on that ground. This is how I have resolved the conflict and carved out a touchstone for application to the facts of the present case.
8. The learned Sessions Judge in the order granting bail to the respondent referred to the statement of two witnesses who appeared before the committing Magistrate and who had refused to support the prosecution. These two witnesses had earlier in the course of investigation made statements under Section 164 of the Cr. P. C. in the court of Munsiff Judicial Magistrate, Basohli, implicating the accused. They had resiled from those statements before the committing Magistrate. Similarly the accused had also made a confessional statement under Section 164 of the Cr. P. C. before the same Judicial Magistrate which is on the record. The learned Sessions Judge did not even refer to this confessional statement and came to the conclusion that the two prosecution witnesses having resiled there remained no evidence to justify a belief that the accused was guilty of an offence punishable under Section 302 of the R. P. C. This approach in my opinion was not correct. The whole evidence on the record should have been taken into account. A confessional statement admittedly was an extremely important piece of evidence and it could have provided a basis even for conviction if the court felt satisfied that the statement had been made by the accused voluntarily and that the same was true, of course corroboration by some independent evidence may have been needed by the court. Under these circumstances therefore applying what I have said above it was not correct to hold that there appeared no reasonable grounds for believing that the accused was guilty of a capital offence. As I said earlier on a consideration of the material of this case the court could not unhesitatingly come to the conclusion that the accused was not guilty of an offence under Section 302 of the R. P. C. The confessional statement even though retracted was sufficient to put the court to thought and see how far that statement was corroborated by independent evidence. The thought was most likely to detain the court for some time before a conclusion could be arrived at regarding the guilt or otherwise of the accused under the aforesaid Sections of the Penal Code. In my opinion therefore the order of the learned Sessions Judge granting bail to the respondent was materially irregular and legally invalid.
9. I, therefore, allow this application and set aside the order of the learned Sessions Judge dated 16-1-1974 and direct that the accused be committed to custody. The accused is present in the court. Mr. Baldev Singh Thakur his counsel undertakes to produce the accused tomorrow in the court of the learned Sessions Judge, Kathua. On his appearance before the learned Sessions Judge, Kathua, he shall be committed to custody and will remain in custody till the conclusion of the trial.