Final Order 3

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF SUBHASH KUMAR MISHRA
ADDL SESSIONS JUDGE-03, EAST DISTRICT:
KARKARDOOMA COURT: DELHI
Criminal Revision No. 9/2025
Maheshar Ali
S/o Abdul Rehman
R/o Village Patwari Purwa,
P.S. Mallipur,
District Shrawasti, U.P.
..........Revisionist
Vs.
State
..........Respondent
Date of institution : 14.01.2025
Judgment reserved on : 20.01.2025
Judgment pronounced on : 20.01.2025
JUDGMENT
1. In this revision, the revisionist/accused (hereinafter
referred to as ‘accused’) has challenged the order of Ld.
Magistrate, dated 23.12.2024, whereby the Ld. Magistrate had
cancelled the bail granted to him vide its order dated 28.11.2024.
2. In the instant case, accused has been charge-sheeted for the
commission of the offence punishable under Section
127(2)/305A/333/331(4)/351(3)/310(2)/317(3)/3(5) BNS. Vide
its order dated 28.11.2024, Ld. Magistrate had admitted the
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accused on bail on furnishing personal bond in the sum of Rs.
20,000/- with one surety in the like amount subject to certain
conditions. However, later, an application was moved for the
cancellation of the bail granted to the accused and vide its order
dated 23.12.2024, Ld. Magistrate cancelled the bail granted to the
accused, observing that the bail was granted to the accused
inadvertently without taking into consideration that offence
punishable under Section 310(2) BNS is exclusively triable by
court of Session, which also entails life imprisonment as one of
the punishments. Hence, this revision.
3. Counsel for the accused argued that vide its order dated
23.12.2024, Ld. Magistrate reviewed its order dated 28.11.2024
and cancelled the bail granted to the accused, which is not
permissible as per Section 403 BNSS because vide its order
dated 28.11.2024, the bail application of the accused had already
been disposed of and vide impugned order, no clarification or
arithmetical error was corrected.
4. He also argued that it is well settled that bail once granted
can only be cancelled under supervening circumstances, when
the circumstances have materially changed since the bail has
been granted to the accused or the accused has breached the
conditions imposed on him, while granting the bail. However,
nothing of such sort has happened in this case.
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5. He further argued that while granting the bail, vide its
order dated 28.11.2024, Ld. Magistrate had heard the arguments
addressed by Ld. APP for the State and had also considered the
facts of the case. Further, the order also mentions Section 310(2)
BNS, as one of the Sections under which the accused has been
charged, which shows that Ld. Magistrate had duly applied its
mind before granting the bail to the accused under the said
section as well and in no circumstances, it can be said that the
said order was passed inadvertently.
6. In support of his arguments, counsel for the accused relied
on following judgments:
a) Abdul Basit @ Raju & Ors. Vs. Mohd. Abdul Kadir
Chaudhary & Anr, 2015(1) SCC(Cri) 257
b) State through C.B.I. Vs. Amaramani Tripathi, Crl. Appeal No.
1249/2005 (Hon’ble Supreme Court of India)
c) Nityanand Rai Vs. State of Bihar & Anr, Crl. Appeal No.
529/2005 (Hon’ble Supreme Court of India)
d) Jetha Bhaya Odedara Vs. Ganga Maldebhai Odedara & Anr,
2012 AIR (SC) (Cri) 317
e) Sukumari Vs. State of Kerala, 2001(1) CCR 501
7. Per contra, Ld. Addl. PP for the State argued that offence
punishable under Section 310(2) BNS is exclusively triable by
the court of Session and was also entails punishment of
imprisonment for life or rigorous imprisonment for a term which
may extend to 10 years and with fine and therefore, Ld.
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Magistrate had no jurisdiction under Section 480 BNSS to admit
the accused on bail.
8. He argued that as the Ld. Magistrate had no jurisdiction to
pass such order, such order was non-est and therefore, it cannot
be said that vide the impugned order, Ld. Magistrate had
reviewed its earlier order in violation of Section 403 BNSS.
9. He also argued that vide the impugned order, Ld.
Magistrate only corrected the error apparent on the face of the
order dated 28.11.2024, which was passed by it without
jurisdiction and therefore, the said order is correct.
10. He further argued that in plethora of judgments, it has been
held that Ld. Magistrates cannot release the accused on bail, in
the offences, which are triable by the court of Session and are
punishable with death or imprisonment for life.
11. I have heard the arguments and have also gone through the
record including the judgment relied on.
12. In Prahlad Singh Bhati Vs. NCT of Delhi & Anr, AIR
2001 SC 1444, Hon’ble Supreme Court of India held that even
though there is no legal bar for a Magistrate to consider an
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application for grant of bail to a person who is arrested for an
offence exclusively triable by a court of Sessions yet it would be
proper and appropriate that in such a case the Magistrate directs
the accused person to approach the Court of Sessions for the
purposes of getting the relief of bail.
It was also held that even in a case where any
Magistrate opts to make an adventure of exercising the powers
under Section 437 of Cr.P.C. in respect of a person who is,
suspected of the commission of such an offence, arrested and
detained in that connection, such Magistrate has to specifically
negativate the existence of reasonable ground for believing that
such accused is guilty of an offence punishable with the sentence
of death or imprisonment for life.
It was further held that in cases, where the
Magistrate has no occasion and in fact does not find, that there
were no reasonable grounds to believe that the accused had not
committed the offence punishable with death or imprisonment
for life, he shall be deemed to be having no jurisdiction to
enlarge the accused on bail.
13. In the instant case, perusal of order dated 28.11.2024, vide
which the accused had been admitted to bail, Ld. Magistrate has
not discussed anything in the said order to negativate the
existence of reasonable ground for believing that the accused is
guilty of an offence punishable with the sentence of death or
imprisonment for life. Therefore, it appears that there were no
reasonable ground before Ld. Magistrate to believe that the
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accused had not committed the offence punishable with death or
imprisonment for life and hence, Ld. Magistrate shall be deemed
to be having no jurisdiction to enlarge the accused on bail.
14. In Sukumari (supra) also, Hon’ble Kerala High Court held
that Section 437 of the Code does not create an absolute bar on
the Magistrate to the grant of bail to persons accused of a non-
bailable offence or in respect of offences exclusively triable by a
court of sessions. A discretion is left with the Magistrate to see
whether there are reasonable grounds for believing that the
accused has been guilty of the offence alleged against him.
However, in the instant case, in order dated 28.11.2024,
Ld. Magistrate has not discussed anything to show that the
accused had not committed the offence punishable with death or
imprisonment for life.
15. Facts of the cases in Abdul Basit (supra), Amarmani
(supra) and Nityanand (supra) are not applicable to the present
case because in the said case, the courts which had earlier
released the accused on bail had jurisdiction to pass such order
whereas in the instant case, Ld. Magistrate did not have
jurisdiction to pass such order, as discussed above.
16. Facts of the case in Jetha (supra), are also not applicable to
this case because Ld. Magistrate did not cancel the bail of the
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accused on the ground of the seriousness of the allegation.
17. In view of above said, it is clear that Ld. Magistrate, in its
order dated 28.11.2024 had not discussed anything to show that
the accused was not guilty of the offence punishable with death
or imprisonment for life and without considering the said aspect,
had admitted the accused to bail and therefore, in view of law
laid down in Prahlad (supra), it had no jurisdiction to enlarge the
accused on bail. Further, as the Ld. Magistrate did not have
jurisdiction to pass the order, enlarging the accused on bail, vide
its order dated 28.11.2024, it cannot be said that vide its order
23.12.2024, it reviewed its order dated 28.11.2024, while
cancelling the bail granted to the accused.
18. Having discussed as above, this court does not find any
illegality in the impugned order, hence, it needs no interference.
Accordingly, the revision stands dismissed.
19. A copy of this order be sent to Ld. Magistrate.
(Subhash Kumar Mishra)
Additional Sessions Judge-03,
East, KKD Courts, Delhi
20.01.2025
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