Final Order 1

Pdf Text: IN THE COURT OF THE JUDICIAL MAGISTRATE (FIRST CLASS),
62nd COURT, DADAR, MUMBAI.
C.R. No. 547/2025 (R.A. NO. 591/RA/2025)
ORDER BELOW BAIL APPLICATION No. 1188/BA/2025
This bail application by accused for his release on bail. He has
contended that he is arrested on 02/12/2025 and at present he is in
MCR. He further submits that, he is innocent and has no concern with
the alleged offence. He is arrested on suspicious ground. No role is seen
in this offence. There is no material to connect the accused in the
present case. He is permanent resident of Mumbai. He is ready to abide
all the conditions imposed by this Court.
02. Ld. APP raised strong objection for grant of bail. It is contended
that offence is serious in nature and bailable and specifically triable by
Hon’ble Court of Sessions. Furthermore, investigation is in progress. As
per contention of Ld. APP there is evidence to show involvement of
accused, if he is released on bail, he will tamper with prosecution
evidence and likely to be absconded. Therefore, he prayed to reject this
application.
03. Heard. On going through the record and in view of directions
issued by Hon’ble Bombay High Court and Hon’ble Allahabad High
Court which are as follows:
Hon’ble Allahabad High Court in
Vijay Kumar and Ors Vs State of
U.P ; 1989 SCC Online ALL 59, has held that,
“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
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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”.
Further, Hon’ble Allahabad High Court in
Ram Bharoshi V/s State
of U.P;Manu/UP/2429/2024 held that,
“In the light of the aforesaid
discussion, it is abundantly clear that there is no prohibition on a
Magistrate to grant bail in a Sessions triable case, unless it is punishable
with death or imprisonment for life, and it is absolutely necessary that
the Magistrates give up the erroneous practice of refusing to consider or
grant bails in such cases where there is no prohibition under the Code of
Criminal Procedure”.
Moreover, Hon’ble Bombay High Court in
Sanjay Narhar Malshe
V/s State of Maharashtra in Criminal Writ Petition No. 672 of 2005 held
that, “
Obviously, apart from the cases wherein the person is accused of
commission of the offence punishable with death or imprisonment for
life, the court of Magistrate has wide power in the matter of grant or
refusal of the bail to the accused person, of course, such power is to be
exercised judiciously and the same should be apparent from the order
passed by the Magistrate. Nevertheless the fact remains that there is no
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total prohibition against grant of bail merely because a person is accused
of commission of offence of serious nature”. “Meanwhile the Magistrate
while committing the processing consequent to the filing of the charge -
sheet is expected to exercise his discretion judiciously in relations to
power to grant or refuse the bail to the petitioner in case an application
for bail is filed by the petitioner and to pass an appropriate order in that
regard in accordance with the provisions of law bearing in mind the
observations made herein above on the point of jurisdiction of the
Magistrate to entertain and decide such bail application”.
04. In the light of arguments gone through record. This prima facie
shows involvement of the accused in commission of offence is seen. So
also, the offence is triable by the Hon’ble Sessions Court, however, the
punishment provided for said offence from 01 year to 03 years and
therefore, it is clear that, the punishment do not extend to imprisonment
for life or death. Under such circumstances in view of directions issued
by Hon’ble Bombay High Court and Allahabad High Court, this Court
has power to decide the bail application.
05. Admittedly, offence is serious in nature, as per police report there
is evidence to show involvement of present accused in commission of
offence, however, it cannot be ignored that, since arrest the accused is in
jail. There is no justifiable reason to detain the accused in custody for
indefinite period and offence is bailable in nature. Hence, accused be
released on bail on his furnishing P.B. and S.B. of Rs.25,000/- (Rs.
Twenty five thousand only) subject to conditions;
i) he shall furnish his and 2 close relatives address proof.
ii) he shall not leave India without prior permission of the
Court.
iii) he shall not tamper the prosecution evidence and stay out of
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the reach of the informant.
iv) Provisional cash bail is granted in lieu of S.B. to the accused for two
weeks.
(Nilesh N. Dhend)
Judicial Magistrate First Class,
Date: 03/12/2025. 62nd Court, Dadar, Mumbai.
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