Can a magistrate grant a regular bail before committal of case ?

 

As per the provisions of The Code Of Criminal Procedure, 1973 the cases where there is a charge of  an offence punishable for more than 7 years, it cannot be tried by any court which is lower than that of the Sessions Court. According to the procedure, the cases which are exclusively traible by a court of sessions are commited to the sessions court by the lower court under the Section 209 of the Code of Criminal Procedure. But an interesting question that arises is

“Can the magistrate grant regular bail in a case which is not triable by the magistrate’s court and is exclusively triable by the court of session?”

To answer this we would have to meticulously observe the provisions of Section 437 of the Code of Criminal Procedure.

According to the Section 437 in The Code Of Criminal Procedure, 1973

(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 in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-

(i) such person 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;

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence:

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm:

Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.]

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.”

If we go by this section, then it is clear at the very outset that the magistrate is empowered to grant bail in cases even where the case itself is not triable by him/her subject to the provisions of the Section 437. But it would not be out of course to mention here that the Hon’ble Allahabad High Court in the case of Shyam Lal and others v. State of U.P.  stated that the commiting magistrate cannot have occasion to observethat there were no reasonable grounds to believe that the accused had not commited an offence since the scheme of the new Code shows that in cases exclusively triable by Court of Sessions, the stage of enquiry as provided by the Chapter XVIII of the old Cr.P.C has been cut down; in cases triable exclusively by the sessions court, the magistrate has to commit the accused to the court of session under Section 209, Cr.P.C. , as soon as the accused appears or is brought before him. Thus after thorough reading of the above stated judgement it can be understood that the magistrate who is commiting the case does not have any occasion of any observation on basis of which bail can be granted in excerise of powers connferred upon a magistrate under Section 437(1) of Cr.P.C.

-Tushar Kaushik

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