JUDGEMENT
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(1.)HEARD Counsel for the parties. Perused the record. This application takes
exception to the order passed by the Additional Chief Metropolitan
Magistrate, 24th Court, Borivli, Mumbai in CR No.115/2004 dated 8th July
2004, enlarging the Respondent No.2 on bail. The offence as registered is one under section 420, 467, 463, 471 read with section 34 of the Indian
Penal Code. Although the Offence under section 467 of the I.P.C. is
punishable with imprisonment for life, the Magistrate has proceeded to
grant bail on the reasoning that there is no possibility of awarding life
imprisonment for such offence. Grievance made before this Court is that
the Magistrate had no jurisdiction to grant bail in connection with
offences, which included offence punishable with imprisonment for life
and that too without recording a clear finding negativating the existence
of reasonable ground for believing that the accused is guilty of an
offence punishable with the sentence of death or imprisonment of life as
is required in view of the exposition of the Apex Court in the case of
Pralhad Singh Bhati Vs. N.C.T., Delhi and another, reported in AIR 2001
S.C. 1444. Only on recording such finding, the Magistrate would assume
jurisdiction to release the accused involved in such offence on bail in
exercise of powers under section 437 of the Code.
(2.)THERE is substance in the grievance made on behalf of the Applicant Complainant. The order as
passed by the Magistrate, although makes reference to the fact that the
offence complained of is one under section 467 of the l.P.C. but proceeds
to observe that there is no possibility of awarding life imprisonment in
such offences. That cannot be the basis for assuming jurisdiction to
release such accused on bail under section 437 of the Code. Recently, I
had occasion to examine this aspect in the case of Mr. Virendra Singh A.
Chandok Vs. The State of Maharashtra & ors., Criminal Application No.3375
of 2004 decided on 28th September 2004. In my opinion, the order as
passed by the Court below is obviously without jurisdiction and will have
to be set aside. For the Magistrate can be said to have assumed
jurisdiction under section 437 of the Code only upon recording the
finding as referred to above.
In the circumstances, the order impugned in this application is set aside, with liberty to the Respondent No.2 to move the concerned
Magistrate or the appropriate Court, as may be advised, for relief of
bail, which application will be considered on its own merits in
accordance with law. All other contentions raised in the present
application at the instance of the Applicant herein (Complainant) are
left open to be considered at the appropriate stage either by the said
Court or by this Court if and when occasion arises.
(3.)ACCORDINGLY , this application succeeds on, the above terms. Respondent No.2 is, however, granted one week's time to surrender before the
concerned Court to enable him to take recourse to the appropriate remedy
as may be permissible by law.
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