(1.)The facts leading to this application broadly stated are that the opponent Lohana Lakhu Amarshi of Porbandar was charge-sheeted by the police to the Court of the Judicial Magistrate, First Class at Porbandar for an offence of having committed murder of his brother's wife Bai Vijaya by setting fire to her in the afternoon on 10-7-1966 so as to be liable under section 302 of the Indian Penal Code. He was arrested on 12-7-1966. An application for being released on bail under section 497 of the Criminal Procedure Code was made before the learned Magistrate and that came to be rejected. It was thereafter that the preferred an application for the same purpose in the Court of Sessions at Porbandar under sections 497 and 498 of the Criminal Procedure Code. The contention of the accused was that he had not set fire to Bai Vijaya as alleged against him and that, according to him, since she used to get fits of insanity she had committed suicide. The learned Additional Sessions Judge found on a perusal of the police papers that she had made two dying declarations one before the P. S. I. Mr. Pathan and the others before the Honorary Magistrate Mr. Mathuradas Bhupta and, according to him, the two dying declarations were not very consistent. It is that way that he felt this to be a fit case where he should exercise his powers under Section 498 of the Criminal Procedure Code and directed the accused to be released on bail on his furnishing security for a sum of Rs. 2000/-. Dissatisfied Mr. V. M. Mehta, the Additional Sessions Judge, Porbandar, the State has come in revision.
(2.)Mr. Nanavati, the learned Assistant Govt. Pleader for the State, contends that the offence with which the accused has been charge-sheeted and later on committed to the Court of Sessions was one of murder by setting fire to his brother's wife Bai Vijaya and that way it was punishable with death or imprisonment for life under section 302 of the Indian Penal Code. It was, thus, a very serious offence. Besides, the learned Additional Sessions Judge has given no proper reasons for exercising the discretion in releasing him on bail except the one that the two dying declarations made by there were not very consistent. In what manner, they are not consistent does not appear to have been disclosed in the order passed by him. We have gone through the two dying declarations referred to in the order of the learned Additional Sessions Judge. The first was recorded by the P. S. I. Mr. Pathan at about 4 p.m. and that was in the presence of the Medical Officer as also panchas. The incident had taken place at about 3 p.m. on 10-7-1966 and she was immediately removed to the hospital where her dying declaration came to be recorded as referred to here above. In that dying declaration she has referred to this accused-opponent as the person having actually ignited the match and set fire to her after the kerosene was poured on her by his younger brother Vinia and the wife of the accused. The cause for doing so has been referred to as he wanted to get the property of her uncle which has been given over to her son by her uncle. At about 5-30 p.m. the Honorary Magistrate was called at the hospital and before him the dying declaration was also recorded on that very day wherein she has referred to this accused as a person having set fire to her by pouring kerosene and that again for the same purpose as referred to in her earlier dying declaration. The inconsistency lies, however, no doubt in the fact about her having referred to two other persons viz. the brother of the accused as also the wife of the accused as having poured kerosene on her. At any rate, one thing is certain and that is about this accused being the person who had actually set fire to her. That very night at about 9-30 p.m. she died of burns at the hospital. Now, apart from various circumstances which may be disclosed from the other evidence when led in the case, one fact plainly emerges about this accused having been referred to as a person having set fire to her in the afternoon of 10-7-1966 and her having died as a result thereof that very night at the hospital. A dying declaration can well be, on a proper appreciation thereof, the basis of the conviction. It has, therefore, to be appreciated a proper stage having regard to various circumstances that come to be disclosed as a result of her previous dying declaration as also other circumstances that may come out from other evidence on record. Thus, it cannot be said that prima facie this is a case of no evidence whatever and one can, therefore, say that prima facie there does arise the case to be gone into at the trial and that too not for any minor offence but for an offence of murder punishable with death or imprisonment for life under section 302 of the Indian Penal Code. The nature of the offence, besides, is obviously of a very serious character and ordinarily speaking when the punishment provided for such an offence is one of death, at any rate one would be justified in thinking that unless there exist any special circumstances justifying his release on bail, the Court of Sessions or the High Court may be reluctant to exercise its discretion in releasing such an accused on bail.
(3.)It was, however, urged by Mr. Vyas, the learned advocate for the opponent, that having regard to section 498(1) of the Criminal Procedure Code, the powers of the High Court or the Court of Session are wide enough to admit a person to bail and those powers are in no way limited by reason of section 497(1) of the Criminal Procedure Code. He further urged that the exercise of the discretion by the learned Additional Sessions Judge in releasing the opponent on bail cannot be said to have been capricious or unreasonable and if that is so, the High Court should not interfere in revision. In support thereof he referred to the case of Devilal v. Ganpat, 1951 AIR(Raj) 94. There it was held that where in a murder case a Sessions Judge has granted bail to the accused in the proper exercise of his wide discretionary powers under section 498, the High Court would not interfere in revision with the order at the instance of a private party especially when the State had not filed revision against that order. It was also pointed out that under section 498, Criminal Procedure Code, the powers of the Sessions Judge and the High Court are unfettered in the matter of bail. What appealed to the High Court in that case was that in a cognizable case challenged by the police, it is the function of the State to question the order of bail, if it is considered that the said order was unjustified and since it had not thought it fit to come in revision against the order of the Sessions Judge, it did not think it proper to interfere with the order passed by the Sessions Judge. That makes the difference in the application of that case to the one before us. Another case of Manohar v. Jagdush, 1951 AIR(Raj) 36 was also referred to. It was also of the Rajasthan High Court. The observations in that case are that although the powers of bail should be very sparingly exercised in a case punishable with death or transportation for life, bail may be granted even in such a case under appropriate circumstances by the Sessions Court or the High Court. It appears on a perusal of the case that the case was hanging on in the Court of the Sub-Division Magistrate for a very long time and had not yet passed the stage of committal. It was, therefore, thought that it will take a very long time before the trial is due. Again it was an application made not by the State but by a private party and that also appears to have made some difference in the approach of the High Court. We further find observations to the effect that "although the Sessions Court and the High Court are not bound under section 498, Criminal Procedure Code, by the provisions of section 497, yet they would not be justified normally to brush aside the said provisions. They have, however, unfettered powers and in special cases bail may be granted even when an accused is charged with an offence punishable with death or transportation for life."