Imtiyaz Murtaza, J. - (1.) Heard learned Counsel for the applicants and the learned A.G.A. for the State. Present application has been filed for a direction to the Courts below to decide the bail application of the applicants expeditiously in case Crime No. 26 of 2003 under sections 308 and 498-A, Indian Penal Code and 3/4, Dowry Prohibition Act police station Mahila Thana, Rakabganj, Agra.
(2.) Perused the averments made in the affidavit filed in support of this application and the material on record. No ground is made out for quashing of the proceedings.
(3.) Learned Counsel for the applicants submits that the applicants are alleged to be involved in an offence under section 308 Indian Penal Code in which maximum punishment is provided for 7 years and the Magistrate is competent to grant bail. In support of his argument, learned Counsel placed reliance on a decision ' in Vijay Kumar and others v. State of U.P. and others, 1989 (26) ACC 480 (LB) in which it has been held as under: "The apprehension of the petitioners is that if the petitioners surrender before the Magistrate of the area in which the police station falls and move an application for bail, it will be rejected for the reason that the case registered under section 366 of the Indian penal Code is triable by the Court of Session. The apprehension, in all probability is based on the practice generally adopted by Magistrates. The impression that in case triable by Court of Session. Magistrate has no power to grant bail, is unwarranted by law. There is no provision in the Code of Criminal Procedure requiring a Magistrate not to grant bail in cases triable by Court of Sessions the only prohibition that we find is embodied in section 437 (1) of the Code. The relevant words are: "If there appear reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life". 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 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 he 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." ;