V.P.Mathur - (1.) THIS revision is directed against the judgment and order passed on 22-10-19X4 by Mr. IS. A. Tiwari, the then Sessions Judge, Azamgarh whereby he has cancelled the bail of the revisionists granted by Sri Sawant Singh Anand, Judicial Magistrate, Lalganj, Azamgarh on
(2.) A perusal of the first information report which has been placed on the record of the case by the learned counsel for opposite party no. 2, will show that the entire case of the complainant was that after he had already lodged an earlier report regarding keeping of a Durga Idol in his sahan, twenty eight persons named in the first information report, who are now the revisionists, came to his house. They broke open the lock of the shop and also one of the door leaves and from inside the shop, they looted his cloth, cash and ornaments and went away with the same. While receding they also damaged and broke some property belonging to his Dada. They also threw brick-bats on the house of the complainant and his family members. Therefore, it was alleged that action be taken. The case was registered under sections 147, 395, 336 and 427 of the IPC and it was numbered as crime case no. 140 of 84. The learned Magistrate before whom the bail application was moved, made a mention of the entire prosecution version of the case in his judgment and at the fag-end came to the conclusion that it was perhaps not case of dacoity but of mob psychology, and therefore, there was no prima facie case under section 395 IPC. He therefore granted bail to the opposite parties. The matter went up before the learned Sessions Judge through Misc. Bail Application No. 866 of 1984 and he expressed l:he opinion that since the case was exclusively triable by the Court of Sessions, the Magistrate had overstepped his powers and grant of bail was not in order under section 437 (1) CrPC. He therefore, cancelled the bail and directed the accused to surrender before the learned Magistrate. My attention is drawn to the wordings of the section 437 of the Code of Criminal Procedure and specially sub-section (1) (i). I may reproduce the same as below :- " 437. When ball may be taken in case of non-bailable offence- (I) 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 appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life ; "
(3.) THE clear dictum of the law is that in the case of a non bailable offence also the Magistrate's Court can grant bail but this grant will not be permissible, if there appear -reasonable grounds for believing that the man has been guilty of an offence punishable with death or imprisonment for life. At this stage, a perusal of the section 395 IPC will make it clear that it is an offence which is punishable with imprisonment for life or rigorous imprisonment which may extend to ten years and with a liability for fine also. THErefore, unless there appear reasonable grounds for believing in the present case that he has been guilty of an offence punishable under section 395 IPC the accused persons may be released by the learned Magistrate under section 437 (1) of the Code. What is reasonable ground, has also to be considered. THE Court has to decide this question judicially on tangible evidence available at the time when the bail application is moved. Conjectures cannot be made and presumptions cannot be drawn on this air without any evidence whatsoever. In the present case it is conceded that up to the time when the bail application was moved, the only evidence on the record was the first information report. THEre was nothing else to be considered and a perusal of the First Information Report, as I have already mentioned above, will clearly make out that the allegations were that the accused persons broke open the shop of the complainant and looted property from inside it and while receding they threw brick bats and damaged the property of the other persons. Obviously if the allegations are correct, inasmuch as it would be a case of robbery committed by more than five persons, it would be one covered under section 395 IPC. And what is prima facie evidence, is clearly evidence which if it remains unrebutted, will be sufficient to warrant conviction. At this stage of the proceedings, therefore, the first information report is the only evidence and there is nothing on the record to show that a presumption other than the one under section 395 IPC could be raised from this first information report. THE learned Magistrate has said that from the first information report it appears that it was a case of mob psychology. THEre is no justification for this assumption. Moreover, what he understood perhaps is that it was not a case of individual offence but of mob violence. When then it would still be a case under section 395 IPC. If a mob attacks a place and loots property, section 395 IPC will still be attracted. THErefore, the reasoning given by the learned Magistrate is no reasoning at all. On the contrary it is a case in which there appear reasonable grounds for believing that the accused persons have been guilty of an offence punishable with imprisonment for life under section 395 IPC. That being so, the case will be covered by sub-clause (i) of clause (1) of section 437 CrPC and bail cannot be granted by the Magistrate. It is not relevant to consider whether the case would be one triable by the Court of Session or by the Magistrate. What is relevant is that it is a case of non- bailable offence. It has not been argued before me thaw once bail has been granted it cannot be cancelled, merely under section 437 (I) (i) of the Code of Criminal Procedure. Therefore I need not consider this point in this case, but even if it had been the argument I would still hold that even in cases in which bail has been granted as a wrong exercise of jurisdiction by a Magistrate by ignoring the specific prohibition of the law, it can be cancelled. I had the occasion to deal with this aspect of the matter in an earlier decision concerning the case of Birendra Singh alias Barkoo Singh v. State of U. P., AWC 904 =1984 ACrR 515.;