Ranawat, J. - (1.) This is a revision application filed by the complainant Newadram against an order of the Sessions Judge, Bharatpur, dated the 5th July 1951, by which the four accused persons who had been committed to his Court by the City Magistrate, Bharatpur, to stand their trial under Section 302, I.P.C., were allowed to remain on bail. The Government Advocate has supported the application of the complainant. A notice was issued to the opposite parties.
(2.) The argument of the learned counsel of the applicant is that the accused persons have been committed to Sessions under Section 302, I.P.C., which is an offence punishable with death or transportation for life and under Section 497, Criminal P.C., it was not open to the Magistrate to have allowed the accused persons to remain on bail. The learned Sessions Judge, it is said on behalf of the complainant, did not apply his mind to the facts of the case in making an order in favour of the accused, 'Prima facie' it is argued there was evidence against the accused for committing them to the Court of Session to stand their trial under Section 302, I.P.C., and on this account the City Magistrate made a commitment order; that Court could not therefore be supposed to have held that there were no reasonable grounds to believe that the accused had committed an offence punishable with death or transportation for life and when the case had been committed under Section 302 the learned Sessions Judge should have held that there was a case under Section 302 against the accused and under Section 497. Criminal P.C., bail was improperly granted to the accused by the Court of the City Magistrate. 2. On merits it is contended, the learned Sessions Judge also could not have come to a contrary conclusion that there were no reasonable grounds for believing that the accused had committed an offence punishable with death or transportation for life when the accused had already been committed to his Court by the committing Magistrate under the charge of murder. The counsel on the opposite side has replied that the learned Sessions Judge did hear the arguments of both the sides and after giving due weight to the evidence he made an order under Section 498, Criminal P.C., releasing the accused on bail. The provisions of Section 498, are not limited by the provisions of Section 497, Criminal P.C.
(3.) It may be observed that when the learned City Magistrate committed the accused persons under a charge of murder it cannot be said that the same Court could have come to the conclusion that there were no reasonable grounds to hold that the accused had committed an offence punishable with death or transportation for life. A case is committed to Sessions only when there are grounds to believe that at least there is a 'prima facie' case against the accused. In this view of the matter, the order of the City Magistrate granting bail to the accused appears to be contrary to the provisions of Section 497, Criminal P.C. The exceptions given in the Section do not apply to this case and obviously when the case was committed under Section 302, I.P.C., the Magistrate ought to have taken the accused persons , in custody. However, that stage of the case is now over and it is not necessary to go back to that position off the case. The case has been committed to the Court of Session and on an application made on behalf of the accused the learned Sessions Judge has made an order in this behalf which is being impugned in this revision. Even though it can be said that the Court of the committing Magistrate could not commit the case under Section 302 and at the same time hold that there were no reason-able grounds to believe that the accused had committed an offence punishable with death or transportation for life, yet the same cannot be said against the learned Sessions Judge, because it is not necessary for the Sessions Judge to concur with the opinion of the committing Magistrate as regards the point regarding the existence of the reasonable grounds to believe that the accused had committed an offence punishable with death or transportation for life. In spite of the fact that the case had been committed to the Court of the Sessions Judge under Section 302, I.P.C., the Sessions Judge may hold the opinion if he is satisfied after examining the record of the case that there is no reasonable ground to believe that the accused had committed an offence punishable with death or transportation for life. In a case reported in 'NISAR ALI v. ABDUL HAMID', AIR 1935 Pesh 101, a similar point was raised and it was held by a Division Bench of that Court as follows: "We cannot support the view that because the factum of commitment implies that the City Magistrate had sufficient grounds for committing the accused, it necessarily gave the third Additional Sessions Judge reasonable grounds for believing that he has been guilty of the offence charged. It frequently happens in cases of violence that persons upon opposite sides are prosecuted for offences triable by a Court of Session and that the two prosecution stories are mutually destructive of each other, yet in such cases if the unrebutted evidence in each case be sufficient to afford 'prima facie' proof of the allegations made, it may be the duty of the Magistrate carrying out the judicial enquiry to commit both sets of accused for trial, in such cases he cannot possibly believe both stories and it is difficult to affirm that there are reasonable grounds for believing both stories. Again, there is no doubt that when a person is convicted of an offence punishable with death or transportation for life and appeals the appellate Court is empowered to admit him to bail pending decision, of the appeal, and therefore if Section 497, Criminal P.C., does apply to the appellate Court in such a case, we must come to the conclusion that the conviction by a Lower Court does not necessarily in itself give the appellate Court reasonable grounds for believing that the accused appellant is guilty.";