P.G. Agarwal, J.
1. The facts in brief leading to the present revision may be noted:
2. The respondent Sri Hari Chandra Hatimuria was arrested by Police in connection with Silapathar P. S. Case No. 133/2006 and produced the Chid Judicial Magistrate, Dheniaji on 26-9-2006. The allegation in the F. I. R. is that the accused who is a school teacher, called Ms. Sumpi Gogol, a teenaged illiterate girl to his house for cleaning rice and after the work was over, the accused threatened her and took her inside the house and, thereafter, forcibly committed rape on her. The accused threatened the teenaged girl with dire consequences if she discloses the incident to others. Subsequently, she informed about the incident to her parents whereupon the F. I. R. was lodged. The statement of the alleged victim was recorded under Section 161, Cr. P.C. and, thereafter, she was sent to the Court where her statement was recorded under Section 164, Cr. P.C.
3. On his production before the Court, the accused filed an application for bail stating inter alia that he is suffering from illness and he is undergoing treatment at Dibrugarh Hospital. On 13-9-2006, the application for bail was filed on behalf of the accused and the learned Chief Judicial Magistrate on persual of the F. I. R. and the statement of victim girl rejected the same. However, the Court called for the Case Diary fixing 20-9-2006. On that day, the Case diary was not produced before the Chief Judicial Magistrate on the ground that the Case Diary is before the Hon'ble High Court and on that day the learned Magistrate rejected the prayer for bail in spite of submission regarding illness of the accused.
4. Another bail petition was moved on 26-9-2006. The Case Diary could not be produced as it was not received back from the High Court. The accused referred to an advice from the Doctor regarding consultation and further evaluation and treatment under a Cardiologist. A Medical Certificate dated 23-9-2006 was produced before the Magistrate, but the prayer for bail was rejected and the case was fixed on 4-10-2006 for production of the Case Diary. The Chief Judicial Magistrate also directed the Superintendent, District. Jail, Dhemaji to provide proper treatment to the accused.
5. On the next day i.e. 27-9-2006, another bail application was filed taking the same plea of illness of the accused. It was further submitted that the son of the accused died on Monday i.e. 25-9-2006 and the health of the accused may deteriorate. The learned Chief Judicial Magistrate on perusal of the F. I. R. and the statement of victim girl and considering the illness of the accused, allowed him to go on bail of Rs. 5,000/- with one surety of the like amount. On receipt of the report from the learned Sessions Judge, Dhemaji, the present revision was entertained by this Court suo moto and the matter has been placed before this larger Bench.
6. The respondent /accused submitted that the discretion to grant bail was exercised by the learned Chief Judicial Magistrate on the basis of the materials available before him and unless the accused has misused the liberty granted to him or is interfering with the investigation or attempting to evade the due course of justice, no interference by way of cancellation of bail can be made. There are a catena of decisions on the score including the case of Daulatram v. The State of Haryana : (1995)1SCC349 .
7. The question before us is whether in a case where ignoring the material evidence on record a perverse order granting bail is passed in a serious case and that too, without giving reasons, interference by a Higher Court is called for. In the case of Gurucharan Singh v. State AIR 1978 SC 179 : 1978 Cri LJ 129 it was observed by the Apex Court that the approach in such cases should be whether the order granting bail was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest of justice to interfere.
8. In the case of Puran v. Ram Bilas and Anr. : 2001CriLJ2566
10...Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the society. Therefore, an arbitrary and wrong exercise of discretion by the trial Court has to be corrected.
11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation.
9. Admittedly in the present case the bail order has not been sought to be cancelled on the ground of abuse of the liberty by the accused or the usual grounds available under Section 439(2) Cr. P.C. Interference by the High Court has been sought on the ground of non-consideration of the considerations relevant for the purpose of grant of bail and non-recording of the reasons as to how the bail application which was dismissed on the previous day, was allowed on the very next day. In the case of Ram Govind Upadliyay v. Sudarshan Singh : 2002CriLJ1849 , bail was granted by the High Court within one month of rejection of the earlier application for bail and the Apex Court observed that it was duty incumbent on the High Court to explicitly state reasons as to why a sudden departure in the order of grant was against the rejection just about a month ago. The other question that needs our consideration is whether the Chief Judicial Magistrate had exceeded his powers under Section 437 Cr. P.C. in granting bail to the accused where the latter is charged with commission of a heinous offence of rape of a minor girl. It may be mentioned here that this is not a case of release of the accused on expiry of the statutory period of detention under Section 167(2) Cr. P.C. In the case of Sanjay Dutt v. State Through CBI, Bombay (II) : 1995CriLJ477 , a five Judges Bench of the Apex Court held:
53.(2)(b) The 'indefeasible right' of the accused to be released on bail in accordance with Section 20(4)(bb) of the TADA Act read with Section 167(2) of the Code of Criminal Procedure in default of completion of the investigation and filing of the challan within the time allowed, as held in Hitendra Vishnu Thakur 1995 Cri LJ 517 is a right which enures to, and is enforceable by the accused only from the time of default till the filing of the challan and it does not survive or remain enforceable on the challan being filed. If the accused applies for bail under this provision on expiry of the period of 180 days or the extend period, as the case may be. then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. The right of the accused to be released on bail after filing of the challan, notwithstanding the default in filing it within the time allowed, is governed from the time of filing of the challan only by the provisions relating to the grant of bail applicable at that stage.
The above decision was reiterated in the case of State through CBI v. Mohd. Ashraft Bhat and Anr. 1996 SCC (Cri) 117 : 1996 AIR SCW 237.
10. Section 437 Cr. P.C. as it stands now, reads as follows:
437. When bail may be taken in case of non-bailable offence.- (1) 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 appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years:
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more be released on bail by the Court under this sub section without giving an opportunity of hearing to the Public Prosecutor.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1) the Court shall impose the conditions,-
(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may impose, in the interests of justice, such other conditions as it considers necessary.
(4) An officer or a Court releasing any person on bail under Sub-section (1), or Sub-section (2), shall record in writing his or its reasons or special reasons for so doing.
(5) Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after conclusion of the trial of a person accused of a non bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
11. A brief history of the provisions of the Code concerning bail in non-bailable offences has been aptly detailed by Hon'ble Allahabad High Court in the case of Pramod Kr. v. Sadhana Rani 1989 Crl. L.J. 1772 and we do not propose to reproduce the same here. Since 1989, there is no material amendment except some ornamental modifications here and there without effecting the basic features regarding grant of bail.
12. As we know, the word 'bail' has not been defined under the Cr. P.C. although under the definition Section 2, an offence is either bailable or non-bailable. Section 436 Cr. P.C. contains the provisions for bail in bailable offences. Sections 437 and 439 Cr. P.C. arc in respect of non-bailable offences, which may be again categorised into three categories:
(i) non-bailable offences triable by a Magistrate;
(ii) non bailable offences triable by a Sessions Judge; and
(iii) non bailable offences triable by a Sessions Court where punishment provided is life imprisonment or death.
13. In the event of arrest of a person accused/suspected to be involved in committing a non-bailable offence, the question whether the person is to be released on bail or not depends upon the gravity of the offence and such gravity is required to be considered on the basis of the punishment provided for the offence. Section 437 Cr. P.C. basically concerns the Magistrate before whom the accused appears or is brought. Under the law, the accused is produced before a Magistrate only and he cannot be produced before the Sessions Court or the High Court. Even in a case under the Nanrcotic Drugs and Psychotropie Substances Act, where a Magistrate has absolutely no power to consider or grant bail to an accused, the latter is produced on arrest before the Magistrate only.
14. The scope and ambit of the powers under Section 437 Cr. P.C. was considered by the Apex Court in the case of Captain Jagjit : [1962]3SCR622 and these were followed in the case of Gurcharan Singh and Ors. v. State (Delhi Administration) AIR 1978 SC 179 : 1978 Cri LJ 129. The following observations of the Apex Court in the case of Gurcharan Singh (supra) are relevant:
21. Section 437. Cr. P.C. is concerned only with the Court of Magistrate. It expressly excluded the High Court and the Court of Session. The language of Section 437(1) may be contrasted with Section 437(7) to which we have already made a reference. While under Sub-section (1) of Section 437, Cr. P.C. the words are : 'If there appear to be reasonable grounds for believing that he has been guilty'. Sub-section (7) says : 'that there are reasonable grounds for believing that the accused is not guilty of such an offence.' This difference in language occurs on account of the stage at which the two subsections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, whereas after submission of charge-sheet or during trial for such an offence the Court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree of certainty of opinion in that behalf is more after the trial is over and judgment is deferred than at a pre-trial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law that even in case of such non-bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the Court to come to a conclusion as to the nature of the case he is involved in or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death of imprisonment for life, the Court has no other option than to commit him to custody. At that stage, the Court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits.
22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to Sub-section (3) of See, 437, Cr. P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1), Cr. P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
23. By an amendment in 1955 in Section 497, Cr. P.C. of the old Code the words 'or suspected of the commission of were for the first time introduced. These words were continued in the new Code in Section 437(1), Cr. P.C. It is difficult to conceive how if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life (Section 41, Cr. P.C. of the new Code) and forwards him to a Magistrate (Section 167(1), Cr. P.C. of the new Code) the Magistrate at that stage will have reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage unless the Magistrate is able to act under the proviso to Section 437(1), Cr. P.C. bail appear to be out of the question. The only limited inquiry may then relate to the materials for the suspicion. The position will naturally change as investigation progresses and more facts and circumstances come to light.
15. In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. : 2005CriLJ944 , the Apex Court held that. Article 21 which guarantees personal liberty also contemplates deprivation of personal liberty by procedure established by law and a person accused of commission of a non-bailable offence could be detained in custody during the pendency of trial unless enlarged on bail in accordance with the provisions of law and such detention is not violative of Article 21, The Apex Court further held that even the persons accused of non-bailable offence are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him, and /or if the Court is satisfied for the reasons to be recorded that in spite of existence of a prima facie case, there is a need to release such person on bail where fact situations require it to do so.
16. We, thus, find that a Magistrate has the jurisdiction to consider the prayer for bail of a person accused of commission of a non bailable offence punishable with death or life imprisonment. However, in order to release an accused on bail, the Magistrate is required to record specific finding that there is no reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life. In view of the embargo provided under Sub-clause (i) and Sub-clause (ii), the Magistrate entertaining a bail application under Section 437 shall have a very limited scope to consider bail.
17. So far the proviso to Section 437 is concerned, the age factor i.e. whether a person is under the age of 18 years or 16 years, has become redundant in view of the provisions of the provisions of Juvenile Justice (Protection and Care) Act, 2000, where the age of juvenility has been enhanced to 18 years and in case of juveniles, he has to be produced before the Juvenile Court and not before the ordinary criminal Court.
18. So far the other provisions of the proviso regarding the accused being a woman or sick or infirm, the Apex Court has held time and again that the above proviso does not grant any indefeasible right to a woman accused or sick or infirm accused to obtain bail in a heinous crime. The Apex Court in the case of Prahlad Singh Bhati v. NCT. Delhi and Anr. : 2001CriLJ1730 observed:.It does not, however, mean that persons specified in the first proviso to Sub-section (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a Court, other than the High Court and the Court of Session, to release a person on bail despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life.
19. The provisions of Section 437 Cr. P.C. are not limited to a case arising out of a police report. They also squarely apply in respect of cases instituted otherwise on police report, generally called 'complaint case'. In the section both the words 'produced' or 'appear' are mentioned and, as such, in a complaint case where process is issued under Section 302 or similarly sections of the Indian Penal Code or other law, where the punishment provided is death or imprisonment for life the rigours of Section 437 shall apply.
20. In view of the provisions of Section 437 Cr. P.C. there appears to be no bar for a Magistrate to consider bail application in respect of a person who is accused of an offence exclusively triable by a Court of Sessions subject to the restrictions imposed by the section itself. At this stage, we are tempted to recapitulate the following observations of the Apex Court in the case of Prahlad Singh Bhati 2001 Cri LJ 1730 (supra):
6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Session yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.
7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the, jurisdiction.
8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words 'reasonable grounds for believing' instead of 'the evidence' which means the Court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
11...
We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Session, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher Courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.
21. In the case of Puran v. Ram Bilas and Anr. 2001 Cri LJ 2566 (supra), the Apex Court held that at the stage of granting bail, a detailed examination of the evidence and elaborate documentation of the merits of the case is not required to be undertaken, but some reasons for prima facie concluding why bail was being granted must be indicated. The above dictum was reiterated in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. : 2004CriLJ1796 wherein the Apex Court held:
11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind.
22. So far the jurisdiction of the Magistrate to entertain a bail application under Section 437 Cr. P.C. in respect of an offence triable exclusively by Court of Session and punishable with death or life imprisonment is concerned, the law is well settled. However, the question that comes up for determination time and again is as to what should be the considerations for granting or refusing bail. In Gurucharan Singh (1978 Cri LJ 129) (supra), the Apex Court held:
24...
The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) Cr. P.C. of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; or repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out.
23. In a later case of Babu Singh and Ors. v. State of Uttar Pradesh : 1978CriLJ651 , the following considerations were held to be relevant:
(i) nature of the charge and the nature of the evidence;
(ii) whether the course of justice would be thwarted by the person seeking bail;
(iii) tampering with the witnesses;
(iv) securing presence of person seeking bail; and,
(v) period already spent in prison.
24. In Ram Govind Upadhyay (2002 Cri LJ 1849) (supra), the Apex Court added the following considerations with the observation that these are only illustrative and not exhaustive:
4...
(a) While granting bail the Court has to keep in mind not only the nature of the accusation, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
25. Although in the case of Babu Singh (1978 Cri LJ 051) (supra), the Apex Court held that the apprehension of the accused that his appeal may not be heard within a reasonable time (we may read it as the trial not being completed within a reasonable time) and the period spent by the accused in jail custody may be relevant considerations for granting hail to the accused, in the later case of Kalyan Chandra Sarkar (2005 Cri LJ 944) (supra) it was held that these are not proper considerations.
26. The above illustrative guidelines in the matter of consideration of bail were reiterated by the Apex Court in the case of State of Uttar Pradesh v. Amarmani Tripathi : 2005CriLJ4149 . There is also no dispute at the bar that the observations made in a case cannot be general /automatic application to other cases as because the question whether bail is to be granted or refused will always depend on the factual matrix of each case.
27. In view of our aforesaid discussion, we sum up the matter as below:
(i) A Magistrate has the jurisdiction to consider bail-application in cases of non-bailable offence where punishment provided is life imprisonment or death. This power is, however, subject to the restrictions under Section 437(1) Cr. P.C.
(ii) The proviso to the above section is an enabling provision only and the Magistrates are required to examine and consider the other aspects of law governing grant of bail.
(iii) The jurisdiction of the Magistrate is limited in such cases and is to be exercised sparingly and in rare cases only when he is satisfied that there are no reasonable grounds to believe that the accused is guilty of such offence.
(iv) The stage of investigation has also a strong bearing in the matter of consideration of bail, and the Court is required to keep in mind the observations of the Apex Court in Prahlad Singh Bhati 2001 Cri LJ 1730 (supra).
(v) Where it is brought to the notice of the Sessions Judge or the Magistrate, as the case may be, that a bail application is pending or disposed of by a Higher Court, it is duty incumbent on them to go through such orders before granting or refusing ball.
(vi) The Sessions Judge/ Magistrate is required to record reasons briefly as to why bail has been granted.
(vii) In case of successive bail applications, it must be indicated as to what was the subsequent development or as to why departure is made.
28. Now coming to the facts of the present case, the respondent /accused has filed an affidavit in opposition supporting the impugned order of bail granted by the Court below. In the above affidavit, it is stated that on 25-9-2006 the jail doctor submitted a report that the accused needs further evaluation and treatment under a Cardiologist to exclude the nature of heart disease. Further, the son of the accused expired on 25-9-2006 due to illness and on hearing this news the health condition of the accused further deteriorated.
29. In the present case, we find that the learned Chief Judicial Magistrate has not given any reason for granting bail although the bail application was rejected by him on the previous day itself. The order sheets show that since the date of his arrest the accused was filing successive bail applications. The first bail application was rejected on 13-9-2006, the second bail application was rejected on 20-9-2006 and the third application was rejected on 26-9-2006. Thereafter, the fourth application for bail was allowed on 27-9-2006. So far the right of the accused to file successive bail applications is concerned, the matter need not detain us in view of the following observation of the Apex Court in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and Anr. : 2004CriLJ1796 :
20. Before concluding, we must note that though an accused has a right to make successive applications for grant of bail the Court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications.
30. The matter was further explained in the following words:
19. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the Courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. The findings of a higher Court or a coordinate Bench must receive serious consideration at the hands of the Court entertaining a bail application at a later stage when the same had been rejected earlier. In such an event, the Courts must give due weight to the grounds which weighed with the former or higher Court in rejecting the bail application. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds, as the same would lead to a speculation and uncertainty in the administration of justice and may lead to forum hunting.
20. The decisions given by a superior forum, undoubtedly, arc binding on the subordinate fora on the same issue even in bail matters unless of course, there is a material change in the fact situation calling for a different view being taken. Therefore, even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application.
(2005)2 SCC 42 : 2005 Cri LJ 944.
31. Reverting to the facts of the present case, we find that the medical certificate of the jail doctor dated 23-9-2006 was before the Court on 26-9-2006, and it was duly considered and the learned Chief Judicial Magistrate, refused to grant bail to the accused on the basis of the above medical certificate. Likewise, the factum of death of the son of the accused was known to the accused on 26-9-2006 as his son died on 25-9-2006, but this was not disclosed to the Court when the report of the jail doctor was rejected by the Court on 26-9-2006. We hardly find any justification on the part of the learned Chief Judicial Magistrate to grant bail to the accused on the above consideration. We have no hesitation whatsoever to hold that this is a case arbitrary and wrong exercise of discretion by the Chief Judicial Magistrate, Dhemaji and it needs to be corrected in the interest of justice.
32. So far the jurisdiction of this Court to entertain this application and interfere with the impugned order is concerned, the learned Counsel for the parties have not disputed the same. In the instant case, the impugned order was passed by the Chief Judicial Magistrate only, whereas the High Court while exercising concurrent jurisdiction under Section 439 Cr. P.C., can correct an order passed by the Sessions Judge (see para 16 of Puran v. Ram Bilas 2001 Cri LJ 2566 (supra)).
33. In our view, the Chief Judicial Magistrate, Dhemaji has committed error in the matter of grant of bail and the impugned order is devoid of any reason. Once bail was rejected on 26-9-2006 after considering the grounds taken by the accused, bail could not have been granted to the accused on the very next day on the same grounds. Admittedly, the bail was granted under Clause (i) of Section 437 Cr. P.C. on the ground that there is no prima facie case against the accused. So far the merit of the case is concerned, there was a statement of the victim recorded under Section 164 Cr. P.C. specifically naming the accused as the person who committed rape on her.
34. The another aspect of the matter which has disturbed us much is the impunity with which the Chief Judicial Magistrate proceeded to hear the bail application and disposed of the same by releasing the accused on bail in spite of the fact that he had the knowledge and information that the bail matter is pending before the High Court. The orders dated 20-9-2006 and 26-9-2006 show that the Case Diary was pending before the High Court. It was the duty incumbent on the Chief Judicial Magistrate to obtain necessary information as regards the status of the bail application before the Higher Court before deciding to consider the bail application. Being a Judicial Officer, he was bound by the hierarchy and judicial discipline. We strongly deprecate such practice on the part of the officer manning judiciary. Whenever it is brought to the notice of the Judicial Officer taking bail matters that the prayer for bail is pending before a High Court or disposed of by a Higher Court, it will be incumbent on his part to obtain proper and necessary information before invoking his jurisdiction in the matter.
35. The revision stands allowed and the impugned order passed by the Chief Judicial Magistrate, Dhemaji is set aside. The impugned bail order stands cancelled.
36. It is submitted that in the meantime, Police has already submitted chargesheet against the accused under Section 376 IPC. The accused shall surrender forthwith before the Chief Judicial Magistrate, Dhemaji failing which, he shall be taken into custody forthwith and, thereafter, the matter shall proceed in accordance with the provisions of law.
37. Another matter which has been lagged with this revision petition is regarding local jurisdiction of the Judicial Magistrates. The note of the Registry reads as follows:
Ref: Local jurisdiction of Judicial Magistrates.
It has come to notice that the Chief Judicial Magistrates working under the jurisdiction of the Gauhati High Court arc exercising powers in respect of the bail matters within their respective districts. Cases, including bail matters relating to the districts under the jurisdiction of the Chief Judicial Magistrates are taken up by the Additional Chief Judicial Magistrates, Sub-Divisional Judicial Magistrates and other Judicial Magistrates of the districts as and when such matters are allotted to such other judicial officers by the concerned Chief Judicial Magistrates, Similarly, in the Sub-divisions also the Sub-Divisional Judicial Magistrates take up all cases including the bail matters relating to the respective sub-division, except those allotted to other judicial officers or the sub-division by the Sub-Divisional Judicial Officers.
In view of the above, bail/remand matters in respect of the police papers arc taken up by the Chief Judicial Magistrates or the Sub-Divisional Judicial Magistrates (M) as the case may be, unless such matters arc allotted to other Magistrates by the concerned Chief Judicial Magistrates/Sub-Divisional Judicial Magistrates.
38. Section 14, Cr. P.C. reads as follows:
14. Local Jurisdiction of Judicial Magistrates.- (1) Subject to the control of the High Court, the Chief Judicial Magistrate may, from time to time, define the local limits of the areas within which the Magistrates appointed under Section 11 or under Section 13 may exercise all or any of the powers with which they may respectively be invested under this Code:
Provided that the Court of a Special Judicial Magistrate may hold its sitting at any place within the local area for which it is established.
(2) Except as otherwise provided by such definition, the jurisdiction and powers of every such Magistrate shall extend throughout the district.
(3) Where the local jurisdiction of a Magistrate, appointed under Section 11 or Section 13 or Section 18, extends to an area beyond the district, or the metropolitan area. as the case may be, in which he ordinarily holds Court, any reference in this Code to the Court of Session. Chief Judicial Magistrate or the Chief Metropolitan Magistrate shall, in relation to such Magistrate, throughout the area within his local jurisdiction, be construed, unless the context otherwise requires, as a reference to the Court of Session, Chief Judicial Magistrate, or Chief Metropolitan Magistrate, as the case may be, exercising jurisdiction in relation to the said district or metropolitan area.
39. All over the country, except the States under the Gauhati High Court, the local jurisdiction of the Judicial Magistrates/Metropolitan Magistrates are defined/fixed and these Magistrates exercise their jurisdiction within the local limits of the respective jurisdiction and they are called 'Ilaka Magistrates', in the absence of any such definition of jurisdiction of Magistrates in the States under this Court, the Judicial Magistrates are exercising their jurisdiction throughout the district and it is affecting the working. Not to speak about other trial matters, even in bail matters, bail applications arc being taken up by one Court on one clay and on the next day these are being taken up by another Court and on the following day by a third Court. If the bail application is rejected on the first day, the accused can always prefer another application on the next day to be considered by another Magistrate and it becomes more or less impossible for the Judicial Magistrates to keep track of these bail applications which arc generally huge in the busy stations. If the jurisdiction of the Courts are defined Police Stationwise, the concerned Judicial Magistrate shall be in a better position to supervise the working within his/her jurisdictional area. There may be also cases where an accused is lacing prosecution in more than one cases at the same time but all his cases are taken up in different Courts and although he is appearing before one Court in a particular case, he is shown as absconder or defaulting accused in another case. It will be convenient on the part of the accused also to face his prosecution in the same District Court or in case of complainant to prosecute his, case before the same Court.
40. Definition of local jurisdiction is to made by the Chief Judicial Magistrate only subject to the control of the High Court. It is needless to mention here that the above power may be exercised by the High Court in exercise of its jurisdiction under Article 227 of the Constitution. We, therefore, provide that the High Court may issue necessary instructions to the Chief Judicial Magistrates functioning under it to define the jurisdiction of the Magistrates functioning under the Chief Judicial Magistrate and this definition of the jurisdiction should be Police Stationwise and this may be done on consideration of the pendency of cases area of the Police Station and nature of the cases generated in the Police Station etc. etc.
41. We place on record our appreciation of the assistance rendered by Mr. N. Dutta and Mr. D. Das, learned senior counsel.