Gujarat High Court
The State Of Gujarat vs Lohana Lahku Amarshi on 1 January, 1800
Equivalent citations: AIR1968GUJ77, 1968CRILJ344
ORDER
(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, AIR 1951 Raj 94(1). 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, 52 Cri LJ 239 = (AIR 1951 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."
(4) That arises thus an important point to be considered, viz. as to whether the powers of the High Court or Court of Session are in any way subject to the provisions contained in section 497 (1) of the Criminal Procedure Code, and if not, whether the considerations contemplated therein for releasing any person on bail in respect of any non-bailable offence and more particularly in respect of any offence punishable with death or imprisonment for life have to be taken into account. Now section 498(1) says that the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced. Similarly by sub-section (2) the High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. Thus, on a plain reading of section 498 of the Criminal Procedure Code, the powers given to the Court of Session or the High Court are independent and unfettered by the earlier provisions viz. the provisions contained in S. 497 of the Code. But howsoever wide and unfettered the discretion in the Sessions Court or the High Court may be, it cannot ignore the force behind sub-section (1) of section 497 of the Criminal Procedure Code when it says that "he 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." The proviso thereto gives discretion to the Court to direct any person under age of 16 years or any woman or any sick or infirm person accused of such an offence to be released on bail. It appears that under section 497 sub-section (1) the term used is "Court" and not "Magistrate". The Court may as well be the Court of Session or even the High Court and in those circumstances in cases where there appear reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life, it has to take into account that factor as also any other factors which are contemplated in the proviso to that section for the purpose of releasing the accused on bail. Not only that, but various other factors, can well be taken into account before releasing any person on bail in respect of any non-bailable offence as pointed out by the Supreme Court in the case of State v. Captain Jagjit Singh, AIR 1962 SC 253. The pertinent observations of the Supreme Court run thus :--
"Among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the Court should refuse bail even though it has very wide powers under S. 498 of the Code of Criminal Procedure."
Going further it has said that various considerations such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations arise when a court is asked for bail in a non-bailable offence. Even though under section 498 of the Criminal Procedure Code, the powers of the High Court in the matter of granting bail are very wide, where the offence is non-bailable such considerations have to be taken into account. If that were so, the Sessions Court or the High Court, before exercising such wide powers, cannot at any rate brush aside the effect of section 497(1) viz. about not releasing persons reasonably believed to be guilty for an offence punishable with death or imprisonment for life and the proviso thereto. When that is so, amongst other considerations, the considerations contemplated under section 497 of the Criminal Procedure Code would naturally come in and they could not be ignored. They have to be considered whether the matter is before the Magistrate or before the Court of Session or even before the High Court. In those circumstances, if we were to consider the facts of the present case, it appears plain that the offence said to have been committed by the accused-respondent is a serious one and even of a heinous character inasmuch as he is alleged to have poured kerosene on her and set fire to her in broad day-light at his house. Besides, there arises no consideration about the offence falling, if it is established beyond any reasonable doubt, under any minor offence and it would be one falling under section 302 of the Indian Penal Code. The punishment provided for the same is death or imprisonment for life. Such an offence would, thus, come within the ambit of sub-section (1) of section 497 of the Criminal Procedure Code and the Legislature has desired that a person who is accused of such an offence and when there appear reasonable grounds for believing that he had committed such offence, shall not be released on bail, subject of course to what is contained in the proviso thereto, and having regard to the wide powers that have been given to the Sessions Court or the High Court under section 498 of the Criminal Procedure Code. We are told that the case has been committed to the Court of Session for an offence under section 302 of the Indian Penal Code and the case would soon come up for trial. There would not arise any question of his having to remain in jail as an under trial prisoner for an unduly long period. The learned Additional Sessions Judge has not properly applied his mind to the relevant evidence that may appear in the police papers or the effect of the dying declarations said to have been made by deceased Bai Vijaya soon after the incident viz. within about one hour before the P.S.I. and within 21/2 hours before the Magistrate. The mere fact that the accused is not likely to abscond would not be a sufficient criterion for releasing the accused on bail in a case of such character. In my opinion, therefore, the learned Additional Sessions Judge has not properly exercised the discretion and it calls for interference by this Court.
(5) The order passed by the learned Additional Sessions Judge is, therefore, set aside and the accused is directed to surrender to his bail immediately. He shall be taken into custody.
(6) Bail cancelled.