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2) After filing of the revision petition, notice was issued to the respondent/accused who appeared along with his counsel who later also filed written reply to the petition. Trial Court Record (TCR) pertaining to bail application u/s 437 Cr.P.C. which was disposed off vide order dated 09.05.2016 and record of application u/s 437(5) Cr.P.C. which was disposed off vide order dated 17.04.2018 was summoned.

3) I heard the arguments on both sides and perused the record.

4) During the course of arguments, Sh. Atul Shrivastava, learned additional public prosecutor for the petitioner/state, relied on Jagdish Gandhi and Others v. N.C.T. of Delhi 2008(4) JCC 2684, Ratan Mandal v. State of Jharkhand 2006 Crl.L.J. 781, Prashant Kumar v. Manchar Lal Bhagat Ram Bhatia & Another 1988 Crl.L.J. 1463, Latheef v. State of Kerala 2011(2) Crl.C.C.0880, Court on its own motion v. State Crl.Ref.1 of 2017(Delhi HC order dated 24.10.2017), Amar Nath and Others v. State of Haryana & Another 1977 SCC(Cri) 585, Deepu@Mahalingaiah & Others v. State and Another (High Court of Karnataka judgment dated 05.08.2014 in Crl.Pet.No.3365 of 2014), Dharamvir Singh v. State & Ors. (Delhi HC judgment dated 01.10.2014 in Crl.M.C. 3202 of 2014), Prahlad Singh Bhati v. NCT Delhi & Anr. (2001) 4 SCC 280, Sundeep Kumar Bafna v. State of Maharashtra & Anr.(2014) 16 SCC 623, Mohanlal Shamji Soni v. Union of India and Anr. AIR 1991 SC 1346 and Mahipal v. Rajesh Kumar@Polia & Anr.(SC judgment dated 05.12.2019 in Crl.Appeal No. 1843 of 2019).

8) Thereafter, the State moved an application u/s 437(5) Cr.P.C. seeking cancellation of bail of the accused which was contested by the accused by filing a reply thereto. Vide impugned order, the aforesaid application was dismissed by the learned Trial Court.

9) Feeling aggrieved, the State preferred the present revision petition for setting aside the impugned order.

10) The grievances of the petitioner are that vide order 09.05.2016, learned Trial Court granted bail to the accused taking into consideration the submissions of the then IO which were patently wrong. It was submitted by the IO that the complainant had not produced any ownership documents pertaining to the property in question and on verification the property was found belonging to DDA. An FIR was also registered against the complainant in this regard. All these submissions made by the IO were false and the learned Trial Court was, therefore, misled and duped to obtain the bail order. A departmental action was also initiated against the then IO for making wrong submissions before the court which resulted in bail being granted to the accused. Even otherwise, the learned Trial Court was not competent enough to grant bail in case of an offence punishable with imprisonment for life which was the case before it as during the investigation, section 467 IPC, besides other sections, was added in the case which is punishable with imprisonment for life. Further, at the time of arguments on application under section 437(5) Cr.P.C., all these submissions were made but the learned Trial Court, though agreeing about the merits of the submissions, fell into error in holding that the exercise of power for cancellation of bail under section 437(5) Cr.P.C. was not warranted as the same would tantamount to review of the bail order and the remedy lies only in challenging the bail order in superior court.

13) In the present case, the state has challenged the order dated 17.04.2018 passed by the learned Trial Court whereby the application moved under section 437(5) Cr.P.C. was dismissed. An order of bail-be it grant of bail or rejection of bail- is certainly not amenable to revisional jurisdiction being interlocutory in nature, as was also laid down in Amar Nath (supra) case but it can not be the case in respect of an order dismissing an application seeking cancellation of bail under section 437(5) or for that matter, under section 439(2) Cr.P.C., more so, when improper exercise of jurisdiction vested in the court, like in the present case, has been alleged. For instance, if a Magistrate cancels the bail under section 437(5) Cr.P.C., the accused can go in revision against the order which is not interlocutory in nature, though it is a different matter that alternatively, the accused can also file application under section 439(1) Cr.P.C. for grant of bail. Similarly, the State can also file revision petition against dismissal of application under section 437(5) Cr.P.C. as basically improper exercise of jurisdiction by the Magistrate is to be challenged. This is different from seeking cancellation of bail under section 439(2) Cr.P.C. which is again an alternative remedy. Such an order allowing or dismissing an application under section 437(5) Cr.P.C. is certainly liable to be challenged by invoking revisional jurisdiction under section 397 Cr.P.C. as the same is an 'intermediate order' or a 'matter of moment' as explained by the Hon'ble Supreme Court in Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551, which was further reiterated in Amar Nath (supra) and Girish Suneja (supra) cases. To my mind, no other remedy has been stipulated under the Code in such an eventuality, unlike the case of grant or rejection of bail. To explain further, if a Magistrate grants bail under section 437(1) Cr.P.C., the same can be challenged under section 437(5) before the same court or under section 439(2) Cr.P.C before the superior court. Likewise, if the Magistrate rejects bail under section 437(1), the remedy lies to take recourse to section 439(1) Cr.P.C. for grant of bail. In a similar fashion, if the bail is granted by a Court of Session under section 438 or 439(1) Cr.P.C., the same can be challenged under section 439(2) Cr.P.C. in Hon'ble High Court being the superior court and if the bail is rejected by the Court of Session under section 438 or 439(1) Cr.P.C., the same can be granted by the Hon'ble High Court under the same provisions, by virtue of being the superior court, despite there being parallel powers available with the Court of Session under the said provisions regarding grant or rejection of bail. But no remedy has been stipulated under the Code in respect of allow or dismissal of application under section 437(5) or under section 439(2) Cr.P.C. and that's why it makes the same amenable to revisional jurisdiction of the superior court. To reiterate, the revisional jurisdiction can not be invoked to challenge the order granting or rejecting bail as such an order would be interlocutory in nature, but it can certainly be invoked in case of final or intermediate orders. It was also laid down in categorical terms in Girish Suneja (supra) case that the revisional jurisdiction can be exercised in respect of final and intermediate orders but not in respect of interlocutory orders.

16) For the purpose of issue under consideration, in my considered opinion, the terms 'death or imprisonment for life' and 'imprisonment for life' are to be read disjunctively. Section 437 Cr.P.C. and the proviso appended thereto, while placing embargo upon the power of a Magistrate, thoroughly uses the term 'death or imprisonment for life' in a block and does not deal with the term 'imprisonment for life' only.

It also does not appeal to common sense that the Magistrate, though can conduct trial for the offences punishable with imprisonment for life, as in cases under sections 326,377,388,389,394,409,467,472,474 and 477 IPC but cannot deal with the bail applications of such offences. Conduct of trial, at any point of time, is far serious and responsible function as compared to the question of bail. Even otherwise, in the above-mentioned Criminal Reference no.1 before the Hon'ble High Court, where the only query raised was 'can a Magistrate grant bail in an offence which is triable by magistrate but is punishable with imprisonment for life', it was answered by the Hon'ble High Court in affirmative with the caveat that the case should not fall within any of the proviso appended thereto, meaning thereby that a Magistrate is not debarred in granting bail in a case involving offence which is triable by magistrate and is punishable with imprisonment for life. Therefore, the Magistrate, in view of law laid down in Prahlad Bhati(supra), and the Criminal Reference no.1,is competent to deal with the bail applications for the offences which are punishable with life imprisonment and are triable by magistrate but should not deal with the bail applications in cases where the offence is triable by the Court of Session and is punishable with 'death or imprisonment for life' besides other punishments, like offences punishable under section 302,364A,396 IPC etc.