JUDGMENT Barkat Ali Zaidi, J.
1. The facts giving rise to this application under Section 482 Cr.P.C. are that a case was registered under Sections 323, 324 and 504 Indian Penal Code by police, Police Station Mangalpur, District Kanpur Dehat. The police released the accused on bail.
2. Thereafter, on receipt of the doctor's report the case was converted, one under Section 308, Indian penal Code and after completion of investigation the charge sheet was also filed under Section 308 Indian Penal Code, along with aforesaid sections. On receipt of the charge sheet Additional Chief Judicial Magistrate-1 Kanpur Dehat summoned the accused and made a mention in the order dated 15.12.2005 that the accused were not bailed out under Section 308 IPC.
3. It is, thereafter, that the applicant have come to this Court and the prayer is that the Magistrate be directed to release the applicants on bail. The prayer made by the applicants is as follows:
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to direct the opposite parties to release the applicants in added Section 308 IPC as already released on bail under Section 323, 324 and 504 IPC,. Police Station Mangalpur, District Kanpur Dehat on 28.09.2005 from police station and or to pass any such other or further order which this Hon'ble Court may deem fit and proper under the circumstances of the case.
4. The prayer has not been properly worded, because there is no mention in the prayer that the Magistrate should release the accused on bail, and the only mention is that the accused, should be released. The whole prayer has, therefore, become confused.
5. However, on the basis of the argument advanced, we may proceed on the assumption that the request is that the direction be given to the Magistrate to release the applicants on bail in the added offence.
6. In the first place offence under Section 308 IPC is triable by the Session Court and primarily it is for the, Sessions Court to grant or refuse bail to the accused. The Magistrate can grant bail in certain Session Trial cases as is given in the Criminal Procedure Code, but that is not the case of the applicants, that they are entitled to bail by the Magistrate under any such provisions.
7. It is, therefore, for the Sessions Court which will grant or refuse bail in the case, and any direction to the Magistrate in this regard will be wholly out of place.
8. It may be further stated that even if the Magistrate has jurisdiction to grant bail no such direction could or should have been issued restricting the discretion of the Magistrate in that regard. It is entirely for the Magistrate to decide whether bail is to be granted or not and his discretion should not be circumcised, ft is of course open to this court later on to grant bail, but, no direction of this nature should be issued to the Magistrate.
9. The applicants have cited the case of Yaqoob and Ors. v. State of U.P. and Ors.
2001(42) ACC 301 decided by Mr. Justice V.K. Chaturvedi in which the following order was passed:
It has been argued that a First Information Report has been registered on 25.06.1996 at ciime No. 97 of 1997 under Sections 307 and 506 IPC at police station Kotwali, District Aligarh. After receipt of a report from doctor, case mentioned above was converted into case under Section 324 and 506 IPC and the revisionists were released on bail by the investigating officer and the charge-sheet was also submitted under Sections 324, 506 IPC, a copy of the charge-sheet is annexure No. 4. After submission of the charge-sheet, investigating officer was changed and without obtaining any permission from the court concerned or from senior police officer concerned, investigating officer submitted another charge-sheet under Section 307 and 506 IPC for the same offence. An application was moved by the revisionists before the court concerned with the prayer that one month time be allowed to them for obtaining bail order from the Sessions Judge. By the impugned order, application was rejected.
Having heard learned Counsel for the parties and perusing materials on record and also taking into consideration the fact that the revisionists were admitted on bail in the case mentioned above by the investigating officer and they have not misused the liberty of bail, it will be just and proper that revisionists be allowed to continue on bail on their furnishing fresh bail bonds for the offences under Sections 307 and 506 IPC. It is accordingly directed that Vth ACJ.M. Aligarh, shall accept the fresh bail bonds for the offence mentioned above and the revisionists shall continue to be on bail.
With these observations, revision is disposed of finally.
10. It has been argued that the situation is similar and this Court should also issue direction for the applicants being granted bail.
It will be seen that by the above order the accused were admitted to bail by High Court itself, and only bail bonds were to be filed by them in the trial court. There is no prayer in this application for bail being granted, and as mentioned above for direction being given to the Magistrate for releasing the accused on bail. It will also be seen that in case charge sheet was initially filed under Section 324 and 506 Indian Penal Code and subsequent charge sheet was filed under Section 307 Indian Penal Code, while in the present case there was only one charge sheet, which has been filed under Sections 323, 324, 308 and 504 IPC. The facts of the case are therefore not the same.
11. The observations made by The Supreme Court in a recent case State of Hariyana v. Ms. AGM Management Services Ltd. 2006 (5) SCJ 324 are as follows:
Courts should not place reliance on decision without discussing as to how the factual situation fits in the fact situation of the decision on which reliance is placed.
12. Observation of Court's are not to be read as "Euclits Theorfums" nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgment of Court's are not to be construed as statutes....
13. The application must therefore fail and is accordingly dismissed.