ORDER S.K. Phaujdar, J.
1. The present application raises certain interesting questions of law. The three petitioners were granted bail by the CJM, Jaunpur in a criminal case which was registered for an offence under Section 394, IPC. Aggrieved with the order granting bail to them, the complainant (present respondent No. 3) moved the Sessions Judge, Jaunpur in Application No. 28 of 1996 for cancellation of the bail order recorded in Cri. Case No. 253 of 1994. The learned Sessions Judge by his order dated 1-5-1998 accepted the prayer and cancelled the bail order recorded by the CJM in favour of the present three applicants. The CJM, Jaunpur, was directed to ensure the presence of the accused persons through process of law. This order is under callenges in the present application.
2. It was contended on behalf of the applicants that bail once granted could not have been cancelled except for proven misuse of the privilege and it was further indicated that an earlier application for cancellation of bail was moved vide Application No. 58 of 1994 and the same was rejected by the Sessions Judge on 22-1 -1996 and the order read as follows :
The applicant is absent. The application is hereby rejected.
The complainant appeared and filed a counter-affidavit and contended that the applicants should have gone to the proper forum for grant of bail afresh and application under Section 482, Cr. P.C. was not a proper one in the facts and circumstances of the case.
3. The FIR was lodged on 5-9-1994 at about 8.20 a.m. for an incident at one in the previous night. The informant was one Ram Bachan Yadav who was informed by Ram Asrey, watchman in a school, along with one Raja Ram Yadav, Some miscreants entered into the school, demanded the key and assaulted Raja Ram Yadav mercilessly and took away valuables from the office of the institution after breaking open the almirah. Ram Asrey claimed to have seen the miscreants. None was, however, named. A statement was given by injured Raja Ram Yadav on 8-9-1994, wherein he had named the present applicants. It was urged on behalf of the present applicants that they and the aforesaid Raja Ram Yadav were men from the same village and their names should have come in the FIR itself had they really been there. In his order dated 1-5-98 the learned Sessions Judge found that Section 437(1), Cr. P.C. was a definite bar for the CJM to exercise his discretion towards grant of bail and, as such, he thought it to be a proper case for cancellation of bail on the ground of wrong exercise of jurisdiction of the CJM.
4. When an order has been passed under Section 439, Cr. P.C. cancelling the bail order recorded under Section 437 the accused would have two courses open. It is always this right to move for bail afresh before the proper forum but his right to challenge the validity of the order of cancellation of bail cannot be taken away simply for the reason that he has a right to pray for bail again. This challenge could not be made in a petition under Section 397, Cr. P.C. as an order recording bail or its cancellation is but an interlocutory order and the validity of the order, therefore, could only be challenged in a proceeding under Section 482, Cr. P.C. invoking the inherent powers of the Court to prevent abuse of process of any Court or to secure the ends of justice. The objection of the complainant in this behalf is thus not tenable and this Court can look to the validity of the cancellation of bail in exercise of its powers under Section 482, Cr. P.C. It must also be indicated that cancellation of bail is normally to be made only on the proof of misuse of privilege of bail either by abscondence or by interference with investigation or by threats to witnesses. But one of the reasons for cancellation of bail could also be a wrong exercise of jurisdiction by the Court below and in this light it must be held that if either the Sessions Court or the High Court comes to the conclusion that the Court below had exercised a jurisdiction not vested in it in granting bail, the bail so granted could be cancelled.
5. We may now come to a discussion on the true interpretation of Section 437, Cr. P.C. The necessary provisions may be quoted as below :
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 Sessions, 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)...
6. The learned Sessions Judge was of the view that the Magistrate should not have released a person arrested in connection with a non-bailable offence if there appear reasonable grounds for believing that the accused had been guilty of an offence punishable with death or life imprisonment. A very reading of the provisions suggests that Section 437, Cr. P.C. does not create an absolute bar to the grant of bail by a magistrate in an offence punishable with death or imprisonment for life. A discretion is always left even to the magistrate to see if there were reasonable grounds for believing that the accused had been guilty of such an offence. The reasonable grounds of belief as required under this law, must come from the materials before the magistrate on the date of hearing of the bail application. The magistrate had before him the FIR. He had the facts before him that the FIR did not disclose the names of the petitioners although it was lodged on the basis of an information gathered from a person who was at the spot. He had also the fact before him that the names of the accused persons came on record at least three days after the incident. It is true that the person who named them had suffered bad injuries but his associate watchman could escape unhurt and was able to inform the first informant. If under these circumstances the magistrate prima facie sustained a doubt about the involvement of the accused persons in the alleged offence it could not be said that he had exercised a jurisdiction despite existence of reasonable grounds for believing that the accused persons were guilty of an offence 'punishable with death or imprisonment for life. Another important aspect of the case is that the offence of Section 394 under which the FIR was lodged is one triable by a magistrate. In this connection a case-law was relied upon by the learned counsel on behalf of the applicants to press his point. It was a decision of the Kerala High Court in case of Satyan v. State as reported in 1981 Cri LJ 1313. Here also a question arose if the prohibition against grant of bail was applicable on the sole ground that the offence alleged was punishable with imprisonment for life. The Kerala High Court held that the prohibition against grant of bail was confined to cases where sentence was either death or alternatively imprisonment for life. The Court was of the view that the punishment of imprisonment for life in this case cannot be read de hors the earlier part of sentence of death. According to this decision the prohibition would apply in such offences only which were punishable with death or life imprisonment and not to such offences which are punishable with life imprisonment only. This interpretation of law as given by the Kerala High Court appears to be sound in view of the fact that an offence under Section 394, IPC has been made triable by a Court of magistrate. The Schedule to the Cr. P.C. enlists a number of offences which are punishable with death or imprisonment for life and there is also a good number of other offences in which the maximum sentence is imprisonment for life.
7. Upon the above interpretation of law it must be held that the magistrate had a discretion to judge the materials on record and to grant bail despite the fact that the offence was one under Section 394, IPC. Thus, the approach of the learned Sessions Judge that the magistrate had totally lacked jurisdiction to grant bail cannot be said to be a correct one. The order of the learned Sessions Judge is, therefore, liable to be quashed and is hereby quashed. If the accused persons have been arrested on the basis of any process issued in terms of the order of the learned Sessions Judge they are to be released on fresh bonds on the same terms and conditions as they were enjoying under the order of the CJM. If they are yet to be arrested, all the stringent processes are to be deemed to have been withdrawn and they will enjoy all the benefits of bail as was granted to them by the CJM, subject of course to the conditions that they would not misuse the same.
With the aforesaid observations, the application stands allowed.