Section 326 IPC new.pdf

LatestLaws.com

Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

We will start the discussion on the topic in a slightly different manner. Instead of directly jumping to the relevant provision, we will reach the destination destination by taking taking a route concerning concerning some other enactment i.e. Probation of Offenders Act, 1958. This is what judicial precedents have to say.

1.1.

A three Judges bench of Hon’ble Supreme Court in Som Nath Puri vs State of o f Rajasthan,

AIR 1972 SC 1490 has held as under:

“On behalf of the appellant it was urged before the High Court that as the appellant had to face a trial extending over more than 3 years incurring enormous expenses for coming to and from Chandigarh where he was practicing law and was also in Jail for some time, t he benefit of the Probation of Offenders Act should be given to him. This contention was rejected because the provisions of that Art were inapplicable in view of his conviction under section 409, I.P.C. As the offence of criminal breach of trust under section 409, I.P.C is punishable with imprisonment for life, the High Court, in our view, was right because the provisions of Section 4 are only applicable to a case of a person found guilty of having committed an offence not punishable with death or imprisonment for life.”

1.2.

Significantly Significantl y, Section-409 IPC IPC provides for life imprisonment and there is no death penalty

for the said offence. Despite that the aforesaid judicial pronouncement has chosen to settle that a person convicted for such offences would not be entitled for the benefit of probation under Section4. A reading of the provision to the relevant extent may clarify the position.


1

LatestLaws.com

The same reads as under: Section-4(1): “When any person is found guilty of having committed an offence not punishable with death or imprisonment for life….”

2.

Now, coming to the problem at hand. Magisterial Court’s power to grant bail lies in

Section-437 CrPC which to the relevant extent reads as under:

“When bail may be taken in case of nonbailable offence.-(1) When any person accused of, or suspected of, the commission of any nonbailable 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…..”.

2.1.

Section-4 of Probation of Offenders Act and Section-437(1)(i) Section-437(1)(i ) of CrPC both say that the

benefit will not be available for offences punishable with death or imprisonment for life. We are required to ascertain the meaning of expression “ death or imprisonment for life” employed in both the provisions.

3.

The simplest question is whether the aforesaid expression indicates only such offences in

which death and life are alternatively provided such as Section-302 IPC or any offence with either of the punishment will fall within its ambit.


2

LatestLaws.com

In other words, the primary Question is whether the expression “death or imprisonment for life” should be construed conjunctively or o r disjunctively?

3.1.

Since a three Judges bench of Hon’ble Supreme Court has held that the life imprisonment

cases are barred by Section-4 Probation of Offenders Act, there is no escape from the conclusion that the expression “death or imprisonment for life” means either of them and not in alternative. Means, even if a provision provides only a life imprisonment without any reference to death, the same would satisfy the requirement of the expression “death or imprisonment for life”. Virtually, there is no reason as to why the ratio of Som Nath Puri (supra) should not be made applicable to the expression “death or imprisonment for life” envisaged in Section-437 CrPC. Section-4 of PO Act and Section-437 of CrPC both deal with the benefits of an accused person and both have created an exception to the general beneficial rule of probation/bail so far as cases pertaining to death or imprisonment for life are concerned.

4.

Once upon a time there was an enactment called Punjab Borstal Act Section-2(4) whereof

was defining the expression “offence” as meaning:

"an

offence

punishable

with

transportation

or

rigorous

imprisonment under the th e Indian Penal Code other than- (a) an offence punishable with death;……"

4.1.

In a given situation, a question was raised about giving giving benefit to a murder convict convict under

the said enactment and as we know the punishment provided for murder is “death or imprisonment for life”. A three judges bench of Hon’ble Supreme Court in Subhash Chand vs State of Haryana (1988) 1 SCC 717 has held as under:

“One of the punishments for the offence of murder is death and, therefore, the offence of murder would be covered within section Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

3

LatestLaws.com

2(4)(i)(a) of the Punjab Act and to such a conviction the Punjab Borstal Act would have no application.”

4.2.

The above extract clearly shows that the three judges bench adopted a disjunctive disjuncti ve route

while interpreting the expression “death or imprisonment for life” available in Section-302 IPC in the context of exception provided in Punjab Borstal Act saying that it would not cover any offence punishable with death.

5.

The three judges bench of Hon’ble Supreme Court in Subhash Chand vs State of

Haryana (Supra) taken support for its view from several other decisions in following manner:

“Support for such a view is available from several decisions of different High Courts. Section 562(1)of the Code A of Criminal Procedure of 1898 as amended in 1923 brought in the phrase: "Punishable with death or transportation for life". In Emperor v. Mt. Janki & Anr., AIR 1932 Nag. 130 that phrase was interpreted disjunctively and women convicted of an offence for which transportation for life was one of the punishments provided were held ineligible for release on probation under section 562. It was pointed out that the words 'death or transportation for life' must be read as referring to offences the penalty for which provided by the Penal Code contains either death or transportation for life as one of the punishments awarded and not necessarily both. Reliance was placed on a full Bench decision of the Rangoon High Court in King Emperor v. Nga San Htwa & Ors., AIR 1927 Rangoon 205 which was dealing with a similar phrase occurring in section 497 of the old Code. A Division Bench of the Madhya Pradesh High Court in Chetti v. State of Madhya Pradesh, AIR 1959 MP 241 also took the same view. In Emperor v. Bahawati, AIR 1928 Lahore 920 it was held that as one of the alternative punishments for that offence under


4

LatestLaws.com

section 307 of the Penal Code, is transportation for life, it is obvious that section 562 is not applicable and the accused must be sentenced to rigorous imprisonment and fine. The Allahabad High Court in the case of State v. Sheo Shanker, AIR 1956 All. 326, the Madras High Court in Public Prosecutor of Madras v. Paneswar Rao, AIR 1946 Mad. 178, the Rajasthan High Court in Sarkar v. Jalam Singh, AIR 1950 Raj, 28 and the Bombay High Court in Naranji Premji v. Emperor, AIR 1928 Bom. 244 have taken the same view.”

6.

Interestingly Interestingl y, full bench decision of Rangoon High Court cited above was dealing

specifically with the Magisterial power of granting bail in a life imprisonment case and read the relevant provision of the old CrPC in disjunctive manner accepting that even if death is not provided, the life imprisonment cases are beyond the powers of magistrate in normal circumstances. Though there is no specific sentence in the three judges bench decision in Subhash (supra) saying that they were approving the ratio, since the three judges bench cited the decisions and taken support from the same for their conclusion, it would be obvious that they have accepted the particular ratio that if the offence falls within the category of either of the punishments provided in the expression “death or imprisonment for life”, the offence shall be treated as falling within exception so stated. Ratio of Rangoon case should therefore be treated as having subsumed in the ratio of Subhash(supra) giving a binding effect throughout India that expression “death or imprisonment for life” has to be interpreted in disjunctive manner.

6.1.

A division bench of Bombay High Court in Emperor vs Naranji Premji (1928) 30

BOMLR 622 has held as under:

“The first point taken by Mr. Jinnah in this application applicati on for bail is that in Sub-section (1) of Section 497 of the Criminal Procedure Code, the words "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life" only cover offences punishable with death or in the


5

LatestLaws.com

alternative with transportation for life, such as cases of murder and of waging war under Sections 312 and 121 of the Indian Penal Code, and that they do not include offences merely punishable with transportation for life. Although no authority baa been referred to in the argument before us, there is, in fact, a ruling that does support Mr. Jinnah's contention, viz., Mohammed Eusoof v. King-Emperor (1925) L.I.R. 3 Ran. 538. But that has been overruled by a Full Bench of the same Court in King-Emperor v. Nga San Htwa and others (1927) I.L.R. 5 Ran 276, f.b. In my opinion, this is a construction which cannot be adopted. If one refers to the definition of "warrant case" in Section 4(1)(w) of the Criminal Procedure Code, it will be seen that it is defined as a case relating to an offence punishable with death, transportation or imprisonment for a term exceeding six months. The Legislature obviously does not there mean an offence which is punishable with those kinds of different punishments in the alternative, and they do not put the word "with" before "transportation" or before "imprisonment". Therefore, I do not attach any importance to the argument that in Sub-section (1) of Section 497 the word "with" does not appear before "transportation for life", and therefore the reference is merely to an offence which is punishable with death or in the alternative with transportation for life.”

6.2.

In Gursharan Singh vs Union of India dated 01.01.1989, Hon’ble High Court of Delhi

left the question unanswered with following observations:

“As indicated at the threshold the learned Magistrate declined to even entertain the bail application pre-dominantly pre-dominant ly on the ground that he has no jurisdiction under Section 437 or the code of Criminal Procedure since at least the offence under Section 467 of the India Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

6

LatestLaws.com

Penal code is punishable with imprisonment for life or a term extending up to ten years and for that purpose he relied on a decision of this Court and huge was not inclined to accept the submissions on behalf of the other said that this is not a case where the offence is mad punishable with death or imprisonment of life and they disputed the soundness of that ratio which was relied upon by the learned Magistrate. According to the learned counsel for the petitioners having regard to the scheme of the code and the object behind enacting Section 437 of the Code in the context of other provisions in that chapter the Magistrate would be empowered to entertain bail application if the offence is punished either with imprisonment for life or for any lesser term and it would harmonious reading to construe that it is only in a case that an offence is punishable either with death or imprisonment for life that the jurisdiction of the Magistrate would be snatched away and it is further contended on behalf of the petitioners that significantly the offence under Section 467 of the Indian Penal Code is not exclusively friable by the Court of Sessions. The petitioners, therefore, contended that it may become necessary to re-consider the said ratio available in the field. The thrust of the contentions raised on behalf of the petitioners in that behalf would not doubt require a serious examination and consideration and cannot be summarily brushed aside. However, the parties now agree that since the petitioners are being enlarged on bail in the expanded field available on this forum they may not press this point in this proceeding as in the context of these events it may become more academic though they feel that this point deserves to be considered and decided as it confronts the lower Courts more than th an often. They, therefore, agree that they would agitate this point in suitable proceeding at an appropriate stage and as such it may not be necessary to decide this point in this proceeding. In view of this situation that aspect of the controversy touching the magistrate's Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

7

LatestLaws.com

powers under Section 437 of the Code qua the offence not punishable with death or imprisonment for life or for a lesser term is not being concluded in this proceeding and as such it would not be proper to express any final opinion in that field except indicating that the line of reasoning regarding the construction of Section 437 of the Code as canvassed on behalf of the petitioners would certainly certainl y require anxious consideration and the same cannot be lightly brushed aside.”

6.3.

However, Hon’ble High Court of Delhi again had an occasion to deal with the situation in

the year 2011 when a case came up before it where a Ld. ASJ opining the situation to be falling under later part of Section-307 IPC prescribing a life imprisonment set aside the bail granted by a Magistrate holding that due to bar created in Section-437, the Magistrate was not competent to grant bail. Hon’ble High Court on a factual analysis found the circumstances to be falling under first part instead of later part of Section-307 and held that since first part was providing a punishment upto 10 years, the Magistrate was competent to grant bail. The case was titled as Bhupender Singh vs State dated 07.12.2011. Following extract may be relevant:

“Based on this premise, he arrived at a conclusion that the offence committed by the petitioners was punishable either with life imprisonment or imprisonment upto 10 years or fine and so, the M.M. had no jurisdiction to grant bail under Section 437(1)(i) CrPC to the petitioners unless the case falls under any of the provisos……………..There provisos……………..There is no dispute that if the complaint of the petitioners falls within the first part, then the imprisonment was to be 10 years and fine and Magistrate was competent to grant bail. However, if there was hurt caused to any person by such act, the imprisonment was to be for life or 10 years……………In view of the above discussion, I am of the considered view that the offences alleged against the petitioners were of simple attempt to murder Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

8

LatestLaws.com

which would fall within the first part of Section 307 IPC and the same being punishable with imprisonment upto 10 years was within the competence of M.M. under Section 437(1)(i) CrPC.”

6.4.

In Priyanka vs State dated 20.05.2015, Hon’ble High Court of Delhi while dealing with

an offence of rape providing life imprisonment has finally taken a view that Magistrate has no power to grant bail in life imprisonment cases.

7.

An example will further clarify the situation. Take for instance a case falling within

Section-303 IPC (prior to a date when the provision was declared ultra vires). The section provides for a single punishment i.e. death, there is no alternative like Section-302 IPC. If we accept that the expression “death or imprisonment for life” appearing in Section-437 CrPC should be construed conjunctively means only such offences where death or imprisonment for life are alternatively provided, naturally Section-303 IPC would be out of its scope and therefore, a Magistrate would have power to grant bail for an offence under Section-303 IPC. This is clearly a absurd situation in as much as Section-303 is graver than Section-302 for which a Magistrate does not have power to grant bail. Similarly, Section-27(3) of Arms Act (prior to a date when the provision was declared ultra vires) also provides for a single sentence of death. The same absurdity will arise here.

7.1.

A further example may also be contemplated. Section-2(x) of CrPC defines a warrant case case

as “a case relating o an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years”. Should we take that therein the legislature wanted only such offences to be treated as warrant case where all of the three kinds of punishment are available for offence? This would the height of absurdity. Similarly, 90 days prescription of Section-167 CrPC requires an offence to be punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. Does anyone going to say that an offence of 11 years without any reference to death or life shall not fall under the 90 days prescription? Again an absurdity.


9

LatestLaws.com

8.

From meaning scribed to the word 'punishable' in several dictionaries, it can be said that it

is ordinarily defined as deserving of or capable or liable to punishment, deserving of or liable to punishment, capable of being punished by law or right, may be punished, or liable to be punished, and

not must be punished.

8.1.

The phrase "not punishable with death or imprisonment for life" ought to be interpreted in

its ordinary disjunctive sense. Its scope cannot be permitted to be expanded by giving a strained meaning, by reading it conjunctively. If that were permitted, the only offences to be excluded from the benefit of the provision of Section-437 CrPC would be Sections 121, 302, 305, 307 (Part II) and 396, while in all other grave and heinous offences punishable with imprisonment for life, the section could be availed of by an accused. This cannot be the intention of legislature.

8.2.

The words used in Section 437(1)(i) are "the offences offences punishable with death or

imprisonment for life". The word used between "death" and "imprisonment for life" is 'or' and not 'and'. So it cannot be said that this bar to power of the Magistrate to grant bail, shall be applicable in those cases only where the offence is punishable with death as well as with life imprisonment and that it shall not be applicable when the offence is punishable with life imprisonment only.

8.3.

Giving an interpretation interpret ation to the aforesaid clause to this effect that the above bar on power

of Magistrate is applicable to those cases only where the offence is punishable with death as well as with life imprisonment and not to those cases which are punishable with life imprisonment only shall make the words 'punishable with life imprisonment redundant, because if intention of the legislature was to impose the above bar in those cases only where the offence is punishable with death as well as with life imprisonment, the above object could be achieved by using the words "offences punishable with death sentence" and then all the offences punishable with death sentence as well as the life sentence would have been excluded from the Magisterial jurisdiction to grant bail, and as such use of the words "punishable with life imprisonment" shall become redundant because in India every offence punishable with death sentence is punishable with life Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

10

LatestLaws.com

imprisonment also in the alternative. There were apparently two exceptions only, Section 303 I.P.C. and Section-27(3) Arms Act but those sections have been declared to be unconstitutional by the Hon'ble Apex Court. As such the bar to grant of bail in offences punishable with death sentence as well as with life imprisonment could be achieved by using the words "death sentence only in Section 437(1)(i) Cr.P.C. and there could have been no requirement to use the words "punishable with life imprisonment".

8.4.

The law of harmonious interpretation is that every word used in the law must be given its

natural and practical meaning and an interpretation which renders some provisions redundant cannot be accepted, and the true import of the above words used in the Sub-section (i) of Section 437 is that the jurisdiction of the Magistrate is barred in those cases also which are not punishable with death but with life imprisonment.

Differentiation based on forum for trial:

9.

The second part of discussion discussi on will focus on the dependency of bail powers on the manner

of trial. Does it depend on the classification of trial provided for the offence is the question? Does a punishment loses its significance only because change of forum?

9.1.

In Prahalad Singh Bhati Vs. NCT of Delhi, AIR 2001 SC 1444, Hon’ble Supreme Court

has observed: “Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrest ed for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail.”


11

LatestLaws.com

9.2.

Clearly, therefore, though the Hon’ble Supreme Supreme Court stated that in sessions triable case a

magistrate should direct the accused to approach a Sessions court, yet it has significantly provided that there is no legal bar. This is very important. Power of bail therefore does not depend upon the forum which would be capable of trying the offence.

9.3.

It is some other observation in the aforesaid judgment that gives rise to a seriously flawed

assumption. The observation from the judgment is extracted herein:

“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 impris onment for life and death penalty and the offence is exclusively triable by the Court of Sessions, 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…………………. jurisdiction…………………. While allowing this appeal and setting aside the orders impugned we permit the respondent-accused to apply for regular bail in the trial ig Court. If any such application is filed, the same shall be disposed of on its merits keeping in view the position of law and the observations made hereinabove. 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.” Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

12

LatestLaws.com

9.4.

These portions are generally taken as a support for a proposition that if the offence is not

exclusively triable by sessions meaning that the offence is triable by magistrate, the situation will not fall within the exception to Section-437 CrPC and the Magistrate will be empowered to grant bail even for life imprisonment cases if the same is triable by a magistrate.

9.5.

The proposition however appears to be fallacious. CrPC nowhere discriminates discrimina tes on the basis

of forum so far as bail jurisdiction is concerned. In terms of Section-26 CrPC all offences under IPC are triable by a Sessions court irrespective of the Schedule showing it to be triable by a magistrate. Therefore, it is not as if the offence cannot be tried by a sessions if it is triable by a magistrate. Further, Section-323 CrPC empowers a magistrate to send the case to the sessions for trial even if the offence is not exclusively triable by sessions. Therefore, a forum of trial cannot be the differentiating basis for exercising bail jurisdiction. As we know that a judgment is not to be read like statute. Concept of exclusive jurisdiction of session for trial referred above cannot therefore be treated as saying that if offence is magisterial trialable the magistrate will have the power to grant bail. The bail jurisdiction remains dependent upon the punishment provided and not on the forum for trial.

10.

However, some fertile mind may raise another contention which may superficially superficiall y appear

to be a serious one i.e. a Magistrate cannot impose a term exceeding three years and any conviction for three years has to give way for mandatory bail under Section-389(3) which will result in a serious dichotomy that though in the initial period a magistrate could not have power to grant bail for offence u/s-326 IPC but after conviction for the same, he has to grant bail for appeal as he could not have imposed any punishment exceeding three years. Therefore, such fertile mind may say that even for initial period a magistrate could have granted bail.

10.1.

The proposition may sound attractive but cannot stand a close scrutiny. scrutiny. First of all, there is

a fallacious presumption that Magistrate cannot impose a punishment exceeding three years. When it is said that Section-326 IPC is triable by Magistrate, it nowhere indicates that the same will not Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

13

LatestLaws.com

include a CMM/CJM. As we know, a CMM/CJM is empowered to impose a punishment upto 7 years and this punishment clearly does not fall within Section-389(3) CrPC. So, when offence is tried by CMM/CJM, the support taken from Section-389(3) will not be available. The proposition if extended to its reasonable limit will conclude that a CMM/CJM will have no power to grant bail for an offence u/s-326 IPC but a magistrate will have the said power. Absurdity of proposition is writ large. It has therefore to be accepted that there is no support from Section-389(3) CrPC. Dissenting opinion:

11.

Some High Courts however has taken a view that expression “death or imprisonment imprisonmen t for

life” has to be read conjunctively and therefore a magistrate will have power to grant bail in life imprisonment cases such as Section-326 IPC.

11.1.

In Ambarish Rangshahi Patnigere vs. State of Maharashtra reported in 2010 ALL M.R. Cri.

2775 and Ishan Vasant Deshmukh vs. State of Maharashtra, 2011 (3) Bom.C.R. (Cri.) 243, Ld. Single judges of Hon’ble High Court of Bombay taken a view that exception of “death or imprisonment for life” is no applicable to singular life imprisonment cases. Both these judgments were subsequently relied upon by a single judge of the same high court in Balasaheb Satbhai Merchant vs the State dated 21.09.2011. However, in the year 2013, another Ld. Sinlge judge of the same High Court doubting the correctness of those two judgments sent a reference to larger bench in Jyoti Kaur Kohli vs State dated 28.10.2013 and the reference is still pending.

11.2.

Presently however we would be within the specifics if we say that these judgments of Ld. Ld.

Single judges are in direct conflict with the earlier division bench judgment of High Court of Bombay in Naranji Premji (supra) and therefore cannot be followed.

11.3.

Apart from the above, both the aforesaid single judge decisions have relied upon the

judgments which could could not have been relied relied upon. upon. They primarily relied upon upon Mahammed Mahammed Eusoof Eusoof v. Emperor, AIR 1926 Rang 51 and Tularam v. Emperor, AIR 1927 Nag 53. It would however be Bail by Magistrate under Section-326 IPC: by Rakesh Kumar Singh

14

LatestLaws.com

interesting to note that Mahammed Eusoof decision was subsequently overruled by a full bench of the same high court in Nga San Htwa (supra). Tularam (supra) was based on Mahammed Eusoof and since Mahammed Eusoof has been overruled as indicated, Tularam (supra) should not be treated as a good law. Apart from the same, later on the same High Court in Emperor vs Mst. Janki, 28 Nag LR 260 dissented specifically from Tularam in view of overruling of Mahammed Eusoof. Needless further to say that the three judges bench of Hon’ble Supreme Court in Subhash (supra) has also cited Emperor vs Mst. Janki aforesaid for taking support.

11.4.

Single judges of Bombay High Court further relied upon Satyan Vs. State 1981 Cr.L.J.

1313 which is again a single judge bench decision based heavily on Tularam and Mahammed Eusoof aforesaid. For the self same reason, Satyan(supra) should also not be treated as a good law.

11.5.

As a passing reference, it may also be noted that a division bench of Hon’ble High Court

of Allahabad in Saroj Kumar Upadhyaya vs High Court dated 19.07.2007 has not accepted the proposition of Satyan (supra) in following manner:

“The learned Counsel for the petitioner has argued that the above bar to grant of bail is applicable in respect of those offences only which are punishable with death as well as with life imprisonment and it shall not be applicable in those cases which are punishable with life imprisonment only. In support of this contention he cited before us a ruling of Kerala High Court in the case of Satyam v. State 1981 Cr.L.J. 1313 and of Andhra Pradhesh High Court in Ashireddygari Narsimhareddy Na rsimhareddy and Anr. v. State of A.P. A.P. 2001 Crl. LJ. 2010. We have carefully gone through these rulings which are of Hon'ble Single Judges of Kerala High Court and Andhra Pradesh High Court, but we are unable to agree agre e with the above law laid down in these rulings……”


15

LatestLaws.com

11.6.

And it would be very significant to note that the SLP preferred the aforesaid division bench

judgment has been dismissed dismissed by the Hon’ble Hon’ble Supreme Supreme Court on 03.11.2008. 03.11.2008.

11.7.

In Chandra Pathak vs State of Bihar, a division bench of Hon'ble Patna High Court was

of similar view and observed as under:

“Moreover, since the case was under Section 307 of the Indian Penal Code, the offence was punishable with life imprisonment. Except in the cases of children, women and sick or infirm persons, the discretion to grant bail by a Magistrate has been taken away by Section 437(1) (i) of the Code in cases of non-bailable offences punishable with death or imprisonment for life.”

11.8.

Significantly Significantl y, SLP filed against the aforesaid judgment has also been dismissed on

05.12.2014.

Conclusion:

12.

In view of the aforesaid discussion, it can safely be said that the expression “death “death or

imprisonment for life” has to be read in disjunctive manner and therefore will include within its fold any offence singularly punishable with life imprisonment without referring to death and that irrespective of forum of trial i.e. whether the offence is triable by Magistrate or exclusively by Sessions, a Magistrate shall have no power to grant bail if he has reason to believe that an offence punishable with life imprisonment such as Section-326 IPC has been committed by the accused unless the case falls within any of the proviso appended to Section-437 CrPC. *********


16

Section 326 IPC new.pdf

Recommend Documents