{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.244 OF 2009 Ranjanabai w/o Rupchand Khajekar Age-40 years, Occ-Household R/o Laxman Bhanu Nagar, Chitegoan, Tq-Paitha, Dist-Aurangabad APPLICANT VERSUS 1. The State of Maharashtra Through Police Station Officer, Chhawani Police Station, Aurangabad 2. Tulsidas s/o Bhanudas Bhalerao Age-25 years, Occ-Labourer 3. Bhanudas s/o Rangnath Bhalerao Age-70 years, Occ-Labourer 4. Subhidrabai w/o Bhanudas Bhalerao Age-62 years, Occ-Labourer Respondents No.2 to 4 R/p Bhimnagar Bhausingpura, Aurangabad RESPONDENTS ....... Mr.S.D.Kotkar, Advocate for the applicant Mr.N.R.Shaikh, APP for respondent No.1 State Mr.S.M.Vibhute, Advocate for respondents No.2 to 4 ....... [CORAM : A.V.POTDAR, J.] {2} DATE: 24th November 2009 ORAL JUDGMENT: 1. By the present revision application, u/s 401 of the Criminal Procedure Code, the applicant has challenged the order passed by the Sessions Judge, Aurangabad in bail petition No. 866/2009 dated 11.06.2009. 2. Rule. Rule made returnable forthwith. Considering the small question involved in the present application, by consent, heard finally at the stage of admission. 3. According to learned counsel for the applicant, the respondents No.2 to 4 had preferred bail petition before the Magistrate, who, by order dated 05.06.2009, had rejected the application under the proviso to section 437 of the Criminal Procedure Code. It is also contended that the said fact was not disclosed by the respondents before the Sessions Court while preferring bail application u/s 439 of the Code of Criminal Procedure. Second phase of submissions is that when the learned Magistrate had rejected the application for bail on merit, the learned Sessions Judge, without considering the merits, allowed the bail application and hence it is urged that the bail is granted to the respondents by the Sessions Judge without appreciating the material placed on record. It is also urged that considering the seriousness of the offence, as the victim has died within 7 years of {3} marriage the bail granted by the learned Sessions Judge requires to be cancelled. 4. According to learned counsel for respondents No.2 to 4, the learned Sessions Judge, after properly appreciating the papers of investigation, has rightly allowed the bail application of the accused, which requires no interference at the hands of this Court and the order of granting bail need not be recalled. 5. Learned APP has supported the order of the Sessions Court. 6. After considering these submissions, the point for consideration is that whether the learned Magistrate has jurisdiction to pass an order on merit on the bail application in respect of an offence exclusively triable by the Court of Sessions? The proviso to section 437 of the Code of Criminal Procedure is an exception to the general rule that the Magistrate cannot pass an order on bail application in respect of offence exclusively triable by the Court of Sessions except in case application is moved by senior citizen, female or by minor. However, other than this contingency, the Magistrate is not empowered to grant or reject the application for bail on merit. This power exclusively vests with the Court of Sessions. 7. The alleged offence against respondents No.2 to 4 is {4} u/s 306 r/w 34 of the IPC. Learned Sessions Judge has discussed in the order the evidence collected during the investigation. As it is a case of suicidal death and the offence is registered u/s 306 of the IPC, dying declaration of the victim was recorded twice. In the said dying declarations, the cause of sustaining burn injuries is disclosed as accident. However, there is variance in the dying declarations recorded at two different places. At this stage it is not proper to consider as to which dying declaration is correct one. In the premise, after perusing the observations of the learned Sessions Judge while granting bail, it cannot be said that the learned Sessions Judge has not properly exercised the discretion vested in him and passed the order without considering the material collected during the investigation. In the premise, considering the legal as well as factual aspects, I do not find any merit in the application. 8. In the result,the revision application, which is sans merits, is dismissed. Rule stands discharged accordingly. [A.V.POTDAR, J.] drp/crirev244-09