IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.13641 of 2010 1. BAIDYANATH JHA, SON OF LATE KRISHNA KANT JHA 2. PAPPU JHA, SON OF BAIDYANATH JHA BOTH RESIDENT OF VILLAGE – PARARI, P.S. BIRAUL, DISTT. DARBHANGA -------- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. PRIYA RANJAN JHA, SON OF SHRI INDRA MOHAN JHA, RESIDENT OF VILLAGE PARARI, P.S. BIRAUL, DISTT. DARBHANGA. ----------- OPPOSITE PARTIES. 4. 13.09.2010 Heard the parties. The petitioners are aggrieved by the order dated 5.3.2010 passed by the 1st Additional Sessions Judge, Darbhanga in connection with Sessions Trial No. 404 of 2009 arising out of Biraul P.S. Case No. 234 of 2007, G.R. No. 619 of 2007 by which he has cancelled the bail granted to the petitioners by the Magistrate. It has been submitted that for an occurrence dated 7.10.2007, the present First Information Report was instituted on 16.10.2007 i.e. 9 days later wherein it was alleged that the petitioner No. 1 assaulted the Informant with Lathi whereas the petitioner No. 2 was a member of an unlawful assembly. For the same occurrence, the petitioner No. 1 had instituted the case on 8.10.2007 while admitted in the Hospital wherein there is an allegation that an assault had been made by the Informant of the present case upon him due to which he was injured. When the petitioners moved the Magistrate concerned for bail, a submission was made on their behalf that; (i) there was a 2 counter version of the occurrence, (ii) a title suit was pending between the parties on account of land dispute, (iii) 107 Cr. P.C. proceeding was pending between the parties in which the petitioners were 1st party and the Informant of the present case was second party and (iv) the parties were agnates and belonged to the same family. As against this, the A.P.P. had contended but conceded that there was land dispute between the parties. Considering the same, the Magistrate had granted bail to the petitioners on 10.12.2007 and he was well within his powers to do so under Section 437 Cr. P.C. The order granting bail has noted the arguments advanced on behalf of the petitioners and it was obviously in consideration of the same that he had exercised his jurisdiction in the matter. When the case was committed to the court of Sessions the Trial Court allowed the petitioners to remain on bail and now one witness has also already been examined during trial. As against this, the counsel for the Opposite Party No. 2 has submitted that the Magistrate in view of Section 437 Cr. P.C. had limited power to grant bail and should not have granted bail to the petitioners who were accused in a case under Section 307 I.P.C. Since there was a reasonable ground for believing that they had been guilty of offence punishable of imprisonment of life. In support of his contention the learned lawyer has relied on two decisions reported in 2008 (3) Cr. L.J. 3 3386 (Arun Kumar Vrs. State of Bihar & Ors.) and 2001(2) PLJR (SC) 205 (Prahlad Singh Bhati Vrs. N.C.T. Delhi & Anr.). In case reported in 2001(2) PLJR (SC) 205 the Hon’ble Supreme Court had held that the powers of the Magistrate in offences prescribing death/life sentence are limited, not barred. In the case reported in 2008 Cr. LJ 3386 this Court relied on the judgment of the Hon’ble Supreme Court quoted above and has considered the justification of grant of bail by the Magistrate. The further submission is that since the Informant had received serious injuries, the petitioners should not have been granted bail and the impugned order had considered the entire facts. In my considered view once the Magistrate had applied its mind to the facts of the case, there being no absolute bar in granting bail, his order is not liable to be set aside especially since the petitioners in the intervening years did not misuse the privilege of bail. Over and above, on consideration of the merits of the case, the petitioners certainly deserve to be enlarged on bail. Considering the same, this application is allowed and the order dated 5.3.2010 passed by 1st Additional Sessions Judge, Darbhanga, in Cr. Misc. No. 6 of 2008 is set aside. S.Ali ( Anjana Prakash, J.)