1 Appln 4538-10 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4538 OF 2010 Arunkumar R. Soni & anr. ..Applicants V/s. The State of Maharashtra ..Respondent Mr.Shirish Gupte, Senior Counsel with Mr.Vishal Jaju and Mr.R.R.Sonawane i/b.Mr.M.B.Shirsat, for the Applicants Mr.J.P.Kharge, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 19TH OCTOBER, 2010 P.C. . The applicants seek anticipatory bail in connection with Crime No.102 of 2010 for the offence punishable under Sections 420, 467, 468, 471, 511 read with Section of the Indian Penal Code registered at Panvel Police Station. Charge sheet in respect of this offence has been filed against some other accused and the applicants are stated to have been accused not charge sheeted, but no reasons are assigned for not charge sheeting 2 Appln 4538-10 them. The applicants are alleged to have purchased the properties belonging to one Natwar Parikh from one Madhukar Kolwankar who held a Power of Attorney of Natwar Parikh alleged to have been executed in 1990, after a notice of proposed purchase was published in the daily news paper. The applicants' claim to have paid a sum of Rs.43,00,000/-, which cheques are not shown to have been debited to the applicants' account. Kolwankar is already in custody. 2. In view of this, there is no question of admitting the applicants to anticipatory bail. The applicants could surrender before the Magistrate and seek regular bail. The apprehensions as to whether learned Magistrate would entertain such a bail application in view of Judgment of this Court in State of Maharashtra Versus Rajkumar Kunda Swami, reported at 2002(Supp.2)Bom.C.R.79 should be set at rest in view of the fact that another 3 Appln 4538-10 learned Single Judge in Ambarish Rangshahi Patnigere Vs. State of Maharashtra reported at 2010 ALL MR (Cri) 2775 had categorically held that a Magistrate would have the power to grant bail even if the offence is punishable with imprisonment which could extend to imprisonment for life if the offence is triable by him. The learned Judge had however set aside the Magistrate's order granting bail as it disclosed non application of mind. It was stated at bar that the matter was carried to Supreme Court in SLP Cri.6338/10 decided by the Supreme Court on 30th July, 2010. The Supreme Court did not make any observations about the finding of the learned Single Judge about Magistrate's power to grant bail but disposed of the SLP directing the accused to be released on bail. 3. I had an occasion to consider this question while deciding Criminal Application No.4258 of 2010 with Criminal Application No. 4 Appln 4538-10 511 of 2010 on 18th October, 2010 and observations therein may be usefully reproduced below. In Prahlad Singh Bhati Versus N.C.T., Delhi & another, reported at 2001(5)Bom.C.R.727 the Supreme Court had held that regular bail under Section 437 could not be granted when accused was found to be involved in graver offence of murder under Section 302 of the Indian Penal Code. In this context, the Supreme Court observed in para 6, 7 and 11 as under :- 6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested 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 Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under section 437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and 5 Appln 4538-10 detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. 7. 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 for life and death penalty and the offence is exclusively triable by the Court of Sessions, the 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 6 Appln 4538-10 exercise of the jurisdiction. 11. While allowing this appeal and setting aside the orders impugned we permit the respondent-accused to apply for regular bail in the trial 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. In fact, this Judgment would show that it is not that the Magistrate cannot grant bail in cases where the offence is punishable with imprisonment for life, if the offence is triable by the Magistrate. The observations of the Supreme Court that generally speaking 7 Appln 4538-10 if the punishment prescribed is that of imprisonment for life or death penalty, and the offence is exclusively triable by the Court of Sessions, the Magistrate has no jurisdiction to grant bail, unless the matter is covered by the provisos attached to section 437 of the Code. Thus, merely because an offence is punishable when imprisonment for life, it does not follow a Magistrate would have no jurisdiction to grant bail, unless offence is also exclusively triable by the Court of Sessions. This, implies that the Magistrate would be entitled to grant bail in cases triable by him even though punishment prescribed may extend to imprisonment for life. This Judgment in Prahlad Singh Bhati's case had not been cited before Judge, who decided State of Maharashtra Versus Rajkumar Kunda Swami. Had this Judgment been noticed by the Hon'ble Judge deciding that case, the observation that the Magistrate may not decide an application for bail if the offence is 8 Appln 4538-10 punishable with imprisonment for life would possibly would not have been made. In view of the observations of the Supreme Court in Prahlad Singh Bhati's case, it is clear that the view taken by J.H.Bhatia, J. in Ambarish Rangshahi Patnigere Vs. State of Maharashtra, reported at 2010 ALL MR (Cri) 2775 is in tune with the Judgment of the Supreme Court and therefore, the Magistrate would have jurisdiction to grant bail. . In view of this, there should be no difficulty for the applicant to approach learned Magistrate, as had been directed by this Court, for seeking regular bail since it is the Court of the Magistrate which would be seized of the matter and which would eventually try the case. 4. The applicants may, therefore, surrender before the Magistrate within a week and seek regular bail. 9 Appln 4538-10 5. Criminal Application is disposed of. (R.C.CHAVAN, J.)