RAM SEWAK Vs. STATE OF U P

JUDGEMENT

(1.) THIS is an application for bail in a pending case. The accused has already been committed to the Court of Sessions. He is being tried for an offence under Section 302, I. P. C. In the first information report it was alleged that Guru Prasad the brother of the informant was sleeping in the same house along with him and two other persons when the accused Ram Sewak along with one other person entered the house and gave knife blows to Guru Prasad. The informant ran out and called the people Of the village and also called one Dr. Brijnandan. When Dr. Briinandan and other villagers arrived. Guru Prasad made a dying declaration that Ram Sewak and his companion had caused injuries.

(2.) LEARNED Counsel has contended that there exists no prima faice case against the applicant because the first information report had been lodged in the morning, Dr. Brijnandan had subsequently given a statement before the. police that the dying declaration had not-been made in his presence but that when-he reached, the deceased was already dead (this averment is not supported by any material on record), the prosecution witnesses are partisan, and inimical two of them had no valid reason to be present at the house during the night, and at least some of the injuries were more-likely to be caused by axe than knife.

(3.) SECTION 437. Criminal P. C. indicates when and how bail should be normally granted. Sub-section (1) of Section 437 provides: 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, he may be released on bail. But he 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. No doubt, Section 437 deals with the powers of the Magistrate and not with the powers of the High Court or Court of Session; but the principle remains applicable, and the words "he shall not be so released. " in the case of High Court and the Court of Sessions will be read as "he may not be so released. " Although there is no bar to the exercise of discretion by the High Court, it would be just and proper to exercise the discretion on the guideline provided in Section 437 (1 ). Criminal P. C