BHAGABAN PODHAN AND ORS. Vs. STATE

JUDGEMENT

(1.) THIS application is directed against the order of the learned Sessions Judge of Ganjam -Nayagarh setting aside the order of the Sub -Divisional Magistrate, Bhanjnagar taking cognizance of the offence in question under Section 325 I.P.C. and granting bail to the accused.

(2.) THERE was an occurrence on 1 -2 -55 which resulted in the death of the deceased. The occurrence related to a dispute between two parties about a goat of one Narayan Podhan straying into the chilly field of one Jagannath. There was a quarrel between these two parties which ultimately led to a rioting. The police after investigation filed charge -sheets against both the parties. As, far as the Petitioners are concerned, the charge -sheet was filed under Section 302 read with Section 149 and Section 147 I.P.C. The magistrate on 11 -8 -55 recorded an order to this effect, "Bail petition moved. Heard argument of defence lawyer. This will be considered tomorrow after C.S.I. has sometime to consult his Cass diary". It may be noted that the charge -sheet was filed against the accused on the previous day, that is, on 10 -355 when the Sub -Divisional Magistrate was out on tour. Then on 12 -3 -55 after hearing arguments of both sides and relying upon a decision in the case of Dadu and Anr. v. The Crown A.I.R. 1923 Lab 43. He came to the conclusion that the case was prima facie a case under Section 325 I.P.C. that he was satisfied from a perusal of the case diary that the case did not appear prima facie to be a case of murder and he recorded an order to the effect in express terms that cognizance was taken under sections 147/325/ 149 I.P.C. and then made an order the accused should be released on bail of Rs. 500/ - each with one solvent local surety for the like amount and he adjourned the case to 19th and 20th April for evidence. Against this order of the Sub -Divisional Magistrate, the State preferred a revision to the Sessions Judge of Ganjam -Nayagarh. The learned Sessions Judge came to the conclusion that the Magistrate had clearly noted that he took cognizance of the offence under the minor section for the purpose of granting bail and stated that on the facts it was clear that the Magistrate had not taken cognizance of the offence as required by Section 190 Code of Criminal Procedure and that the case was to be dealt with as one where the police prosecuted the offenders after completing the investigation.

(3.) THE learned Sessions Judge has also cancelled the order of bail granted to the accused by Sub -Divisional Magistrate. At the time of filing this application there was an interim stay granted by my learned brother Mr. Justice Misra staying further proceedings in the matter. Mr. Rao now contends that in as much as after going through the prosecution report and hearing the arguments of the prosecuting Sub -Inspector the Magistrate who legally took cognizance of the offence granted bail, that order should be allowed to stand and the order of the learned Sessions Judge cancelling the same should be set aside. Under Section 497 Code of Criminal Procedure, when any person accused 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 transportation for life. This section clearly entitles a Magistrate to grant bail where the accused is charged with a non -bailable offence unless he sees reasonable grounds for believing that the accused was guilty of an offence punishable with death or transportation. An undue importance was given to the taking of cognizance by the Magistrate under Section 325 I.P.C. when the charge -sheet was under Section 302 I.P.C. or the Sessions Judge setting aside that order and treating the Charge -sheet as one under Section 302 I.P.C. and directing the Magistrate to make an enquiry. I do not think that the consideration of these aspects is at all relevant to the purpose of granting bail. Even if the charge -sheet was filed under Section 302 I.P.C. before the Sub -Divisional Magistrate, the Sub -Divisional Magistrate in my opinion, is quite entitled to go into the report and come to the conclusion that it does not disclose any reasonable ground for believing that the accused has been guilty of an offence punishable with death or transportation for life in which case under Section, 497 (1) I.P.C. the magistrate will be perfectly within his jurisdiction to grant bail to the accused. In this case the Magistrate, as I have already stated, granted bail after taking into account all the circumstances present at the time the charge sheet was filed before him. Mr. G. G. Das who represents the Officers of the State before me submits that the order of the learned Sessions Judge is quite correct. I have already stated that I cannot accept the reasons given by the learned Sessions Judge.