KHAGENDRA NATH BAYAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE two accused -petitioners in this application under Section 482/439 of the Code of Criminal Procedure impugn the Sessions Judge's order dated 21 -4 -82 cancelling their bail.

(2.) UPON an ejahar lodged by one Mohan Chandra Das to the effect that death was caused to his niece, Bhatima Bora, by Durgeswar Bayan and the two petitioners on 21 -3 -82, the Patacharkuchi P.S. Case No. 67/82 under Section 302/34 I.P.C. was registered and all the three accused were arrested and produced before the Magistrate on 22 -3 -82. On 23 -3 -82 on a bail petition the learned Magistrate granted bail to the petitioners observing that Rajat was too old and Khagendra was sick, and refused bail to Durgeswar. Mohan Chandra Das, the complainant, moved the Sessions Judge, Gauhati, who after notice to show cause, cancelled the petitioners' bail holding that granting of bail with such promptitude definitely gave a scope to the accused to interfere with the investigation of the case if possible; that Section 437 Cr. P.C. provided an exception for sick and infirm person and not for old age; that the sickness should always be real and established and not an imaginary one; and that the police report having not mentioned anything of the kind, the Magistrate did not proceed according to the law and exceeded his jurisdiction in granting bail. Hence this petition.

(3.) THE learned Public Prosecutor demurs submitting that the impugned order suffers from no infirmity as the learned Sessions Judge rightly held that the Magistrate had no jurisdiction to grant bail to the petitioner under Section 437 Cr. P.C. their cases having not been covered by the first proviso to Sub -section (1) of that section. He, however, fairly states that he may have no objection if this Court exercises its powers under Section 439 Cr. P.C.