TULARAM Vs. KING-EMPERORT

JUDGEMENT

(1.) THE applicants (1) Tularaim, (2) Ganpati, (3) Dasroo Krishnoo and (4) Dasroo Sambhoo have moved this Court for being released on bail, their application to that effect to the trying Magistrate or the District Magistrate not having been wholly successful. The applicant Tularam is one of the five trustees appointed under a will of one Vithoba which is alleged to be forged. The applicant Ganpati is the scribe and the two Dasroos the attesting witnesses. The complaint was filed on 22-S-26 by one Bhagwandass, S. I., for prosecuting all these applicants for forgery under Section 467, Indian Penal Code, before Mr. B.A. Smellie, who, after examination of the complainant, ordered warrants of arrest to issue against the four accused for 9-4-26, the date fixed for hearing. On 31-3-1926 the applicant Tularam appeared with his pleader Mr. Lobo and surrendered himself and applied for bail. Two of the other accused were produced in custody and they were also released on bail. The next day the applicant Ganpati surrendered himself and he was also released on bail. All these were released on interim bail as the date of hearing was still in the future. On 9-4-1926 the question of granting bail was argued and the next day orders were passed under Section 497, Criminal Procedure Code, granting bail for one month to Tularam and rejecting the applications of the other three accused. The grounds for rejecting bail were that the trying Magistrate had no discretion in cases in which sentence of transportation for life can be passed and that reasonable grounds for launching the case existed. So far as the applicant Tularam was concerned the Court thought that he was entitled to the advantage of the proviso to Section 497 (i) on the ground of sickness. That very day the District Magistrate was moved on behalf of Ganpati and the two Dasroos for bail, but the District Magistrate rejected the applications in the following words: I have had an occasion to go through this case with the District Superintendent of Police and it appears to me that there are reasonable grounds for believing that the charge should be true. I am therefore unable to grant the bail asked for in this non-bailable case. The applications are rejected.

(2.) NO progress was made in the case at the hearing fixed for 9-4-26, nor at the adjourned hearing dated 26-4-1926 for the examination of Bhagwandass. As the Magistrate was going out on an extended tour in the interior and apparently thought that the examination may be long, he ordered that his evidence will be taken from day to day as far as practicable and on completion of the evidence the remaining prosecution witnesses will be summoned. In the meantime on the requisition of the District Superintendent of Police the Magistrate ordered on 16-4-1926 that the Will and other documents be sent to the Government Expert. On 26-4-26 nothing could be done for want of the Will and also as the presiding Magistrate had gone to Balaghat for evidence in a criminal case and the case had to be adjourned to 10-5-1926. But as the Will had not been received back from the Government Expert, even on 10-5-1926, and it was not known when it was likely to be received back, the case was adjourned to 7-6-1926. The accused who were in custody were ordered to be produced on 24-5-26, for being remanded for the 7th June 1926 and the bail of Tularam was extended till the date of hearing on production of fresh medical certificate. The request for bail of the other three accused was rejected for want of power to grant bail. On 24-5-1926 Ganpati and the two Dasroos were remanded to jail custody till 7-6-1926. On 7-6-1926 Bhagwandass was partly examined and the case was adjourned to the next day. Application of Tularam for bail on the strength of fresh medical certificate was pressed, but it was ordered to send till the next day. The examination of Bhagwandass was concluded on the 8th June 1926 and the case was adjourned to 17-6-26 for the defence to be ready for cross-examination after inspection of mass of documents put in evidence. Tularam's bail was extended by a fortnight as on account of heat he could not undergo the operation which was contemplated. On 17-6-1926 further examination, cross-examination and re-examination of Bhagwandass took place; as the Public Prosecutor was not available till the 7th July 1926, the case had to be adjourned to 7-7-26 for the examination of two witnesses. The accused who were in jail custody were ordered to be produced on 28-6-1926 for further remand and Tularam was also ordered to surrender himself on that date unless he obtained an order for his bail from this Court in the meantime.

(3.) IT is argued before me by the learned advocate who appears for the applicants that the Magistrate's view that no discretion is vested in him to grant bail in cases in which sentences of transportation for life can be passed is opposed to the principle recognized in Nagendra Nath Chakravarli, in re and in Muhammed Eusoof v. King-Emperor A.I.R. 1926 Rang. 51. I agree with the Judges of the Calcutta as well as Rangoon High Court that Section 497, Criminal P.C. leaves ample room for exercise of discretion in the matter of granting bails and the intention of the amendment made by Section 136 of Act 18 of 1923 in that section was to vest thenceforth in the Courts a discretion less fettered than before. I am also of opinion that the interpretation put by Doyle, J., in Muhammed Eusoof v. King-Emperor A.I.R. 1926 Rang. 51 on the phrase death or transportation for life" in Section 497, Criminal P.C. is consistent with the widening of this discretion, and is amply supported by the reasons given by that learned Judge. I accordingly hold that the phrase "death or transportation for life" in Section 497 does not extend to offences punishable with transportation for life only; and means only those offences for which death and transportation for life are alternative sentences; and that the Magistrate improperly refused to exercise the discretion vested in him by law of granting bail in the present case Looking to the extremely tardy manner in which this case is proceeding I think the Magistrate could have been justified in enlarging the accused on bail instead of insisting upon their rotting in jail during the time the Crown is engaged in collecting relevant evidence in support of the prosecution.