TMI Blog2001 (3) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... r to the effect having considered the case before me I am of the opinion no ground has been made for cancellation of bail . Not satisfied with the order of the Magistrate and that of the High Court, the father of the deceased has approached this Court in this appeal by special leave. The deceased and the respondent No.2 were married on 24.11.1984. She is alleged to have been subjected to ill-treatment on account of demand for dowry. Huge amounts are stated to have been paid by the appellant to the accused on various occasions. On 18.3.1999 the respondent No.2 is alleged to have brought the deceased to her parental house on Scooter No.DL 9SC-0680 where he poured kerosene oil and burnt her alive in the presence of her parents. As no case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 482 of the Code in the High Court without impleading the appellant as a party. The High Court kept the order of the Magistrate dated 8.8.2000 in abeyance till 22nd August, 2000. In his petition filed in the High Court, the accused suppressed the fact that a charge-sheet under Section 302 has been filed against him. Notice to the appellant was issued on 17th August, 2000 but in the meantime the respondent moved an application under Section 438 of the Code for anticipatory bail before the Additional Sessions Judge, Delhi for which no order was passed and direction was issued to the accused to first appear before the Magistrate on 22nd August, 2000 and pray for bail in accordance with law. When he appeared before the Magistrate, he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a court, other than the High Court and the court of Sessions, to release a person on bail despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, 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 exercise of the jurisdiction. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that I do not agree with the submission made by the Ld.Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law . With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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