Vishnu Shahai, J.@mdashHeard Mr. R.Y. Mirza for the petitioner and Mr. S.L. Kapse for the respondent. By means of this application, preferred u/s 439(2) of Cr.P.C. the petitioner (State of Maharashtra) seeks to impugn the order dated 2-12-1991 passed by the Metropolitan Magistrate, 34th Court, Vikroli, Bombay granting bail to the respondent in a case u/s 302 I.P.C.
2. The prosecution case in brief is that on 24-9-1991, at about 5 p.m. the respondent, co-accused Ladu, Balu and Rajesh @ Pappu Suvarna assaulted the deceased Shivaji with knives. Complainant Sanjay Kamble who was an eye witness of the incident thereupon shouted and thereafter respondent and others ran away.
After the incident, complainant removed Shivaji, who was still alive, to Rajawadi Hospital for treatment. He then lodged a F.I.R. on the basis of which a case u/s 326/114 I.P.C. was registered against respondent and others.
3. It appears that Shivaji succumbed to his injuries on 25-9-1991 (next day) at Rajawadi Hospital. After his death, the case was converted to one u/s 302 I.P.C.
4. The contention of the learned A.P.P. is that in-as-much as the respondent was being prosecuted u/s 302 I.P.C. which is an offence punishable with death or life imprisonment, there was an embargo on the learned Metropolitan Magistrate to have granted bail to him in view of the provisions contained in section 437(1) Cr.P.C. I find substance in this contention of the learned A.P.P. The provisions contained in section 437(1)(i) Cr.P.C. mean that if there are reasonable grounds to believe that a person is guilty of an offence punishable with life imprisonment or death, a Metropolitan Magistrate would not have jurisdiction to grant bail. In such a case the Metropolitan Magistrate, by virtue of the powers contained in the proviso to section 437(1) Cr.P.C. would only have the jurisdiction to grant bail if the accused-person is below 16 years of age, or is a woman or is sick or is infirm.
5. A perusal of the impugned order shows that the learned Metropolitan Magistrate was persuaded to grant bail to the respondent because, he was aged about 17 years and his confinement in jail would be an obstacle in his education. A perusal of the impugned order also shows that some other considerations which have been detailed in the order, also weighed with the learned Metropolitan Magistrate, in granting bail to the respondent.
6. Two things are however, crystal clear in the instant case :---
(A) That the offence in respect of which bail was granted by the learned Metropolitan Magistrate, namely section 302 I.P.C., is punishable with death or life imprisonment and since there are reasonable grounds to believe that the respondent committed it (the informant is an eye witness) the Metropolitan Magistrate would not have jurisdiction to grant bail unless the respondent was below 16 years of age or a woman or sick or infirm;
(B) That in the instant case, the respondent was neither below 16 years of age, nor a woman nor sick nor infirm. A perusal of the impugned order shows that on none of these considerations the respondent was granted bail.
In such a situation, it becomes crystal clear that the Metropolitan Magistrate had absolutely no jurisdiction to grant bail to the respondent. It is well-settled that the plea of jurisdiction goes to the root of the matter. It renders an order a nullity in law.
7. Mr. Kapse learned Counsel for the respondent vehemently contended that it was a border line case and if on the ground that he was aged about 17 years of age and his education would suffer, if not released on bail, the learned Metropolitan Magistrate granted bail to the respondent, it would be far-far too harsh for this Court to cancel this bail after five years and three months; especially because all the co-accused persons, whose cases on merits are identical to that of the respondent, are on bail, having been released from the Sessions Court.
8. I am aware that it would definitely be harsh if the bail of the respondent is cancelled. But this cannot be helped. If I were to sustain this order, I would be setting a bad precedent and providing an impetus for judicial anarchy. Under Article 227 of the Constitution of India, the High Court is the guardian of the subordinate courts. If it sustains orders which are without jurisdiction, it would be abdicating its function as a guardian. Hence, I am left with no other option but, to set aside the impugned order.
9. In the result, this Criminal Application is allowed. The order dated 2-12-1991 passed by the Metropolitan Magistrate, 34th Court, Vikroli, Bombay, granting bail to the respondent is quashed. Bail of the respondent in pursuance of that order is cancelled. The respondent shall be taken into custody forthwith.
In case an application for bail is moved by the respondent before the Sessions Court, the same would be disposed of by it wholly uninfluenced by this order. It should also bear in mind, as their counsel urged, that the respondent has been on bail for five and a quarter years, and has not misused it. In the exceptional circumstances of the case, detailed above, I have allowed the respondent to move an bail application directly before the concerned Sessions Court, which shall endeavor to dispose of the same that very day, if possible.
A true copy of this order duly attested by the Sheristedar of this Court shall be handed over to the Counsel for the respondent by or before 9-4-1996.
10. The Registrar is directed to send a copy of this order to the Judicial Officer who has passed the impugned order.
Rule is made absolute.
Petition allowed.
