Section 437 of the Cr.P.C. deals with the power of the Magistrate to grant bail. What Section 437(1)(i) basically means is that a person accused of an offence punishable with death or imprisonment for life shall not be released on bail by the Magistrate if there appear reasonable grounds for believing that he has been guilty of such an offence. However, conversely, it also implies that where a person is accused of such a serious offence and there does NOT appear to be reasonable grounds for believing that he is guilty of such an offence, the Magistrate would have the power to grant bail to him. So, this particular clause of Section 437 basically implies that the power of Magistrate to grant bail in such a serious offence are limited.
In a practical scenario, in a serious case of this nature before him, on the basis of the facts and circumstances of the case, if the Magistrate can come to a conclusion that there is no evidence in the case or that it is a false case, etc., he may grant bail to him. But, generally, if there appears to be a prima facie case against the accused, it may not be permissible for the Magistrate to grant bail in such a serious offence.
At the same time, powers of the High Court and the Court of Session to grant bail in such cases are not limited in this manner. This is clear from the language of Section 439 of Cr.P.C., which is reproduced below:
“439. Special powers of High Court or Court of Session regarding bail.— (1) A High Court or Court of Session may direct—
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.”
Therefore, the High Court and the Court of Session can still grant bail in an offence which is punishable with death or imprisonment for life in appropriate cases wherever it is desirable.
Thus, the object of these provisions appears to be that the bail in such serious cases should generally be granted by the Sessions Court or the High Court.
The second part of your question (i.e., “does the position in any way change if the bail application is moved after the case has come on trial and the charges of murder or other like offences have already been framed against the accused by the court”) may not be directly relevant. This is so because once the charges are framed in an offence which is punishable with death or imprisonment for life, the case would already have been committed for trial to the Sessions Court since the power to frame charges in such a case is only with a Court of Session (these cases being Sessions triable cases). Therefore, the Magistrate would not be in a position to grant bail to such an accused when the accused is already facing trial before the Court of Session after framing of charges.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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