Prithvi Raj, J.:— By this application under section 439 (2) of the Code of Criminal Procedure, 1973, (herein called ‘the Code’), Sant Ram petitioner has prayed that the bail granted to the respondents Kali Charan and Vasdev by Shri Jagdish Chandra, Additional Sessions Judge, Delhi, by his order dated 5th June, 1976, be cancelled. The respondents are accused in case F.I.R No. 314 of 1976 under section 302/34, Indian Penal Code registered at Police Station, Kings-way Camp, Delhi. The allegations against the respondents as made in the challan filed by the police are as follows. Jagjit alias Soni son of Ram Chand brother of the respondents because of enmity was murdered last year by one Kishu Kumar son of Bhagat Ram. The said Kishu Kumar is standing trial for the aforesaid offence. The said case against Kishu Kumar was fixed for hearing in the Court for 20th April, 1976. Bhagat Ram and his companion with a view to saving Kishu Kumar were putting pressure on Ram Chand and his sons, including the respondents, to compel the witnesses in the said case not to support the prosecution case. To achieve the said object Bhagat Ram's supporters attacked the wives and children of Romesh and Ram Chand for which a report had been lodged with the local police who had taken appropriate action against them.

2. On 3rd April, 1976, the respondents were lying on the ‘Charpais’ in front of their house B-150, Otterum Line, Delhi, while Ram Charan and his daughter Prem Lata were present inside the house. At about 3.35 p.m the following persons, namely, Shri Romesh alias Peetu, (2) Ashwani Kumar alias Asha, (3) Sant Ram, alias Santa, (4) Ram Chander alias Raja, (5) Wazir Chand, and (6) Mohan alias Mona, armed with knives and ‘lathis’ came to the house of the respondents and challenged them. On this the respondents got up, went inside their house, arming themselves with ‘lathis’ and ‘Dandas’ came outside their house. A fight took place between the two parties, while fighting the rival parties came to the lane at the back of the house of the respondents when Romesh alias Peetu and Ashwani alias Budha mounted an attack on Vasdev and Kali Charan with their respective knives which they were carrying in their hands. Vasdev struck a lathi blow on Romesh as a result of which the knife which he was holding fell from his hand. Vasdev immediately picked up that knife. Romesh then bit with his teeth on the right wrist of Vasdev, who did not leave the knife. Kali Charan attacked Romesh alias Pettu with a lathi and he fell down on the ground. Vasdev alias Vasu attacked Romesh with the knife that he had earlier snatched from him, and gave 7/8 blows of the knife one after the other in quick succession. The knife blows struck in the chest and stomach of Romesh. Kali Charan by wielding his lathi in an encounter with Ashvani kept him at bay. Vasdev after causing injuries to Romesh attacked Ashwani. Kali Charan gave a lathi blow on the head of Ashwani as a result of which he got injured. Ashwani ran away from the spot, the knife which he was holding fell from his hand which some one picked up. Vasdev chased him and gave a knife blow from behind on his right shoulder, who after running a distance of three furlongs fell down near latrines situate by the side of ‘Ganda-nala’. The police picked him from the said place and got him admitted in the hospital.

3. The respondents were arrested by the police in pursuance to the above allegations on the basis of which F.I.R No. 314 of 1976 under sections 302/34, Indian Penal Code was registered at police station Kingsway Camp, Delhi. They filed an application under section 439 of the code praying that pending disposal of the case they be released on bail. The said application was heard by Shri Jagdish Chandra, Additional Sessions Judge, Delhi, who by his impugned order dated 15th June, 1976, as already noted above, ordered the respondents to be released on their furnishing “bail in the sum of Rs. 10,000/- with two sureties each in the like amount”. The learned Additional Sessions Judge passed the aforesaid order on perusal of the above noted facts and on consideration of the statements of prosecution witnesses, Darshan Lal and Kuldip Singh recorded by the police under section 161 of the Code holding that in the face of the statements of the said witnesses, “it looks quite probable prima facie that the accused/applicants acted in self-defence in causing the death of Ramesh.” Another consideration that prevailed with the learned Additional Sessions Judge was the concession made by the Public Prosecutor that on account of the statement of the above-said two witnesses, respondents be released on bail.

4. The applicant has challenged the aforesaid order on the ground that it is improper and that the learned Additional Sessions Judge had acted in an illegal and arbitrary manner in passing the order.

5. Shri S.S Palta, appearing for the respondents, raised a preliminary objection to the maintainability of the petition urging that the State having not challenged the order, being satisfied with it, it was not open to the petitioner to challenge the same. For this submission he placed strong reliance on case, Thakar Dass and others v. The State of Bihar, A.I.R 1966 S.C 911 (1), wherein their Lordships observed that, “The Criminal law is not open to be used as an instrument of wreaking private vengeance by an aggrieved party against the person who, according to that party had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all steps necessary for bringing the person who has acted against the social interests of the community to book”.

6. Such a contention was raised in case Ajit Singh v. The State, Criminal Revision No. 316 of 1969, decided by this Court on 29th August, 1969 (2), relying upon the aforesaid observation of their Lordships of the Supreme Court. Hardayal Hardy J. (as he then was) dealing with the contention observed that “it being open to the High Court to exercise its revisional powers suo motu where there are circumstances which render its interference necessary in the interest of justice, revision filed by a private party could not be said to be totally unmaintainable when on the facts and circumstances of the case it was necessary to interfere with the order in the interest of justice”. I am in respectful agreement with the above view, and see no reason to differ from it. It is pertinent to note here that Shri D.R Sethi, appearing for the State, supported the petition and submitted that he has instructions to urge that the facts and circumstances of the case do not warrant the grant of bail and that the impugned order granting bail was liable to be cancelled. That being so, the petition cannot be said to be not maintainable.

7. This brings me to the merits of the case. Shri D.P Bhandari and Shri D.R Sethi appearing for the petitioner and the State respectively strenuously contended that the right of private defence which the learned Additional Sessions Judge had so readily accepted was not available to the respondents on the facts and circumstances of the case to the extent of causing the death of Ramesh. They conceded that the initial act of the complainant party was prima facie, according to the prosecution allegation, an act of aggression for which they are being tried separately under section 307, Indian Penal Code, but from the statements of the two witnesses, namely, Darshan Lal and Kuldip Singh, on whom the Court has placed reliance in granting bail the right of self-defence to the extent of causing death of Ramesh could not be spelled out from the said statements. Both of them, it was urged, had unmistakably stated that Vasdev struck a lathi blow on Ramesh as a result of which he fell down and the knife which he was holding fell down which Vasdev promptly picked up on which Ramesh, bit with his teeth on the right wrist of Vasdev but Kali Charan mounted an attack on Ramesh with lathi who had already fallen down. Ramesh having been disarmed and already having fallen down on the ground, there was no question of any further threat from him to the accused party. That being the state of affairs, it was submitted, Vasdev in inflicting 7/8 blows in quick succession on the vital parts of the body, i.e, the chest and the stomach with the very knife was nothing but wanton attack on Ramesh motivated by a desire to kill him. The said Act, goes the argument, could not be defended under the plea of right of self-defence. Not to talk of giving fatal injuries to Ramesh, the learned counsel further contended, from the statements of these witnesses it is further apparent that not only Kali Charan with his lathi kept at bay Ashwani Kumar but hit him on the head with the lathi causing injury on the head and that Ramesh chased him and gave a knife injury from behind on his shoulder. This act, it was urged, of chasing Ashwani Kumar could not be said to be done in the exercise of self-defence but apparently was to cause injuries to him. It was further submitted that the learned Additional Sessions Judge in granting bail did not keep in view the well-established principle for granting bail in a non-bailable offence. In holding that “it looks probable prima facie that the accused-applicants acted in self-defence in causing the death of Ramesh”, the learned Additional Sessions Judge, it was submitted, not only positively found the case of the exercise of right of private defence in favour of the respondents but also caused prejudice to the complainant-party in the other case in which they are charged under section 307, Indian Penal Code.

8. On the other hand Shri S.S Palta, learned counsel for the respondents submitted that from the report filed by the police and the statements of Darshan Lal and Kuldip Singh, it is evident that the relations between the complainant and the accused parties were strained which erupted into open quarrels even prior to the present occurrence in respect of which reports were filed by the accused-party with the police. Shri Palta further submitted that even on the day of occurrence, according to the police report and the statements of the above-said two witnesses, it was the accused-party who armed with knives and lathis came to the house of the accused-party with a view to challenge them to refrain from giving truthful evidence in the case instituted against Kishu Kumar for having allegedly committed the murder of Jagjit alias Munni, brother of the respondents. That being the position, the respondents were faced with imminent danger and there being no prospects of immediate aid being requisitioned from the police station which is situate at 1-1/2 furlongs, the respondents were entitled to protect themselves being under no obligation to retreat and were entitled to score their victory so long as the danger continued and in that process if they happened to kill Romesh such a killing would be justifiable. Placed in the situation as the respondents were, Shri Palta contended, the respondents had every reason to apprehend that if they did not defend themselves and defend themselves effectively they were likely either to sustain grievous hurt or even be killed. In the premises, it was contended that they were perfectly within their right in fetching lathis from inside their house and in the circumstances their right extended even to voluntarily causing death and they could not be said to have exceeded that right by arming themselves by lathis etc., the fight evidently having been provoked by the complainant-party. For this submission Shri Palta relied upon Sitaram and others v. Emperor, A.I.R 1925 Nagpur 260 (3); Kuppusamier v. Emperor, A.I.R 1929 Madras 748 (4); Sadduson of Amir and others v. Emperor, A.I.R 1939 Lahore 393 (5); Ratna Munda v. State (1951-52) Cr. L.J 685 (6) and Jai Dev v. State Of Punjab, A.I.R 1963 Supreme Court 612 (7).

9. Shri Palta further submitted that no doubt when knife had fallen down from the hands of Ramesh as a result of the lathi blow given to him, the danger of counter attack by Ramesh on Vasdev could not be ruled out as in fact Ramesh made an attempt to snatch the knife from Vasdev by biting on his right wrist with his teeth and it was for the purpose of preventing another assault on him that Vasdev in self-defence inflicted wounds with that very knife with which Romesh wanted to attack Vasdev. In the premises, Shri Palta contended that Vasdev was under no obligation to modulate his defence step-by-step according to the attack before there was reason to believe that the attack was over.

10. Without pronouncing upon the rival contentions it may be observed that right of private defence is a very limited right and cannot be converted into a right of reprisal. It is necessary corollary to the doctrine of private defence that the force which a citizen defending himself is entitled to use in the exercise of right of his self defence must not be unduly disproportionate to the injury which was sought to be averted or which was reasonably apprehended. It is also true as was held by their Lordships of the Supreme Court in Jai Dev's case (supra) that “in judging the conduct of a person who proves that he had right of private defence, allowance has necessarily to be made for his feeling at the relevant time because he alone is faced with an assault which causes a reasonable apprehension of death or grievous hurt which inevitably creates in his mind some excitement and confusion. At such a time the upper-most feeling in his mind would be to ward off the danger with a view to save himself and he would naturally be conscious to strike a decisive blow in the exercise of his right of private defence but again it has to be kept in mind that in striking a decisive blow he must not use more force than appears to be reasonably necessary.”

11. The above questions and the question whether the cause for the reasonable apprehension disappeared the moment Ramesh was disarmed in that the knife which he was holding fell down on the ground and when the threat disappeared or had been rounted and that the respondents exceeded their right of self-defence are questions for the determination of the trial Court. It would not be appropriate for me at bail stage to express myself one way or the other it being within the province of the trial court to determine the rival contentions on proper evidence being taken.

12. Chapter XXXIII of the Code provides for provisions as to bail. Section 437 prescribes as to when bail may be taken in case of non-bailable offence. Sub-section (1) thereof envisages that when any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life: Provided that the Court may direct that any person under the age of sixteen years or any women or any sick or infirm person accused of such an offence be released on bail: Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

13. A perusal of the aforesaid section reveals that when a person, accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer incharge of a police station, is brought before a Court or appears before the Court, the Court may release him on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. The powers of the High Court or a Court of Session in enlarging a person on bail are, however, wide in their amplitude as provided in section 439 which reads as under: —

“439 (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) * * *”

14. No doubt the powers of the High Court or the Court of Sessions in granting bail are wider yet the principles on which such power is exercised by a High Court or the Court of Session have been well-defined in a catena of cases.

15. Reference here may be made to case, State v. Capt. Jagjit Singh, AIR 1962 S.C 253 (8). In that case the respondent along with others was prosecuted for conspiracy and also under sections 3 and 5 of the Indian Official Secrets Act, No. XIX of 1923. The High Court granted bail to the respondents under section 498 of Cr. P.C 1898. The main contention urged before the High Court was that on the facts disclosed the case against the respondents could only be under Section 5 of the Indian Official Secrets Act which is a bailable offence and not under Section 3 which is non-bailable. The High Court took the view that it was hardly possible at that stage to go into the question whether section 3 or section 5 of the aforesaid Act applied but found substance in the contention urged on behalf of the respondents that the matter was arguable. The High Court in the circumstances allowed bail to the respondents. In that connection, it was observed by the Supreme Court as follows: —

“There is in our opinion a basic error in the order of the High Court. Whenever an application for bail is made to a Court, the first question that it has to decide is whether the offence for which the accused is being prosecuted is bailable or otherwise. If the offence is bailable, bail will be granted under Section 496 of the Code of Criminal Procedure (of 1898) without more ado; but if the offence is not bailable, further considerations will arise and the Court will decide the question of grant of bail in the light of those further considerations. The error in the order of the High Court is that it did not consider whether the offence for which the respondent was being prosecuted was a bailable one or otherwise. Even if the High Court thought that it would not be proper at that stage, where commitment proceedings were to take place, to express an opinion the question whether the offence in this case fell under section 5 which is bailable or under section 3 which is not bailable, it should have proceeded to deal with the application on the assumption that the offence was under section 3 which is not bailable. The High Court, however, did not deal with the application for bail on this footing, for in the order it is said that the question whether the offence fell under section 3 or section 5 was arguable. It follows from this observation that the High Court thought it possible that the offence might fall under section 5. This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it...”.

It was further observed that, among other, considerations which the Court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness the Court should refuse bail even though it has very wide powers under section 498 of Cr. P.C 1898.

16. In Ajit Singh's case (supra) Hardayal Hardy, J. observed that for the purposes of considering the question of bail all that one had to see was whether there was prima facie material available from the statements of the prosecution witnesses who were likely to be examined at the trial and that if those witnesses are believed would make out a case against the accused. It was further observed that the question whether the offence if proved would ultimately fall under section 302 or some other section, i.e, 304 or 307 or 326 of the Penal Code and the likelihood of the witnesses supporting the prosecution at the trial was not a question before the Court at the stage of granting bail. Since the offence alleged against the accused in that case was a serious offence punishable with life imprisonment the learned Judge holding that there being reasonable grounds to believe that the accused had committed such offence, cancelled the bail granted by the trial Court.

17. This Court again in State (Delhi Administration)… v. Vipin Kumar Jaggi…., 1975 Cr. L.J 346 (9), held that the normal rule is that an accused person should not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

18. The principle deducible from the above-noted authorities is that “the Court while granting bail under section 439 of the code cannot go into the details of evidence to find out whether the evidence will be sufficient in establishing the guilt of the accused beyond reasonable doubt, it being not relevant consideration at this stage to ascertain the probability or improbability of the prosecution case terminating in the conviction of the accused or not. While deciding a bail application it is not desirable to dissect or pronounce on the evidence otherwise in resorting to such a procedure the Court would be exceeding the limits of its functions. The probability of the guilt or innocence of the accused-persons is not a relevant consideration while dealing with bail applications as the question to determine is whether the pro-secution will be able to produce prima facie evidence in support of the charge and not evidence establishing the guilt of the accused persons beyond a reasonable, doubt.

19. The learned Additional Sessions Judge did not consider the question whether the offence for which the respondents were being prosecuted was bailable or otherwise. He should have proceeded to deal with the application on the basis of the allegation levelled against the respondents but he failed to do so. The judicial conscience of the Additional Sessions Judge was satisfied on the concession stated to have been frankly made by the Public Prosecutor that on account of the statements of Darshan Lal and Kuldip Singh, the respondents be released on bail. Without taking into consideration the various factors which are required to be considered by a Court of Session in granting bail in non-bailable cases, the learned Additional Sessions Judge formed the opinion “that it looks quite probable prima facie that the accused/applicants acted in self-defence in causing the death of Romesh”. He did not address himself to the question whether more force was used by the respondents than was necessary or was justified by the prevailing circumstances. Further, he did not take into consideration the nature of the offence of which the respondents are accused. Since the offence alleged against the respondents is a serious offence punishable with the life-imprisonment and is not considering whether there existed reasonable grounds to believe that the respondents had committed such an offence, the learned Judge fell into an error in forming a prima facie opinion that in inflicting the fatal injury on Romesh the respondents had acted in the exercise of their right of private defence for the formation of which opinion he sought assurance from the concession made by the Public Prosecutor.

20. Lastly, placing reliance on case, Devi Lal v. Ganpat. AIR 1951 Rajasthan 94 (10), Shri Palta submitted that under section 439 of the code the powers of the Sessions Judge and the High Court are unfettered in the matter of granting bail and that the Sessions Judge having exercised his discretion under the said section, the High Court would not be justified in cancelling the bail. I find no force in this submission for the reasons already stated above.

21. The application accordingly is accepted. Order dated 5th June, 1976, passed by the learned Additional Sessions Judge is set aside, the sureties and the bail bonds furnished by the respondents are cancelled with a direction that they be taken into custody forthwith.

Petition accepted.