Keshav Vasudeo Kortikar Accused v. Emperor Opposite Party.

Broomfield, J.:— This is an application for bail. The applicants are three persons who are alleged to be concerned in the embezzlement of moneys belonging to minors' estates in the Sholapur District. The inquiry into the alleged defalcations began in February 1933. These applicants were arrested in May 1933. On 20th May the Magistrate released them on bail. But an application was then made to the Sessions Court under sub-s. (5) of S. 497 and the Additional Sessions Judge of Sholapur on 28th July ordered that they should be re-arrested and committed to custody. Since then they have remained in custody.

2. While the proceedings were going on in the lower Court no charge sheet had been submitted. It is said to have been submitted on 5th August and it appears from it that the accusad are charged with offences under S. 120-6 read with S. 409, I.P.C, and S. 120-B read with S. 477-A, I.P.C But the sanction of Government is said to have been given in respect of the offence under S. 120-B read with S. 477-A and not in respect of the offence under S. 120-B read with S. 409. If that is so, then the applicants would be entitled to bail almost as a matter of course, because it is only the offence under S. 409 which is an offence punishable with transportation for life, and, therefore, comes within the terms of sub-s. (1) of S. 497, which provides that an accused person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life.

3. Apart from that matter however as to which there may be a mistake in the charge sheet, we are of opinion that the applicants ought to be released on bail. We are not very greatly concerned now with the proceedings in the lower Courts. The trial Magistrate admitted the accused to bail because he thought that there was not sufficient material produced before him to enable him to hold that the accused were guilty of the alleged offences beyond reasonable doubt, and the language which he has used in his order rather suggests that he thought bail should be given unless he had evidence before him which would practically justify a conviction. That of course would be rather absurd at an interlocutory stage. We think the Additional Sessions Judge was quite right in pointing out that S. 497(1) does not require as much as that. The accused is not to be released if there appear reasonable grounds for believing that he has been guilty of an offence of the specified kind; but if the application for bail is made in an initial stage of the trial (in this case the charge sheet had not been sent in) the Magistrate may expect the prosecution to satisfy him that it is a genuine case and that they will be abln to produce good prima facie evidence ??? support of the charge, but he cannot expect at that stags to have evidence establishing the guilt of the accused beyond reasonable doubt. The Additional Sessions Judge however has him self gone wrong because he appears to have considered that he himself had no discretion in the matter. He has ruled out various matters which it was open to him to consider on the question of granting bail as extraneous to the inquiry, and having found that there were reasonable grounds to believe that the accused had committed the offence he held that he was bound to grant the application and order the arrest of the accused. In our opinion he has approached the matter from a wrong point of view. He was not hearing an appeal from the order of the Magistrate. Under sub-s. (6), S. 497, he has a discretion. Having regard to S. 498, it is clear that the power of the Sessions Judge, like the power of the High Court, is unlimited and not fettered, as the discretion of the Magistrate is, by the provisions of sub-s. (1), S. 497, except of course in this sense that the Sessions Judge like the High Court will naturally not grant bail in a case which comes under the clause in question unless there are some good grounds for doing so. In fact one might go further and say that there ought to be very special circumstances to justify the grant of bail in a case of that kind although I do not consider that the Court need be as strict in the case of an offence under S. 409, even though it happens to be made punishable with transportation for life, as it-should be in the case of offence, like murder.

4. We are of opinion that there are here very special circumstances which make it just and proper that the accused should be enlarged on bail. As I have mentioned, the inquiry has been going on since February and the accused ware arrested in May and have been in custody since the end of July. The charge sheet shows that there are no less than 170 witnesses already named. The defalcations which are the subject of the case are alleged to have taken place between the years 1926 and 1931 and practically all the records of the District Court in Sholapur have been burnt. That fact will necessarily cause great difficulty to the prosecution in presenting their case and no less difficulty one may imagine, to the defence in preparing, theirs. It is quite obvious that the trial must be a very protracted one and if the accused are not enlarged on bail they will have undergone a very long term of imprisonment, whatever the result of the case may be. It appears that the investigation is now complete. We see no reason to suppose that there is any danger of the evidence for the prosecution being tampared with. The Additional Sessions Judge himself held that there was nothing in that point. One of the applicants, accused 1, is a man of 55 years of age a having been Deputy Nazir may perhaps be regarded as a man whose position affords some guarantee that he will not either abscond or obstruct the prosecution in any way. The principal ground for the grant of bail however is the cartainty that it must be a very protracted and complicated case. That in itself, we consider, would under the circumstances justify the release of the applicants on the very substantial bail which was required from them by the trial Magistrate. We direct therefore that the applicants be admitted to bail on the same terms as before.

R.K

5. Bail granted.