Page No.# 1/7 GAHC010159602026 2026:GAU-AS:13921 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1075/2026 ABDUL JALIL S/O LT RAHIM UDDIN MUNSHI, R/O BARJANA PART III, PS JOGIGHOPA, DIST BONGAIGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:MOKLEZUR RAHMAN S/O LT KOBAD ALI R/O VILL CHEDAMARI PS JOGIGHOPA DIST BONGAIGAON ASSA Advocate for the Petitioner : MRS. B GOGOI, MR G CHAMUAH Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE PRANJAL DAS ORDER 18.09.2026 1. Heard Mr. G. Chumuah, learned counsel for the petitioners. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor. 2. The petitioner has invoked the inherent jurisdiction of this Court under Section 528 BNSS seeking interference with the order dated 4/6/2026 Page No.# 2/7 whereby the learned SDJM(M), North Salmara accepted the absconder charge-sheet dated 21.05.2026 and issued summons to the petitioner and the next date is fixed on 28.08.2026. 3. The petitioner is facing Prosecution in connection with PRC Case No. 140/2026 under Section 85/108 of BNS pending before the said learned court below and the said case was originally arose out of Jogighopa PS Case No. 30/2026. Though the case was registered under Section 103 BNS, but after completion of investigation, charge-sheet was submitted under 85/108 BNS. 4. The petitioner is apprehending that though summons has been issued, as he has been shown as absconder in the charge-sheet and sessions triable penal provision of BNS has been invoked, the learned Magistrate may not be in a position to grant bail. 5. The learned counsel submits on behalf of the petitioner that he wishes to participate in the trial and co-operate with the same and therefore, has come before this Court to facilitate the same. 6. The court of learned Judicial Magistrate is not barred from granting bail in sessions triable cases except in a case which is punishable with life imprisonment or death and in the latter also, the power is not completely none existent, but it is circumscribed by the limitation envisaged under Section 437(1) Cr.P.C {480(1) BNSS}. 7. In this regard, a reference may be made to the Full Bench decision of this Court in State of Assam, In re,2006 SCC OnLine Gau 104: (2007) 2 Gau LR 182. In this decision, the Full Bench also referred to the case of Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280. The relevant paragraphs of the Full Bench decision of this Court may be reproduced herein below: Page No.# 3/7 “20.In view of the provisions of section 437 Cr. P.C. there appears to be no bar for a Magistrate to consider bail application in respect of a person who is accused of an offence exclusively triable by a Court of Sessions subject to the restrictions imposed by the section itself. At this stage, we are tempted to re-capitulate the following observations of the Apex Court in the case of Prahlad Singh Bhati (supra): “6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under section 437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death of imprisonment for life. In a case where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life he shall be deemed to be having no jurisdiction to enlarge the accused on bail. 7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, the 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. Page No.# 4/7 8. 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 support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic. itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 11……………………………………………………… We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.” 27. In view of our aforesaid discussion, we sum up the matter as below:— (i) A Magistrate has the jurisdiction to consider bail application in cases of non-bailable offence where punishment provided is life imprisonment or death. This power is, however, subject to the restrictions under section 437(1) Cr. P.C. (ii) The proviso to the above section is an enabling provision only and the Magistrates are required to examine and consider the other Page No.# 5/7 aspects of law governing grant of bail. (iii) The jurisdiction of the Magistrate is limited in such cases and is to be exercised sparingly and in rare cases only when he is satisfied that there are no reasonable grounds to believe that the accused is guilty of such offence. (iv) The stage of investigation has also a strong bearing in the matter of consideration of bail and the court is required to keep in mind the observations of the Apex Court in Prahlad Singh Bhati (supra). (v) Where it is brought to the notice of the Sessions Judge or the Magistrate, as the case may be, that a bail application is pending or disposed of by a higher court, it is duty incumbent on them to go through such orders before granting or refusing bail. (vi) The Sessions Judge/Magistrate is required to record reasons briefly as to why bail has been granted. (vii) In case of successive bail applications, it must be indicated as to what was the subsequent development or as to why departure is made.” (emphasis added) 8. The aforesaid Full Bench decision of this Court was also noticed in the case of Sumsuddin vs State of Assam, 2014 SCC OnLine Gau 422: (2014) 5 Gau LR 193. The relevant paragraph may be reproduced herein below: “3. Placing reliance on a Full Bench judgment of this court in the case of State of Assam v. State, 2007 (1) GLT 330, learned counsel for the petitioners submits that the learned Magistrate has jurisdiction to consider prayer for bail of persons accused of commission of non-bailable offence punishable with death or life imprisonment subject to the limitation that there is no reasonable ground to believe that the accused is guilty of an offence punishable with death or imprisonment for life and as such in view of the embargo provided under section 437(1), Cr. P.C. the scope for granting bail by the learned Magistrate is very limited. On perusal of the aforesaid judgment of the hon'ble Full Bench of this court, it Page No.# 6/7 appears that there is no bar on the part of the Magistrate to Consider bail application in respect of a person accused of an offence which is exclusively triable by Session subject to the restriction imposed under the section itself. Here in this case, the complaint case is at the stage of inquiry only. It is only after collection of materials by way of inquiry, if the ingredients of section 307, IPC are found to exist, then the question of committing the case to Sessions shall arise. Until and unless, such question arises the power of the learned Magistrate who has issued summons to the petitioners, to grant bail on their appearance is very much there. On considering the totality of the circumstances referred to above, I do not feel that any order under section 438, Cr. P.C. is called for in the present case and accordingly, this application is closed. The petitioners shall be at liberty to appear before the learned Trial Magistrate on the basis of the summons served on them and on their such appearance they shall be at liberty to file appropriate application praying for regular bail and if such application is filed the learned Magistrate shall consider the same on its own merit.” (emphasis added) 9. In the case of Pranab Rauth vs State of Assam 2008 SCC Online Gau 226: (2008) 5 GAU LR 382, it was held that the petitioner can appear before the Sessions Court also, submitting to its custody and then seek regular bail under Section 483 BNSS (earlier Section 439 Cr.P.C.). 10. The said recourse may be taken to, perhaps in a situation, where the Magistrate may be genuinely constricted in granting bail in a sessions triable case, punishable with life imprisonment or death. 11. In Pranab Rauth (supra) , the court also discussed the case of Niranjan Singh v. Prabhakar Rajaram Kharote, (1980) 2 SCC 559. The relevant paragraph of Pranab Rauth (supra) may be reproduced herein below:- “12. Coupled with the above, it is also worth bearing in mind that for invoking the provisions of section 439, two condition precedents are Page No.# 7/7 required to be satisfied, namely, (i) that the person, applying for bail, must be accused of an offence, and (ii) that he must be in custody. Hence, when a person, accused of an offence, surrenders in a Court of Sessions or a High Court, the Court of Sessions or the High Court, as the case may be in the light of Niranjan Singh (supra), acquires jurisdiction to consider such a person's bail application. Once there is power given to the Court of Sessions or the High Court to consider and decide such a bail application, it logically follows, as pointed out in Niranjan Singh (supra), that the Court of Sessions or the High Court, as the case may be, can either grant bail to such a person or it can refuse to grant bail and remand such a person to custody. When a person, who has not been arrested by police or who has not appeared and surrendered in a court of Magistrate, appears in a Court of Sessions or the High Court, as the case may be, and surrenders to such a court's jurisdiction, the court cannot ask such a person to, first, get arrested by police or to appear and surrender before the court of Magistrate of competent jurisdiction. Thus, once such a person appears and surrenders in the Court of Sessions or the High Court, as the case may be, the court would have, if I may reiterate the jurisdiction to consider such a person's bail application. If such a court does not allow such person to be released on bail, it has to remand the accused into custody and, thereafter, it is the court of the Magistrate of the competent jurisdiction, which shall deal with the matter. This is the concept, which Niranjan Singh (supra), aims at conveying.” (emphasis added) 12. Coming back to the facts of this case, this petition is disposed of with the direction that the petitioner shall appear before the learned court below and apply for regular bail which then can be considered and disposed of as per law; also keeping in mind the stage of the case and his undertaking before this court to participate in the trial. JUDGE Comparing Assistant