l!JJ8

Srt11tosli K1tm'lr

v Bltai .Jlool Singh

Boe J.

1''1'.bruury 6.

1218 SUPHE:\IE C'OUHT JUWOH'l'S [1958]

arbitrarily. or is based on a misunderstanding of the principles that govern its exercise. then interference is called for if there has been a resultant failure of justice. As we have said, the only ground given for concluding that the defence is not bona fide is that the defendant did not prove his assertions before he was allowed to put in his defence; and there

i' an obvious failure of justice if judgment is entered against a. man who, if he is allowed to prove his case, cannot but succeed. Accordingly, interference is called for here.

The appeal is allowed. We set aside the orders of the High Court and the learned trial Judge and remand the case to the first Court for trial of the issues raised by the defendants. The costs of the appellants in this Court will be paid by the respondent who has failed here.

Appeal allowed.

KANT A PRASHAD

DELHI ADMINISTRATION

(and connected appeal)

(B. P. SINHA and JAFER IMAM JJ.)

Criminal Law-Grant of pardon-Power of the District Magistrate--.Case triable by Court of Special Judge-Cou1't of Session=-ConcUrrent jurisdiction to tender pardon-Prevention of Corruption Act, 1947 (2 of 1947), s. 5(2)-Criminal Law (Amendment) Act, 1952 (46 of 1952), ss. 8(2)(3), 9-Code of Cm minal Procedure (Act 5 of 1898). ss. 337. 338.

The appellants were convicted under s. 120B and s. 224/109 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, 1947, by the Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952. It was contended I

for them that lhe conviction was bad on the ground inter alia that the pardon tendered to the approver by the Ditsrict M.agistrate under s. 337 of the Code of Criminal Procedure by virtue

of which he was examined as a witness by the Special Judge,

S.C.R.

SUPRE'.ME countr REPORTS 1219

was without jurisdiction. The contention was that the provisions Qf s. 337 were not applicable to the case, as the offence under s. 5(2) of the Prevention of Corruption Act, 1947, was punishable with impl'li!ionment which may extend to ten years, while s. 337 of the Code of Criminal Procedure enabled a Distr'ict

Magistrate to tender a pardon "in the case of any offence triable exclusively by the High Court or a Court of Session or any offence punishable with imprisonment which may extend to ten years ............ ". But under ss. 8(3) and 9 of the Criminal Law (Amendment) Act, 1952, for the purposes of the Couri of Criminal Procedure, the Court of Special Judge is deemed to be 1.1 Court of Session 1lI'yi, ng cases without jur-·:

Held, that although the offence was triable exclusively by the Court of Special Judge, the District Magistrate had authomty to tender a pardon under s. 337 of the Code of Criminal Procedure, as tbe Court of Special Judge was, 1ln law, a Court of Session.

CRIMIN'AL APPELLATE JURISDICTION : Criminal Appeals Nos. 202 and 203 of 1957.

Appeals by special leave from the judgment and order dated November 16, 1956, of the Punjab High Court (Circuit Bench) at Delhi in Criminal Appeals Nos. 31-D and 506-C Gf 1956, arising out of the judgment and order dated August 31. 1956, of the Court .of the Special Judge at Delhi, in Corruption Case No. 8 of 1956.

D. R. Kalia and K. L. Arora, for the appellant in Criminal Appeal No. 202 of 1957.

D. R. Katia and Raghu Nath; for the appellant in Criminal Appeal No. 203 of 1957.

H. J. Umrigar and R. H. Dhebar, for the respondent in both the appeals.

1958. February 6. The Judgment of the Court was delivered by

IMAM J.-The appellants, who were police constables at the time of.the occurrence, were convicted by the Special Judge of Delhi under s. 1208 and s. 224/ 109 of the Indian

Penal Code and s. 5(2) of the Prevention of Corruption Act (2 of 1-947). They were sentenced to two years' rigorous imprisonment under s. 5(2) of the Prevention of Corruption Act, 1947 and to nine months' rigorous imprisonment under each of the ss. 1208 and 224/ 109 of the Indian Penal Code.

.Kantn Prw~!trul

v. ])d!i; Ar..lminil!t.raUon

lmam, J.

/!1.iS

Ar1nt11 Pra.lwd

JJdld

Adminitn1liun

luwm .!,

1220 SUPREME ('Ol'RT UEPOUTS [1958]

The sentences of imprisonment were directed to run concurrently. Their appeals to the Punjab High Court were dismissed and the present appeals are by special leave.

The case of the prosecution, as stated in the charge, was that the appellants had onspired at Delhi with Ram Saran Das, the approver, M.P. Khare, Nand Parkash Kapur and Murari between the 16th and 16th of November, 1955, to bring <(bout the escape from lawful custody of M.P. Khare, an undertrial prisoner, and that they had also agreed to accept Rs. I ,000 each and other pecuniary advantages as illegal gratification for rendering the escape of M. P. Khare from lawful custody and that in pursuance of the said conspiracy they had a.betted the escape of M. P. Khare and that they had accepted the illegal gratification from Nand Parkash Kapur.

It is clear from the findings of the courts below that M.P.

Khare escaped from lawful custody and the appellants had enabled him to do so and that they had received money as illegal gratification for the part they had played in enabling M. P. Khare to escape from lawful custody.

The learned Advocate for the appellants had submitted live points for our consideration in support of his contention that the conviction of the appellants must be set aside (!) the pardon tendered lo the approver Ram Saran Das by the District Mµgistrale of Delhi under s. 337 of the Code of Criminal Procedure was without jurisdiction and authority. Consequent ly, the evidence of the approver was not admissible (2) on the case of the prosecution, the offence of conspiracy lo commit an offence under s. 224 of the Indian Penal Code had not been committed but that offence, if at all, was one under s. 222 of the Indian Penal Code. As an offence under s. 222 of the Indian Penal Code is a non-cognizable offence no conviction under s. I20B of the Indian Penal Code could be had in the absence of a sanction under s. l 96A of the Code of Criminal Procedure (3) Prosecution witnesses Mela Ram, P.W. 6, and Shiv Parshad. P.W. 7. were accomplices on their own show ing a.nd as such their testimony could not be taken into consideration (4) no test identification parade of the appellants

had been held (5) the charge, as framed, contra.vened the mandatory provisions of s. 233 of the Code of Criminal Procedure.

Points 3, 4 and 5 may be disposed of at the outset. We have examined the evidence of Mela Ram and Shiv Pa-rshad and find nothing in their evidence which establishes them as accomplices. It does not appear that before the High Court it had ever been urged that these witnesses were accomplices and their evidence could not be taken into consideration to corroborate the approver. It was, however, urged that these witnesses were unreliable because they had knowledge that an attempt would be made to enable M.P. Khare to escape from lawful custody and yet they informed no authority about it. As to the reliability of these witnesses the' courts below were entitled to believe them and nothing of any consequence has been placed before us to convince us to take a different view from that taken by the courts below.

As for the test identification parade, it is tnw tliat no test identification parade wa.s held. The appellants were known to the police officials who had deposed against the appellants and the only persons who did not know them before were the persons who gave evidence of association, to which the High Court did not attach much importance. It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of ideritification in court. The weight to be attached to such identification would be a matter for the courts of fact and it is not for this Court to reassess the evidence unless exceptional grounds were established necessitating such a course.

It is true that no separate charges were framed under ss. 120B, 224/109 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, I 947. Separate charges should have been framed as required bys. 233 of the Code of Crimim1l Procedure. In our opinion, the irregularity committed, in

19J8

Kanta .Prashad

Delhi Administration

Imam .J.

19:J8

)\ (l//{(I f'l'08}Uld

v. l>dhi Atlminisfrntion

Jrnrim .J.

this case, was cured by the provisions of s. 537 of the Code.

It is to be noticed that it was urged before the Special Judge that separate charges should have been framed and that a single charge shou!d not have been framed but the objection had been abandoned by the Advocate for the accused when the Special Judge told him that if it was his contention that the accused had been prejudiced by this from of the charge. he would frame separate charges under separate heads and then proceed with the trial. Furthermore, when the charge was framed. the public prosecutor had urged that charges under separate heads for each offence should be framed and that they should not be joined together under one head. The Advocate for the accused, however, had urged that the charge, as framed, was correct. It seems to us that when the charge was being framed the Advocate for the appellants desired that the charge as framed should stand and the public prosecutor's objection should be overruled. It cannot be now urged that the appellants were prejudiced by the charge as framed. Indeed, the Advocate for the appellants abandoned this objection and there is nothing in the High Court's judgment to show that this contention was again raised. We cannot permit such a question to be raised at this stage. It seems to us, therefore, that there is no substance in the submissions made on behalf of the appellants with reference to the abovementioned points 3, 4 and S.

With reference to the second point, even if it is assumed that the offence alleged against the appellants does not come under s. 224 of the Indian Penal Code, but under s. 222 of the Indian Penal Code, it has to be remembered that this would be of academic interest in this case, if the appellants have been rightly convicted under s. 5(2) of the Prevention of Corruption Act, 1947. It also does not appear from the judgments of the Special Judge and the High Court that it had been contended that there was no sanction under s. 196A of the Code of Criminal Procedure and consequently the court could not take cognizance of the offence under f. l 20B of the Indian Penal Code. Whether a sanction had been granted under s. 196A was a question of fact which ought to have

been urged at the trial and before the High Court It is impossible at this stage to go into this question of fact. Furthermore, this question also is one of academic interest if the conviction and sentence of the appellants under s. 5(2) of the Prevention of Corruption Act, 1947, are affirmed.

Coming now to the first point urged on behalf of the appellants, it would appear that the District Magistrate of Delhi granted a pardon under s. 337 of the Code of Criminal Procedure to Ram Saran Das, the approver, in consequence of which Ram Saran Das was examined as a witness by the Special Judge. It was urged that the District Magistrate could not grant a pardon when the case was triable by the Court of Special Judge constituted under the Criminal Law (Amendment) Act, 1952. The offence under s. 5(2) of the Prevention

of Corruption Act, 1947, is punishable with imprisonment for a term which may extend to seven years, or with fine, or with both. It was not an offence which was punishable with imprisonment which may extend to ten years. The provisions of s. 337 enabled a District Magistrate to tender a pard/Jn in the case of any offence triable exclusively by the High Court or a. Court of Session, or any offence punishable with imprisonment which may extend to ten years, or any offence punishable under s. 211 of the Indian Penal Code with imprisonment vyhich may extend to seven years, or any offence

under ss. 216A, 369, 401, 435 and 477A of the Indian Penal Code. These provisions of s. 337 at the time that the pardon: was tendered were inapplicabl.e as the present case was not covered by its terms. It is pointed out that the High Court erred in supposing that the District Magistrate could grant pardon in a case where the offence was punishable with imprisorunent which may extend to seven years or more and which was triable exclusively by the Court of Session. The Code of Criminal Procedure at the time that the pardon was granted spoke of an offence punishable with imprisonment for a term which may extend to ten years and not seven years. The amendment to s. 337 of the Code. which came

Kanta PrashaJ.

Delhi Administration

Im°'".!.

)!J.j8

Kanfn Prasl1ad

v. lJelhi Admi1ti1Sfralion

f111a 111 ./,

1224 SUPREi\JE COURT REPORTS

[I 958)

into effect in January, 1956, spoke of an offence punishable with imprisonment which may extend to seven years, but this amendment could have no application to a pardon tendered on 1-12-'55. It seems to us, however, that the District Magistrate had authority to tender a pardon under s. 337 of the Code of Criminal Procedure with reference to a case concerning an offence triable exclusively by the Special Judge and, therefore. we need not consider whether the offence was punishable with imprisonment which may extend to seven years. Under s. 8(3) of the Criminal Law (Amendment) Act of 1952 it is expressly stated that for the purposes of the provisions of the Code of Criminal Procedure, 1898, the Court of Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors. Section 9 of that Act provides for an appeal from the Court of the Special Judge to the High Court and states that the High Court may exercise, as far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, I 898, as if the Court of the Special Judge were a Court of Session trying cases without a jury. It would seem, therefore, that although a Special Judge is a court constituted under the Criminal Law (Amendment) Act yet, for the purposes of the Code of Criminal Procedure and that Act, it is a Court of Session. Accordingly, we are of the opinion that although the offence was triable exclusively by the Court of the Special Judge the District Magistrate had• authority to tender a pardon under s. 337 of the Code of Criminal Procedure as the court of the Special Judge was, in law, a Court of Session.

It was, however, suggested that the proper authority to grant the pardon was the Special Judge and not the District Magistrate, but it seems to us that the position of the Special Judge in this matter was similar to that of a Judge of a Court of Session. The proviso to s. 337 of the Code of Criminal Procedure contemplates concurrent jurisdiction in the District Magistrate and the Magistrate making an enquiry or holding the trial to tender a pardon. According to the provisions of

s.c.n.

SUPREl\Il~ COURT REPOR'fS 1225

s. 338 of the Code, even after commitment but before judgment is passed, the Court to which the commitment is made may tender a pardon or order the committing Magistrate or the District Magistrate to tender a pardon. It would seem, therefore that the District Magistrate is empowered to tender a pardon even after a commitment if the Court so directs.

Under s. 8(2) of the Criminal Law (Amendment) Act, 1952, the Special . Judge has also been granted power to tender pardon. The conferment of this power on the Special Judge in no way deprives the District Magistrate of his power to grant a pardon under s. 337 of the Code. At the date the District Magistrate tendered the pardon the case was not before the Special Judge. There seems to us, therefore, no substance in the submission made that the District Magistrate had not authority to tender a pardon to Ram Saran Das, the approver, and consequently the approver's evidence was inadmissible.

The findings of the High Court establish the offence of the appellants under s. 5(2) of the Prevention of Corruption Act, 1947, and we can find no sufficient re'!son to think that

th1: appellants were wrongly convi.:ted thereunder.

The appeals are accordingly dismissed.

Appeals dismissed.

L/S4SCI-:l

1Yti8

K a"ta l'ra8hml

Del/ii A d1nini.trali'un

]tllflllt J.

KANT A PRASHAD

DELHI ADMINISTRATION

B. P. SINHA

JAFER IMAM JJ.

s. 5(2)

ss. 8(2)(3), 9

ss. 337

s. 120B

s. 224

Indian Penal Code

s. 5(2)

Prevention of Corruption Act, 1947

s. 337

Code of Criminal Procedure

s. 337

s. 5(2)

Prevention of Corruption Act, 1947

s. 337

Code of Criminal Procedure

ss. 8(3) and 9

s. 337

Code of Criminal Procedure

D. R. Kalia

K. L. Arora

D. R. Katia

Raghu Nath

H. J. Umrigar

R. H. Dhebar

IMAM

s. 1208

s. 224

Penal Code

s. 5(2)

Prevention of Corruption Act

s. 5(2)

Prevention of Corruption Act, 1947

ss. 1208 and 224

Indian Penal Code

.Kantn Prw~!trul

Ram Saran Das

M.P. Khare

Nand Parkash Kapur

Murari

M. P. Khare

M.P.

Khare

Delhi

s. 337

Code of Criminal Procedure

s. 224

Indian Penal Code

s. 222

Indian Penal Code

s. 222

Indian Penal Code

Indian Penal Code

Code of Criminal Procedure

Mela Ram

Shiv Parshad

s. 233

Code of Criminal Procedure

Mela Ram

Shiv Pa-rshad

ss. 120B, 224

Indian Penal Code

s. 5(2)

Prevention of Corruption Act

Kanta .Prashad

s. 537

s. 224

Indian Penal Code

s. 222

Indian Penal Code

s. 5(2)

Prevention of Corruption Act, 1947

s. 196A

Code of Criminal Procedure

Indian Penal Code

s. 196A

s. 5(2)

Prevention of Corruption Act, 1947

District Magistrate of Delhi

s. 337

Code of Criminal Procedure

Ram Saran Das

s. 5(2)

of Corruption Act, 1947

s. 337

s. 211

Indian Penal Code

ss. 216A, 369, 401, 435 and 477A

Indian Penal Code

s. 337

Code of Criminal Procedure

s. 337

Kanta PrashaJ.

Kanfn Prasl1ad

lJelhi Admi1ti1Sfralion

s. 337

Code of Criminal Procedure

s. 8(3)

Code of Criminal Procedure, 1898

Section 9

Chapters XXXI and XXXII of the Code

Code of Criminal Procedure

s. 337

Code of Criminal Procedure

s. 337

Code of Criminal Procedure

s. 338

s. 8(2)

s. 337

s. 5(2)

Prevention of Corruption Act, 1947


l~58

FebNUlry 7.

1226 SUPREME COURT REPOH'l'S

TALAB HAJI HUSSAIN

11.

MADHUKAR PURSHOTTAM MONDKAR

AND ANOTHER

[IDllll

<BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.)

C1'iminal Law-Bail-Cancellation-High Oou1't's inherent power-Bailable offence-Accused released on bail by Magistrate-Subsequent P1'•iudicial conduct of accused-High Court's power to cancel bail-code of Crimmal Procedure (Act 5 of 1898), ss, 426, 496, 497, 498, 561A.

The appellant was charged under s. 120B of the Indi'1n Penal Code and s. 167(81) of the Sea Customs Act, 1878, which were bllilable offences, and was released on bail by the Chief Presidency Magistrate under s. 496 of the Code of Criminal Procedure. An application made subsequently by the complainant for cancellation of the bail was dismissed by the Magistrate on the ground that under s. 496 he had no jurisdiction to cancel the bail. The complainant invoked the inherent power of the High Court under s. 561A of the Code and the High Court took the view that under that section it had inherent power to cancel the bail. and findinl! that on the material produced before the Court it would not be safe to penn\t the appellant to be at large, it cancelled the bail. On appeal to the Supreme Court:-

Held, that though under s. 496 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial, if Iris conduct subsequent to his release is found to be prejudicial to a fair trial, he forfeits his right to be released on baH and such furfeiture can be made effective by invoking the inherent power of the High Court under s. 561A of the Code. But the inherent power has to be exercised sparingly, carefully and with caution and only where such exercise is )\!stifled by the tests specifically laid down in the section itsel:t'.

Lala Jui.ram Das & Others v. King Emperor, (1945) L.R. 72 I.A. 120, distinguished.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 16 of 1958.

Appeal by special leave from the judgment and order dated January 14, 1958, of the Bombay High Court in Criminal Application No. 60 of 1958 arising out of the judgment and order dated January 9, 1958, of the Court of Chief Presidency Magistrate at Bombay in an application for cancellation of bail in Case No. roB/W of 1957.

S.C.It.

SUPREME COUR'r REPORTS i227

Purshottam Tricumdas, Rajni Patel and l.N. Shroff, for the 1968 appellant. 'l'IJlab Haji

Huaaaii\ K. J. Khandalwala and R. H. Dhebar, for respondent v.

M adllukar Ptm1wt• No. l. lam Mondkar

1958. February 7. The Judgment of the Court was de livered by

GAJENDRAGADKAR J .-The appellant, along with others, has been charged under s. 120B of the Indian Penal Code (lajendragadkar J, and s. 167(81) of the Sea Customs Act (8 of 1878). There is no doubt that the offences charged against the appellant are bailable offences. Under s. 496 of the Code of Criminal Pro cedure the appellant was released on bail of Rs. 75,000 with one surety for like amount on December 9, 1957, by the learned Chief Presidency Magistrate at Bombay. On January 4, 1958, an a.pplication was made by the complainant before the learned Magistrate for cancellation of the bail; the learned Magistrate, however, dismissed the application on the ground that under s. 496 he had no jurisdiction to cancel the bail.

Against this order, the complainant preferred a revisional application before the High Court of Bombay. Another applica tion was preferred by the complainant before the same Court invoking its inherent power under s. 561A of the Code of Criminal Procedure. Chagla C. J. and Datar J. who heard these applications took the view that, under s. S61A of the Code of Criminal Procedure the High Court had inherent power to cancel the bail granted to a person accused of a bail able offence and that, in a proper case, such power can and must be exercised in the interests of justice. The learned Jud ges then considered the ma.terial produced before the Court and came to the conclusion that, in the present case, it would not be safe to permit the appellant to be at large. That is why the application made by the complainant invoking the High Court's inherent power under s. 561A of the Code of Criminal Procedure was allowed, the bail-bond executed by the appel !ant was caneelled and an order was passed directing that the appellant be arrested forthwith and committed to custody. It is against this order that the appellant has come to L/S4SC1-3(a)

12:18 SUI'IU~:IIE COUH'l' HE1'0H'l'8

1968 this Court in appeal by special leave. Special leave granted

Tu/ab Haji td the appellant has, however, been limited to the question ilu•sai" of the construction of s. 496 read with s. 56JA ot the Code v.

Mudhukar Pur.h-01of Criminal Procedure. Thus the !)vint of law which falls to

'""' :ltondkar be considered in the present appeal is whether, in the case

Uajcndrago<lkar J. of a person accused of a bailable offence where bail has been granted to him under s. 496 of the Code of Criminal Procedure, it can be cancelled in a proper case by the High Court in exercise of its inherent power under s. S61A of the Code of Criminal Procedure? This question is no doubt of considerable importance and its decision would depend upon the construction of the relevant sections of the Code.

The material provisions on the subject of bail are contained in ss. 496 to 498 of the Code of, Criminal Procedure.

Section 496 deals with persons accused of bailable offences.

It provides that "when a person charged with the commission of a bailable offence is arrested or detained without warrant by.an officer in charge of a police station or is brought before a court and is prepared at any time, while in the custody of such officer or at any stage of the proceedings before such court, to give bail. such person shall be released on bail." The section further leaves it to the discretion of the police officer or the court if he or it thinks fit to discharge the accused person on his executing a bond without sureties for his appea ranee and not to take bail from him. Section 497 deals with the question of granting bail in the case of non-bailable offences. A person accused of a non-bailable offence 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. This is the effect of s. 497(1). Sub-section (2) deals with cases where it appears to the officer or the court that there are not reasonable grounds for believing that the accused has committed a non-bailable offence. but there are sufficient grounds for further enquiry into his guilt and it lays down that in such cases the accused shall, pending such enquiry, be released, on bail

S.C.R.

SUPREME t; OURT REPORTS 1229

or at the discretion of the officer or co.urt, on the execution by him of a bond without sureties for his appearance as hereinafter provided. Sub-section (3) requires that, when jurisdiction, under sub-s. (2) is exercised in favour of an accused person, reasons for exercising such jurisdiction shall be recorded in writingi Sub-section (3A) which has been added in 1955 deals with cases where the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first day fixed for taking evidence in the case and it provides that such person shall, if he is in custody during the whole of the said period, be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. Thy last subsection confers on the High Court and the Court of Session. and on any other court in the case of a person released by itself, power to direct that a person who has been released on bail under any of the provisions of this section should be arrested and committed to custody. Section 498(1) confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under ss. 496 and 497 whether in such cases there be an appeal against conviction or. not. Sub-section (2) of s. 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub-s. (1) to be arrested and committed to custody. There is one more section to which reference must be made in this connection and that is s. 426 of the Code. This section incidentally deals with the power to grant bail to persons who have been convicted of non-bailable offences when such convicted persons satisfy the court that they intend to present appeals against their orders of conviction. That is the effect of s. 426(2A) which has been added in 1955. A similar power has been conferred on the High Court under sub-s. (2B) of s. 426 where the High Court is satisfied tha.t the convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained. Sub-section

(3) provides that. if the appellant who is released on bail

Talab Haji

Huasain ....

MaJliukar Purs1wt.

tam.Mondkar

Gajenbagadknr J.

1fl.)8

1.'alab H(1ji

H1M,, ain

Jf111lhvkar Pura'li.ot-

,.," Jlontlkor

f:ujnirlmgadkaf' J.

under said sub-s. (2) or (28) is ultimately sentenced to imprisonment, the time during which he is so released shall bo

excluded in computing the teem for which he is so sentenced.

That briefly is the scheme of the Code on the subject of bail.

There is no doubt that under s. 496 a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court, before whom he offers to give bail, is bound to release him on such terms as to bail as may a.ppear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on executing his bond as provided in the section instead of taking bail from him. The position of persons accused of non-bailable offences is entirely different. Though the recent amendments made in the provisions of s. 497 have made definite improvement in fa:vour of persons accused of non-bailable offences, it would nevertheless be correct to say that the grant of bail in such cases is generally a matter in the discretion of the authorities in question. The classification of offences into the two categories of bailable and non-bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less gra:ve and serious 'than non-bailable offences. On this basis it may not be easy to explain why, for instance offences under ss. 477, 477A, 475 and 506 of the Indian Penal Code should be regarded as bailable whereas offences under s .. 379 should be non-bailable. However, it cannot be disputed that s. 496 recognizes that a person accused of a bailable offence has a right to be enlarged on bail and that is a consideration on which Shri Purushottam, for the appellant, has very strongly relied.

Sbri Purushottam has also emphasized the fact that. whereas legislature has specifically conferred power on the specified courts to cancel the bail granted to a person accused of a non-bailable offence by the provisions of s. 497(5), no such power has been conferred on any court in regard to

S.C.R.

StffiPEME COURT REPORTS 1231

persons accused of bailable offences. If legislature had intended to confer such a power it would have been very easy for h to add an appropriate suHection under s. 496. The omission to make such a provision is, aecording to Sbri Purushottam, not the result of inadvertence but is deliberate; and if that is so, it would not be legitimate or reasonable to clothe the High Courts with the pow9r to cancel bails in such cases under s. S61A. It is this aspect of the matter which needs careful examination in the present case.

Section 561 A was added to the Code in 1923 and it purports to save the inherent power of the High Courts. It provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as ma.y be necessary to give effect tQ any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It appears that doubts were expressed in some judicial decisions about the existence of such inherent power in the High Courts prior to 1923. That is why legislature enacted this section to clarify the position that the provisions of the Code were not intended to limit or affect the inherent power of the High Courts as mentioned in s. 561A. It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that s. 561A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. In prescribing rules of procedure legisla.ture undoubtedly attempts to provide for all

t:Qses that are likely to arise; but tt is not possible that any legislative enactment dealing with f)rocedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly arise in future. Lacunae are some-

19$8

2'alab Baja

Buasain

T, Madhukar Purshcl

tam J[ond/<or

Gajeniragadfor J.

Talab Haji

B1M80l1£

M adhulcar Purahot.

tam Mondkar

1232 SUPRE!lffi COURT REPORTS [1!}581

times discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discoverd that procedural law invariably recognizes the existence of inherent power in courts. It would be noticed that it is only. the High Courts whose inherent power is recognized by s. 561A; and even in regard to the High Courts' inherent power definite salutary safeguards have been laid down as to its exetcise. It is only where {he High Court is satisfied either that an order passed under the Code would be rendered ineffective or tha, t the process of any court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under s. S61A. There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise.

Now it is obvious tha.t the primary object of criminal procedure is to ensure a fair trial of accused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption; but a. fair trial

~~~~~~vi~Hbe~~~~~ and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and

!O there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the

S.C.R.

SuPREME COURT REPORTS 123:1

High Courts to secure the ends of justice. There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, i.f an accused person who is released on bail jumps bail and attempts tq run to a foreign country to escape the trial, that again would be a case where the exercise of the inherent power would be justified in order to compelthe accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is .no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked.

In regard to non-bailable offences there is no need to invoke such power because s. 497 (5) specifically deals with such cases. The question which we have to decide in this case is whether exercise of inherent power under s. 561A against persons accused of bailable offences, who have been released on bail, is contrary to or inconsistent with the provisions of s. 496 of the Code of Criminal Procedure.

Shri Purushottam contends that the provisions of s. 496 are plainly inconsistent with the exercise of inherent power under s. 561A against the appellant in the present case and; he argues that. despite the order which has been passed by the High Court. he would be entitled to move the trial court for bail again and the trial court would be bound to release him on bail because the right to be released on bail recognized by s. 496 is an absolute and an indefea<>ible right; and despite the order of tbe High Court, that right would still be available

Jnti8

'l'alnb Haji

H11&aain

v. lot adlmkar Purshnt.

lam Mondkar

Oajendragadkar .J.

Talab Haii

Httssain

Jlfadlukar Purslwt•

tnm Mondka.r

Onjendr11,'larllcar .J.

to the appellant. If that be the true position, the order passed under s. 56IA would be rendered ineffective and that itself would show that there is a conflict between the exercise of the said power and the provisions of s. 496. Thus presented, the argument no doubt h prima facie attractive; but a close examination of the provisions of s. 496 would show that there is no conflict between its provisions and the exercise of the jurisdiction under s. 561A. In dealing with this argument it is necessary to remember that, if the power under s. 561A is exercised by the High Court, the bail offered by the accused and accepted by the trial court would be cancelled and the accused would be ordered to be arrested forthwith and committed to custody. In other words, the effect of the order passed under s. 561 A, just like the effect of an order passed under s. 497 (5) a.nd s. 498 (2), would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal court of competent jurisdiction. His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that, pending the trial, he cannot be allowed to be at large. Now, where a person is committed to custody under such an order, it would not be open to him to fall back upon his rights under s. 4%, for s. 496 would in such circumstances be inapplicable to his case. It may be that there is no specific provision for the cancellation of the bond and the re-arrest of a person accused of a bailable offence; but that does not mean tha.t s. 496 entitles such an accused person to be released on bail, even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the court. We do not read s. 496 as conferring on a person accused of a bailable offence such an unqualified, absolute and an indefeasible right to be released on bail.

S.C.R.

SUPREME COUR'i' REPORTS - 1235

In this connection, it would be relevant to consider the 1968 effect of the provisions of s. 498. Under s. 498(1), the High Tawb Haji - HWJ•ain Court or the Court of Sessions may, even in the case of perv. sons accused of bailable offences, admit such .accused persons Jl'fi':i'M::tI:,;01• to bail or reduce the amount of bail demanded by the• pres- Gajend;,, adbar ,/, cribed authorities under s. 496. Shri Purushottam no doubt attempted to argue that the operative part of the provisions of s. 498(1) does not apply to persons accused of bailable offences; but in our opinion, there ca1n be no doubt that this sub-section deals with cases of persons accused of bailable as well as non-bailable offences. We have no doubt that, 1 even in regard to persons accused of bailable offences, if the amount of bail fixed under s. 496 is unreasonably: high the accused person can move the High Court or the Court of Sessions for reduction of that amount. Similarly, a person accused of a bailable offence may move the High Court or the Court of Sesslons to be released on bail and the High Court or the Court of Sessions may direct either that the amount should be reduced or that the person may be admitted to bail. If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the Court of Sessions, the provisions of sub-s. (2) become appli- _ cable to his case; and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to cusody. This sub-section, as we have already pointed out, has been added in 1955 and now there is no doubt that legislature has conferred upon the High Court or the Court of Sessions power to cancel bail in regard to cases of persons _ accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under s. 498(1). The result is that with regard to a class of cases of badlable offences falling under s. 498(1), even after the accused persons are admitted to bail, express power has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody. Clearly

Talab Baji

Huaain

Madkukar PuraAot.

tam .Mim.dkar

Gn}endragadl:ar J,

then it cannot be said that the right of a person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial.

It would also be interesting to notice that, even before s. 498(2) was enacted. there was consensus of judicial opinion in favour of the view that, if accused persons were released on. bail under s. 498(1), their bail-bond could be cancelled and they could be ordered to be arrested and committed to custody under the provisions of s. 561A of the Code (Mirza Mohammad Ibrahim v. Emperor('), Seoli v. Rex('), Bachchu Lal v. State('), Munshi Singh v. State(') and The Crown Prosecutor, Madras v. Krishnan(')). These deeisions would show that the exercise of inherent power to cancel baH under s. 561 A was not regarded as inconsistent with the provisions of s. 498(1) of the Code. It is true that all these decisi1>ns referred to cases of persons charged with non, bailable offences; but it is significant that the provisions of s. 497(5) did not apply, to these cases and the appropriate orders were passed under the purported exercise of inherent power under s. 56 l A. On principle then these decisions prl>ceed on the assumption, and we think rightly, that the exercise of inherent power in that behalf was not inconsistent with the provisions of s. 498 as it then stood.

It would riow be relevant to enquire whether, on principle, a distinctii>n can be made between bailable and nonbailable offences in regard to the effect l>f the prejudicial conduct of accused persons subsequent to their release on bail.

As we have already observed, if a fair trial is the main objective of the criminal procedure, any threat to the continuance . of fair trial must be immediately arrested and. the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise l>f inherent power. The classification of offences into bailable and non-bailable on whicli are based the different provisions as to the grant of (') A.I.I\. 1932 All. 534. (') AI.R.1948All. 366. (') A.l.R. 1951 All 836. t') A.I.R, 1952 All. 39 (') I.L.R. 1948 Mad. 62.

s.c.n.. 8Ul'Rli.:l\IE COUU'l' HJ~PORTS

bail would not, in our opinion, have any material bearing in deaHng with the effect of the subsequent conduct of accused persons on the continuance of a fair trial itself. If an accused person, by his conduct, puts the fair trial into jeopardy, it would be the primary and paramount duty of criminal courts to ensure that the risk to the fair trial is removed and criminal courts are allowed to proceed with 1the trial smoothly and without any interruption or obstruction; and this would be equally true in cases of both bailable as well as non-bailable offences. We, therefore, feel no difficulty in holding that, if, by . his subsequent conduct, a person accused of a bailable offence forfeits his right tJ be released on bail, that forfeiture must be made effective by invoking the inherent power of the High Court under s. 561A. Omission of legislature to make a specific provision. in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate. If the appellant's contention is sound, it would lead to fantastic re.- suits. The argument is that a person accused of a bailable offence has such an . unquatified right to be released on bail that even. if he dues his worst to obstruct or to defeat a fair trial, his bail-bond cannot be cancelled and a, threat to a fair trial cannot be arrested or prevented. Indeed Shree Purushottam went the length of suggesting that in .such a case the impugned subsequent conduct of the accused may give rise to some other charges under the Indian Penal Code, but it cannot justify bis re-arrest. Fortunately that does not appear to be the true legal position if the relevant provisions of the Code in regard to the grant of bail are considered as a whole along with the provisions of s. S61A of the Code.

It now remains to consider .the decision of the Privy Council in Lala Jairam Das de Others v. King Emperor('), be cause Shri Purushottam has very strongly relied on some of the t>bservations made in that case. According to that decision, he provisions of the Code of Criminal Procedure confer no power on High Courts to grant bail to a person who has been convicted and sentenced fo imprist>nment and to

(') (1945) L.R. 72 I.A. 120, 132.

19J8

Talab Haji

Husain

M adliukar Puuhutta.m Afondkar

Gajcndragadkur ,/,

Talab Haji

Hu.asain

Mudhukar Purlllwt

tam Mondknr

G11je:1ulra9adkflr J.

whom His .Majesty in Council ha1; given special leave to appeal against his sentence and conviction. Divergent views had been expressed by the High Courts in this country on the question as to the High Courts' power to grant bail to convicted persons wht> had been given special leave to appeal to the Privy Council; these views and the scheme of the Code in regard to the grant of bail were examined by Lord Russel of Killowen who delivered the judgment of the Board in Lala Jairam Das's case('). The decision has thus no application to the facts before us; but Shri Purushottam relies on certain observations made in the judgment. It has been observed in that judgment that "their Lordships take the view that Ch.

XXXIX of the Code together with s. 426 is, and was intend to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the exist ence of any additit>nal inherent power in a High Court relating to the subject of bail". The judgment further shows that in their Lordships' opinion, like the High Court of Justice in England, High Courts in India would not have inherent .power to grant bail to a convited person. It would be clell'l" from the judgment that their Lordships were not called upon to consider the question about the inherent power of the High Courts to cancel bail under s. 56 lA. That point did not obviously arise in the case before them. Even so, in dealing with the question as to whether inherent pt>wer could be exercised for granting bail to a convicted person, their Lordships did refer to s. 561A of the Code and they pointed out that such a power cannot be properly attributed to the High Ct>urts because it would, if exeroised, interrupt the serving of the sentence; and, besides it would, in the event of the appeal being unsuccessful, result in defeating the ends Of justice. It was also pointed out that if the bail was allowed in such a case, the exercise of the inherent power would result in an alteration by the High Court of its judgment which is prohibit-

(') (1945) L.R. 72 I.A. 120, 132.

ed b.y s. 369 of the Code. In other , words, their Lt>rdship~ t9ad examined the provisions of s. 561A and came to the conclu- Talab Haji sion that the power to grant.bail to a convicted person would Huaaai" . - n0t t\t in with the scheme of Chapter XXXIX of the C:::ode Madloukar Pur""'11

read with s. 561A: In our opinion, neither this decision 'nor tam MaruUar even the observations on which Shri Purushot~ relied can Gajendrr.lfltldkar J. afford any assistance in cfeciding the point which this appeal bas raised before us. Incidentally we may add that it was as a result of the observations made by the Privy Cuncil in that case thats. 426 of the Code was amended in 1945 and power has been conferred on appropriate dourts either to suspend the sentence or to grant bail as mentioned in the several subsections of s. 426. That is how s. 426(2A) and (2B) now deal with the subject of bail even though the main section is apart of Chapter XXXI which deals with appeals, references and revisions.

We must . accordingly hold that the view taken by the Bombay High Court about its inherent power to act in this case under s. 561A is right and must be confirmed~ It is hardly necessary to add that the inherent power conferred on High Courts under s. 561A has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests speciflcally laid down in the section itself;

After all, procedure, whether criminal or civil, must serve the higher purpose of justiee; and it is only when the ends of justice are put in jeopardy by the conduct of the accuse.d that the inherent power can and should be exercised in cases like the present. The result is that. the aru>eal fails and must be dismissed.

Appeal dismbsed.

S

TALAB HAJI HUSSAIN

MADHUKAR PURSHOTTAM MONDKAR

AND ANOTHER

BHAGWATI, J.

L. KAPUR

GAJENDRAGADKAR JJ.

s. 120B

Penal Code

s. 167(81)

Sea Customs Act, 1878

s. 496

Code of Criminal Procedure

s. 496

s. 561A

Supreme Court:-

s. 496

Code of Criminal Procedure

s. 561A

(1945) L.R. 72 I.A. 120

Purshottam Tricumdas

Rajni Patel

l.N. Shroff

K. J. Khandalwala

R. H. Dhebar

s. 120B

Indian Penal Code

lajendragadkar

s. 167(81)

Customs Act

s. 496

December 9, 1957

Chief Presidency Magistrate at Bombay

January 4, 1958

s. 496

High Court of Bombay

s. 561A

Code of Criminal Procedure

Chagla

Datar

Code of Criminal Procedure

s. 561A

Code of Criminal Procedure

s. 496

s. 56J

lkar

s. 496

Code of Criminal Procedure

Code of Criminal Procedure

ss. 496 to 498

Section 496

Section 497

s. 497(1)

Section 498(1)

ss. 496 and 497

s. 498

s. 426

s. 426(2A)

s. 426

Supreme Court

Talab Haji

Gajenbagadknr

1.'alab H(1ji

ujnirlmgadkaf

s. 496

s. 497

ss. 477, 477A, 475 and 506

Indian Penal Code

s. 496

Purushottam

s. 497(5)

s. 496

Sbri Purushottam

Section 561

s. 561A

s. 561A

Gajeniragadfor

Talab Haji

s. 561A

s. 497

s. 561A

s. 496

Code of Criminal Procedure

s. 496

s. 561A

s. 496

lam Mondkar

s. 56I

s. 496

s. 496

s. 561A

s. 561A

s. 561

s. 497

s. 498

s. 4

s. 496

s. 496

s. 496

s. 498

s. 498(1)

High Tawb Haji - HWJ•ain Court

s. 496

s. 498(1)

s. 496

s. 498(1)

s. 498(1)

Talab Baji

Madkukar PuraAot

s. 498(2)

s. 498(1)

s. 561A

s. 561

s. 498(1)

s. 497(5)

s. 56

s. 498

s. 561A

Shree Purushottam

Indian Penal Code

Code of Criminal Procedure

(1945) L.R. 72 I.A. 120

Talab Haji

Russel of Killowen

Lala Jairam Das

s. 426

India

High Court of Justice in England

High Courts in India

s. 56

s. 561A

(1945) L.R. 72 I.A. 120

s. 369

s. 561A

s. 561A

MaruUar

Purushot~

Gajendrr.lfltldkar J.

s. 426

s. 426(2A)

Bombay High Court

s. 561A

s. 561A