Skip to content


Syed Chunnarshah Syed Nadarshah Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision No. 144 of 1970
Judge
Reported in(1972)74BOMLR602; 1971MhLJ237
AppellantSyed Chunnarshah Syed Nadarshah
RespondentThe State of Maharashtra
DispositionApplication dismissed
Excerpt:
.....his appearance.;when an inquiry is made by a magistrate under section 110 or chapter viii of the criminal procedure code, 1898, and if any person is either arrested or brought before it, the court can, under section 496 of the code ask him to execute a bond for his appearance,;chandra kishore v. jogendra chandra [1965] a.i.r. tri 20, dissented from. emperor v. karbalal [1940] a.i.r. nag 75 and the state v. santokh singh [1960] a.i.r. punj. 31, referred to. - - 3,000 with a surety of like amount for appearance on the dates of hearing during the course of the proceedings. at best, the court, according to him, could have directed him to execute a bond under section 117 read with section 112, criminal procedure code, that therefore no bond for appearance in court could be taken under the..........itself and, therefore, according to him, the learned magistrate in section 110, criminal procedure code proceedings, cannot pass the impugned order. it is, therefore, argued that the bail provisions do not apply to prevention of offence proceedings. on the other hand, the learned assistant government pleader contends that the bail provisions under section 49, apply not only to persons accused of certain kinds of offences but also to any person who is arrested or detained without warrant by an officer-in-charge of a police station, or appears, or is brought before a court. we will, therefore, have to examine these rival contentions now.4. the learned advocate for the applicant invites my attention to sections 353, 488 and 496, criminal procedure code, and contends that these provisions.....
Judgment:

Bhole, J.

1. A question, whether a person against whom proceedings for Prevention of Offences have boon started can be ordered to execute a bail bond for appearance in those proceedings or cannot be ordered, arises in this application, The question arises in the following circumstances. Proceedings under Section 110, Criminal Procedure Code, were initiated against the applicant before the Court of the City Magistrate, Nagpur, in the year 1967. A summons was issued against the applicant but was unserved, later on a warrant was issued and although it was not served on a couple of occasions, it was ultimately served. The applicant was, therefore, produced before the Court and was asked to execute a bond in a sum of Rs. 3,000 with a surety of like amount for appearance on the dates of hearing during the course of the proceedings. On one or two occasions he appeared but was absent later on. Therefore, a non-bailable warrant was issued against him. It was unserved. The bond, which he had executed for appearance, was then forfeited because the applicant did not appear on the dates of hearing. An enquiry as usual was started against his surety. It turned out that the bond was executed by a bogus surety. The applicant was attempted to be traced but could not be traced. It appears that the applicant was arrested for some other offence and was thereafter produced in these proceedings on May 6, 1969. On that day ho was asked to show cause why he should not be ordered to pay the amount of bond which he had already executed in a sum of Rs. 3,000. Ho had no explanations to offer.

2. Then, during the course of the proceedings, the applicant made an application on May 29, 1969 that no action against him was deemed necessary under Section 117 read with Section 112, Criminal Procedure Code, because there was no case against him under Section 110, Criminal Procedure Code. According to his application, he could not be detained because no action had boon taken against him under Section 117 read with Section 112 of the Criminal Procedure Code. At best, the Court, according to him, could have directed him to execute a bond under Section 117 read with Section 112, Criminal Procedure Code, that therefore no bond for appearance in Court could be taken under the law. The learned Magistrate passed an order on this application that the applicant had absconded; that with great difficulty he was arrested; that his bond for appearance had been forfeited and that an action for recovery of the amount of bond is also in progress. He, therefore, ordered that he shall be released on bail if he deposits a sum of Rs. 3,000 in cash in Court. That order was challenged before the Additional Sessions Judge, Nagpur. The learned Additional Sessions Judge relied on Emperor v. Karbalai and on The State v. Santokh Singh A.I.R. [1960] Punj. 31 and decided that the order was quite legal and proper. This order, therefore, m challenged here now. The only point that arises here for consideration is to see whether this order is legal and proper.

3. It is contended on behalf of the applicant that no order for appearance of the applicant can be passed in proceedings for Prevention of Offences. According to the learned advocate, the trial Court can at the most take action against the applicant under Section 117(3), Criminal Procedure Code. Under this provision the Magistrate, pending the completion of the inquiry as to the truth of the information, if he considers that immediate measures are necessary for the prevention of a breach of peace or the commission of an offence, may, for reasons to be recorded in writing, direct the person to execute a bond with or without sureties until the conclusion of the inquiry and may detain him in custody until such a bond is executed. It is, therefore, contended that Chapter VIII of the Criminal Procedure Code which deals with the Prevention of Offences, is complete in itself and, therefore, according to him, the learned Magistrate in Section 110, Criminal Procedure Code proceedings, cannot pass the impugned order. It is, therefore, argued that the bail provisions do not apply to Prevention of Offence proceedings. On the other hand, the learned Assistant Government Pleader contends that the bail provisions under Section 49, apply not only to persons accused of certain kinds of offences but also to any person who is arrested or detained without warrant by an officer-in-charge of a police station, or appears, or is brought before a Court. We will, therefore, have to examine these rival contentions now.

4. The learned advocate for the applicant invites my attention to Sections 353, 488 and 496, Criminal Procedure Code, and contends that these provisions show that whenever the Legislature wanted the presence of the accused in a proceeding, they have provided for the same and that Chapter VIII of the Criminal Procedure Code, which is complete in itself, does not provide for the presence of the accused against whom the proceedings for Prevention of Offences have been initiated. It is further argued that Section 110 in Chapter VIII only provides for detention and, therefore, the accused need not be present in the proceedings. Now, it is true that under Section 488(6), all evidence under Chapter XXXVI, which deals with the maintenance of wives and children, shall be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed. with, in the presence of his pleader. It is also true that under Section 853, Criminal Procedure Code 'except as otherwise expressly provided, all evidence taken under Chapters XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in presence of his pleador.' According to the learned advocate for the applicant, therefore, when Section 496, Criminal Procedure Code provides for bail for persons other than a person accused of a non-bailable offence, the intention is. to divide the persons who are entitled to be bailed out into two categories viz., persons who are accused of a non-bailable offence and persons who are accused of bailable offence. No other category, according to the learned advocate for the applicant, is included in Section 406, Criminal Procedure Code. Now, let us see the intention of the Legislature by the language used in Section 490, Criminal Procedure Code.

5. Section 496, Criminal Procedure Code is as follows:

When any person other than a person accused of a 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, 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 baiJ, such person shall be released, on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Provided, further, that nothing in this section shall be deemed to affect the provisions of Section 107, Sub-section (4) or Section 117, Sub-Section (3).

It is, therefore, plain from the language of the section that this section is meant for any person who is arrested or detained without warrant by an officer-in-charge of a police-station or for any person who appears or is brought before a Court. The only condition laid down in the section is that he should not be a person accused of a non-bailable offence. There is also a proviso. Under the proviso, nothing in Section 496 shall be deemed to affect the provisions of Section 107, Sub-section (4), or Section 117, Sub-section (3). Under Section 107(4), Criminal Procedure Code, a Magistrate before whom a person is sent under Sub-section (3) may in his discretion detain such person in custody pending further action by himself under Chapter VIII. A Magistrate, therefore, is empowered to detain a person against whom Section 107, Criminal Procedure Code proceedings were initiated. Under Section 117(3), Criminal. Procedure Code, pending the completion of the inquiry under Sub-section (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace may for reasons to be recorded in writing, direct the person in respect of whom the order under Section 117 has been made to execute a bond with or without surety for keeping the peace...until the conclusion of the enquiry and may detain him in custody until such a bond was executed or in default of execution until the inquiry was concluded. Therefore, this proviso clearly excludes the impact of Section 496, Criminal Procedure Code on certain provisions in Sections 107 and 117, Criminal Procedure Code, which are in Chapter VIII of the Criminal Procedure Code. When the Legislature excludes some part of Sections 107 and 117 of the Criminal Procedure Code, its intention, therefore, would be to include the other parts of the sections. The conclusion, therefore, is that Section 496, Criminal Procedure Code is also applicable to Chapter VIII of the Criminal Procedure Code, except those which were excluded expressly.

6. Moreover, the language used in Section 496, Criminal Procedure Code, is also very clear. It is applicable to any person, who appears or is brought before a Court or who is arrested or who is detained. The words used are 'when any person is arrested or detained...or appears, or, is produced before a Court.' Therefore, any Court before whom any person appears or is brought before it, the Court is empowered to take a bond for his appearance. The expression 'any person' would not only include an accused charged with bailable or non-bailable offence, but also a person against whom an inquiry is held by that Court. In fact, there is no definition of the word 'accused' in the Criminal Procedure Code. The expression 'inquiry', however, is defined in Section 4(k). 'Inquiry' includes every inquiry other than a trial conducted under the Criminal Procedure Code by a Magistrate or Court. Therefore, when an inquiry is made by a, Magistrate under Section 110 or tinder Chapter VIII, which is for the Prevention of Offences, and if any person is either arrested or brought before it, the Court can, under Section 496 ask him to execute a bond for his appearance. It is, therefore, difficult for mo to agree with the contention, of the learned advocate for the applicant when he contends that Section 496, Criminal Procedure Code would apply only to persons who are accused of bailable offence. This contention, therefore, according to me, is without any ground.

7. But the learned advocate for the applicant contends here that Section 496, Criminal Procedure Code would not apply to a person against whom Section 110, Criminal Procedure Code proceedings were initiated on another ground. He invites my attention to Schedule V of the Criminal Procedure Code and, according to him, there is no form laid down in Schedule V for a bond to be executed by a person against whom proceedings under Chapter VIII were taken. There is a form No. XLII in Schedule V, which is a bond and bail-bond on a preliminary inquiry before a Magistrate under Sections 496 and 499, Criminal Procedure Code. The first few lines of the form are these: 'I...of ...being brought before the Magistrate...charged with the offence of...and required to give security for my attendance in his Court...' The learned advocate lays emphasis on the words 'charged with the offence'. According to him, this form clearly shows that a bail bond could be executed under Section 496, Criminal Procedure Code, only by a person who is charged with an offence. According to him, the form does not, therefore, show that a person against whom proceedings under Chapter VIII were taken also could execute such a bond. Now, this contention also appears to be without any substance because under Section 555, Criminal Procedure Code, subject to the power conferred by Section 554, and by Article 227 of the Constitution, the forms set forth in the fifth schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. Section 554 gives power to the High Court to make rules for inspection of records of sub-ordinate Courts and also to frame forms. Therefore, these forms are framed by the High Court. The High Court can, at any time, with the consent of the State Government, change the forms. Moreover, in so far as form No. XLII in Schedule V it need not be changed because under Section 555, Criminal Procedure Code, this form, with some variation could be used for a person against whom Section 110, Criminal Procedure Code, proceedings have been initiated. We could vary the form according to the circumstances of the case under Section 555, Criminal Procedure Code.

8. I am also supported in my conclusion by a case in Emperor v. Karbalai and also by another case of the Punjab High Court in The State v. Santokh Singh. The Nagpur High Court was considering Sections 496 and 117 of the Criminal Procedure Code. It was held that.Section 490 authorizes the Magistrate conducting an inquiry under Section 117, Criminal P.C., to release the person concerned in the enquiry on bail with or without surety to ensure his attendance in Court. (p. 76)

The Punjab High Court was considering Sections 496 and 107 of the Criminal Procedure Code. According to that High Court, the substantive portion of Section 496 applies to all persons except those accused of n on-bailable offences; that the provisions of this section are applicable not only to persons who are arrested or detained by an officer-in-charge of a police station, but also to persons who appear or are otherwise brought before a Court. Hence, it is not correct to say that Section 496 applies only to an accused person. According to that High Court, the proviso to Section 496 also makes it clear that the substantive portion of the section applies also to the proceedings under Section 107, Criminal Procedure Code. They relied on U. Gandama v. Emperor A.I.R [1933] . Ran. 164 and also on Emperor v. Karbalai. But the learned advocate for the applicant relies on Chandra Kishore v. Jogendra Chandra A.I.R. [1965] Tri. 20. The Judicial Commissioner there held that a person proceeded against under Section 107, Criminal Procedure Code, cannot be granted bail. According to the learned Judicial Commissioner, there is no provision in the Criminal Procedure Code for a Commissioner to direct a party, who appears before him in answer to summons under Section 107, Criminal Procedure Code, to furnish bail. With respect, I cannot agree with the observations of the learned Judicial Commissioner, because his judgment does not at all show that he had considered Section 496, Criminal Procedure Code, with which actually he ought to have been concerned. The learned Judicial Commissioner considered Chapter VIII of the Criminal Procedure Code and did not even consider the relevant Section 496, which dealt with the grant of bail in a given case. With respect, therefore, I do not agree with the observations of the learned Judicial Commissioner there.

9. It appears to me, therefore, that the order passed by the learned Magistrate is quite legal and proper. This application, therefore, fails. I, therefore, dismiss this application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //