A.M. Bhattacharjee, Actg. C.J.
1. I have heard Mr. D. C. Roy, the learned Advocate appearing for the accused-petitioner, and the learned Advocate-General, appearing for the State, and I am satisfied that the impugned order of the learned Sessions Judge, whereby he has cancelled the bail granted to the petitioner by the District Magistrate, must be set aside.
2. The petitioner along with two other persons is being prosecuted for offences under Sections 363, 366 and 376 of the I.P.C. on the allegation that they kidnapped and committed rape on a minor girl. The petitioner was arrested on 27-3-1979 and was released on bail by the learned District Magistrate by his order dated 1-5-1979, wherein the District Magistrate observed that from the perusal of the papers and considering the circumstances', he did not find 'any justification for detaining the accused any further.' There is a presumption, as pointed out by the Rajasthan High Court in Newad Ram v. Kishan , that an order made by a Court of law was to be (after) considering everything that was to be considered and after hearing everyone required to be heard; but that presumption apart, the order of the learned District Magistrate ex facie shows that it was passed after such consideration and hearing. The learned Advocate-General has not also urged at any stage that the order of the District Magistrate was not proper or justified on the materials then on record. But the learned Advocate-General has, however, very strongly urged that even though the learned District Magistrate was justified in releasing the petitioner on bail on the materials then available on record, the learned Sessions Judge was also equally justified in cancelling the bail thereafter as the prosecutrix in her evidence during trial has directly implicated the petitioner with the crime. This is, no doubt, one of the two grounds on which the learned Sessions Judge though it fit to cancel the bail, the other ground being that the two other co-accused were in custody and according to the learned Sessions Judge, there could be no reason as to why 'one of the accused should enjoy the privilege of bail while the two accused should remain confined in custody, when all of them are charged with the same offence.
3. I have no doubt that though the fact that a co-accused in respect of the same offence is released on bail may be a factor which a Court may, in the circumstances of a case take into consideration in considering the question of granting or refusing bail to the other co-accused, as pointed out by Chief Justice Sir Arthud Trever Harries in Kamala Pandey v. The King (1949) 53 CWN 699, the converse, however. is |not true and the fact that some of the accused persons are in custody and/or have been refused bail can, by itself, never be a ground for cancelling the bail already granted to another co-accused, even though the allegations against all of them are same or similarly grave. I am, therefore, clearly of opinion that the learned Sessions Judge was wrong in cancelling the bail of the petitioner on the ground that the other two co-accused facing the same accusations were still then in custody.
4. The other ground on which the learned Sessions Judge has cancelled the bail, being also the ground on which the learned Advocate-General has strenuously tried to support the impugned order, is that during the trial the prosecution has led evidence through the statement of the prosecutrix that the petitioner also committed rape on her, and that a charge has also accordingly been framed by the learned Sessions Judge against the petitioner. It should be noted that in Sikkim, where the Cr.P.C. 1898, with some modifications, is still the law, the Court of Session, in accordance with such modification, follows the procedure for the trial of warrant cases while trying cases triable by such Court and, therefore, in such cases also charges are framed on the evidence led by the prosecution followed by cross-examination by or on behalf of the accused. Be that as it may, the question for my consideration in this case is whether a bail already granted to a person can or should be cancelled simply because during the course of trial the prosecution has been able to lead some evidence, which if unrebutted, would establish his complicity in the crime ?
5. I have given my most anxious consideration to this question and have noticed that the law relating to bail has undergone slow but perceptible changes in order to fit in with the concept of a welfare State guaranteeing the right to personal liberty as a fundamental right and accordingly the rigour of the law as contained in Section 497(5) Cr.P.C. 1898, purporting to confer unfetterred power to commit to custody any person already released on bail has been very much abated and mollified having been inspired by and tempered with the higher concept and purpose of justice. I am ready to agree that according to the strict letters of the law as contained in Section 497(5), a person already released on bail may again be committed to custody during the trial if clinching evidence is adduced against him implicating him with the offence; but I feel that even though law allows that, justice does not require that he should be so committed on such ground alone, unless after he is so released, he has done something to forfeit his right to remain at large by hampering or attempting to hamper the fair investigation of the case or by putting or attempting to put the fair trial of the case in jeopardy. Law is good, but justice is better and now that the mandate of our Constitution, as enshrined in the Preamble thereto and also in the Directive Principle contained in Artcle 39A thereof is to secure and promote justice, it must be the endeavour of the Court to administer justice, though within the scope of law and if necessary and possible, to construe and shape the law accordingly and not merely to administer law according to the strict letters divorced from the concept of justice. As observed by Gajendragadkar, J. (as his lordship then was) in Talab Haji Hussain v. Madhukar Furshottam : 1958CriLJ701 , which was also a case relating to cancellation of bail, 'after all, procedure, whether Criminal or Civil, must serve the higher purpose of justice'. What I mean to say is that the law as contained in Section 497(5), may according to strict literal interpretation, allow a cancellation of bail, if further materials are brought on record thereafter which go to implicate the accused with the crime, as held in Re Johur Mall (1906) 4 Cri LJ 221 at p. 223 (Cal) and several other cases; but justice does not require such cancellation, unless the person released on bail, has, after such release, done something to hamper the proper investigation or to jeopardise the fair trial. And if justice does not require the doing of something, that thing should not be done, unless the provisions of law make the doing of that thing obligatory. The Courts are not only Courts of Law but are Courts of Justice also and under the mandate of Artcle 39A of the Constitution, must see that 'the operation of the legal system promotes justice' and, therefore, if a provision of law can be construed and allowed to operate in more ways then one, the Court shall construe and allow it to operate in a way that would be conducive to the promotion of justice.
6. As I have already noted, notwithstanding the wide amplitude of the power to cancel bail conferred by Section 497(5), the law on the point has been moulded by judicial decisions to serve the higher purpose of justice and 1 would refer to three decisions of the Supreme Court to show that the present trend of the law is not to cancel a bail already granted unless the accused, being at large, would or is likely to interfere with the investigation or the trial. But before I do so, I would also like to refer to the decision of Panchapakesa Ayyar, J. of the Madras High Court in Public Prosecutor v. George Williams : AIR1951Mad1042 , where the learned Judge, if I may say so with respect, attempted to summarise the law on the point as hereunder:
I am of opinion that there are five cases where a person granted bail may have the bail cancelled and be recommitted to jail: (1) Where the person on bail, during the period of bail, commits the very same offence for which he is being tried or has been convicted, and thereby proves his utter unfitness, to be on bail...(2) If he hampers the investigation as will be the case if he, when on bail, forcibly prevents the search of places under his control for the corpus delicti or other incriminating things; (3) If he tampers with the evidence, as by intimidating the prosecution witnesses, interfering with the scene of offence in order to remove traces, or proofs of the crime etc. (4) If he runs away to a foreign country, or goes underground, or beyond the control of his sureties; and (5) If he commits acts of violence, in revenge, against the police and the prosecution witnesses and those who have booked him or are trying to book him.
7. The first Supreme Court case to which I would like to refer is that of Talab Haji Hussin v. Madhukar Purshottarn : 1958CriLJ701 , already referred to hereinbefore, where it has been observed (at p. 379) that a person released on bail can be committed to custody 'if the conduct of the accused person, sub-sequent to his release on bail, put in jeopardy the prosecution of a fair trial itself and if there is no other remedy which can be effectively used against the accused person' and 'if his sub-sequent conduct shows that pending the trial he cannot be allowed to be at large'. It is no doubt true that the aforesaid case related to cancellation of bail in a bailable case; but the power to cancel bail, already granted, whether in a bailable case or a non-bailable case, is the same with this difference that, as pointed out in Talab Haji Hussain's case (at p. 379), while in a non-bailable case, such power of cancellation is expressly conferred by Section 497(5), in a bailable case such power is to be exercised by the High Court in exercise of its inherent powers. Under the new Code of Criminal Procedure, 1973, however, the power of the High Court or the Court of Session to cancel bail, whether granted by itself or any other authority, is conferred by Section 439(2) which covers cancellation of bail in all cases, bailable or non-bailable. Of the two decisions of the Supreme Court to which I shall now refer, the first relates to bailable while the second relates to non-bailable case. But both having construed the provisions of Section 439(2) and having generally discussed the principles according to which a bail may be cancelled under that provision, are to be regarded as authorities relating to cancellation of bail in all cases, whether bailable or non-bailable. It may be noted that the provisions of Section 497(5) of the Code of 1898, which apply to this case and the provisions of Section 439(2) of the new Code of 1973, so far they are relevant for the present purpose, are in pari materia.
8. In the recent decision of the Supreme Court in Delhi Administration v. Sanjay Gandhi : 1978CriLJ952 which has been referred to by Mr. Roy and which also reiterates the same principle, Chandrachud, C.J., speaking for the Court in that case, observed (at p. 965) that 'cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial' Emphasis supplied). It was further observed in that case (at p. 968) as hereunder:
The power to take back in custody an accused, who has been enlarged on bail, has to be exercised with care and circumspection; but the power, though of an extraordinary nature, is meant to be exercised in appropriate cases when by a preponderance of probabilities it is clear that the accused is interfering with the course of justice....
9. It is true that in Talab Haji Hussain's case or in Sanjay Gandhi's case, both being cases relating to cancellation of bail in bailable cases, the Supreme Court neither has affirmatively decided nor had the scope to decide that a bail granted in a non-bailable case cannot be cancelled, if sub-sequent to such order, the case against the accused assumes a graver nature as a result of further investigation or evidence during trial. But in both the cases, the Supreme Court having generally discussed and dealt with the principles according to which and the circumstances under which a bail already granted can be cancelled, it should logically follow that such cancellation is not to be made under other circumstances. I have reminded myself of the observation of ford Halsbury in Quinn v. Leatham (1901) AC 495 at p. 506 as hereunder:
A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
10. While I would very humbly agree-with that eminent Law ford that law is not always logical', I would with equal humility point out that from the time the Judicial Committee of the Privy Council of the United Kingdom started exercising jurisdiction in respect of Indian cases, many of the Privy Council Judgments, have in many cases been treated by the High Courts in India as authorities for not only what they actually decided but also for the inevitable logical conclusions from those decisions and many of our legal principles and judicial pronouncements owe their origin to such, conclusions as were thought to have followed logically from them.
11. But the last decision of the Supreme Court, to which I propose to refer and which has also been referred to by Mr. Roy, being the decision in Bashir v. State of Haryana : 1978CriLJ173 , may be regarded to be a direct authority for the view that the filing of a charge-sheet in a non-bailable case can never, by itself, be a ground for cancellation of a prior order for bail. It has been observed in that case (at p. 414) that even after a charge-sheet is filed and the Court comes to a conclusion that there are sufficient grounds to believe that the accused has committed a non-bailable offence, the bail already granted is not to be cancelled unless the Court comes to a further conclusion 'that it is necessary that he should be arrested and committed to custody' and that the Court may order such cancellation and committal to custody on such grounds as 'tampering of the evidence or that his being at large is not in the interest of justice'. If filing of a charge-sheet, which means completion of collection of materials which can be translated into evidence against the accused, is by itself no ground for the cancellation of bail, it should logically follow that statement of one or two witnesses during trial implicating the accused with the crime, should not. by itself, and without more, be a ground for cancellation of bail. For otherwise, the cancellation of or release on bail of an accused would continue to depend precariously on what the witnesses for the prosecution may or may not state against him from time to time during the course of trial, which in this case, as already noted, is being conducted according to the long-drawn procedure for trial of warrant-cases and where the learned Sessions Judge is examining witnesses at long intervals and in monthly instalments. that being so, the order of cacellation of bail in this case cannot be justified and the impungned order must be set aside to that extent.
12. The revision, therefore, succeeds and the impugned order cancelling the bail of the petitioner and committing him to the custody is set aside. Let him be released on such terms and conditions on which he was released by the learned District Magistrate. The records to go down at once.