1. This is an application for bail by Bhawani Singh approver. His bail application was rejected by the Sessions Judge, Bhopal.
2. It has been urged that the criminal case in which Bhawani Singh was given pardon has been pending for decision for a long period and in view of the fact that one of the absconding accused has been arrested, there is no likelihood of sessions cases being decided within a reasonable time. It was further contended that Section 337(3), Criminal P.C. cannot be deemed to be of a mandatory nature and consequently the Court could grant bail to the approver.
3. Section 337(3), Criminal P.C., runs us below:
Such person unless he is already on bail shall be detained in custody until the termination of the trial.
It is true that the nature of any provision, whether discretionary or of a mandatory nature, is not to be construed from the word 'shall' or 'may' used therein. In certain cases the. word 'shall' can be regarded not to be of a mandatory nature if on consideration of the enactment as a whole it appears that the discretion was left open for the Court.
But where the provision by itself suggests that the general powers of the Court had been taken away or that there was a prohibition from passing contrary orders, the word 'shall' will be deemed to be of a mandatory nature. In the pre-sent case the Legislature has not only used the word 'shall' but it is preceded by the words 'unless he is already on bail'.
In my opinion Section 337(3), Criminal P.C. can be given no other meaning except that an approver already detained in custody, cannot be released on bail for the period the trial has not been concluded. In other words, therefore, even if the termination of the trial takes a long period the approver will have to be detained in custody.
4. The provisions contained in Section 337(3), Criminal P.C., cannot be said to be arbitrary or to be unconstitutional. To me it appears that such a provision was made as a matter of public policy so that the prosecution may not be handicapped in the actual trial and at the same time no undue pressure may be put on the approver by either of the parties.
If after the grant of the pardon the approver is released on bail the accused persons can always take up the plea that the confession made by them was under inducement and consequently was not admissible and could not be used against them. If the approver is released on bail, pressure can be put upon him from both the sides but if he is confined in jail he is so placed that he cannot be approached by the police or by the friends or relations of the accused persons.
To detain the approver in custody for the duration of the trial is thus in his own interest and is necessary in the interest of justice.
5. It is within the powers of the Legislature to lay down which person can be released on bail or to whom bail cannot be granted. As the rule applies to all the approvers it cannot be said that it makes a differentiation and on this ground is contrary to the provisions of the Constitution of India.
6. The approver was arrested on 4-12-53 and given pardon on 18-1-1954 and he has been in confinement from the time of his arrest. It Is a matter of regret that the sessions trial was not taken up without any unreasonable delay but now when an absconding accused has been arrested, it will not be proper for me to order that the pending sessions trial should be taken up and disposed of without waiting for the commitment of the case against the accused who had been absconding in the past. I, therefore, direct that the commitment proceedings of this accused should be completed without any delay, latest within two months from today. If the case against this accused is also committed to the Sessions, the Sessions Judge should give preference to these Sessions trials so that the approver may not be detained for an unnecessarily long period.
In case the prosecution is slack and for no Justification delays the inquiry, the approver would be entitled to some leniency and he would be at liberty to move this Court again when the facts would be reconsidered in view of the fact that the directions being given by this Court are being disregarded.
7. The bail application is hereby dismissed, but the attention of the Sessions Judge should be drawn to the directions given above who should see that the Sessions trial already pending and one to be committed are disposed of as soon as possible. The Government Advocate should also take notice of the observations made above.