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Ramsewak and ors. Vs. State of M.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1979CriLJ1485
AppellantRamsewak and ors.
RespondentState of M.P.
Cases ReferredRewat Dan v. State of Rajasthan
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 1. this is a reference of the single bench of this high court which raises an important.....faizanuddin, jj.1. this is a reference of the single bench of this high court which raises an important and indeed an interesting question relating to the powers of the high court and the court of session to issue directions for grant of anticipatory bail to persons who have been released on bail during committal proceedings and have not yet been committed in custody to the court of session for trial, but who apprehend that they may at the time of committing the case to the court of session be remanded to custody by the committing magistrate.2. in this reference we are not much concerned about the facts as they exist before the trial court, but it would be appropriate to refer and state the essential part of the relevant facts in brief so as to appreciate the points at issue, properly and.....
Judgment:

Faizanuddin, JJ.

1. This is a reference of the single Bench of this High Court which raises an important and indeed an interesting question relating to the powers of the High Court and the Court of Session to issue directions for grant of anticipatory bail to persons who have been released on bail during committal proceedings and have not yet been committed in custody to the Court of Session for trial, but who apprehend that they may at the time of committing the case to the Court of Session be remanded to custody by the committing Magistrate.

2. In this reference we are not much concerned about the facts as they exist before the trial Court, but it would be appropriate to refer and state the essential part of the relevant facts in brief so as to appreciate the points at issue, properly and effectively.

3. The factual aspect of this case which emerges out, giving rise to this reference is that one Keshev Ram Dubey lodged a report in the Police Station, Pawai against the four accused/applicants named above (hereinafter referred to as applicants) to the effect that they had kidnapped his daughter. Consequently, the applicants under apprehension of their arrest moved an application for grant of anticipatory bail for the alleged offence under sections 363, 366 and 376 of the I.P.C. The Chief Judicial Magistrate, Panna (in absence of the Addl. Sessions Judge, Panna) granted the anticipatory bail to the applicants for the aforesaid offences, by his order, dated 25-5-1978. Thereafter, the applicants were charge-sheeted for offences under sections 363 and 366 of the I.P.C. The applicants again, apprehending that they may be commited to the Court of Session under custody, as the offences were triable by Sessions Court, filed another application for anticipatory bail before the Sessions Judge, Panna, but he being on leave the application was again heard and considered by the Chief Judicial Magistrate who by his order, dated 5-1-1979 rejected the same holding that no anticipatory bail can be granted as challan has already been filed and that at the time of committing the case to the Sessions the Magistrate is empowered under Section 209 of the Cr. P.C. to take the accused into custody.

4. The applicants being aggrieved by the aforesaid order rejecting their second application for anticipatory bail, moved a petition before this Court under Sections 438, 482 and 483 of the Cr. P.C. 1973 (hereinafter referred to as the Code), placing reliance on a decision of a brother Judge of this Court, U.N. Bhachawat. J. in B.L. Verma v. State of M.P. M.C.C. No. 1063 of 1978, decided on 13-10-1978 Reported in 1979 Jab LJ 419 holding that under Section 438 of the Code, the High Court and the Court of Session are competent to grant anticipatory bail even during pendency of the committal proceedings before the committing Magistrate by directing that in the event of the accused being committed to the Court of Session and is taken into custody, he shall be released on bail. But the learned Judge of the single Bench of this Court (C. P. Sen, J.) noticed another decision of another brother Judge of this Court, S.S. Sharma, J. in Kanhaiyalal Rathi v. State of M.P. Cr. R. No. 130 of 1977 decided on 7-5-1977 : 1978 MPLJ Note 30, wherein the learned Judge is of the view that the provisions of anticipatory bail can be availed of till the challan is filed in the case. In other words, no anticipatory bail can be granted after the challan is filed (vide findings of para 8). The learned Judge of the single Bench of this Court hearing the petition of the applicants for grant of anticipatory bail, noticed yet another decision of single Bench of Rajasthan High Court in Rawat Dan v. State of Rajasthan 1975 Cri LJ 691 wherein it has been held that the High Court has no power to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appearance before the Court of Session, as according to the learned Judge, of the Rajasthan High Court, such a direction if given will amount to taking away the discretion or power given to him under Clause (b) of Section 209 of the Code. In other words, according to learned Judge Section 438 of the new Code governing the anticipatory bail does not empower the High Court or the Court of Session to grant anticipatory bail directing the committing Magistrate not to commit the accused persons under custody.

5. The learned Judge of the single Bench of this Court being placed in the midst of such divergent views, formulated two questions for consideration by a larger Bench and in consequence of which a reference has been made to this Bench for opinion. The two questions formulated and referred for our opinion are as follows:

(i) Whether the bail granted under Section 438 of the Code is valid for those offences for which bail has been granted till the conclusion of the trial; and

(ii) Whether an application for anticipatory bail can lie for directing the committing Magistrate not to commit the accused persons under custody while committing the case to the Court of Session.

6. At the very outset, before we dwell on the subject of anticipatory bail, its scope and extent with relation to the powers of the High Court and the Court of Session, we would first like to go through the guiding principies of interpretation and construction of statutes.

7. According to, Salmond's Jurisprudence, 'the object of interpreting a statute is to ascertain the intention of the legislature enacting it.' (11th Edition page 152). It is also a well established principle of rule of interpretation, that if the statutory provision is open to more than one interpretation, the Court has to choose that interpretation which represents the true intention of legislature. His Lordship of the Supreme Court. Gajendra-gadkar, J. (as then he was), in Ram Krishna Ram Nath v. Janpad Sabha : AIR1962SC1073 at p. 1079 said, the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the legislature itself. Thus in our view it follows that in case of doubt, it is always safer to have an eye on the object and purpose of the statute, or reason and spirit behind it and that is why the Courts strongly lean against a construction which tends to reduce the statute to a futility. It has also been laid down by the Supreme Court of India, that the principle, that the statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is saving clause or a proviso.

8. It will not be out of place to mention that the historical facts and the surrounding circumstances which led to the enacting of a statute or a particular provision in the statute, are also an admissible aid to interpretation and construction so as to discover the real intention, object and spirit behind it. In H. M. Edwards v. A. G. of Canada AIR 1930 PC 120 at p. 125 as stated by Lord Halsbury, it was laid down as under:

The subject-matter with which the legislature was dealing and the facts, existing at the time with respect to which the legislature was legislating, are legitimate topics to consider in ascertaining what was the object and purpose of the legislature in passing the Act.

9. The legislature in a modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. Primarily the legislation is directed to the problems before it based on information derived from past and present experience. It may also be designed by use of general words to cover up similar problems arising in future. But from the very nature of things it is impossible to anticipate fully the various situations arising in future. The words chosen to communicate such indefinite object and purpose, are bound to be in many cases, lacking in clarity and precision which give rise to controversial question of interpretation.

10. Now again, before we proceed to deal with the real concept of Section 438 of the Code, relating to the grant of anticipatory bail, we would first prefer to mention the facts and situation in which the said provision of law in the new Code of 1973 was introduced. In the repealed old Cr. P.C. of 1898. there was no provision for an order of anticipatory bail and there existed division of judicial verdicts on the point whether a Court had the power to pass an order for anticipatory bail. Some of the High Courts were of the opinion that the Courts had the powers, while some were of the view that the Courts had no such powers. This controversy, therefore, has been set at rest by introducing Section 438 in the new Cr. P.C. of 1973.

11. We have heard Shri S.K. Dixit, counsel for the applicants and Shri M.L. Chansoria for applicant No. 4 and Shri A. G. Telang, Deputy Govt. Advocate for the State/non-applicant. We have also perused the record of the case.

12. In the background of the aforementioned facts and circumstances and in the light of the principles governing the interpretation and construction of statute, we shall now proceed to deal with the two questions noted above and referred to us for opinion. But before we do so, it would be worthwhile to reproduce the provisions of Sub-sections (1) and (3) of Section 438 of the Code which run as under:

438. Direction for grant of bail to person apprehending arrest.-

(1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit. direct that in the event of such arrest, he shall be released on bail.

(3) If such person is thereafter arrested without warrant by an officer-in-charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail; and if a Magistrate taking cognizance of such offence decides that warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-section (1).

13. Question No. 1: - This question as it is formulated may be conveniently divided into two parts. The first part of it relates to the scope and extent of the anticipatory bail order and the second part relates to the duration of such order. We shall therefore examine the first part of this question presently and the second part of it shall be examined along with the question No. 2.

14. It is an admitted position of law that bail is granted under Chap. XXXIII of the Code and which is specially covered by Sections 436 to 439 of the Code, Section 438 governs anticipatory bail forming a part of it. It is also clear that even if the grant of bail is permissible under any other provisions of the Code under certain special circumstances, the said release on bail will either be deemed to have been granted under Chap. XXXIII of the Code or the same will have to be granted subject to the provisions of the Code relating to bail, which again mean Chap. XXXIII of the Code. For example, bail under the proviso (a) of Sub-section (2) of Section 167 and under Sub-clause (b) of Section 209 of the Code. In this context it will also be advisable to set out the provision of Sub-section (1) of Section 437 of the Code for better understanding.

437. When bail may be taken in case of non-bailable offence--

(1) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warant by an officer-in-charge of a police station or appears or is brought before a Court, other than the High Court or Court of Session, he 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:

Provided that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail:Provided further that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

15. On the bare reading of the above quoted provisions of Sub-section (1) of Section 437 of the Code, it is apparent from the later part of the said provision, that if there appear reasonable grounds for believing that any person has been guilty of an offence punishable with death or imprisonment for life, such an accused shall not be released on bail, unless of course the case is covered by the proviso to Sub-section (1) of Section 437 in which event the bail may be granted in such cases also. It therefore follows that the Court while granting bail in non-bailable offences, it becomes necessary to consider the nature of offence, gravity and seriousness of it, the person as also the age, sex and physical conditions of an accused and this consideration will not be possible unless the accused person apprehending his arrest discloses the nature of an offence under which he apprehends the arrest.

16. It is true that the High Courts and the Court of Session are conferred with very wide and unfettered powers by Section 439 of the Code to admit bail, but such a discretion must not be exercised arbitrarily but on settled juridical principles. The rules as laid down in Section 437 of the Code are based on justice and equity and therefore the same ought to be observed by the High Court and other Courts also. As is clear from the provisions of Section 438 of the Code that the High Court or the Court of Session while granting a bail under Section 438 of the Code, the conditions as contained in Section 437(3) of the Code may be imposed. This leads us to the conclusion that the provisions of Section 438 are not to be read in isolation but together with the provisions of Section 437.

17. In the second line of Sub-sections (1) and (3) of Section 438 of the Code the words, 'on an accusation', mean and refer to the accusation and offences as apprehended by an accused person. Thus we find that the words of Sub-sections (1) and (3) of Section 438 read together with the provisions of Section 437 of the Code, are very clear and unambiguous to convey an idea that the said provisions do not contemplate nor it is so conceivable that a comprehensive and a blanket bail order may be passed so as to cover all sorts of accusations and offences irrespective of their nature and gravity, giving rise to a lot of chaos. The learned Counsel for petitioner could not put forth before us any law laying down the proposition that the bail granted under Section 438 of the Code is valid for offences other than those for which it was granted, Shri Chansoria, however, placed his reliance on Delhi Administration v. Sanjay Gandhi : 1978CriLJ952 but it does not deal with the point in issue at all. We are, therefore, definitely of the view that the bail granted under Section 438 of the Code is valid for those offences for which bail has been granted and for no others. We, therefore, answer the first part of question No. 1 accordingly.

18. Question No. 2 and second part of Question No. 1. Shri M.L. Chansoria, learned Counsel for the applicant strenuously stressed that once an accused person is granted anticipatory bail under the provisions of Section 438 of the new Code at the stage of committal proceedings either by the Sessions or by the High Court, he continues to enjoy that liberty till the conclusion of the trial and the bail does not stand cancelled, ipso facto, after filing of challan. He also argued that even after the grant of anticipatory bail; in the event an accused person entertains a reasonable apprehension that he may be committed to the Sessions Court for trial and at the time of such commitment he may be taken into custody, then on such apprehension an application for anticipatory bail for directing the Committing Magistrate not to commit the accused person under custody to the Court of Session, would lie. He further submitted that even in those cases in which the prosecution does not submit the challan within 60 days as required by law and the accused is enlarged on bail under the provisions of proviso (a) of Section 167(2) of the new Code, such bail is not restricted to the period till challan is filed and the committing Magistrate has no power to remand the accused in custody under the provisions of Clause (b) of Section 209 of the new Code and the bail may be cancelled only when the Magistrate considers to do so under the provisions of Section 437(5) of the Code and not otherwise. The learned Deputy Govt. Advocate, did not seriously oppose the above mentioned contentions of the learned Counsel for the applicants. We have given due consideration to the submission made before us and we shall now proceed to examine the law in this behalf.

19. We, however, feel it necessary that before we begin to deal with the point in issue directly and the underlying concept of Section 438 of the new Code, we would first discuss the background and the historical context of this important provision of the Act and the reasons which led to the introduction of this section into the new Code. When the Bill was in the Lok Sabha, the various objects of the amendments were stated and one of the observations that was made, was that by virtue of the new amendment there was liberalisation of bail provisions. The Law Commission also in its 41st Report recommended as under:

Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false case for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalary, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

20. Now, against this background, we shall proceed to examine the relevant provisions in order to answer the question. On perusal of the provisions of Section 438 of the Code as reproduced earlier in. the foregoing para No. 12 it is abundantly clear that it is attracted only in non-bailable offences and that this extraordinary power could be exercised only by the Court of Session or the High Court to grant anticipatory bail. It may also be noted that Section 438 of the Code does not contain any guidelines or the conditions on the basis of which the order for anticipatory bail could be passed, for the simple reason that Section 438 of the Code is immediately subsequent to Section 437 which is the main section dealing with bails in non-bailable offences and which contains the terms and conditions under which an order for bail could be passed. In Balchand v. State of M.P. AIR 1977 SC 366 it was observed that the conditions proposed by Section 437(1) of the Code are implicitly contained in Section 438 of the Code. In para No. 17 at page 377 of Balchand's case (supra) their Lordships of the Supreme Court observed as under:

We have already stated that Section 438 of the Code does not contain the conditions on which the order for anticipatory bail could be passed. As Section 438 immediately follows Section 437 which is the main provision for bail in respect of non-bailable offences it is manifest that the conditions imposed by Section 437(1) are implicitly contained in Section 438 of the Code. Otherwise the result would be that a person who is accused of murder can get away under Section 438 by obtaining an order for anticipatory bail without the necessity of proving that there were reasonable grounds for believing that he was not guilty of offence punishable with death or imprisonment for life. Such a course would render the provisions of Section 437 nugatory and will give a free licence to the accused persons charged with non-bailable offences to get easy bail by approaching the Court under Section 438 and by-passing Section 437 of the Code.

21. Now in Section 438(1) of the Code what does the expression, 'when any person has reason to believe that he may be arrested' mean? Does it refer to a particular time or stage of such apprehension of arrest? In our view, it does not refer to any time or stage, unless the gap is filled in by addition of certain words or by supplying foreign material not contained in the provision, which is not permissible by law. The words and language of Section 438(1) and (3) are so very clear and unambiguous so as to lead to the only irresistible conclusion that, whenever any person apprehends that he is likely to be arrested in a non-bailable offence, he may apply either to the High Court or Court of Session for grant of anticipatory bail, either before his actual arrest or during the course of committal proceedings if (he) apprehends that he is likely to be committed under custody by the Magistrate while committing the case to the Court of Session. It is the apprehension of any person who has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, which has to be given due consideration and weight. If his apprehensions continue even at the stage of committal Court proceedings there is nothing in the section which debars him from applying for an anticipatory bail in case of his apprehended commitment under custody. If it were not so, the provision would be rendered nugatory and the very object and purpose of the legislature to save the person from undergoing the rigours of jail even for few days, specially when it is yet to be seen whether prosecution is false or not would be frustrated. Moreover, the aforesaid view we have taken is in consonance and in accordance with the scheme and intention of the legislature which is clear from the backgrond and the historical facts mentioned above which led to the introduction of this new provision of anticipatory bail.

22. Again there is nothing in Section 438 of the Code to suggest that the order of anticipatory bail shall be effective up to a particular stage or till the filing of challan. As soon as a person is enlarged on bail on the directions of anticipatory bail order, granted under Section 438, it would be deemed by implication as if the bail was granted under Section 437(1) of the Code. Consequently, the bail shall be effective till the conclusion of trial, unless it is cancelled by the Court taking action under Section 437(5) or under Section 430(2) of the Code on the grounds known to law and filing of challan in the Court is by itself no ground to cancel the bail.

23. In Dashrath v. State of M.P. 1978 Jab LJ 261 a Single Bench of this Court had an occasion to deal with somewhat similar problem in which relying on Natabar Parida v. State of Orissa : AIR1975SC1465 it was observed as under:

There is nothing in the language of Section 167 that restricted the bail to last up to the time the challan was filed. The cancellation of bail has to be in accordance with the provisions of Sub-section (5) of Section 437.

24. Again in B.L. Verma v. State of M.P. M. Cr. C. No. 1063 of 1978, decided on 13-10-1978 : Reported in 1979 Jab LJ 419 a Single Bench of this Court constituted by Hon'ble U.N. Bhachawat, J., it was observed in para 19 of the judgment as set out below:

The upshot of the foregoing discussion is that the bail of a person bailed out under an order under Section 438 could not stand cancelled or cannot be cancelled by a Magistrate merely on the ground that a charge sheet has been filed. It shall remain valid until the conclusion of the trial, unless it is cancelled by an appropriate Court under Section 437(5) or 439(2).

(underlining is ours)

25. In a recent case Kabilas v. State of M.P. M. Cr. C. No. 1433 of 1978, decided on 30-11-1978 (Madh Pra) by Hon'ble Malik, J. of this Court relying on Seoti v. Rex AIR 1948 All 366 (FB) held in para No. 7 of judgment as under:

The remand to custody under Section 209 is made subject to the provisions of bail. Once bail has been granted under Section 167(2) of the Code which by the deeming provision would be taken as bail granted under Section 437(1) of the Code, the bail must remain operative till the conclusion of trial unless it is cancelled under Section 437(5) for reasons of misuse of privilege or for some other reasons.

26. After examining the aforesaid decisions and the relevant provisions of the law we find ourselves in full agreement; with proposition of law laid down in the above-quoted decisions of this Court. This apart, the matter has now been set at rest by a very recent decision of the Supreme Court reported in Bashir v. State of Haryana : 1978CriLJ173 in which their Lordships observed as under:

As under Section 167(2) a person who has been released on the ground that he had been in custody for a period over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one under Section 437 (1) or (2). Seftion 437(5) empowers the Court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under Section 437 (1) or (2) and these provisions are applicable to a person who has been released under Section 167(2). Under Section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had committed a non-bailable offence may be committed to custody by Court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. As provisions of Section 437 (1), (2) and (5) are applicable to a person who has been released under Section 167(2) the mere fact that subsequent to his release a challan has been filed is not sufficient to commit him to custody

(underlining is ours).

27. In this view of the matter, with greatest regard to the Hon'ble Judge, we do not find ourselves in agreement with the proposition of law laid down by our brother S.S. Sharma, J. in Kanhaiyalal Rathi v. State of M.P.C.R. No. 130 of 1977 decided on 7-5-1977 : 1978 MPLJ (SN) 30 wherein it is laid down as under:

Under Sub-section (1) of Section 438, Cr. P.C. all that the High Court or Court of Session does is to give a direction that in the event of arrest the accused may be released on bail. The words 'thereafter arrested without warrant' in Sub-section (3) definitely go to show that this order of bail will be applicable only when the police officer arrests the accused without warrant. The latter half of Sub-section (3) will apply when the Magistrate on taking cognizance is required to issue a warrant. The Magistrate in such eventuality has in the first instance to issue a bailable warrant in conformity with the directions of the Court. If the direction in Section 438(1) were to be applicable even after filing of charge sheet the latter part of Sub-section (3) of Section 438 would not have been necessary. That apart, Section 437 clearly refers to grant of bail when the person appears or is brought before the Court. It cannot therefore be contended that the order under Section 438(1) remains operative even after filing of charge sheet.

In our opinion, there is nothing in the later part of Sub-section (3) of Section 438 of the Code indicating that the Legislature did not intend the issue of direction under Section 438(1) of the Code after filing of charge sheet. The words of Sub-sections (1) and (3) of Section 438 of the Code are clear and unambiguous. That being so, according to the elementary rule of interpretation of statutes, the grammatical and natural meaning must be given to the words. Moreover the view we take also accords with the scheme and intention of Section 438 of the Code. The object and intention of the section is to prevent the mischief which is sometimes played by false implication of innocent persons. Therefore, merely filing of challan cannot circumvent the extraordinary powers and the benefit conferred by the provisions of Section 438 of the Code. According to Us the provision as contained in Sub-section (3) of Section 438 of the Code relates to the working of the order of anticipatory bail passed under Sub-section (1) of Section 438 and the manner in which it would be given effect to, by the police or the Magistrate as the case may be.

28. The learned Counsel for the applicants also assailed the law laid down by a single Bench of Rajasthan High Court reported in 1975 Cri LJ 691. Rewat Dan v. State of Rajasthan in which the Hon'ble E. D. Sharma, J. of that Court in para No. 5 of the judgment observed as under:

To my mind, Section 438 of the new Code does not empower the High Court or the Court of Session to make the order prayed for in this application. This section no doubt authorises the High Court and the Court of Session to grant bail in anticipation of arrest upon an application made by a person who has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence; but this Court has no power to direct the committing Magistrate that in the event of committing the case to the Court of Session, if the accused person is not in custody, he shall take bail from him for appearance before the Court of Session. It cannot be lightly assumed that the provision of Sub-section (1) of Section 438 of the new Code empowers the High Court or the Court of Session to interfere with the discretion given to the committing Magistrate under Clause (b) of Section 209 of the new Code. Under the aforesaid clause a committing Magistrate has the power to remand the accused to custody during and until the conclusion of the trial subject to certain restrictions contained in the provisions of the Cri. P.C. relating to bail. If the committing Magistrate is directed by the High Court or the Court of Session under Section 438, Cri. P.C. to lake bail from an accused who is not in custody in the event of the case against him being committed to the Court of Session, such a direction will tantamount to taking away the discretion or power given to him under Clause (b) of Section 209 of the Cri. P.C. Consequently I do not feel inclined to hold that Section 438(1) can be construed in such a manner so as to give power to the High Court or the Court of Session in the event of committing the case to the Court of Session to issue a direction to the committing Magistrate that if the accused is not in custody he shall take bail from him for appearance before the Court of Session.

With due respect and greatest regard to the Hon'ble Judge we are unable to persuade ourselves to subscribe to the view taken by him. These observations and the observations made in Kanhaiyalal's case (supra) run counter to the observations and law laid down by their Lordships of the Supreme Court in Bashir's case (supra).

29. In order to focus our views on the aforesaid observations, we would like to reproduce Section 209 of the Code which runs as under:

Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought bet fore the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall:

(a) commit the case to the Court of Session;

(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and arts, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

30. It would be also advisable to reproduce the provisions of Clause (a) and Sub-section (2) of Section 439 of the Code for ready reference and better understanding:

'439. Special powers of High Court or Court of Session regarding1 bail.

(1) A High Court or Court of Session may direct-

(a) that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section.

(b) xx xx xx xx(2) A High Court or Court of Session may direct that any person who has been released on bail under this chapter be arrested and commit him to custody.

31. Now after perusal of the aforesaid provisions of law it is clear as to what has found favour with the learned Judge of Rajasthan High Court is that if the committing Magistrate is directed by the High Court or the Court of Session under Section 438 of the Code to admit the accused on bail who is not in custody, in 'the event of the case against him, being committed to the Court of Session, such a direction, will in the opinion of the learned Judge, tantamount to taking away the discretion or power given to the Magistrate under Clause (b) of Section 209 of the Code, But to our mind, looking to the provisions of anticipatory bail and background and historical facts leading to its addition in the new Code, the very purpose, object and intention of the legislature will be lost if the above construction is given to the provisions in question. It appears, the learned Judge omitted to give due weight to the provisions of Clause (b) of Section 209 of the Code, which unequivocally speaks that the Magistrate, 'shall subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial.' It may be noted that the provisions of Clause (b) of Section 209 of the Code under which the learned Magistrate has to commit the accused, do not envisage the cancellation of bail but on the contrary it envisages that while so committing the Magistrate shall remand the accused subject to the 'provisions of the Code relating to bail.' Chapter XXXIII of the Code is the Chapter which deals with the grant of bail and the provisions of Sections 438 and 439 of the Code are very much part of the said chapter. In this view of the matter it cannot be said with any stretch of imagination that Section 438 of the Code, does not empower High Court and the Court of Session to grant bail as it would amount to interference with the discretion given to the committing Magistrate under Clause (b) of Section 209 of the Code.

32. It will not be out of place to mention that looking to the provisions of Section 439(1)(a) of the Code, the Magistrate does not enjoy the exclusive powers with regard to the grant of bail. The provisions in quite unambiguous terms speak that this power of the High Court and the Court of Session is concurrent with that of the Magistrate. It would be wholly against the very spirit of law to say that when a case is pending before a Magistrate, the High Court or the Court of Session, would have no jurisdiction to entertain and decide an application for bail as it would amount to an interference in the discretion of the Magistrate. In this view of the matter, with great respect to the learned Judge, we are of the opinion that Rewat Dan's case (supra) is not a good law and does not lay down the correct proposition of law.

33. In the result, our opinion in the question referred to this Bench is thus:

(1) The bail granted under Section 438 of the Code will be valid and operative for those offences only for which the bail has been granted which would last till the conclusion of the trial, unless it is cancelled under Section 437(5) of the Code if it is so necessary to do so; and

(2) An application for anticipatory bail can lie for directing the committing Magistrate not to commit the accused persons under custody while committing the case to the Court of Session.

The reference is, therefore, answered accordingly.


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