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Talab Haji HussaIn Vs. Madhukar Purshottam Mondkar and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1958SC376; (1958)60BOMLR937; 1958CriLJ701; (1958)IIMLJ37(SC); (1958)36MysLJ(SC)224; [1958]1SCR1226
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369, 426, 426(2-A), 426(2-B), 496, 497, 498, 561A and 598; Indian Penal Code (IPC), 1860 - Sections 120-B, 379, 475, 477, 477-A and 506; Constitution of India - Article 136
AppellantTalab Haji Hussain
RespondentMadhukar Purshottam Mondkar and anr.
Cases ReferredLalaJairam Das & Others v. King Emperor
Excerpt:
.....of bailable as well asnon-bailable offences. clearly then itcannot be said that the right of a person accused of a bailable offence to bereleased on bail cannot be forfeited even if his conduct subsequent to thegrant of bail is found to be prejudicial to a fair trial. 9. it would also be interesting to notice that, even before s. and this would be equally true incases of both bailable as well as non-bailable offences. theargument is that a person accused of a bailable offence has such an unqualifiedright to be released on bail that even if he does his worst to obstruct or to defeata fair trial, his bail-bond cannot be cancelled and a threat to a fair trialcannot be arrested or prevented. 426 is, and was intend to contain,a complete and exhaustive statement of the powers of a high..........conduct entirely subversive ofa fair trial in the court. we do not read s. 496 as conferring on a personaccused of a bailable offence such an unqualified, absolute and an indefeasibleright to be released on bail. 8. in this connection, it would be relevant to consider the effect of theprovisions of s. 498. under s. 498(1), the high court or the court of sessionsmay, even in the case of persons accused of bailable offences, admit suchaccused persons to bail or reduce the amount of bail demanded by the prescribedauthorities under s. 496. shri purushottam no doubt attempted to argue that theoperative part of the provisions of s. 498(1) does not apply to persons accusedof bailable offences; but in our opinion, there can be no doubt that thissub-section deals with cases of persons accused of.....
Judgment:

Gajendragadkar, J.

1. The appellant, along with others, has been charged under s. 120B of theIndian Penal Code and s. 167(81) of the Sea Customs Act (8 of 1878). There isno doubt that the offences charged against the appellant are bailable offences.Under s. 496 of the Code of Criminal Procedure the appellant was released onbail of Rs. 75,000 with one surety for like amount on December 9, 1957, by thelearned Chief Presidency Magistrate at Bombay. On January 4, 1958, anapplication was made by the complainant before the learned Magistrate forcancellation of the bail; the learned Magistrate however, dismissed theapplication on the ground that under s. 496 he had no jurisdiction to cancelthe bail. Against this order, the complainant preferred a revisionalapplication before the High Court of Bombay. Another application was preferredby the complainant before the same Court invoking its inherent power under s.561 A of the Code of Criminal Procedure. Chagla C.J. and Datar J. who heardthese applications took the view that, under s. 561A of the Code of CriminalProcedure the High Court had inherent power to cancel the bail granted to aperson accused of a bailable offence and that, in a proper case, such power canand must be exercised in the interests of justice. The learned Judges thenconsidered the material produced before the Court and came to the conclusionthat, in the present case, it would not be safe to permit the appellant to beat large. That is why the application made by the complainant invoking the HighCourt's inherent power under s. 561A of the Code of Criminal Procedure wasallowed, the bail-bone executed by the appellant was cancelled and an order waspassed directing that the appellant be arrested forthwith and committed tocustody. It is against this order that the appellant has come to this Court inappeal by special leave. Special leave granted to the appellant has, however,been limited to the question of the construction of s. 496 read with s. 561A ofthe Code of Criminal Procedure. Thus the point of law which falls to beconsidered in the present appeal is whether, in the case of a person accused ofa bailable offence where bail has been granted to him under s. 496 of the Codeof Criminal Procedure, it can be cancelled in a proper case by the High Courtin exercise of its inherent power under s. 561A of the Code of CriminalProcedure This question is no doubt of considerable importance and itsdecision would depend upon the construction of the relevant sections of theCode.

2. The material provisions on the subject of bail are contained in Sections 496to 498 of the Code of Criminal Procedure. Section 496 deals with personsaccused of bailable offences. It provides that 'when a person charged withthe commission of a bailable offence is arrested or detained without warrant byan officer is charge of a police station or is brought before a court and isprepared at any time, while in the custody of such officer or at any stage ofthe proceedings before such court, to give bail, such person shall be releasedon bail.' The section further leaves it to the discretion of the policeofficer or the court if he or it thinks fit to discharge the accused person onhis executing a bond without sureties for his appearance and not to take bailfrom him. Section 497 deals with the question of granting bail in the case ofnon-bailable offences. A person accused of a non-bailable offence may bereleased on bail but he shall not be so released if there appear reasonablegrounds for believing that he has been guilty of an offence punishable withdeath 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 thereare not reasonable grounds for believing that the accused has committed anon-bailable offence but there are sufficient grounds for further enquiry intohis guilt and it lays down that in such cases the accused shall, pending suchenquiry, be released, on bail or at the discretion of the officer or court, onthe execution by him of a bond without sureties for his appearance ashereinafter provided. Sub-section (3) requires that, when jurisdiction undersub-s. (2) is exercised in favour of an accused person, reasons for exercisingsuch jurisdiction shall be recorded in writing. Sub-section (3A) which has beenadded in 1955 deals with cases where the trial of a person accused of anynon-bailable offence is not concluded within a period of sixty days from thefirst day fixed for taking evidence in the case and it provides that suchperson shall, if he is in custody during the whole of the said period, bereleased on bail unless for reasons to be recorded in writing the magistrateotherwise directs. The last sub-section confers on the High Court and the Courtof 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 theprovisions of this section should be arrested and committed to custody. Section498(1) confers on the High Court or the Court of Session power to directadmission to bail or reduction of bail in all cases where bail is admissibleunder Sections 496 and 497 whether in such cases there be an appeal againstconviction or not. Sub-section (2) of s. 498 empowers the High Court or theCourt 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 whichreference must be made in this connection and that is s. 426 of the Code. Thissection incidentally deals with the power to grant bail to persons who havebeen convicted of non-bailable offences when such convicted persons satisfy thecourt 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 powerhas been conferred on the High Court under sub-s. (2B) of s. 426 where the HighCourt is satisfied that the convicted person has been granted special leave toappeal to the Supreme Court against any sentence which the High Court has imposedor maintained. Sub-section (3) provides that, if the appellant who is releasedon bail under said sub-s. (2) or (2B) is ultimately sentenced to imprisonment,the time during which he is so released shall be excluded in computing the termfor which he is so sentenced. That briefly is the scheme of the Code on thesubject of bail.

3. There is no doubt that under s. 496 a person accused of a bailableoffence is entitled to be released on bail pending his trial. As soon as itappears that the accused person is prepared to give bail, the police officer orthe court, before whom he offers to give bail, is bound to release him on suchterms as to bail as may appear to the officer or the court to be reasonable. Itwould even be open to the officer or the court to discharge such persons onexecuting 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 madedefinite improvement in favour of persons accused of non-bailable offences, itwould nevertheless be correct to say that the grant of bail in such cases isgenerally a matter in the discretion of the authorities in question. Theclassification of offences into the two categories of bailable and non-bailableoffences may perhaps be explained on the basis that bailable offences aregenerally regarded as less grave and serious than non-bailable offences. Onthis basis it may not be easy to explain why, for instance offences under Sections477, 477A, 475 and 506 of the Indian Penal Code should be regarded as bailablewhereas offences under s. 379 should be non-bailable. However, it cannot bedisputed that s. 496 recognizes that a person accused of a bailable offence hasa right to be enlarged on bail and that is a consideration on which ShriPurushottam, for the appellant, has very strongly relied.

4. Shri Purushottam has also emphasized the fact that, whereas legislaturehas specifically conferred power on the specified courts to cancel the bailgranted 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 personsaccused of bailable offences If legislature had intended to confer such a powerit would have been very easy for it to add an appropriate sub-section under s.496. The omission to make such a provision is, according to Shri Purushottam,not the result of inadvertence but is deliberate; if that is so, it would notbe legitimate or reasonable to clothe the High Courts with the power to cancelbails in such cases under s. 561A. It is this aspect of the matter which needscareful examination in the present case.

5. Section 561A was added to the Code in 1923 and it purports to save theinherent power of the High Courts. It provides that nothing in the Code shallbe deemed to limit or affect the inherent power of the High Court to make suchorders as may be necessary to give effect to any order under the Code or toprevent abuse of the process of any court or otherwise to secure the ends ofjustice. It appears that doubts were expressed in some judicial decisions aboutthe existence of such inherent power in the High Courts prior to 1923. That iswhy legislature enacted this section to clarify the position that theprovisions of the Code were not intended to limit or affect the inherent powerof the High Courts as mentioned in s. 561A. It is obvious that this inherentpower can be exercised only for either of the three purposes specificallymentioned in the section. This inherent power cannot naturally be invoked inrespect of any matter covered by the specific provisions of the Code. It cannotalso be invoked if its exercise would be inconsistent with any of the specificprovisions of the Code. It is only if the matter in question is not covered byany specific provisions of the Code that s. 561A can come into operation,subject further to the requirement that the exercise of such power must serveeither of the three purposes mentioned in the said section. In prescribingrules of procedure legislature undoubtedly attempts to provide for all casesthat are likely to arise; but it is not possible that any legislative enactmentdealing with procedure, however carefully it may be drafted, would succeed inproviding for all cases that may possibly arise in future. Lacunae aresometimes discovered in procedural law and it is to cover such lacunae and todeal with cases where such lacunae are discovered that procedural lawinvariably recognizes the existence of inherent power in courts. It would benoticed that it is only the High Courts whose inherent power is recognized bys. 561 A; and even in regard to the High Courts' inherent power definitesalutary safeguards have been laid down as to its exercise. It is only wherethe High Court is satisfied either that an order passed under the Code would berendered ineffective or that the process of any court would be abused or thatthe ends of justice would not be secured that the High Court can and mustexercise its inherent power under s. 561 A. There can thus be no dispute aboutthe scope and nature of the inherent power of the High Courts and the extent ofits exercise.

6. Now it is obvious that the primary object of criminal procedure is toensure a fair trial of accused persons. Every criminal trial begins with thepresumption of innocence in favour of the accused; and provisions of the Codeare so framed that a criminal trial should begin with and be throughoutgoverned by this essential presumption; but a fair trial has naturally twoobjects in view; it must be fair to the accused and must also be fair to theprosecution. The test of fairness in a criminal trial must be judged from thisdual point of view. It is therefore of the utmost importance that, in acriminal trial, witnesses should be able to give evidence without anyinducement or threat either from the prosecution or the defence. A criminaltrial must never be so conducted by the prosecution as would lead to theconviction of an innocent person; similarly the progress of a criminal trialmust not be obstructed by the accused so as to lead to the acquittal of reallyguilty offender. The acquittal of the innocent and the conviction of the guiltyare the objects of a criminal trial and so there can be no possible doubt that,if any conduct on the part of an accused person is likely to obstruct a fairtrial, there is occasion for the exercise of the inherent power of the HighCourts to secure the ends of justice. There can be no more importantrequirement of the ends of justice than the uninterrupted progress of a fairtrial; and it is for the continuance of such a fair trial that the inherentpowers of the High Courts are sought to be invoked by the prosecution in caseswhere it is alleged that accused persons, either by suborning or intimidatingwitnesses, are obstructing the smooth progress of a fair trial. Similarly, ifan accused person who is released on bail jumps bail and attempts to run to aforeign country to escape the trial, that again would be a case where theexercise of the inherent power would be justified in order to compel theaccused to submit to a fair trial and not to escape its consequences by takingadvantage of the fact that he has been released on bail and by absconding toanother country. In other words, if the conduct of the accused personsubsequent to his release on bail puts in jeopardy the progress of a fair trialitself and if there is no other remedy which can be effectively used againstthe accused person, in such a case the inherent power of the High Court can belegitimately invoked. In regarded to non-bailable offences there is no need toinvoke such power because s. 497(5) specifically deals with such cases. Thequestion which we have to decide in this case is whether exercise of inherentpower under s. 561A against persons accused of bailable offences, who have beenreleased on bail, is contrary to or inconsistent with the provisions of s. 496of the Code of Criminal Procedure.

7. Shri Purushottam contends that the provisions of s. 496 are plainlyinconsistent with the exercise of inherent power under s. 561A against theappellant in the present case and; he argues that, despite the order which hasbeen passed by the High Court, he would be entitled to move the trial court forbail again and the trial court would be bound to release him no bail becausethe right to be released on bail recognized by s. 496 is an absolute and anindefeasible right; and despite the order of the High Court, that right wouldstill be available to the appellant. If that be the true position, the orderpassed under s. 561A would be rendered ineffective and that itself would showthat there is a conflict between the exercise of the said power and theprovisions of s. 496. Thus presented, the argument no doubt is prima facieattractive; but a close examination of the provisions of s. 496 would show thatthere is no conflict between its provisions and the exercise of thejurisdiction under s. 561A. In dealing with this argument it is necessary toremember that, if the power under s. 561A is exercise by the High Court, thebail offered by the accused and accepted by the trial court would be cancelledand the accused would be ordered to be arrested forthwith and committed tocustody. In other words, the effect of the order passed under s. 561A, justlike the effect of an order passed under s. 497(5) and s. 498(2), would be notonly that the bail is cancelled but that the accused is ordered to be arrestedand committed to custody. The order committing the accused to custody is ajudicial order passed by a criminal court of competent jurisdiction. Hiscommitment to custody thereafter is not by reason of the fact that he isalleged to have committed a bailable offence at all; his commitment to custodyis the result of a judicial order passed on the ground that he has forfeitedhis bail and that his subsequent conduct showed that, pending the trial, hecannot be allowed to be at large. Now, where a person is committed to custodyunder such an order, it would not be open to him to fall back upon his rightsunder s. 496, for s. 496 would in such circumstances be inapplicable to hiscase. It may be that there is no specific provision for the cancellation of thebond and the re-arrest of a person accused of a bailable offence; but that doesnot mean that 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 ofa fair trial in the court. We do not read s. 496 as conferring on a personaccused of a bailable offence such an unqualified, absolute and an indefeasibleright to be released on bail.

8. In this connection, it would be relevant to consider the effect of theprovisions of s. 498. Under s. 498(1), the High Court or the Court of Sessionsmay, even in the case of persons accused of bailable offences, admit suchaccused persons to bail or reduce the amount of bail demanded by the prescribedauthorities under s. 496. Shri Purushottam no doubt attempted to argue that theoperative part of the provisions of s. 498(1) does not apply to persons accusedof bailable offences; but in our opinion, there can be no doubt that thissub-section deals with cases of persons accused of bailable as well asnon-bailable offences. We have no doubt that, even in regard to persons accusedof bailable offences, offences, if the amount of bail fixed under s. 496 isunreasonably high the accused person can move the High Court or the Court ofSessions for reduction of that amount. Similarly, a person accused of abailable offence may move the High Court or the Court of Sessions to bereleased on bail and the High Court or the Court of Sessions may direct eitherthat 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 orderpassed by the High Court or the Court of Sessions, the provisions of sub-s. (2)become applicable to his case; and under these provisions the High Court or theCourt of Sessions is expressly empowered to cancel the bail granted by it andto arrest the accused and commit him to custody. This sub-section, as we havealready pointed out, has been added in 1955 and now there is no doubt thatlegislature has conferred upon the High Court or the Court of Sessions power tocancel bail in regard to cases of persons accused of bailable offences wheresuch persons have been admitted to bail by the High Court or the Court ofSessions under s. 498(1). The result is that with regard to a class of cases ofbailable offences falling under s. 498(1), even after the accused persons areadmitted to bail, express power has been conferred on the High Court or theCourt of Sessions to arrest them and commit them to custody. Clearly then itcannot be said that the right of a person accused of a bailable offence to bereleased on bail cannot be forfeited even if his conduct subsequent to thegrant of bail is found to be prejudicial to a fair trial.

9. It would also be interesting to notice that, even before s. 498(2) wasenacted, there was consensus of judicial opinion in favour of the view that, ifaccused persons were released on bail under s. 498(1), their bail-bond could becancelled and they could be ordered to be arrested and committed to custodyunder the provisions of s. 561A of the Code [Mirza Mohammad Ibrahim v. Emperor : AIR1932All534 , Seoti v. Rex : AIR1948All366 , Bachchu Lal v.State : AIR1951All836 , Munshi Singh v. State : AIR1952All39 andThe Crown Prosecutor, Madras v. Krishnan I.L.R. 1946 Mad. 62. Thesedecisions would show that the exercise of inherent power to cancel bail unders. 561A was not regarded as inconsistent with the provisions of s. 498(1) ofthe Code. It is true that all these decisions referred to cases of personscharged with non-bailable offences; but it is significant that the provisionsof s. 497(5) did not apply to these cases and the appropriate orders werepassed under the purported exercise of inherent power under s. 561A. Onprinciple then these decisions proceed on the assumption, and we think rightly,that the exercise of inherent power in that behalf was not inconsistent withthe provisions of s. 498 as it then stood.

10. It would now be relevant to enquire whether, on principle, a distinctioncan be made between bailable and non-bailable offences in regard to the effectof the prejudicial conduct of accused persons subsequent to their release onbail. As we have already observed, if a fair trial is the main objective of thecriminal procedure, any threat to the continuance of a fair trial must beimmediately arrested and the smooth progress of a fair trial must be ensured;and this can be done, if necessary, by the exercise of inherent power. Theclassification of offences into bailable and non-bailable on which are basedthe deferent provisions as to the grant of bail would not, in our opinion, haveany material bearing in dealing with the effect of the subsequent conduct ofaccused persons on the continuance of fair trial itself. If an accused person,by his conduct, puts the fair trial into jeopardy, by his the primary andparamount duty of criminal courts to ensure that the risk to the fair trial isremoved and criminal courts are allowed to proceed with the trial smoothly andwithout any interruption or obstruction; and this would be equally true incases of both bailable as well as non-bailable offences. We, therefore, feel nodifficulty in holding that, if, by his subsequent conduct, a person accused ofa bailable offence forfeits his right to be released on bail, that forfeituremust be made effective by invoking the inherent power of the High Court unders. 561A. Omission of legislature to make a specific provision in that behalf isclearly due to oversight or inadvertence and cannot be regarded as deliberate.If the appellant's contention is sound, it would lead to fantastic results. Theargument is that a person accused of a bailable offence has such an unqualifiedright to be released on bail that even if he does his worst to obstruct or to defeata fair trial, his bail-bond cannot be cancelled and a threat to a fair trialcannot be arrested or prevented. Indeed Shree Purushottam, went the length ofsuggesting that in such a case the impugned subsequent conduct of the accusedmay give rise to some other charges under the Indian Penal Code, but it cannotjustify his re-arrest. Fortunately that does not appears to be the true legalposition if the relevant provisions of the Code in regard to the grant of bailare considered as a whole along with the provisions of s. 561A of the Code.

11. It now remains to consider the decision of the Privy Council in LalaJairam Das & Others v. King Emperor (1945) L.R. 72 IndAp 120, becauseShri Purushottam has very sstrongly relied on some of the observations made inthat case. According to that decision, the provisions of the Code of CriminalProcedure confer no power on High Courts to grant bail to a person who has beenconvicted and sentenced to imprisonment and to whom His Majesty in Council hasgiven special leave to appeal against his sentence and conviction. Divergentviews had been expressed by the High Courts in this country on the question asto the High Courts' power to grant bail to convicted persons who had been givenspecial leave to appeal to the Privy Council; these views and the scheme of theCode in regard to the grant of bail were examined by Lord Russel of Killowenwho delivered the judgment of the Board in Lala Jairam Das's case (1945) L.R.72 IndAp 120. The decision has thus no application to the facts before us;but Shri Purushottam relies on certain observations made in the judgment. Ithas been observed in that judgment that 'their Lordships take the viewthat 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 togrant bail, and excludes the existence of any additional inherent power in aHigh Court relating to the subject of bail'. The judgment further showsthat 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 convictedperson. It would be clear from the judgment that their Lordships were notcalled upon to consider the question about the inherent power of the HighCourts to cancel bail under s. 561A. That point did not obviously arise in thecase before them. Even so, in dealing with the question as to whether inherentpower could be exercised for granting bail to a convicted person, their Lordshipsdid refer to s. 561A of the Code and they pointed out that such a power cannotbe properly attributed to the High Courts because it would, if exercised,interrupt the serving of the sentence; and, besides it would, be in the eventof the appeal being unsuccessful, result in defeating the ends of justice. Itwas also pointed out that if the bail was allowed in such a case, the exerciseof the inherent power would result in an alteration by the High Court of itsjudgment which is prohibited by s. 369 of the Code. In other words, eitherLordships examined the provisions of s. 561A and came to the conclusion thatthe power to grant bail to a convicted person would not fit in with the schemeof Chapter XXXIX of the Code read with s. 561A. In our opinion, neither thisdecision nor even the observations on which Shri Purushottam relied can affordany assistance in deciding the point which this appeal has raised before us.Incidentally we may add that it was as a result of the observations made by thePrivy Council in that case that s. 426 of the Code was amended in 1945 andpower has been conferred on appropriate courts either to suspend the sentenceor to grant bail as mentioned in the several sub-sections of s. 426. That ishow s. 426(2A) and (2B) now deal with the subject of bail even though the mainsection is a part of Chapter XXXI which deals with appeals, references andrevisions.

12. We must accordingly hold that the view taken by the Bombay High Courtabout its inherent power to act in this case under s. 561A is right and must beconfirmed. It is hardly necessary to add that the inherent power conferred onHigh Courts under s. 561A has to be exercised sparingly, carefully and withcaution and only where such exercise is justified by the tests specificallylaid down in the section itself. After all, procedure, whether criminal orcivil, must serve the higher purpose of justice; and it is only when the endsof justice are put in jeopardy by the conduct of the accused that the inherentpower can and should be exercised in cases like the present. The result is thatthe appeal fails and must be dismissed.

13. Appeal dismissed.


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