K.D. Sharma, J.
1. This is an application for anticipatory bail on behalf of Rewat Dan and four others namely, Ber Dan, Ridkaran, Bhayaria and Budiya, who stand involved in a criminal case under Section 395 of the Indian Penal Code which is pending in the court of Munsif and Judicial Magistrate, District Jodhpur.
2. The case of dacoity against the five petitioners has been instituted upon a complaint filed by Smt. Madan Kan-war in the court of the said Magistrate on 28-'8i69. The allegations in the complaint were that all the five petitioners made a concerted attack on the complainant and forcibly snatched a box containing ornaments from her hand while she was proceeding towards her house after getting down from train at Mathania Railway Station on 2-6-69 at about 11-15 p.m. According to the complainant, she was taken to police station Mathania by her mother-in-law soon after the occurrence,, but the police did not record her first information report for reasons best known to it. She was then brought by her husband's sister to Jodhpur where she was medically examined as to her injuries at Mahatma Gandhi Hospital on 3-6^69. She was admitted in the hospital for treatment of her injuries. In the evening her husband came to know from her about the occurrence. The husband of Smt. Madan Kanwar made an application to the Superintendent of Police which was forwarded to the Station House Officer, Mathania for necessary action. The Station House Officer, however, did not care to take any action on the basis of this application. Hence the complainant made a complaint in writing to the court of the Munsif and Judicial Magistrate, District Jodhpur. The learned Magistrate did not take cognizance upon the complaint but forwarded it to the Station House Officer for investigation under Sub-section (3) of Section 156 of the old Code of Criminal Procedure. The police made an investigation into the complaint and arrived at a conclusion that no such incident as alleged by the complainant had taken place at the alleged time and place and that Rewat Dan and others were falsely dragged in this case on account of the complainant having been seen by them in illicit intimacy with one Shamla, The police gava a final report accordingly, but the learned Magistrate being not satisfied with the final report given by the police held a preliminary inquiry into the truth of allegations made in the complaint and upon finding that there was sufficient ground for proceeding issued processes against all the petitioners in order to secure their attendance in his court. The petitioners appeared in the court and were released on bail by the learned Magistrate on 6-6-70. As the proceedings were instituted otherwise than a police report the. learned Magistrate proceeded to make an inquiry preparatory to commitment under Section 208 of the old Code of Criminal Procedure. He recorded the statement of the complainant and her witness Smt, Shobha and adjourned the case for recording statements of the witnesses of the defence. Later on the new Code of Criminal Procedure came into force on 1-4-74 wherein it was provided that every inquiry under Chapter XVIII of the old Code which was pending immediately before the date on which the new Code came into force could be dealt with and disposed of in accordance, with the provisions of the new Code. The. learned Judicial Magistrate District, Jodhpur was, therefore, of the view that he would henceforth follow the procedure laid down in Section 209 of the new Code. The petitioners, therefore, aDprehended that they would be committed to the court of Session for trial and would bo remanded to custody during and until the conclusion of the trial in accordance with the new procedure relating to commitment of cases exclusivey triable by the court of Session. Having this apprehension in their minds they have applied to this Court for direction for grant of bail in the event of their arrest at the time of commitment of the case in the court of Session.
3. Notice of this application was given to Shri G.A. Khan acting under the directions of the Public Prosecutor. Shri G.A. Khan has opposed the bail application and has contended before me that this Court has no power to issue direction under Section 438 of the Code of Criminal Procedure for grant of bail to persons who are already on bail and facing inquiry in the court of the committing Magistrate and that the provisions of Section 438 of the new Code of Criminal Procedure are applicable to those persons only who at the initial stage have reason to believe that they will be arrested on an accusation of having committed a non-bailable offence.
4. The learned counsel appearing on behalf of the petitioners, on the other hand, strenuously urged that a direction for grant of bail to a person who reasonably apprehends arrest on an accusation of having committed a non-bailable offence may be given by the High Court or the court of Session in a fit case, irrespective of the fact whether he is going to be arrested without warrant by an officer-in-charge of a police station or in pursuance of a warrant issued in the first instance by a Magistrate taking cognizance of a non-bailable offence or by a committing Magistrate while committing the case against such person to the court of Session for trial.
5. I have given my anxious consideration to the rival contentions. It may be observed at the outset that this application for bail raises an important and indeed an interesting question as to the power of the High Court or the court of Session to issue directions for grant of 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 during and until conclusion of the trial. 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 provisions 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 Code of Criminal Procedure relating to bail. If the committing Magistrate is directed by the High Court or the court of Session under Section 438 of the Code of Criminal Procedure to take 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 Code of Criminal Procedure. 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.
6. I may, however, observe that Section 209 of the new Code is a new provision. One of the main features thereof is that the committing Magistrate also has been given the power to admit a person to bail even though such person may be in custody at the time of commitment of the case to the court of Session. The reason for giving such powers is that in the absence of such a power the accused person would have to apply to the court of Session for grant of bail. The legislature in its discretion, therefore, thought it necessary to give this power to the committing Magistrate by enacting Clause i(b) of Section 209', Cr. P. C. so that the accused person may not be subjected to harassment and may not be compelled to go to the court of Session for obtaining bail. Another feature of this Section 209, Cr. P. C. is that it empowers the Magistrate to remand an accused person who is on bail to custody at the time of committing him to the court of Session for an offence which is triable exclusively by it. But this power is controlled by the provisions of tliis Code relating to bail. The committing Magistrate, therefore, is not empowered to cancel the bail of an accused person and to remand him to custody at the time of committing the case to the court of Session, if he hag been bailed out by an order of the High Court or of the court of Session, unless the order passed by the High Court or the court of Session is of a temporary nature and permits the Magistrate to reconsider the matter at some subsequent stage in the proceedings. There is no scope for the argument that as soon as the learned Magistrate decides to commit the accused he is bound to remand the accused to custody even though the accused is admitted to bail by the order of the High Court or of the court of Session for trial for an offence exclusively triable by it.
7. The next question that arises for consideration is whether an accused who is released on bail by the committing Magistrate himself during the committal proceedings can be remanded to custody at the time of committing the case against him to the court of Session, As stated earlier Section 209 of the new Code gives a power to the Magistrate to remand the accused to custody during and until the conclusion of the trial at the time of committing the case to the court of Session subject to the provisions of the Code relating to bail. The provisions as to bail and bonds are contained in Chapter XXXIII of the new Code. The words 'subject to the provisions of this Code relating to bail' used by the legislature in Clause 209, Cr. P. C. clearly refer to Sections 436, 437, 438 and 439 of the Code of Criminal Procedure which contain provisions relating to bail. Prior to the coming into force of the new Code of Criminal Procedure there wer Section 207A, Sub-section (16) and Section 220 of the old Code corresponding to Section 209, Clause (b) of the new Code wherein the words used to denote the restrictive portion were 'subject to the provisions of this Code regarding the taking of bail'. Since the words used in subsection (16) of Section 207-A and Section 220 of the old Code were 'regarding the taking of bail' there was room for argument that the power given to a Magistrate to commit an accused person by taking him into custody was subject to that part of Section 497, Cr. P. C. only which dealt with 'taking of bail' and that at the time of committing the accused for trial before a court of Session the Magistrate could not order for the release of the accused if there were reasonable grounds for believing that the accused had committed a non-bailable offence punishable with death or imprisonment for life, unless special provisions regarding age, sex, infirmity and sickness were applicable. But now when Section 207-A and Section 220 have been repealed and a new provision is incorporated in Clause i(b) of Section 209, Cr. P. C. which contain the words 'subject to the provisions of this Code relating to bail' in lieu oE the words 'subject to the provisions of this Code regarding taking of bail' contained in the repealed sections, the committing Magistrate shall have due regard to all the provisions of this new Code relating to bail including Sub-section (5) of Section 437 thereof. Sub-section (5) of Section 437 reads as follows:
Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
The power to cancel bail is governed by the provisions relating to bail, hence tha provision contained in Sub-section (5) of Section 437 of the new Code can very well be read within the restrictive portion of Clause (b) of Section 209. Cr. P. C.
8. The result wiE be that the power of the committing Magistrate to cancel the bail of en accused who has been bailed out by him and to remand him to custody during and until the conclusion of the trial is subject to the provisions contained in Sub-section (5) of Section 437, Cr. P. C. also. Hence the committing Magistrate who has admitted an accused to bail under Sub-section (1) or Sub-section (2) of Section 437, Cr. P. C. may cancel his bail and commit him to custody, if he considers it necessary so to do. The words 'if it considers necessary to do so' used in Sub-section (5) of Section 437, Cr. P. C. clearly indicate that the committing Magistrate should exercise its discretion in taking the accused into custody at the time of committing the case on sound judicial principles and should not act arbitrarily on surmises or conjectural grounds. The accused to whom bail is granted by the Magistrate may be arrested and committed to custody, if he, in any manner,, misuses the liberty granted to him, or if he by his conduct has disentitled himself to the concession so granted, or if he has done or has tried to do something which hampers or is likely to hamper administration of justice in any manner.
9. For the foregoing reasons the bail application filed by the petitioners under Section 438 of the Code of Criminal Procedure cannot be allowed and it is hereby rejected.