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In the Matter of Sasti Charan Mondal and Others - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1974CriLJ1326
AppellantIn the Matter of Sasti Charan Mondal and Others
Cases ReferredSwapan K. Banerjee v. State
Excerpt:
- .....are as 'follows:if. in any case, triable by a magistrate, the trial of persons accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in. custody during the whole of the said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be written in writing, the magistrate otherwise directs.while it is undoubtedly true that the aforesaid provisions which are not wholly new. pinpoint the expediency of accused persons being released on bail after a particular period of time and the same is in consonance with one of the tridimen-sional obiects of the new code viz... that every effort should be made to avoid delay in investigation and trial which is.....
Judgment:

N.C. Talukdar, J.

1. This is an application for bail on behalf of eight adcused applicants with notice to the State. The application is opposed,

2. The application brings to light a point of some importance relating to the powers of the High Court regarding bail as laid down in Section 439 of the Code of Criminal Procedure, 1973 (Act II of 1974). The facts necessary for appreciating the point raised can be put in a short compass, A first information was lodged at the Sainthia Police Station on the 16th September, 1971, at about 12.35 hours by one Netai Chandra Bhandari alleging inter alia that at about 1.00 hours in the night when he was sleeping in the veranda of the first floor of his east facing house and his son Anil a student of Class IX, and his two daughters were sleeping in two different rooms on the same floor, some persons called him by his name and an enquiry disclosed their identity as Naxalites. The de facto complainant came down with a lighted lantern on request, and found the accused-applicants along with 4-5 other armed with daggers, gun-like weapons and torches. They requested him to show the way to the river. His son, Anil, who in the meanwhile had come down was asked by the de facto complainant not to come but he was also persuaded to accompany. When they reached the tank called 'Sunri Pukur'. towards the west of the village, the members of the raiding party suddenly attacked Anil with daggers and when the de facto complainant rushed to his rescue, he was threatened with dire consequences and one of them fired a shot from a gun-like weapon. The consequent hue and cry attracted several villagers to-the spot and the members of the raiding party disappeared shouting slogans. Anil was found to be dead. The Police on completing the investigation submitted a charge-sheet against all the accused under Sections 148/149/364/302 of the Indian Penal Code. An inquiry under Chapter XVIII of the Criminal Procedure Code, 1898 followed. The accused persons were directed by the learned Enquiring Magistrate to be released on bail as and when they were produced before him and they continued' on such bail for about two years till the order of their committal. The learned Sub-Divisional Judicial Magistrate Suri Sadar. Birbhum. ultimately committed the accused-applicants to the Court of Session to stand their trial on charges under Sections 148, 149/364 and 149/302 of the Indian Penal Code-and they were taken into custody. An application for bail was moved thereafter before the learned Sessions Judge, Suri on the 28th February, 1974 but the same was rejected. A similar prayer made before the High Court was also rejected on the 14th March, 1974, with a direction for expediting the Sessions trial. This closes the first chapter. The Code of Criminal Procedure, 1973 (Act II of 1974), having come into force in the meanwhile on and from the 1st April. 1974 and the Sessions trial being delayed till the 1st of July. 1974 the date fixed for the purpose, the present application for bail was filed on the 20th May, 1974.

3. Mr. Bhakti Bhusan Mondal Advocate (with Mr. Bhakti Pada Ghosh;, Advocate) appearing in support of the application made a two-fold submission. The first dimension of his contention is that the scope and ambit for granting bail under the new Code is definitely wider than that under the old Code and as such the difficulty that stared this Court in the face on the earlier occasion did no longer hold good, even a part from the further materials arising for consideration. Mr. Rajesh Ghosh, Deputy Legal Remembrancer. State of West Bengal, however, joined issue and submitted that the provisions of the Repealed Code and the new Code, being by and large the same, and the line of decisions under the former being applicable to the latter, the considerations for granting bail by the High Court remain substantially the same. Mr. Mondal, to lend assurance to-his submissions, referred to the proviso to Section 167(2); the provisions of Section 437(6); and those of Section 439(1)(a) of the new Code. Section 167 of Act II of 1974 corresponds to Section 167 of Act V of 1898 and the proviso under Section 167(2) of the new Code inter alia lays down that

But no Magistrate shall authorize detention of the accused persons in custody under this section for a total period exceeding 60 days, the accused persons shall be released etc.' The orovisions again of Sub-Section (6) to Section 437 of the new Code, corresponding to Section 497 (3A) of Act V of 1398, as inserted by the Code of Criminal Procedure, (Amending) Act, 26 of 1954, are as 'follows:

If. in any case, triable by a Magistrate, the trial of persons accused of any non-bailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person shall, if he is in. custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be written in writing, the Magistrate otherwise directs.

While it is undoubtedly true that the aforesaid provisions which are not wholly new. pinpoint the expediency of accused persons being released on bail after a particular period of time and the same is in consonance with one of the tridimen-sional obiects of the new Code viz... that every effort should be made to avoid delay in investigation and trial which is harmful not only to the individual involved but also to soiciety the said provisions however, are of no avail to Mr. Mondal. Section 167 clearly pinpoint the stage of investigation and Section 437(6) relates to a case triable by a Magistrate. The present proceedings, started as an investigation, maturing into an inquiry under chapter XVIII of Act V of 1898 and ultimately culminating in a Sessions trial, do not come within the ambit of either of the aforesaid provisions which have no manner of application to the facts of the present case.

4. We will now proceed to consider the provisions of Section 439 (1) (a) of Act II of 1974 relating to the special powers of the High Court or Court of Session regarding bail. The provisions are as follows:

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 (31 of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-Section.

There is a proviso under Sub-Clause (b) viz.,

that the High Court or the Court of Session, shall before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor, unless it is, for reasons to be recorded in writing of opinion that it is not practicable to give such a notice.

For a proper consideration, however, of the point at issue as to whether the new provisions have widened the scope of the High Court's power for granting bail, a reference is to be made to the provisions of Sections 497 and 498 of Act V of 1898. Section 497 of the old Code has got some co-relation with Section 498 thereof as the language of the relevant provisions would indicate.

5. The words 'a court' under Section 497 (1) Code of Criminal Procedure, 1898 are not qualified, in any way. to rule out the High Court or the Court of Session. In the proviso thereunder the words used are 'the Court'. In Sub-Section (5) of the said section the specific words used are 'a High Court or a Court of Session etc.' This is in clear contrast to the corresponding provisions in the new Code viz., in Section 437(1) where, as has been observed before, the word 'court' is qualified by the words 'other than the High Court or Court of Session'. The provisions under Section 498 of the old Code referred to 'in any case' and the provisions of Section 439 of the new Code also are unfettered and the imposition of conditions, as referred to therein is discretionary if the High Court or the Court of Session considers necessary for the purposes mentioned in Section 437(3). The aforesaid provisions, however, do not constitute a consideration for bail but merely relate to the condition of bail, if and when deemed necessary. The proviso given under Section 439(1)(b) merely relates to the procedure to be adopted before granting bail in cases triable exclusively by the Court of Session or, though not so triable, punishable with imprisonment for life. Accordingly, the provisions of Section 439 of the new Code are not, in any way, controlled or coloured by the considerations incorporated in Section 437 unlike the provisions of Section 498 of the old Code which have got reference to Section 497 (1) of the said Code laying down one of the many considerations to be taken in view by the High Court or the Court of Session in granting bail under Section 498 of the old Code. The principles of interpretation of statute also lend assurance to the said interpretation. One of the well-established statutory constructions, as was observed by Crawford in 'The Construction of Statutes' is 'Red-dendo Singula Singulis' requiring that words in different parts of a statute must be referred to their appropriate connection, giving to each in its place, its appropriate force and effect and 'if possible, rendering none of them useless or superfluous'. Applying 'the principle of intent and that of meaning' to the relevant provisions relating to bail in the old Code as well as in the new Code, we ultimately hold that the provisions contained in the Code of Criminal Procedure, 1973 (Act II of 1974) clearly extend the periphery of the powers of the High Court to grant bail, in a case involving an offence punishable with death or imprisonment for life or imprisonment for a term of seven years or more.

6. The imprimatur of judicial decisions on the point supports the same view viz., that although the provisions of Section 497 (1) of the old Code do not, in terms, control the provisions of Section 498 but those nonetheless constitute one of the relevant considerations, amongst others, for the judicial exercise of the powers for granting bail by the High Court or the Court of Session, in cases of non-bailable offences, where there appear reasonable grounds for believing that the accused is guilty of an offence punishable with death or imprisonment for life or with imprisonment for a term of 7 years or more. A reference in this context may be made to the cases of State v. Jagjit Singh, reported in : [1962]3SCR622 wherein it has been observed that 'various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witness being tampered with, the larger interest of public or the State and similar other considerations which arise when a court is asked for bail in a non-bailable offence'. Mr. Justice Wanchoo (as his Lordship then was) delivering the judgment of the Court ultimately observed at page 255 that 'even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a nan-bailable offence'. Without multiplying the number, a reference again may be made to the case of Swapan K. Banerjee v. State, reported in (1971) 75 Cal WN 939 : 1972 Cri LJ 71 wherein the Division Bench of this Court observed at page 944 that

The provisions of Section 497 (1). Criminal Procedure Code accordingly do not, in terms, control or qualify the provisions of Section 498 Criminal Procedure Code, but the same nonetheless constitute one of the relevant considerations, amongst several others, in the judicial exercise of the powers of granting bail by the Hiah Court or the Court of Session relating to non-bailable offences, where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.

The provisions of Section 437 of the new Code, unlike those of Section 497 (1) of the old Code, do not constitute such a relevant consideration.

7. Section 437(1) of the Code of Criminal Procedure, 1973 which lays down the circumstances in which bail may be granted by the Court in a case of non-bailable offence, inter alia provides that 'he (the accused) shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life'. The 'court' referred to therein, however, as clearly stated, is 'other than the High Court or the Court of Session.' The bar, as enjoined under Section 437(1) of the new Code, therefore does not control or even constitute a consideration for the exercise of the special powers of the High Court or the Court of Session as enjoined in Section 439 of the same Code. The provisions are clearly distinct as specifically mentioned in Section 437(1) excepting with regard to the imposition of conditions, as mentioned in Section 439(1)(a) if the offence is of the nature specified in Section 437(3). but the same is, however, discretionary. The provisions contained in the second part of Section 439(1)(a) of the new Code only relate to conditions of bail and not considerations for bail. The pith and substance of the said provisions is that the High Court or a Court of Session may direct any person accused of an offence and in custody to 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. The provisions in Section 439(1)(a) for imposing conditions in cases involving offences of the nature as specified in Section 437(3) are again discretionary, and do not control, in any way the overriding powers of the High Court or the Court of Session to grant bail. The powers of the High Court or the Court of Session, therefore, remain untrammelled, subject only to the proviso mentioned under Section 439(1)(b) that

before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable is punishable with imprisonment for life, the High Court shall give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.

The relevant provisions of the two Codes are, therefore, quite distinct and the words used by the statute highlight such differences. New dimensions have now been added to the provisions for bail; new horizons have been opened. The provisions are not. therefore, by and large, the same as urged by the learned Deputy Legal Remembrancer; the differences are marked and material, sticking out for miles. The same is however, based on Rood reasons, toeing the line with 'the felt necessities of the time', as Mr. Justice Holmes put it. The mounting up exigencies of a welfare State cannot be overlooked and as has been aptly observed by Mr. Justice Frankfurter 'Law is not mere abstraction. It is not a mere imprisonment of the past but unfolding of the future'. We respectfully agree and ultimately hold that the wider provisions of the new Code, as pinpointed by Mr. Mondal, lend assurance to his renewal of the application for bail. Whether it should be allowed or not is entirely a different matter depending on the merits, which we will have to consider. The first dimension of Mr, Mondal's submissions accordingly succeeds.

8. We shall now proceed to consider the second dimension of Mr. Mondal's submissions on merits, as reinforced by the further materials. The learned Deputy Legal Remembrancer, however, opposed the same and contended that an application filed in this behalf, was rejected earlier by the High Court and that the test required at this stage is not an ultimate determination on merits but a mere prima facie test and that the same has been clearly satisfied. We are, however, unable to uphold the submissions of Mr. Ghosh. In the first place, it is abundantly clear that the earlier application for bail was made in March 1973, in the backdrop of the old Code whereunder the consideration laid down under Section 497 (1) of Act V of 1898 relating to bails, in cases of non-bailable offences punishable with death or imprisonment for life or imprisonment for 7 years or more, did constitute one of the relevant considerations in exercising the discretion conferred under Section 498. The discretion of the High Court, under Section 439 of the new Code, however, as the words of the statute clearly indicate, is much wider being untrammelled and unfettered by the consideration mentioned in Section 437(1). In the second place, some new materials have been relied upon by Mr. Mondal. The evidence of P.W. 1, the only witness examined in the Committal Court, was not available for consideration on the earlier occasion. P.W. 1 admitted that the assailants had their faces covered and he could only suspect about their identity from the physical contour of the persons. It further appears from the record that in spite of the direction given in the High Court's order for expediting the Sessions trial, the same has been fixed so late as on the 1st of July, 1973, onwards. Mr. Mondal submitted that in the interests of justice, these factors should be taken into consideration along with the further fact that the accused applicants who were granted bail by the learned Enquiring Magistrate and remained on such bail for about two years, never abused the said indulgence. He also submitted that reasonable terms and conditions may be imposed to ensure that the trial may not be hampered and the witnesses be not tinkered with. On an overall consideration of the facts and circumstances of the case and in the light of the provisions of the new Code, we ultimately hold that the accused-applicants should ex debito iustitiae be enlarged on bail on proper terms and conditions ensuring that the Sessions trial may be held without any let or hindrance.

9. In the result, we allow the application; and we direct that the accused-applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Suri, District Birbhum. on such terms and conditions as he may deem fit and proper.

10. The order may go down expeditiously.

A.N. Banerjee, J.

11. I agree.


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