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Govind Prasad Vs. the State of West Bengal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1975CriLJ1249
AppellantGovind Prasad
RespondentThe State of West Bengal
Cases ReferredSupdt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy. Choudhury
Excerpt:
- n.c. talukdar, j.1. this is an application for bail filed on behalf of one govind prasad lath and is directed against an order dated the 20th march, 1975, passed by the learned additional chief metropolitan magistrate, calcutta, refusing the petitioner's prayer for bail in ludhiana p. s. case no. 620 dated 15-12-1974 under sections 406/408/468 and 471 of the indian penal code. the application is with notice to the state and is opposed,2. the facts leading on to the present application can be put in a short compass, on a complaint lodged by one sat paul kanwar, decribed as a partner of the vardhman general and spinning mills ltd., at p. s. sadar ludhiana, ludhiana p. s. case no. 620 dated 15-12-1974 was started under sections 406/408/ 468/471 of the indian penal code. in course, of the.....
Judgment:

N.C. Talukdar, J.

1. This is an application for bail filed on behalf of one Govind Prasad Lath and is directed against an order dated the 20th March, 1975, passed by the learned Additional Chief Metropolitan Magistrate, Calcutta, refusing the petitioner's prayer for bail in Ludhiana P. S. Case No. 620 dated 15-12-1974 under Sections 406/408/468 and 471 of the Indian Penal Code. The application is with notice to the State and is opposed,

2. The facts leading on to the present application can be put in a short compass, On a complaint lodged by one Sat Paul Kanwar, decribed as a partner of the Vardhman General and Spinning Mills Ltd., at P. S. Sadar Ludhiana, Ludhiana P. S. Case No. 620 dated 15-12-1974 was started under Sections 406/408/ 468/471 of the Indian Penal Code. In course, of the investigation that followed, the accused-petitioner who is stated to be a businessman living at 132/1. Mahatma Gandhi Read, Calcutta, was arrested on the 20th March, 197,5, by the Ludhiana Police with the assistance of the police of the Jorasanko Police Station, in Calcutta and was produced on the same day before the learned Additional Chief Metropolitan Magistrate. Calcutta. On an application for bail moved on behalf of the accused-petitioner, Sri N. G. Choudhury, Additional Chief Metropolitan Magistrate, Calcutta, by his order dated the 20th March. 1975, rejected the prayer for bail 'at this stage,' and allowed the officer concerned coming from Ludhiana to take the accused away for being produced at the Ludhiana Court and to report, compliance to the Calcutta Court by 8-4-1975. He further directed the accused to be in police custody till 29-3-1975 and ordered the matter to be put up on 25-3-1975 when the Investigating Officer was to be present with the case diary. This Order has been impugned and forms the subject-matter of the present application, which was filed in this Court on the 21st March, 1975 but could not be heard. On the same date, an application for bail was also filed in the court below but as the High Court was in seisin of the matter as mentioned above, the application could not be considered.

3. The submissions of Mr. Prasun Chandra Ghosh, Senior Advocate (with Messrs R. N. Chakraborty, Tapan Kumar Mitra, S. P. Talukdar, S. S. Roy and P. B. Chakraborty. Advocates) appearing in support of the application, are of four dimensions. Firstly, that the order passed by the learned Additional Chief Metropolitan Magistrate, Calcutta is not sustainable as being self-contradictory; secondly, that it is bad in law and improper because of. amongst others, the non-consideration of the non-conformance to Section 50 of the Code of Criminal Procedure, 1973; thirdly that the impugned order is not also maintainable on merits and has operated to the prejudice of the accused-petitioner, inasmuch as, amongst others, the proceeding itself is not maintainable in law; and fourthly and finally that in any event the prayer for bail should have been allowed on compassionate grounds on any terms and conditions that the Court deemed fit and proper because of the manifold ailments which the accused-petitioner was suffering from. Mr. Rajesh Chandra Ghosh. Deputy Legal Remembrancer, State of West Bengal, besides replying to the contentions raised by Mr. Prasun Chandra Ghosh, on behalf of the accused-petitioner, raised a preliminary objection relating to the maintainability of the bail application on the ground that the learned Additional Chief Metropolitan Magistrate, Calcutta, is not the Magistrate 'having jurisdiction in the case'.

4. The preliminary objection raised by the learned Deputy Legal Remembrancer is of importance, going to the root of the case and is accordingly taken up for consideration in the first blush. The board submissions of Mr. Rajesh Chandra Ghosh in this behalf is that inasmuch as the accused-petitioner was arrested without warrant by the Ludhiana Police in Calcutta while pursuing the offender into other jurisdiction, the Calcutta Court has no option but to forward the accused-petitioner to the Ludliana Court as the Court 'haying jurisdiction in the case', and on this ground alone, apart from the question of merits, the order passed by the learned Additional Chief Metropolitan Magistrate, Calcutta, rejecting the prayer for bail should be upheld. The steps of the learned Deputy Legal Remembrancer's reasoning are that the present case was instituted in Ludhiana and the investigation started there; that it was the Ludhiana Police that, arrested the accused-petitioner in Calcutta with the assistance of the police of the Jorasanko P, S.; that the learned Additional Chief Metropolitan Magistrate, Calcutta, is merely the Court where the accused was produced in accordance with Section 56 read with Section 167 of the Code of Criminal Procedure, 1973; that the learned Magistrate at Calcutta is not the Court 'having jurisdiction in the case' and as such has no power to grant bail; and that the power to grant bail can only be exercised by the Court which has also the power to cancel the same. Mr. Prasun Chandra Ghosh, appearing on behalf of the accused-petitioner joined issue, submitting inter alia that this objection was neither raised before nor considered by the learned Additional Chief Metropolitan Magistrate, who clearly proceeded on other grounds; that the preliminary objection raised by the learned Deputy Legal Remembrancer is neither maintainable in law nor on merits; that it is de hors the specific provisions contained in Chapters V, VI, XII and XXXIII of the Code of Criminal Procedure 1973; and that the preliminary objection raised now is also concluded by the principle of Issue Estoppel inasmuch as (a) in the earlier case instituted by Sri Paul Oswal, a Director of the company on substantially the same facts viz., for allegedly committing offences under Sections 467/468/477A and 409 of the Indian Penal Code in respect of the same amount of Rs. 7.000/- a warrant of arrest was issued by the Ludhiana Court; (b) in execution thereof when the accused was produced before the then Chief Presidency Magistrate at Calcutta on the 25th April. 1973. the Calcutta Court granted bail to accused-petitioner, directing him to appear before the Ludhiana Court in due course; (c) thereafter the Rule issued for a cancellation of the bail so granted was ultimately discharged on 14-6-1973 by A. K. Basu and N. C. Mukherjee, JJ., of the Calcutta High Court in Criminal Revn. Case No. 393 of 1973 (Cal); and (d) that ultimately the proceedings in Ludhiana were also quashed by the High Court of Punjab and Haryana at Chandigarh. The learned Advocates appearing on behalf of the respective parties also relied on certain decisions which will be considered in due course.

5. For a proper consideration of the point at issue ascertaining the animus imponentis or the intention of the law maker, we will have to consider the provision of the statute in the first instance. The relevant provisions of the new Code are wide enough, pinpointing a marked departure from those of the old Code, Section 48 of the Code of Criminal Procedure 1973 provides for the pursuit of offender into other jurisdiction and the same corresponds to Section 58 of Act V of 1898, The next relevant provision viz., Section 50 is a new and material one. Sub-section (1) of Section 50 requires a Police Officer or other person arresting any person without warrant to communicate to him forthwith 'full particulars of the offences for which he is arrested or other grounds for such arrest.' This section, which has a distinct, tradition has been inserted on the recommendation of the Joint Committee on the Bill of 1970 and for good reasons viz., to bring the latter in conformity with the provisions of Article 22 of the Constitution of India. Dr. Durgadas Basu in his commentaries on the New Code of Criminal Procedure has observed that 'the object of the safeguard is to enable the person arrested to move for habeas corpus to obtain his release.' The provisions of Section 56, which are the same as in the old Code, may next be considered. It is as follows, 'A police officer making an arrest without warrant shall, without, unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station'. The words 'subject to the provisions herein contained as to bail' are significant and proper meaning and effect is to be given to the same. It is pertinent in this context to refer to the observations of S. R. Das, J., delivering the judgment of the Court in the case of the State of Punjab v. Ajaib Singh reported in : 1953CriLJ180 that 'there can be no manner of doubt that arrests without warrants issued by a Court call for greater protection than do arrests under such warrants. The provision that the arrested persons should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.' We respectfully agree and apply the same to the facts of the present case. The position is only made clearer by the provisions relating to arrest without warrant. A reference in this context may also be made to the case of Nagendra, ILR 51 Cal 402 : (25 Cri LJ 732) which is a case under the old Act and also the relevant provisions of Sections 436(1) and 437(1) corresponding to Sections 496 and 497 of the old Code. Dr. Durgadas Basu in his commentaries on the New Code of Criminal Procedure has observed that 'the safeguard embodied in Sections 56-57 was embodied by the makers of our Constitution in Article '22(2) in order to guarantee it against legislative encroachment, with liberalisation on important points.' We agree with the same and we hold that the words 'subject to the provisions herein contained as to bail' clearly make the provision of Chapter XXXIII of Act 2 of 1974 applicable to such cases and bring the position on a par with that enjoined under Section 81 of the said Code. The other relevant provision in this connection is that in Section 57 which provides that the person arrested is not to be detained for more than 24 hours in the absence of a special order of a Magistrate under Section 167. It is pertinent now to refer to the provisions of Chapter VI. The provision relating to arrest without warrant may now be considered and the same lifts the cloud, if any, and makes the position clearer. A reference may also be made to the provisions of Sub-section (2) to Section 78 which was engrafted at the instance of the Joint Committee on the Bill of 1970 and was consequential upon the insertion of the second proviso to Section 81(1) of the Code, lays down that 'The Court issuing a warrant under Sub-section (1) shall forward, along with the warrant, the substance of the information against the person to enable the Court acting under Section 81 to decide whether bail should or should not be granted to the person.' The power to grant bail therefore is unequivocally envisaged in the provisions of Section 78 read, with Section 81 of the new Code of Criminal Procedure. It is pertinent in this context to refer to the second proviso to Section 81(1) of the Code of Criminal Procedure which is as follows : - 'Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of Section 437), or the Sessions Judge, of the district in which the arrest is made on. consideration of the information and the documents referred to in Sub-section (2) of Section 78, to release such person on bail.' The only bar therefore is under Section 437(1) which, however, does not apply to the present case involving offences under Sections 406/408/468/471 of the Indian Penal Code and the same also does not apply to the High Court. The abovementioned provisions therefore is a marked departure from that contained in Section 86 of the old Code (Act V of 1898). The relevant recommendation of the Joint Committee in this context are pertinent being a proper interpretation and are as follows : - 'Under the present provision (old Section 86) where a warrant of arrest is sent to a place outside the local jurisdiction of a Magistrate, for execution, the arrested person has necessarily to be transported in custody to the Magistrate issuing the warrant before he can claim to be released on bail .... this results in considerable hardship and inconvenience to persons arrested far away from Court issuing the warrant of arrest. To remove such hardship and inconvenience, the Committee has amended these clauses conferring power on the Magistrate having jurisdiction over the place of arrest to release the person on bail (new 2nd proviso to Section 81(1)), subject to the other provisions of the Code relating to bail (Section 437). To enable such Magistrate to consider whether bail should be granted, it has further been provided (Section 78(2)) ...that the Magistrate issuing a warrant should also forward along with the warrant the substance of the information, together with relevant documents.' Even under the old Code where the relevant provisions are prima facie more circumscribed, the Courts interpreted the words 'appear to be the person intended by the Court' more expansively and a reference in this context may be made to the cases of In Re : Sagarmal Khemraj AIR 1940 Bom 397 : (42 Cri LJ 205) and Khan Chand Tarachand Samtani v. The State (1970) 74 Cal WN 753 : 1971 Cri LJ 149. In the Bombay case, the warrant issued having been found to be not sufficiently definite the accused was directed to be released and in the Calcutta case it was observed that 'While the executing magistrate is not certainly a rubber stamp, bound to execute any and every warrant coming from outside the local limits of his jurisdiction, he is nonetheless bound by the condition as imposed in the said section.' The new provisions engrafted in Act 2 of 1974 have, however, thrown the flood-gates open and made the position distinctly wider.

6. To ascertain the real intention of the legislature, the different provisions of the statute should not be analysed piecemeal but taken together and the entire scheme of the Act has to be taken into consideration. The different provisions of Chapter V relating to arrests without warrant in other jurisdiction and of Chapter VI. relating to such arrests with warrant, are set down in a particular order and the same when considered, in the background of the provisions of Chapter XII, relating to power of investigation and in Chapter XXXIII, relating to bail and bonds, clearly bring to light the animus imponentis. In the context a reference may be made to the case of M/s, Tractoroexport, Moscow v. Tarapore and Co.. Madras, reported in : [1970]3SCR53 wherein Mr. Justice Ramaswami observed at page 20 that 'A statute should not be construed as a theorem of Euclid but the statute must be construed with some imagination of the purpose which lies behind the statute. The doctrine of literal interpretation is not always the best method for ascertaining the intention of Parliament.' A reference may also be made to the case of Eastern Photographic Co, v. Comptroller General of Patents reported in 1898 AC 571 where Lord Halsbury approved of and applied the same principle. At page 575 of the judgment, Lord Halsbury referred to and relied upon the following observations of Lord Justice Turner in the cases of Hawkins v. Gathercole (1885) 6 D. M & G. 1 at p. 21 and Stradling v. Morgan (1560) 1 Plowd 201 (204), 'We have therefore to consider not merely the words of this Act of Parliament, but the intent of the Legislature, to be collected from the cause and necessity of the Act being made, from a comparison of its several parts, and from foreign (meaning extraneous) circumstances so far as they can Justly be considered to throw light upon the subject,' Lord Halsbury ultimately observed at page 576 that 'My Lords, it appears to me that to construe the statute now in question, it is not only legitimate but highly convenient to refer both to the former Act and to the ascertained evils to which the former Act had given rise, and to the later Act which provided the remedy. These three things being compared, I cannot doubt the conclusion.' We respecfully agree and we hold that the better rule of interpretation in such facts and circumstances is that a statute should be so construed as to prevent the mischief and advance the remedy according to the true intent of the makers of the statute. Maxwell in his 'Interpretation of Statutes' aptly observed that 'the statute is the will of the legislature and the fundamental rule of interpretation, to which all others are subordinate, is that a statute has to be expounded 'according to the intent of them that made it'.' The provisions of the new Code highlight indeed the wider powers to grant bail and for good reasons, being broad-based on 'the felt necessities of the time' as the well-known American Judge, Mr. Justice Holmes, put it. A pragmatic approach has been made with regard to the crying needs and as was observed in the case of In the matter of S. C. Mondal reported in (1974) 78 Cal WN 813 at p. 818, 'new dimensions have now been added to the provisions for bail; new horizons have been opened.' The relevant provisions of the new Code, accordingly, are wide enough and any circumscribed interpretation thereof would not only be retrograde but also de hors the intention of the legislature.

7. The imprimatur of judicial decision may now be considered. The learned Deputy Legal Remembrancer, appearing on behalf of the State of West Bengal referred to two cases in support of his contention. He referred in the first instance to an unreported decision dated the 13-7-1973 by S. P. Mitra, C. J. and A. K. De, J., in the case of Madanlal v. The State Criminal Misc. Case No. 957 of 1973 (Cal). The said decision, however, does not lend assurance to the contention of the learned Deputy Legal Remembrancer in this behalf. In the first place the decision is in July. 1973, under the old Code viz., the Code of Criminal Procedure. 1898 the provisions whereof are markedly different from those of the new Code of Criminal Procedure, 1973; and secondly the point now raised by the learned Deputy Legal Remembrancer does not appear to have been even raised and considered in the said judgment. The Division Bench proceeded apparently on merits and ultimately disposed of the Rule with the following observations 'We see no reason to interfere with the order passed by the learned Chief Presidency Magistrate, Calcutta, on the 7th July, 1973. directing that the accused be sent to Court lock-up and the A. C. R. F. is to arrange escort party and cause production of the accused before the Betiah Court nor we do find any reason for granting him bail.' Their Lordships thereafter proceeded to modify the order of the Court below by some directions as prayed for on behalf of the petitioner but there is no reference to the point at issue in this case. The other case referred to by Mr. Rajesh Chandra Ghosh is the case of State v. Sajjan Singh reported in 1953 Cri LJ 1525 : AIR 1953 Pepsu 146 Chief Justice Teja Singh while observing that there is no provision in the Code for anticipatory bail further held that the word 'Court' appearing in Section 497 of the Code of Criminal Procedure, 1898 means the Court which has jurisdiction to try the cases for the offence alleged to have been committed by him. Apart from the fact that the context is different, it should not be overlooked that the observations are made on the basis of the provisions of the old Code and the same is markedly different from the wider provisions of the new Code of 1973. Mr. Prasun Chandra Ghosh, Advocate, appearing on behalf of the accused-petitioner, however, referred to the case of State of Punjab v. Ajaib Singh reported in : 1953CriLJ180 and relied on the observations made by Mr. Justice S. R. Das at p. 15 that 'There can be no manner of doubt that arrests without warrants issued by a Court call for greater protection than do arrests under such warrants. The provision that the arrested persons should within 24 hours be produced before the nearest Magistrate is particularly desirable in the case of arrest otherwise than under a warrant issued by the Court, for it ensures the immediate application of a judicial mind to the legal authority of the person making the arrest and the regularity of the procedure adopted by him.' We respectfully agree with the same. Mr. Ghosh next referred to the fact that earlier, in the case instituted by Sri Paul Oswal, Director of the company, against the present accused-petitioner, substantially on the same facts, when a warrant of arrest was issued by the Ludhiana Court, the then Chief Presidency Magistrate of Calcutta, by his order dated the 25th April, 1973, had granted bail to the accused in that case, directing him to appear before the Ludhiana Court in due course. The Rule obtained from the High Court for a cancellation of the bail so granted by the learned Chief Presidency Magistrate, Calcutta, was ultimately discharged by Mr. Justice A, K. Basu and Mr. Justice N. C. Mukherjee on the 14th June, 1973. Mr. Prasun Chandra Ghosh accordingly submitted that this is a precedent pat on the point in support of his submissions. There are several decisions both reported and unreported on the point in favour of granting bail even under the old Code and without multiplying such cases, a reference may be made to the case of Gulam Mohammad Azimuddin v. State reported in : AIR1959MP147 wherein the Indore Bench observed at page 149 that

But though the Magistrate had no power to grant bail to the petitioner, the Sessions Judge could and this Court can release the petitioners on 'bail to appear before the City Magistrate of Ujjain and in the meantime direct the Madras Police Officer to produce warrants of the Trivellore Court. Madras State, for the arrest -of the petitioners.

It was further observed by Mr. Justice P. V. Dixit at p. 150 that

It is now well settled that the powers of the High Court and the Sessions Court under Section 498 are in no way controlled by Section 497. Criminal Procedure Code, and it is open both to the High Court or to the Court of Sessions to admit ft person to bail on good and sufficient cause in any case.

The relevant provisions in the new Code are much wider bringing clearly to light the right to grant bail in such cases. The imprimatur of judicial decisions therefore lends assurance to the findings arrived at by us based on the provisions of the statute. On an anxious consideration ultimately of the provisions of the statute and of the decisions on the point, we hold that the preliminary objection raised, by the learned Deputy Legal Remembrancer, relating to the absence of jurisdiction of the Calcutta Court to grant bail, is not sustainable and the same accordingly fails.

8. We will now proceed to consider the submissions on merits as made by Mr. Prasun Chandra Ghosh in support of the application for bail. The order passed by the learned Additional Chief Metropolitan Magistrate, Calcutta, on the 20th March 1975 ex facie appears to be contradictory. Although he passed a final order allowing the officer from Ludhiana to take away the accused for production before the Court there and report compliance, he directed at the same time that bail was refused 'at this stage.' To make confusion worse confounded the learned Additional Chief Metropolitan Magistrate. Calcutta, further ordered the bail application to be put up on 25-3-1975 and called upon the Investigating Officer to be present with the case diary on that date although he had, in the first part of the order, virtually closed the chapter and was no longer in seisin of the matter. The directions therefore including the one ordering the accused to be in police custody till 29-3-1975, are incompatible and incongruous and have prejudiced the accused-petitioner. The first dimension of Mr. Prasun Chandra Ghosh's contentions accordingly succeeds.

9. The next contention raised on behalf of the accused-petitioner relates to a non-consideration on the part of the learned Additional Chief Metropolitan Magistrate, Calcutta, of a non-conformance to Section 50 of the new Code of Criminal Procedure (Act 2 of 1974). Section 50 of the Code of Criminal Procedure, 1973 is a new one, added on the recommendations of the Joint Committee. Its provisions are material and cannot be overlooked. It brings the law in conformity, with the provisions of Article 22(1) of the Constitution of India, enabling the person arrested to move for habeas corpus to obtain his release. Mr. Prasun Chandra Ghosh submitted that full particulars of the offences, as enjoined under the new provisions, were not communicated to the accused-petitioner when he was arrested without warrant in Calcutta. The learned Deputy Legal Remembrancer submitted that such objections are ultimately untenable, not affecting the issue of bail. We do not agree. The section confers a valuable right and a non-conformance to its mandatory provisions is a non-conformance to the procedure established by law. The position in law in such cases is quite clear. In the well known case of Taylor v. Taylor reported in (1876) 1 Ch D 426. Jessel, M. R., observed at p. 431 that 'when a statutory power is conferred for the first time upon a court, and the mode of exercising it is pointed out, it means that no other mode is to be adopted...' The said principles were approved- of and applied by their Lordships of the Judicial Committee in thee case of Nazir Ahmed v. The King Emperor, reported in (1936) 63 Ind App 372 : (37 Cri LJ 897) (PC), Lord Roche, delivering the judgment of the Judicial Committee, observed at PP. 381 and 382 that

the rule which applies is a different and not less well recognised rule viz., that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

In a later precision the Supreme Court again reiterated the said principles when in the case of State of Uttar Pradesh v. Singhara Singh reported in : [1964]4SCR485 A. K. Sarkar. J. (as his Lordship then was) delivering the judgment of the court observed at p. 361 that 'the rule adopted in (1876) 1 Ch D 426 is well recognized and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power is to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.' We respectfully agree with the observations made in the abovementioned cases and hold that the learned Addl. Chief Metropolitan Magistrate, Calcutta, has not taken into consideration the impact of such non-conformance and the same has operated to the prejudice of the accused-petitioner. The second dimension also of Mr. Prasun Chandra Ghosh's submissions accordingly succeeds.

10. The next branch of the contentions in support of the application for bail, relates to the merits of the criminal proceedings itself at Ludhiana in connection wherewith the arrest was made without warrant in Calcutta. Mr. Prasun Chandra Ghosh contended that the criminal proceedings instituted at Ludhiana, being unwarranted and untenable, the accused-petitioner has a right to be released on bail. In this context he urged that the present proceedings are but an aftermath of the earlier proceedings based substantially on the same allegations which were ultimately quashed by the High Court of Punjab and Haryana at Chandigarh and as such the present proceedings are barred by the principle of Issue Estoppel. He further contended that the cross case filed by the accused-petitioner against the General Managing Director of M/s. Vardhman Spinning and General Mills Ltd., Ludhiana and others, is still pending in the Court of the-learned Chief Metropolitan Magistrate, Calcutta. The learned Deputy Legal Remembrancer in his reply rightly contended that the point on the merits of the proceedings, as raised on behalf of the accused-petitioner is not only premature but is also de hors the ambit of the present considerations. We agree with the learned Deputy Legal Remembrancer and we hold that it is neither warranted nor proper that we should enter into the merits of the original proceedings. It is for the Court at Ludhiana to determine the question of merits at the proper stage and we have accordingly proceeded to dispose of the application for bail on the merits of the application irrespective of any consideration of the maintainability of the original proceeding. The third dimension of Mr. Prasun Chandra Ghosh's contentions accordingly fails.

11. As to the fourth and last dimension of the submissions made on behalf of the accused-petitioner based on compassionate grounds, we find that excepting some submissions made in paragraph 18 of the objection under consideration, there are no other averments or even medical certificates attached in support thereof. It is accordingly not possible for us to enter into the merits of such submissions. The fourth and last dimension of the defence contentions is disposed of accordingly.

12. In view, however, of our findings on the first two dimensions of the submissions made on behalf of the accused-petitioner and on the preliminary objection raised, the application for bail must succeed. There is no specific definition for bail in the Code and the dictionary as well as the Law Lexicon define the same as security for the appearance of prisoner on giving which the accused is released pending trial or investigation. In Blackstone's Commentaries on the Laws of England, Vol. III. Ch. 19 p. 290 it has been observed that 'the intent of the arrest being only to compel an appearance in Court at the return of the writ, that purpose is equally answered whether the sheriff detains his person or takes sufficient security for his appearance called bail (from the French word Bailler, to deliver) because the defendant is bailed or delivered to his sureties upon their giving security for his appearance.' A reference may again be made to the case of Supdt. and Remembrancer of Legal Affairs v. Amiya Kumar Roy. Choudhury, reported in (1974) 78 Cal WN 320 wherein this Bench observed at p. 325 that 'the Law of Bails, which constitutes an important, branch of the procedural law, is not a static one; and in a welfare State, it cannot indeed be so. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis-adventures of a person alleged to have committed a crime; and on the other, the fundamental canon of Criminal Jurisprudence, viz., the presumption of innocence of an accused till he is found guilty.' Taking into view all these facets of considerations and in the facts and circumstances of the present case, we ultimately hold that the accused-petitioner should ex debito iustitiae be granted bail.

13. Before we part with the case, we must observe that the matter was ably argued by Sri Rajesh Chandra Ghosh, the learned Deputy Legal Remembrancer, West Bengal, as well as by Sri Prasun Chandra Ghosh, Advocate, appearing on behalf of the petitioner.

14. In the result, the application is allowed; and we direct that the accused-petitioner, Govind Prasad Lath, be released on bail to the satisfaction of the learned Chief Metropolitan Magistrate, Calcutta on condition:

(a) that he shall appear before Sri Shamser Singh Sohal, Judicial Magistrate, 1st Class, Ludhiana by Wednesday the 2nd April, 1975 or before any other learned Magistrate taking up the matter on the date;

(b) that he shall report compliance with the order passed by this Court before the learned Chief Metropolitan Magistrate, Calcutta, within seven days of such appearance;

(c) that during the period while the accused-petitioner will be on bail in Calcutta, he will afford all facilities to the investigating officer to complete interrogations; and

(d) that while on bail, he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the investigating officer or to the court.

15. Let the ordering portion go down immediately by special messenger at the cost of the petitioner and such costs are to be put in in course of the day.

16. Let plain copies of this order, countersigned by the Assistant Registrar (Court) of this Bench be given to the learned Advocates of the respective parties.

A.N. Banerjee, J.

17. I agree.


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