Decided on October 06,1950

STATE Respondents

Referred Judgements :-



DIXIT, J. - (1.)THIS reference arises out of a revision petition against an order dated 29.6.1950 of the Additional District Magistrate, Jhabua, cancelling the bail of the applicant Champalal and ordering his rearrest. The applicant Champalal was arrested on 9.10.49 in connection with offences under Sections 395, 307, 398, 126, 120(b), 148 and 332 read with Section 109 I.P.C. A challan against him for these offences was filed on 31.12.49 in the Court of the Additional District Magistrate, Jhabua. The accused then applied to the Magistrate as also to the Sessions Judge, Jhabua, for being released on bail, but his applications were rejected. Ultimately the applicant was ordered to be released on bail by my learned brother Mehta J. The order dated 23.5.1949 directing the release of the accused on bail also mentioned that: in case the accused applicant tries to tamper with the prosecution evidence for which there must be definite proof, the trial Court will be at liberty to cancel his bail bond. In accordance with this order the applicant was released on bail. But on 21.6.1950 the prosecution presented an application to the Additional District Magistrate, Jhabua for the cancellation of bail on the ground that the accused was tampering with the prosecution witnesses. The Additional District Magistrate after recording the evidence of some witnesses found that the applicant was tampering with the prosecution witnesses and on 29.6.50 ordered the cancellation of the bail and rearrested the applicant.
(2.)THE question, that arises for determination in this reference, and on which alone arguments were addressed at the Bar, is, whether in the above circumstances the Additional District Magistrate had the power to cancel the bail granted by this Court on finding that the accused was tampering with the prosecution witnesses. The contention of Mr. Hazarilal Sanghi, who appeared for the applicant, is that Sections 497 and 498 of the Criminal Procedure Code must be read together, and that, when a person is directed to be admitted to bail by this Court, the provisions of Sub -section 5 of Section 497 of the Code would apply and, therefore, the bail can be cancelled only by this Court. It was argued that Sections 497 and 498 of the Code do not confer on the Magistrate the power to cancel the bail granted by this Court and that when the Magistrate does not possess that power, no suggestion or direction given by this Court under Section 561A of the Code could confer on the Magistrate a power to cancel the bail granted by this Court. In support of his contentions Mr. Sanghi relies mainly on certain observations of their Lordships of the Privy Council in - Jairam Das v. Emperor A.I.R. 1945 P.C. 94. The observations on which reliance has been placed on behalf of the applicant are these: The High Court either does possess a power to grant bail in the given circumstances or it does not. If it possesses the power, it possesses it independently of any suggestion or direction given by their Lordships. If it does not possess, no suggestion or direction made or given by their Lordships could confer such a power. The Privy Council further observed in - Jairam Das v. Emperor, that: In truth the scheme of Chapter XXXIX is that Sections 496 and 497 provide, for the granting of bail to accused persons before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision. The only provision in the Code which refers to the grant of bail to a convicted person is to be found in Section 426.... Finally, their Lordships take the view that chapter XXXIX of the Code together with Section 426 is, and was intended to contain a complete and exhaustive statement o the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail.
The learned Advocate General, on the other hand, contends that Section 498 of the Code is quite independent of Section 497 and is not controlled by Section 497; that the power conferred by Sub -section 5 of Section 497 to cancel bail and rearrest of an accused is expressly limited to cases in which the accused has been released under Section 497 of the. Code and that Sub -section 5 of Section 497 does not apply to an accused person who has been released on bail under Section 498 of the Code. It was contended that as Section 493 of the Code does not make any provision for the cancellation of bail and as there is no special provision to the contrary, the High Court can under Section 561 of the Code make an order directing the cancellation of bail and rearrest of the accused person in order to see that the ends of justice are not defeated. It was said that in giving the liberty to the Magistrate to cancel the bail in the event of the accused person being found tampering with the prosecution witnesses the High Court has not in any way delegated its power to cancel the bail to the Magistrate or conferred power to the Magistrate which he did not possess but has simply made a conditional order of bail which was to be operative only so long as the accused did not indulge in certain specified activities and that such a qualified order of bail could be made by the High Court under Section 498 read with Section 561A of the Code.

(3.)IN dealing with the contentions of the learned counsel for the applicant and of the learned Advocate General, it is first necessary to examine the provisions of Sections 497 and 498 of the Cr.P.C. Section 497 deals with the powers of the trial Court to grant or refuse bail to persons accused of non -bailable offences. Sub -section 1 of this section refers to a stage when the accused is first brought before a Court. At this stage there is little or no evidence for a Court to act upon and the matter of granting bail to the accused is entirely in the discretion of the Court subject to the restriction that if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life, the accused shall not be released on bail except when the accused is a minor under sixteen years of age or a woman or a sick or an infirm person in which case he may be released on bail. If the accused is not released at the initial stage of his appearance in a Court, he can still be released subsequently during investigation, inquiry or trial if there are no reasonable grounds for believing that he has committed a non -bailable offence but there are sufficient grounds for further inquiry into his guilt. Then again if after the conclusion of the trial and before the delivery of the judgment the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any non -bailable offence, the Court must release the accused if he is in custody on the execution by him of a bond without sureties for his appearance ' to hear the judgment delivered. A person who has been released on bail under Section 497 can under Sub -section 5 of this section be arrested and committed to custody by the High Court or a Court of Session as well as by any other court if that other Court has ordered the release on bail. It is obvious from the provisions of Section 407 that it gives ample discretion to the trial Court to order release on bail in cases of non -bailable offences subject to the restrictions mentioned in Sub -sections 1, 2 and 4. The High Court has also the power to grant or revoke bail under Section 497 as a Court of revision under Section 439 of the Criminal Procedure Code.

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